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Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA







No. 1:12-mc-00150-ESH-AK





Plaintiff,




MILLENNIUM TGA, INC.,


v.

JOHN DOE,






Defendant.









NON-PARTY COMCAST CABLE COMMUNICATIONS, LLC’S
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S

MOTION TO COMPEL COMPLIANCE WITH SUBPOENA











































March 26, 2012

John D. Seiver
Leslie G. Moylan
Lisa B. Zycherman
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Ave., N.W., Suite 800
Washington, DC 20006
(202) 973-4200

Attorneys for Non-Party Comcast Cable
Communications, LLC



Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 2 of 28

TABLE OF CONTENTS



A.
B.

TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION AND FACTUAL BACKGROUND ................................................................ 1
ARGUMENT .................................................................................................................................. 3
Legal Standard .........................................................................................................3
This Court Lacks Personal Jurisdiction Over the Majority of Potential
Doe Defendants Identified in the Subpoena ............................................................5
Joinder of the Doe Defendants is Improper ...........................................................13
Permitting Discovery of Comcast in This Action Would Encourage
Forum Shopping and Risk Other Ill Effects ..........................................................18
Even if Compliance with the Subpoena is Ordered, the Court Should
Allow a Reasonable Time for Compliance ............................................................19
CONCLUSION ............................................................................................................................. 20




C.
D.

E.



i

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 3 of 28












FEDERAL CASES

TABLE OF AUTHORITIES







Page(s)







790 F.2d 119 (D.C. Cir. 1986) ...........................................................................................18

No. 07-CV-2828, 2008 U.S. Dist. LEXIS 90183 (N.D. Ohio Nov. 3, 2008) ....................15

No. 11-03770, 2011 U.S. Dist. LEXIS 120257 (N.D. Cal. Oct. 18, 2011) .......................11

No. C 11-2834 [Doc. No. 12], (N.D. Cal.) ..................................................................13, 17

471 U.S. 462 (1985) ...........................................................................................................10

770 F. Supp. 2d 332 (D.D.C. 2011) .......................................................................11, 12, 15


Abex Corp. v. Maryland Cas. Co.,


Arista Records, LLC v. Does,


Berlin Media Art v. Does 1-654,


Boy Racer, Inc. v. Does 2-52,


Burger King Corp. v. Rudzewicz,


Call of the Wild Movie, LLC v. Does 1-1,062,


Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC,


Central Freight Lines, Inc. v. APA Transp. Corp.,


CP Prods., Inc. v. Does 1-300,


Diabolic Video Prods., Inc. v. Does 1-2099,


DigiProtect USA Corp. v. Does 1-240,


DigiProtect USA Corp. v. Does 1-266,



Digital Sin, Inc. v. Doe,






ii

148 F.3d 1080 (D.C. Cir. 1998) ...........................................................................................4

322 F.3d 376 (5th Cir. 2003) ...............................................................................................7

No. 10 C 6255, 2011 WL 737761 (N.D. Ill. Feb. 24, 2011) ..............................................10

No. 10-CV-5865, 2011 WL 3100404 (N.D. Cal. May 31, 2011) ......................................13

No. 10-cv-8760, 2011 WL 4444666 (S.D.N.Y. Sept. 26, 2011) ...................................9, 13

No. 10-cv-8759, 2011 WL 1466073 (S.D.N.Y. Apr. 13, 2011) ........................................10

No. C 11-04397, 2011 U.S. Dist. LEXIS 128033 (N.D. Cal. Nov. 4, 2011) .....................14

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 4 of 28

477 F.2d 1251 (D.C. Cir. 1973) .........................................................................................18

Eisel v. Secretary of Army,


Exponential Biotherapies, Inc. v. Houthoff Buruma N.V.,


Frass v. Southern Pac. Transp. Co.,


Funimation Entm’t v. Does 1-1,337,


638 F. Supp. 2d 1 (D.D.C. 2009) .........................................................................................5

810 F. Supp. 189 (S.D. Miss. 1993).....................................................................................7

No. 3:11-cv-00147, Order Vacating the Court’s Order Granting Plaintiff’s Motion
for Leave to Take Discovery Prior to Rule 26(f) Conference and Order to Show
Cause [Doc. No. 6], (N.D. Tex. Feb. 7, 2011) ...................................................................11

629 F.2d 637 (9th Cir. 1980) ..............................................................................................5

809 F. Supp. 2d 1150 (N.D. Cal. 2011) .................................................................11, 13, 14

No. 11cv345, 2011 U.S. Dist. LEXIS 119333 (E.D. Va. Oct. 17, 2011) .........................11

No. C-11-3826, 2011 U.S. Dist. LEXIS 132449 (N.D. Cal. Nov. 16, 2011) ....................14

No. H-09-3440, 2010 WL 2277389 (S.D. Tex. June 3, 2010) .............................................8


