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Via Fax (212) 805-7906 Hon. Denny Chin Daniel Patrick Moynihan United StatesCourthouse 500 PearlStreet,Room 1020 New York, New York 10007-1312 Re: 1:04-cv-00473-DC, SonyMusic Entertainment, et al v. Does 1-40 Inc. Dear JudgeChin Pursuant our telephone to discussions with chambers, Amici Public Citizen, Electronic Frontier Foundationandthe AmericanCivil LibertiesUnion submit this letter concerning Plaintiffs' exparte applicationto servediscoveryseekingthe identity of the unnamed defendants. This is an action for copyright infringementin which multiple music companies seek injunctive relief, damages feesand costsagainst40 anonymous completelyunrelated and and individuals. Amici presentthis letter to arguethat, notwithstanding seriousviolations of law the allegedin the complaint,plaintiffs havenot madea sufficient factual showingto warrant discoveryinto the identitiesof persons who havecommunicated anonymouslyover the Internet, including a showingthat thereis personal jurisdiction of eachof the 40 defendants that they and areproperlyjoined togetherin one action.Finally, we arguethat, in the eventsomediscoveryis to be allowed, certainadditionalconditionsshouldbe imposed. Exhibit A to the Complaintspecifiesthe InternetProtocol("IP") address that eachDoe allegedlyusedfor posting songson particulardates(rangingfrom JunethroughDecember2003), identifying betweenfive andten songsfor eachdefendant. Plaintiffs seekto imposeliability on eachof the 40 individuals individually - thereareno allegationsof joint or severalliability, and no claims for relief in the alternativeagainstany of them.Thereis alsono claim that the infringers actedpursuantto any commonplan or conspiracy, that their liability arisesout of a or commontransactionor occurrence. most,it is allegedthat therehavebeena seriesof At instances which eachindividual defendant usedthe facilities of a single InternetService in has Provider("ISP"), Cablevision,to displaytheir respective datafiles on the Internet. 1. Balancing the Right to Anonymous SpeechAgainst the Need for Disclosure. Plaintiffs arecorrectthat it is commonplace plaintiffs to be alloweddiscoveryat the outsetof for a lawsuit to identify otherwiseunknownpersonsallegedto have committeda legal wrong. But thereis a significant differencebetweenthis caseand the variouscases plaintiffs cite on page5 of their brief, whereprisonersor arrestees soughtto identify the prison or police officers who allegedlybeator otherwisemistreated them.The defendants here areaccused having engaged of in wrongful but anonymous speech the Internet,andbecause First Amendmentprotects on the the right to speakanonymously, subpoena their namesand addresses subjectto a a for is qualified privilege. The distribution, displayor perfonnanceof musicaland other creativeworks is, of course,speech protectedby the First Amendment,andthe Supreme Court'srulings on anonymous speechcommonlycite literary pseudonyms an exampleof our strongtradition of as anonymous speech. Although plaintiffs will arguethat thereis no First Amendmentright to infringe a copyright, at this stageof the caseno suchinfringementhasbeenestablish~ it is only alleged.Justas in other cases wherediscoveryseeksinformation that may be privileg~ the Court must considerthe privilege beforeauthorizingdiscovery. The tensionbetweenthis importantqualified privilege and the interestof a plaintiff who hasallegedwrongdoingin obtaininginfonnation needed pursuelitigation over alleged to
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wrongdoing,hasbeenconsidered a numberof federaland statecourtsover the pastseveral by years.Thesecourtshavewrestledwith the fact that, at the outsetof the litigation, the plaintiff has doneno more than allegewrongdoing,and a privilege is generallynot considered be to overcomeby mereallegations.They have further recognized that a seriouschilling effect on anonymous speech would result if Internetspeakers knew they could be identified by persons who merely allegewrongdoing,without necessarily having any intention of carrying through with actua1litigation.Indeed,plaintiffs' representatives haverepeatedly told the pressthat they do not necessarily want to pursuelitigation againstall anonymous sharers file whoseidentities they obtain. In order to balancetheseinterests, courtshave drawnby analogyfrom the balancing the testthat many courts,including the Second Circuit, haveadoptedin decidingwhetherto compel the disclosureof anonymous sources donors.Careyv. Bume, 492 F.2d 631 (D.C. Cir. 1974); or Cervantes Time,464 F.2d 986 (8thCir. 1972);Baker v. F&F Investment, v. 470 F.2d 778,783 (2d Cir.1972).Accordingly, the courtsthat haveconsidered questionhave adopteda severalthis part balancingtest to decidewhetherto compelthe identification of an anonymous Internet speaker that he may be servedwith process. so This test was most fully articulatedin Dendrite v. Doe, 775 A.2d 756 (N.J.App. 2001), which remainsthe only appellateopinion in the countryto facethe questionsquarely.Dendrite requiresthe would-beplaintiff to (I) usethe Internetto notify the accused the pendencyof the of identification proceedingand to explain how to presenta defense; quoteverbatimthe (2) statements allegedlyactionable;(3) allegeall elements the cause action; (4) present of of evidencesupportingthe claim of violation, and(5) showthe court that, on balanceand in the particularsof the case,the right to identify the speaker outweighsthe First Amendmentright of anonymity. Severalother courtshave similarly set forth requirements notice,review of the of complaint,andpresentation argumentand evidence of beforean ISP will be compelledto identify an Internetspeaker. example,in Melvin v. Doe, 49 Pa.D.&C.4th449 (2000), appeal For quashed,789 A.2d 696, 2001 Pa.Super. (200I), appealreinstated,836 A.2d 42 (pa. 2003), 330 the trial court allowed an anonymous defendant presentevidenceand seeksummaryjudgment, to orderingdisclosureonly after finding genuineissuesof material fact requiring trial. In reversing the denial of the defendant'sinterlocutoryappeal,the Pennsylvania Supreme Court discussed at length the conflict betweenthe right to speakanonymously the plaintiff's right to identify a and potential defendant, remanded consideration whetherevidenceof actualdamage and for of had to be presented beforethe right of anonymous speech could be disregarded. A.2d at 47-50. 836
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Similarly, in La SocieteMetro Cash& Carry France v. Time WarnerCable2003 WL 22962857(Conn. Super.),the court applieda balancingtest and considered evidencethat allegedlydefamatorystatements were falseand caused injury before decidingto allow discovery concerningthe identity of the speaker.In ColumbiaIns. Co. v. Seescandy.com, FRD 573 185 (N.D.Cal. 1999),the court requiredthe plaintiff to makea good faith effort to communicate with the anonymous defendants provide themwith notice that the suit had beenfiled against and them, thus assuringthem an opportunityto defendtheir anonymity,and also compelledthe plaintiff to demonstrate it had viable claims againstsuchdefendants. at 579. And in Re that Id. Subpoena America Online, 52 VaCir 26, 34 (Fairfax 2000), rev'd on other grounds, 542 SE2d to 377 (Va 2001),the court requiredintroductionof the allegedlyactionableInternetposting, and requiredthat it be "satisfiedby the pleadingsor evidencesupplied" that the subpoenaing party

