604 F.3d 110 (2nd Cir. 2010), 09-0905-cv, Arista Records, LLC v. Doe 3

Docket Nº:09-0905-cv.
Citation:604 F.3d 110
Opinion Judge:KEARSE, Circuit Judge:
Party Name:ARISTA RECORDS LLC, a Delaware limited liability company; Atlantic Recording Corporation, a Delaware Corporation; BMG Music, a New York general partnership; Capitol Records, LLC, a Delaware limited liability company; Elektra Entertainment Group Inc., a Delaware corporation; Interscope Records, a California general partnership; Maverick Recording Co
Attorney:Timothy M. Reynolds, (Katheryn J. Coggon, Thomas M. Kerr, Holme Roberts & Owen, Denver, CO, on the brief), for Plaintiffs-Appellees. Richard A. Altman, New York, NY, for Defendant-Appellant.
Judge Panel:Before: KEARSE, KATZMANN, and LIVINGSTON, Circuit Judges.
Case Date:April 29, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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604 F.3d 110 (2nd Cir. 2010)

ARISTA RECORDS LLC, a Delaware limited liability company; Atlantic Recording Corporation, a Delaware Corporation; BMG Music, a New York general partnership; Capitol Records, LLC, a Delaware limited liability company; Elektra Entertainment Group Inc., a Delaware corporation; Interscope Records, a California general partnership; Maverick Recording Company, a California joint venture; Motown Record Company, L.P., a California limited partnership; Sony BMG Music Entertainment, a Delaware general partnership; UMG Recordings, Inc., a Delaware corporation; Virgin Records America, Inc., a California corporation; Warner Bros. Records Inc., a Delaware corporation; and Zomba Recording LLC, a Delaware limited liability company, Plaintiffs-Appellees,

v.

DOE 3, Defendant-Appellant,

Does 1-2 and Does 4-16, Defendants.

No. 09-0905-cv.

United States Court of Appeals, Second Circuit.

April 29, 2010

Argued: Nov. 20, 2009.

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[Copyrighted Material Omitted]

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Timothy M. Reynolds, (Katheryn J. Coggon, Thomas M. Kerr, Holme Roberts & Owen, Denver, CO, on the brief), for Plaintiffs-Appellees.

Richard A. Altman, New York, NY, for Defendant-Appellant.

Before: KEARSE, KATZMANN, and LIVINGSTON, Circuit Judges.

KEARSE, Circuit Judge:

Defendant " Doe 3," whose identity is not known to plaintiffs Arista Records LLC et al., appeals from an order of the United States District Court for the Northern District of New York, Glenn T. Suddaby, Judge, rejecting Doe 3's objections to the denial by United States Magistrate Judge Randolph F. Treece of Doe 3's motion (originally brought by other anonymous defendants) to quash a subpoena served on his Internet service provider to obtain information sufficient to disclose his identity. The magistrate judge ruled that defendants' qualified First Amendment right of anonymity was outweighed by, inter alia, plaintiffs' allegations that defendants were downloading and/or distributing music over the Internet in violation of plaintiffs' copyrights and plaintiffs' need for the information in order to enforce their rights. On appeal, Doe 3 contends principally that the allegations in the Complaint are not sufficient to overcome his First Amendment right of anonymity; in addition, he

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contends that the reference of his motion to the magistrate judge and the district judge's review of the magistrate judge's decision were procedurally flawed. Finding no merit in Doe 3's contentions, we affirm.

I. BACKGROUND

Plaintiffs are recording companies that commenced the present action in July 2008, alleging that 16 defendants-known to plaintiffs at that time not by name but only by the Internet Protocol (" IP" ) addresses assigned to them at certain specific times by their Internet service provider (" ISP" )-had infringed plaintiffs' copyrights by, without plaintiffs' permission or consent, downloading and/or distributing to the public various music recordings through an online file-sharing network. ( See Complaint ¶ ¶ 18, 22.) File-sharing (or " peer-to-peer" or " P2P" ) networks allow users to exchange files directly between their computers without intermediate servers. Attached to the Complaint is an " Exhibit A" listing for each " Doe" defendant, inter alia, his or her IP address at a stated date and time, the name of the file-sharing network used (" Gnutella" or " AresWarez" ), the titles of 6-10 songs downloaded from the IP address, and, for each song, which plaintiff was the copyright owner. The Complaint requests, inter alia, damages and injunctive relief prohibiting further direct and indirect infringement of plaintiffs' copyrights.