Gillespie v. Civiletti,


Hard Drive Prods., Inc. v. Does 1-188,


Hard Drive Prods. v. Does 1-30,


Hard Drive Prods., Inc. v. Does 1-130,


Healix Infusion Therapy, Inc. v. HHI Infusion Servs.,


In re Micron Tech., Inc. Sec. Litig.,


International Shoe Co. v. Washington,


K-Beech, Inc. v. Does 1-85,


King v. Forest,


Liberty Media Holdings, LLC v. BitTorrent Swarm,


Linder v. Department of Def.,




iii

264 F.R.D. 7 (D.D.C. 2010) .................................................................................................5

326 U.S. 310 (1945) .............................................................................................................7

No. 11-CV-00469, 2011 U.S. Dist. LEXIS 124581 (E.D. Va. Oct. 5, 2011) ..............16, 17

No. 3:08-CV-1405-L, 2008 WL 4951049 (N.D. Tex. Nov. 14, 2008) ................................7

No. 11-cv-21525, 2011 WL 5190048 (S.D. Fla. Nov. 1, 2011) ........................................14

133 F.3d 17 (D.C. Cir. 1998) ...............................................................................................5

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 5 of 28

261 U.S. 174 (1923) .............................................................................................................7

No. C 11-02331, 2011 U.S. Dist. LEXIS 108109 (N.D. Cal. Sept. 16, 2011) ......14, 15, 17

No. 10 C 5603, 2011 U.S. Dist. LEXIS 110135 (N.D. Ill. Sept. 26, 2011) .......................10

No. 10 C 5603 [Doc. No. 55], (N.D. Ill. Mar. 31, 2011) ...................................................14

No. 11-2258, 2011 WL 1812786 (N.D. Cal. May 12, 2011) .............................................14

No. 1:11-cv-02176-RLW (D.D.C.) ....................................................................................17

No. C 11-2770, 2011 U.S. Dist. LEXIS 140670 (N.D. Cal. Dec. 7, 2011) .......................10

799 F. Supp. 2d 34 (D.D.C. 2011) ...................................................................5, 8, 9, 12, 18

No. C10-472, 2011 U.S. Dist. LEXIS 99831 (N.D. Cal. Sept. 6, 2011) .....................10, 14


Lumiere v. Mae Edna Wilder, Inc.,


McGIP, LLC v. Does 1-149,


Millenium TGA v. Doe,


Millenium TGA v. Does 1-800,


Millennium TGA, Inc. v. Does 1-21,


Millenium TGA v. Does 1-939,


New Sensations, Inc. v. Does 1-1,474,


Nu Image, Inc. v. Does 1-23,322,


On The Cheap, LLC v. Does 1-5011,


Oppenheimer Fund, Inc. v. Sanders,


Pacific Century Int’l, Inc. v. Does 1-101,


Patrick Collins, Inc. v. Does 1-2,590,


SBO Pictures, Inc. v. Does 1-87,


Steve Hardeman, LLC v. Does 1-168,


437 U.S. 340 (1978) .............................................................................................................5



No. C-11-02533, 2011 WL 2690142 (N.D. Cal. July 8, 2011) .........................................14

No. C 11-2766, 2011 U.S. Dist. LEXIS 140913 (N.D. Cal. Dec. 7, 2011) .......................11

No. 11-1962, 2012 U.S. Dist. LEXIS 6968 (D.D.C. Jan. 19, 2012) ..................................10

No. 3:11-cv-00056, Order Severing Does 2-168 [Doc. No. 6],
(N.D. Tex. Feb. 10, 2011) ..................................................................................................13


System Pipe & Supply, Inc. v. M/V VIKTOR KURNATOVSKIY,


242 F.3d 322 (5th Cir. 2001) ...............................................................................................7



iv

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 6 of 28

666 F.2d 364 (9th Cir. 1981) ...............................................................................................5

No. 10-0873, 2011 U.S. Dist. LEXIS 50787 (D.D.C. May 12, 2011) ...............................15

482 F.3d 501 (D.C. Cir. 2007) .............................................................................................4


United States v. Columbia Broad. Sys., Inc.,


Voltage Pictures, LLC v. Does 1-5000,


Watts v. SEC,


Well Go USA, Inc. v. Does,


World-Wide Volkswagen Corp. v. Woodson,









No. 4:11cv00554A (N.D. Tex. Sept. 28, 2011) .................................................................17

444 U.S. 286 (1980) .............................................................................................................7

STATUTES


17 U.S.C. § 512 ................................................................................................................................1

28 U.S.C. § 1391(b) .........................................................................................................................9

28 U.S.C. § 1400(a) .....................................................................................................................8, 9

47 U.S.C. § 551(c) .........................................................................................................................19

Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2) ..............................................................................8



RULES


Fed. R. Civ. P. 20(a)(2) ............................................................................................................13, 14

Fed. R. Civ. P. 45 .........................................................................................................................4, 9




Lyrissa Barnett Lidsky & Thomas F. Cotter,

OTHER AUTHORITIES

Authorship, Audiences, and Anonymous Speech,
82 Notre Dame L. Rev. 1537 (Apr. 2007) .........................................................................19





v

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 7 of 28

Non-Party Comcast Cable Communications, LLC (“Comcast”) submits this

memorandum in opposition to Plaintiff’s Motion to Compel Compliance with Subpoena

(“Motion”).