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had a legitimatebasisto contendthat it wasthe victim of actionableconduct,"and. . . the subpoenaed identity infonnation [mustbe] centrallyneeded advance to that claim.l It is difficult to considerthe possibility that the filing of the Complaintby theserespected partiesmight not havebeenpreceded a meticulousinvestigation.On the other hand,it is not by difficult for the plaintiffs to presentsolid evidence, including an affidavit by the individual who examinedthe files availablefor downloadfrom eachdefendant'scomputer,listenedto the files, verified that they were copyrightedsongs,andchecked be surethat thosecopyrightswere to registered and are ownedby the plaintiffs, andto list in the affidavit or in an affidavit attachment the songsthat the Doe madeavailablefor download.The Whiteheadaffidavit in this caseis long on socialpolicy and very short on firSt personaverments aboutthe individual defendants this in case.Because casewill set a standard all plaintiffs who seekto identify anonymous this for Internetspeakers basedon claims of copyright infringement,including thosewho are less scrupulous and ethical thantheseplaintiffs, the Court shouldnot authorizea subpoena until such individualized evidenceis presented abouteachDoe. 2. Joinder. Plaintiffs haveviolated Rule 20, F.R. Civ. P., by joining all 43 defendants in a single action. The SecondCircuit requiresthat, for defendants bejoined in the samelawsuit, to they must be relatedto each other. In NassauCy.Ass'n of Ins. Agentsv. Aetna Life & Cas.,497 F.2d 1151(2d Cir. 1974),the court refusedto allow a classaction against164insurance companies accused antitrustviolations because on therewas "no allegationof conspiracyor other concertof action." Similarly, in Pergo v. A//oc, 262 F. Supp.2d122, 127-128(S.D.N.Y. 2003),the court refusedto allow a plaintiff to join in the sameaction different defendants that had allegedlyviolated the samepatents,because "there areno allegationsof any cooperativeor collusive relationshipbetweenthe two setsof defendants."Another trial court in the Second Circuit similarly refusedto allow suit against104defendants who usedalteredconvertersto steal televisionprogrammingfrom plaintiff's cableboxes,"in the absence any claim that the of defendants conspiredor actedjointly." Te/emedia v. Antidonni, 179F.RD. 75, 76 (D. Conn. Co. 1998). Our concernthat comersmight be cut if hundreds otherwiseunrelateddefendants of are joined in a single action is heightenec1 the mannerin which plaintiffs have soughtleaveto by pursuediscoveryin this case.Plaintiffs' affidavit attaches hundreds pagesconcerningthe of music files madeavailableby threeof the 40 defendants tells the Court that although and comparable evidencecould be madeavailablewith respectto eachof the other defendants, it would be too burdensome do so. However,althoughthe courtsexist to implementbroadand to importantpublic policies,they do so by meting out individual justice. To be sure,it is more convenientto presentevidenceaboutonly a few of the accused beforeobtaining discoveryabout all of them.but if it is importantenoughto sueall of them,it shouldbe important enoughto presentsufficient evidenceto justify discoveryidentifying eachone of them. In a highly analogous context,severaldistrict courtshaverefusedto allow the DirecTV companyto suehundredsof otherwiseunrelatedindividuals for using "pirate access boxes" to obtain satellite signalswithout paying for them! Stealingsatellitesignalsis at leastas I The argwnent for a balancing test is more fully developed at http://www.citizen.ofg/ docurnents/Mel vin%202. pdf. 2 The cases collectedat the web pagehttp://www.directvdefense.ofg/files/ caption are (see "Severance"). Accord Movie Systems Abel, 99 F.R.D. 129(D. Minn. 1983)(denyingjoinder of v. 1,798defendants who had allegedlyall infringed the sametelevisiondistributor'sbroadcasts