In order to identify the defendants, plaintiffs sought authorization to serve a subpoena on defendants' common ISP, the State University of New York at Albany (" SUNYA" ), for disclosure of each defendant's name, current and permanent address, telephone number, email address, and Media Access Control address identifying the device engaged in the online communication. In support of their subpoena request, plaintiffs submitted a July 8, 2008 declaration by Carlos Linares (" Linares Decl." ), Vice President for Anti-Piracy Legal Affairs, Recording Industry Association of America, Inc. (" RIAA" ), who was responsible for the collection of facts alleged in the Complaint's Exhibit A. Linares described, inter alia, the retention of a third-party investigator that had proceeded to detect numerous copyrighted music files in the various Doe defendants' file-sharing folders on peer-to-peer networks, including the songs listed in Exhibit A, and he described the RIAA's review of the investigator's evidence to verify that each individual was infringing. ( See Linares Decl. ¶ ¶ 11, 14-15, 18-19.) The court issued the subpoena but required SUNYA to " notify each Doe Defendant that it intends to disclose the requested ISP identifying information to Plaintiffs; and ... send to each Doe Defendant a copy of the subpoena...." Order dated July 22, 2008, at 2.

Thereafter, plaintiffs voluntarily dismissed the action against most of the defendants. The remaining defendants, eventually including Doe 3, moved to quash the subpoena or, in the alternative, to have the court order a severance requiring that each defendant be sued separately. In support of the motion to quash, these defendants argued that the First Amendment affords a qualified right to use the Internet anonymously and that the court that has issued a subpoena must quash or modify the subpoena when it " requires disclosure of privileged or other protected matter, if no exception or waiver applies," Fed.R.Civ.P. 45(c)(3)(A)(iii). While acknowledging that " [t]he First Amendment right to communicate anonymously is, of course, not a license to ... infringe copyrights," the moving defendants argued principally that their privilege " can only be overcome by a substantial

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and particularized showing," sufficient to " plead a prima facie case of copyright infringement." (Amended Memorandum of Law of Doe Defendants 3, 7, 11, and 15 in Support of Motion To Quash (" Does' Amended Memorandum" ) at 10 (internal quotation marks omitted).) They argued that the Complaint " fall[s] far short of that showing." ( Id. )

The moving defendants argued that-in accordance with what they characterized as " the heightened pleading standards imposed since ... Bell Atlantic [Corp.] v. Twombly, [550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929] (2007)" (Does' Amended Memorandum at 15)-in order to overcome the First Amendment privilege, " plaintiffs must state, on personal knowledge, a specific claim for copyright infringement against each and every Doe defendant" ( id. at 13-14). The moving defendants contended that plaintiffs were required

to present specific evidence, including a declaration from whoever examined the files available for download from each defendant's computer, listened to the files, verified that they were copyrighted songs, determined that the copyrights were registered (and to which plaintiffs), to list the songs that a particular defendant made available for download, and to annex corresponding copyright registration certificates for the songs.

( Id. at 14.) They also argued that the Complaint " fails to allege any actual distribution of song files to the public" and hence " does not state a claim upon which relief can be granted," id. at 17; and that " [i]n addition to establishing that [plaintiffs'] action can withstand a motion to dismiss for failure to state a claim," plaintiffs, in order to secure disclosure of the Doe defendants' identities, " must produce sufficient evidence supporting each element of" their claims, id. at 12 (emphasis and internal quotation marks omitted).

As amended, defendants' notice of motion stated that the motion to quash would be returnable before District Judge Suddaby. However, the motion was referred to Magistrate Judge Treece.

A. The Magistrate Judge's Denial of Defendants' Motion To Quash

In a Memorandum Decision and Order dated February 18, 2009, see Arista Records LLC v. Does 1-16, No. 1:08-CV-765 (GTS/RFT), 2009 WL 414060 (N.D.N.Y. Feb. 18, 2009) (" Arista I " ), the magistrate judge denied the motion to quash the subpoena. Noting the need to balance " the modest First Amendment right to remain anonymous" against " a copyright owner's right to disclosure of the identity of a possible trespasser of its intellectual property interest," Arista I, 2009 WL 414060, at *3, the magistrate judge looked to the five-factor test set out by then-District Judge Denny Chin in Sony Music Entertainment Inc. v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y.2004) (" Sony Music " ), and evaluated the defendants' expectation of privacy, the prima facie strength of plaintiffs' claims of injury, the specificity of the discovery request, plaintiffs' need for the information, and its availability through other means.

The magistrate judge found that all five factors counseled against quashing the subpoena. He noted that plaintiffs had sufficiently pleaded copyright infringement claims, alleging ownership of the copyrights, copying, and distribution of the protected works by the Doe defendants without the consent of the owners. See Arista I, 2009 WL 414 060, at *1, *5. The court also noted that plaintiffs' allegations of distribution were supported by Exhibit A to the Complaint, specifying their investigator's " sampl[ing of] some of the downloads from shared folders," id. at *5. The magistrate judge also found that the disclosure

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request was reasonable in scope, that identification of the alleged infringers was indispensable for the vindication of plaintiffs' copyright rights, and that the identifying information was unavailable through alternative means.

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