BitTorrent Defendant’s Anonymity ​Preserved Throughout Extended Rule 45(d)(2)(B) Period

The court granted plaintiff’s motion to serve a Rule 45 subpoena upon a Doe defendant’s ISP prior to the Rule 26(f) conference but noted the importance of the defendant’s ability to remain anonymous until the defendant and the ISP could contest the subpoena. “Plaintiff has stated a prima facie claim of copyright infringement ‘sufficient for purposes of this motion and appears to have no other way of obtaining the identities of the alleged infringers.’ There is no way for the litigation to proceed unless Defendant can be identified. . . . [H]owever, there is a reasonable chance that the person responsible for the allegedly infringing conduct is not the person or entity whose name and address are associated with the IP address in the ISP’s billing records. . . . ‘This risk of false positives gives rise to the potential for coercing unjust settlements from innocent defendants . . . who want to avoid the embarrassment of having their names publicly associated with allegations of illegally downloading [pornographic films].’ . . . [Therefore,] I find it efficient and appropriate to put in place procedural protections now that will ensure Defendant’s ability to remain anonymous should Defendant or Defendant’s ISP wish to contest the subpoena. . . . Accordingly . . . [t]he Internet subscriber shall have forty-five days from the date of service of the subpoena upon him to file any motion with the Court to contest the subpoena, including any request to litigate the subpoena anonymously. The ISP shall not produce any subpoenaed information to Plaintiff during this period. . . . The ISP may also move to contest the subpoena, consistent with the usual requirements of Federal Rule of Civil Procedure 45. If it does so, it shall ensure that its filings do not disclose to Plaintiff any identifying information concerning the affected Internet subscriber.”

Strike 3 Holdings, LLC v. Unknown BitTorrent Users on the Attached List of IP Addresses, 1-18-cv-00471 (NYSD 2018-05-15, Order) (Vernon S. Broderick)

2018-05-17T12:27:02+00:00May 17th, 2018|Copyright, Docket Report|