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reprehensible making music files availablefor download,but thesedistrict judges refusedto as be stampeded claims of convenience needfor immediateaction into allowing all by and defendants bejoined in one action'for the administrationof mass to justice. The sameprinciple appliedto the accused copyright infringers in this case. 3. PersonalJurisdiction. One of the showingsthat plaintiffs havefailed to make with respectto most of the defendants that the Court haspersonal is jurisdiction of eachof the 40 defendants. Under the sliding scaleor "Zippo" analysisthat hasbeenadopted the federal by courtsfor Internetjurisdiction, (namedafter Zippo Mfg. Co. v. Zippo Dot Com,952 F. Supp. 1119(W.D. Pa. 1997»,defendants who passivelypost information on the Internetfor othersto examineand copy are not subjectto personal jurisdiction basedon their Internetpostings,while defendants whoseInternetsitesarecommercially"interactive," in the sense that they usetheir sitesto engage business in transactions, subjectto being suedin any statein which a are substantial numberof business transactions occur.Along this continuum,the greaterthe degree of commercialinteractivity, the greaterthe liability for suit in a foreignjurisdiction. E.g., ALS Scanv. Digital ServiceConsultants, 293 F.3d 707 (4thCir. 2002);NeogenCorp. v. Neo Gen &reening, 282 F.3d 883 (6thCir. 2002); Mink v. AAAA Development,190F3d 333 (5thCir. 1999). The SecondCircuit hasneverexpresslyadoptedthis sliding scaleanalysis,but several decisionsin this District haveadoptedit.3 Moreover,in Bensusan RestaurantCorp. v. King, 126F.3d 25 (2nd Cir. 1997),the court of appeals refusedto find that a website that infringed the trademarkof a New York cafeowner constitutedtortious action in New York underthe state long-armstatute.
functioning in a manner comparable to a website - they have opened a section of their personal

The defendants this casedo not havewebsites, their computers allegedto be in but are

