Kearse, Amalya L., United States Circuit Judge
In
a copyright infringement claim, the 2nd Circuit upheld the Magistrate Judge's ruling that defendants were not entitled to
protection of their identities when the claims against them are plausible. Plaintiffs in this action alleged that
defendants downloaded and distributed various recordings copyrighted by
plaintiffs. In order to discover the
identities of defendants, plaintiffs sought, and received, a subpoena allowing
them to recover names and other personal information regarding the defendants. Defendants moved to quash the
subpoena, arguing that the First Amendment affords the qualified right to
internet anonymity unless an exception applies. The court held that there was such a right, but that First Amendment
protections do not extend to cases involving plausible claims of copyright
infringement.
v.
DOE 3, Defendant–Appellant,
Does 1–2 and Does 4–16, Defendants
Counsel
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.
Opinion
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.
(1) [the] concrete[ness of the plaintiff's] showing of a prima facie claim of actionable harm, ... (2) [the] specificity of the discovery request, ... (3) the absence of alternative means to obtain the subpoenaed information, ... (4) [the] need for the subpoenaed information to advance the claim, ... and (5) the [objecting] party's expectation of privacy.
to present specific evidence, including a declaration on personal knowledge from the person who 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), and determined what songs a particular defendant downloaded

[E]specially relevant in determining whether [a given] use was fair are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; [and] (4) the effect on the potential market for or value of the copyrighted work.