E-SIN: Court Orders Identification of Suspected Porn Pirates

“Anonymous” copyright infringers — in this case the downloaders of a pornographic video — should take note of a recent decision. In what is becoming increasingly common, a court was recently asked by a copyright holder to issue an order requiring non-party Internet Service Providers (“ISP”) to identify individual Internet users for purposes of filing a copyright lawsuit against them pursuant to 17 U.S.C. § 101 et seq.

In Digital Sin, Inc. v. John Does 1-176, 12-cv-00176 (S.D.N.Y., Jan. 30, 2012), Plaintiff, a producer of digital porn, in this case “My Little Panties #2,” sought and obtained Internet Protocol (“IP”) addresses from which their video had been illegally downloaded and shared by a “swarm” or group of interacting users — 176 IP addresses in all. After filing suit against 176 John Doe defendants in the Southern District of New York, Digital Sin filed a motion for expedited discovery, seeking access from the ISPs to the names as well as the e-mail, physical and Media Access Control addresses of the individuals connected to those IP addresses.

District Judge Alison J. Nathan found “good cause” for Digital Sin’s request under Fed. R. Civ. P. 26(d) and (f) to issue pre-meet and confer Rule 45 subpoenas so as to avoid the federal law, 47 U.S.C. § 551(c), barring ISPs from disclosing the identities of putative defendants without a court order. Judge Nathan determined that expedited discovery was necessary to prevent the requested data from being lost as a part of the routine deletions by ISPs.

However, due to the sensitive nature of the matter and the potential for annoyance and embarrassment of the identified individuals (many of whom may not even have been the ones that actually downloaded and shared the pornographic video), the Court also issued a protective order allowing the putative defendants and ISPs to be heard before information could be revealed to Digital Sin. Specifically, the Court ordered that the ISPs were prohibited from producing the Doe Defendants’ identifying information before the expiration of a 60-day period during which the John Does could move to quash the subpoena. In an unusual twist, the Court also allowed anyone who moved to quash or modify the subpoena to proceed anonymously if they wished.

There are at least two important take aways from the Digital Sin decision. First, courts will not hesitate to order non-parties to disclose electronic information that is relevant to the litigation at hand, including for purposes of identifying putative defendants who may have broken the law. Second, depending on the subject matter, courts will also be sensitive to the risk of mis-identification or misuse of such information and will therefore attempt to minimize any potential harm to innocent parties.