John W. Darrah
A production company has won a skirmish in its battle to learn the names of Internet users it contends illegally downloaded the action movie “American Heist.”
In a written opinion this week, U.S. District Judge John W. Darrah declined to quash a subpoena that Glacier Films (USA) Inc. issued to Comcast Cable Communications seeking the identity of defendant John Doe #7.
Glacier sued Doe and 28 other people — the company has since voluntarily dismissed five of the defendants — alleging they joined together to infringe on Glacier’s copyright to “American Heist.”
Glacier identified the defendants by their Internet protocol, or IP, addresses.
The company then subpoenaed Internet service providers seeking the names and current addresses of the customers using the IP addresses.
In a motion to quash, Doe argued the subpoena for his or her name and address requires Comcast to comply beyond the 100-mile limit set in Federal Rule of Civil Procedure 45(c)(3)A)(ii) for nonparties.
Comcast’s custodian of records is in Springfield, which is 208 miles from Doe’s lawyer in Rolling Meadows.
Citing cases that included Sunlust Pictures LLC v. Does 1 - 75, 12 C 1546, 2012 WL 3717768 (N.D. Ill. Aug. 27, 2012), Darrah wrote that a defendant “cannot claim an undue burden from a subpoena directed at a third party.”
However, a defendant may object to a subpoena directed at a third party if the defendant has “a personal right or privilege regarding the documents sought,” Darrah wrote, quoting Countryman v. Community Link Federal Credit Union, No. 11 C 136, 2012 WL 1143572 (N.D. Ind. April 3, 2012).
He held that Doe does not have a right to keep the information sought by Glacier private.
Doe had to reveal his or her identity in order to establish an account with Comcast, Darrah wrote.
Under that circumstance, he wrote, quoting Hard Drive Productions v. Does 1-48, No. 11 C 9062, 2012 WL 2196038 (N.D. Ill. June 14, 2012), Doe and other Internet subscribers “do not have a reasonable expectation of privacy in their subscriber information.”
Although Darrah’s ruling applies only to Doe, the judge likely would use the same analysis in deciding any motions to quash filed by Doe’s co-defendants.
Glacier is represented by Todd S. Parkhurst and Michael A. Hierl, both of Hughes, Socol, Piers, Resnick & Dym Ltd.
They declined to comment because the case is pending.
The lead attorney for Doe is Joseph P. Selbka of Waltz, Palmer & Dawson LLC in Rolling Meadows. He could not be reached for comment.
Glacier’s lawsuit accuses the defendants of using BitTorrent technology to illegally acquire and transfer “American Heist” online.
BitTorrent allows a “swarm” of users to anonymously exchange pieces of the same file among themselves until they have each obtained the entire file.
“American Heist” was released this year in the United States. Its stars include Hayden Christensen, Adrien Brody and Jordana Brewster. It is a remake of the 1959 film “The Great St. Louis Bank Robbery.”
In his opinion, Darrah also denied Doe’s motion to dismiss the suit for improper joinder.
Darrah conceded the courts are divided over whether defendants may be joined in the same suit based only on their purported participation in the same BitTorrent swarm.
Deciding Doe’s motion to dismiss requires him to determine whether members of a swarm who download the same file are taking part in “the same transaction, occurrence or series of transactions and occurrences,” Darrah wrote, quoting Rule 20(a)(2)(A).
All that is required, he wrote, citing Zambezia Film Pty Ltd. v. Does 1-65, No. 13 C 1321, 2013 WL 46--385 (N.D. Ill. Aug. 29, 2013), “is that there is a logical relationship between the separate causes of action” against the individual defendants.
Glacier has alleged such a relationship, Darrah held, with its contention that “each defendant downloaded and uploaded the same copyrighted work in the same swarm.”
He issued his opinion Tuesday in Glacier Films (USA) Inc. v. Does 1-29, No. 15 C 4016.