Court denies anonymous motion to quash subpoena in BitTorrent copyright case

First Time Videos v. Does 1-18, 2011 WL 4079177 (S.D. Indiana, September 13, 2011) Plaintiff owns the copyright in an adult film that a swarm of anonymous "Doe" BitTorrent users allegedly traded. So plaintiff filed suit for infringement in the U.S. District Court for the Southern District of Indiana and issued subpoenas to the internet service providers associated with the IP addresses of the unknown Doe defendants. After one of the Doe defendant's ISP, Insight Communications, put her on notice that the ISP was about to turn over her account information to plaintiff's lawyer, Doe filed a motion to quash the subpoena. The court denied the motion. Doe had raised several common arguments in support of the motion to quash. But the court rejected each of these: Plaintiff had no protectable privacy interest in her ISP account information because that was held by a third party, namely, the ISP. Moreover, the court found that a subscriber has no privacy interest when there is an allegation of copyright infringement. (It would have been nice had the court put the words "valid" or "prima facie" before the word "allegation," but alas, it did not.) Responding to the subpoena was not unduly burdensome to Doe. The burden, if any, in responding to the plaintiff's subpoena, would fall onto the ISP, not the anonymous defendant. The fact that Doe denied involvement with trading porn files did not matter at this stage in the litigation. The court held that the question of liability for copyright infringement should be determined when the parties are properly brought into the suit. So the court concluded that the anonymous Doe BitTorrent user should be identified.

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