BitTorrent, the peer-to-peer (P2P) file-sharing system that enables the quick downloading of large files, has sparked another novel controversy stemming from copyright-infringement claims brought against its users. Users take advantage of the BitTorrent sharing system to anonymously access popular media such as books and movies. That anonymity is unlikely to last long for users who are alleged to have downloaded copyrighted material. Last month, Judge Sweet, a federal judge in the Southern District of New York (SDNY), held that an anonymous P2P user has no First Amendment right to quash a subpoena seeking her identity where the plaintiff had no other means to effectively identify the defendant.
In John Wiley & Sons Inc. v. Does Nos. 1-35, the plaintiff (Wiley), a publisher of books and journal articles, alleged that unidentified “John Does” used BitTorrent to illegally copy and distribute Wiley’s copyrighted works and infringe on Wiley’s trademarks. Wiley sued 35 defendants known only by their “John Doe Numbers” and Internet Protocol (IP) addresses. Seeking to identify the Does, Wiley moved for court-issued subpoenas to be served on various Internet service providers (ISPs), ordering them to supply identifying information corresponding to the Does’ IP addresses. In an attempt to maintain her anonymity and avoid liability, one of the 35 Does, then known only as John Doe No. 25 (“Doe 25”) or IP Address 188.8.131.52, moved to quash a subpoena served on her ISP, Time Warner Cable.
Wiley reflects a new wave of litigation in which copyright holders have shifted from suing host sites to focusing on individual users of P2P networks. The mere fact that copyrighted material is downloaded from a particular IP address may be insufficient to prove that the P2P network user is the infringer. An IP address typically provides only the location at which one of any number of devices may be used by any number of individuals (in fact, Doe No. 25 contended that her ex-husband, not she, downloaded the infringing works). If a motion to quash is granted, the account holder’s identity is not revealed, and the claim is effectively dead.
In considering whether to grant an anonymous account holder’s motion to quash a subpoena, courts balance the user’s First Amendment right to act anonymously with the plaintiff’s right to pursue its claims.
Anonymous users can rely on a line of precedent that extends the First Amendment’s protections to online expression. And under Rule 45 of the Federal Rules of Civil Procedure, a court must quash a subpoena if it requires disclosure of protected matter. Thus, to the extent that anonymity is protected by the First Amendment, courts will quash subpoenas designed to breach anonymity.
On the other hand, plaintiffs pursuing their claims can point to precedent holding that the First Amendment may not be used to encroach upon the intellectual property rights of others.
To balance these competing principles and determine whether certain actions trigger First Amendment protection, courts weigh the five factors set out in Sony Music Entertainment Inc. v. Does 1-40:
- whether the plaintiff has made a concrete showing of actionable harm;
- the specificity of the discovery request;
- the absence of alternative means by which to obtain the subpoenaed information;
- a central need for the data; and
- the party’s expectation of privacy.
In Wiley, each of these five factors weighed in favor of disclosure of the defendant’s identity. Wiley pled a sufficiently specific claim of copyright infringement, and, without a subpoena, Wiley would have no other effective way to identify potential infringers of Wiley’s intellectual property rights.
At least five other courts within the SDNY have denied motions to quash in similar litigations involving defendants accused of infringing Wiley’s copyrights via BitTorrent. Going forward, so long as copyright holders can satisfy the Sony five-factor test, they will be able to rely on cases like Wiley to ferret out copyright infringers.