Sony Music Entertainment v. Does

Citation: Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004).

Factual Background
Using a publicly available database and information gleaned from the P2P service “Fast Track,” the record companies were able to determine that Cablevision is the ISP for a number of Internet users believed to be using “Fast Track” to upload and download copyrighted recordings. But in order to determine the names and addresses of “Fast Track” users, the record companies had to sue them as “Does” and then serve a subpoena on Cablevision seeking that information.

Trial Court Decision
One of those sued as “Jane Doe” made a motion to quash the subpoena, arguing that it violates her First Amendment right to engage in anonymous speech. Judge Chin acknowledged that the First Amendment does protect anonymous speech. And he agreed with “Jane Doe” that uploading and downloading copyrighted recordings “qualifies as speech entitled to First Amendment protection.” Significantly, however, Judge Chin added, “That protection. . . is limited, and is subject to other considerations.”

To evaluate the record companies’ subpoena to Cablevision, the judge said that the First Amendment interests of “Jane Doe” must be balanced against the record companies’ “need for disclosure.” Judge Chin concluded that the record companies’ needs were weightier.

The judge identified five record company interests that lead to his conclusion: (1) the record companies had made a “concrete showing” of copyright infringement; (2) the subpoena was specific; (3) there were no other ways for the record companies to determine the identities of Cablevision’s subscribers; (4) the subpoenaed information was central to the record companies’ case, because without it, they could not serve the complaints they had filed; and (5) Cablevision subscribers “have little expectation of privacy in downloading and distributing copyrighted songs without permission,” because Cablevision’s own subscriber agreement informs subscribers that they may not transmit copyrighted material without authorization, and that Cablevision has the right to disclose subpoenaed information.

As a result, Judge Chin ordered Cablevision to respond to a subpoena served on it, as the Internet service provider for 40 suspected P2P users who have been sued for copyright infringement by the 17 record companies.