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Hide and Seek: Plaintiff Permitted to Subpoena Internet Service Provider to Identify Alleged Infringers

Recently, E.D.N.Y. Magistrate Judge Steven M. Gold ordered that a third-party subpoena may be served upon an internet service provider (“ISP”) to identify information about network users who allegedly infringed copyrighted material.

In UN4 Productions, Inc. v. Doe—173.68.177.95, et al., plaintiff, a film production and distribution company, filed a copyright infringement action against fourteen Doe defendants, alleging that the Doe defendants unlawfully downloaded and distributed copies of plaintiff’s copyrighted work through a peer-to-peer or “P2P” system. Plaintiff, however, only could identify the Doe defendants by their Internet Protocol (“IP”) address, not by their names. Unable to identify the Doe defendants and effect service of process, plaintiff moved to expedite discovery prior to a Rule 26(f) conference and serve third-party subpoenas on the ISPs associated with the IP addresses, in order to ascertain the true names and addresses of the Doe defendants.

The Court granted plaintiff’s motion for leave to take discovery prior to holding a Rule 26(f) conference, holding that plaintiff satisfied the requirement permitting a party in a copyright infringement case to take limited discovery before participating in a Rule 26(f) conference. Accordingly, plaintiff was permitted to immediately serve the Doe defendants’ ISPs with subpoenas commanding the ISPs to provide plaintiff with the true name, address, and email address of each subscriber.

Citing a five-factor test articulated previously by the Second Circuit, the Court found plaintiff: (1) adequately alleged a prima facie claim for copyright infringement; (2) sought information sufficiently limited, specific, and narrowly tailored to further its objective of identifying and effecting service on the Doe defendants; (3) demonstrated it did not have any alternative means to obtain the names and addresses of the Doe defendants; (4) reasonably argued that it could not litigate its claims without ascertaining the identity and address of each Doe defendant; and (5) established that any expectation of privacy in the Doe defendants had in remaining anonymous was outweighed by plaintiff’s intellectual property rights.

The Court noted that in similar cases plaintiffs have been restricted from obtaining Doe defendants’ email addresses, but it did not impose any such limitation. Instead, the Court permitted the disclosure of the Doe defendants’ email addresses, noting that an individual’s last known address is not always genuine and accurate and service by email could be the only way to serve the Doe defendants. The Court did limit, however, the review of the information produced by the ISPs to plaintiff’s attorneys and ordered that the information not be disclosed to plaintiff unless the disclosure was made to effect service of process. Additionally, the Court ordered that the subpoenas include language requiring the ISPs to immediately notify subscribers of the IP address whose information was to be released so that the subscribers would have an opportunity to file objections or motions to quash with the Court.

UN4 Production is not the first time that a copyright plaintiff has been permitted to serve an ISP to ascertain the identity of a copyright defendant. Rather, it is the latest in a series of cases that have made it significantly more difficult for alleged copyright infringers to maintain their anonymity.

© 2017 Proskauer Rose LLP.

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About this Author

Brittany Benavidez, Proskauer Law Firm, Litigation Attorney
Law Clerk

Brittany Benavidez is an associate in the Litigation Department.

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