computers the Internetin a mannerthat pennits otherpersonswith personalcomputers to to obtain files storedon thosecomputers downloadthem without charge.Therefore,defendants and cannotbe found at the "commercially interactive" end of the sliding scale,and the mere fact that the dataon their computers be accessed othersand downloadedin New York is not a can by sufficient basisfor subjectingthem to suit here. Moreover,althoughthe Complaintallegesandthe WhiteheadAffidavit aversthat the IP numbersthat eachof the defendants allegedto haveusedto post infringing material canbe is tracedto a single ISP, Cablevision,which "can be found" in New York, standard tools for tracing the InternetProtocol addresses, which were readily availableto Plaintiffs beforethey filed suit, indicatethat many of the 40 defendants not residein the SouthernDistrict of New do York.4 Accordingly, on the faceof the complaint,it appears many of the defendants not that are because, "althoughtherewere commonpracticesandperhaps commonquestionsof law," the independent defendants not actedjointly). had 3 In re Ski Train Fire, 2003 WL 22909153(S.D.N.Y. 2003) ("It is well settledthat a court must examine the nature and quality of a defendant'sactivity on its website to detennine whether jurisdiction is appropriatein New York."); Citigroup v. City Holding Co., 97 F.Supp.2d549 (S.D.N.Y. 2000) (endorsingZippo cOntinuumand finding personaljurisdiction basedon highly interactive,commercialwebsiteon which NY customerscould apply for loans and chat with a lending representative); K.C.P.L., Inc. v. Nash, 1998 WL 823657 (S.D.N.Y. 1998) (endorsing Zippo continuum and declining to find personaljurisdiction over defendantwho merely owned domainnameReaction.com).
4 Amici canpresent affidavitdescribing an these standard tracingtechniques whatthey and

revealaboutthe probablelocation of the 40 defendants the court's request.The plaintiffs at

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subjectto jurisdiction in New York. Thereis no basisfor this Court to compelthe ISP to identify defendants whom the Court doesnot havepersonal of jurisdiction. Accordingly, if any subpoenas to be issued,they shouldonly requireCablevisionto specify the statesin which are eachdefendant resides,so that Plaintiffs canrefile this action againstsuchindividuals in the properjurisdictions. . 4. Procedure for Subpoenas.Evenassuming that the Court concludes that it should allow someor all of the discoveryrequested plaintiffs, we suggest by that the Court better ensure that the Doeshavea realistic opportunityto object if they chooseto do so. While we applaud plaintiffs for recognizingthat an ISP shouldbe allowed sufficient time to notify its subscribers that their identifies are at issue,so that, if they choose, Doescanoffer evidenceor argument the in defense their anonymityunderthe Dendrite standard. Mem. at 7 n4. We question, of Pl. however,whetherfifteen daysfrom the dateof the subpoena a sufficient amountof time to is allow eachdefendantto receivethe requisitenotice from the ISP and to allow that defendant, particularly a defendantwho may be locatedoutsideNew York, to obtain an attorneywho is licensedto practicein this District, and to allow that attorneyto preparea motion to quashif one canbejustified. We suggest that the Court address issuein its order,by directing the ISP to this provide notice within sevendaysof its receiptof the subpoena eachpersonandto allow the to defendants fourteendays from the time notice was receivedto file a motion to quash. In urging suchadditionaltime, we arenot insensitiveto plaintiffs' concernsaboutthe needfor immediateaction lest information containedin the ISP's electronicrecords,showing which of its customers usedwhich IP numbersat which times. We suggest that the Court require the ISPsto preservethat information pendingthis Court's ruling on whetherit may pursue discovery,and,if a subpoena served,pendingdispositionof any timely filed motion to quash. is . CONCLUSION Amici respectfully request that the motion for expediteddiscovery be consideredand resolvedin accordance with the principles setforth above. R~fu\ly
Paul Alan Levy (DC Bar No. 946400)

Wendy Seltzer (WS-4188)

CharlotteGarden Public Citizen Litigation Group 1600 20thStreet,N.W . Washington,D.C. 20009 (202) 588-1000 Attorneys for Public Citizen

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~ ~~ ~,,*.'\. Cindy Cohn 454 Shotwell Street SanFrancisco, 94110 CA Telephone: (415) 436-9333 Facsimile: (415) 436-9993 Attorneysfor ElectronicFrontier Foundation

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ChristopherA. Hansen Aden J. Fine AmericanCivil Liberties Union 125Broad Street New York, NY 1004-2400 (212) 549-2500 (212) 549-2651(fax) Attorneys for American Civil Libertl--es themselves obliquely acknowledge jurisdiction may not be properfor all of the 40 that defendants. Motion, footnote4. Pl.

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cc:

J. ChristopherJensen JasonDavid Sanders Cowan,Liebowitz & Latman,P.C 1133Avenueof the Americas New York, NY 10036 (212) 575-0671(fax) Jonathan Schwartz D. ExecutiveVice President and GeneralCounsel CablevisionSystems Corp. 1111StewartAvenue Bethpage, NY 11714-3581 (516) 803-1129(fax)