INTRODUCTION AND FACTUAL BACKGROUND





This miscellaneous action arises out of an underlying copyright infringement case

pending in the U.S. District Court for the Southern District of Texas (No. 11-4501) (the

“Underlying Action”) in which Plaintiff alleges that Defendant John Doe and 938 anonymous

alleged co-conspirators have infringed Plaintiff’s copyright in a certain sexually explicit

audiovisual work by distributing and downloading unauthorized copies or excerpts of the work

over the Internet. Compl. [Doc. 1] ¶ 23. Comcast is not a defendant in the Underlying Action,

nor has Plaintiff alleged that Comcast has any liability for the alleged infringement of Plaintiff’s

copyright. Comcast is a non-party that is, among other things, an Internet service provider

(“ISP”), and is not liable for subscribers’ “Bit Torrent protocol” transfers that may infringe any

copyright.1 17 U.S.C. § 512(a). Comcast was served with a subpoena because Plaintiff does not

know the identities of John Doe and his alleged co-conspirators. Compl. ¶ 4. Plaintiff claims to

have identified certain IP addresses corresponding to various ISPs, including Comcast. Id. In

the Underlying Action, the U.S. District Court for the Southern District of Texas granted

permission for Plaintiff to pursue limited discovery of the ISPs to attempt to identify the one

named Doe Defendant plus 938 other subscribers associated with specific IP addresses who

Plaintiff claims will then be named as defendants in an amended complaint. Id. ¶¶ 4, 38; Order


1 Indeed, Comcast respects and supports the rights of copyright owners to bring valid actions
against alleged copyright infringers. However, Comcast also requires that these actions be
brought in accordance with all applicable procedural and other legal requirements.



1

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 8 of 28

Granting Plaintiff’s Motion for Leave to Take Expedited Discovery, attached to Motion at 182

(“Discovery Order”). Comcast did not have the opportunity to participate in the underlying

court’s consideration or ultimate grant of Plaintiff’s motion in the Discovery Order.



Pursuant to the Discovery Order, Plaintiff served the Subpoena on Comcast on

February 15, 2012, seeking the identities of 351 individuals who, Plaintiff alleges, are Comcast

subscribers. See Subpoena, attached to Motion. The return date was set by Plaintiff as May 4,

2012. The Subpoena was not captioned with the court where the Underlying Action is pending –

the U.S. District Court for the Southern District of Texas. Rather, the Subpoena was issued out

of this Court, although there is no apparent reason for doing so, given that (as discussed herein)

only three of the 351 Comcast IP addresses can be definitely traced to subscribers in the District

of Columbia. Comcast filed timely objections to the Subpoena by letter dated February 29,

2012. See February 29, 2012 letter, attached to Motion at 31.



Comcast objected to compliance with the Subpoena on several grounds. First, the vast

majority of the subscribers whose personal information is sought in the Subpoenas are not even

subject to either this Court’s or the underlying court’s jurisdiction. Indeed, a preliminary search

of the IP addresses listed in Plaintiff’s Subpoena reveals that just three of the 351 Comcast IP

addresses in the Subpoena can be definitely associated with subscribers located in the District of

Columbia, and only 14 of the remaining IP addresses can be definitely traced to subscribers in

Texas. Courts have found that utilizing discovery to identify Does who are not subject to

personal jurisdiction or joinder, and never sued, but are nonetheless contacted for settlement

demands, is abusive.


2 Because Plaintiff did not separately file the attachments to the Motion, references to page
numbers in Plaintiff’s Motion are to the ECF electronically-stamped page numbers.



2

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 9 of 28



Second, the rules for joinder of John Doe and his alleged co-conspirators cannot be

satisfied in the Underlying Action. The distinct trend in other federal district courts has been to

deny prospective joinder and quash subpoenas in this type of action where the allegations are

that BitTorrent swarms are an actionable conspiracy. Indeed, the lack of proper joinder is

evident on the face of the exhibit attached to Plaintiff’s Complaint, which reflects that the alleged

illegal activity of the different IP addresses occurred on different days and times over a more

than eight-week period. Thus, Plaintiff cannot claim that John Doe and his alleged co-

conspirators acted in concert.



Finally, it is not at all clear why Plaintiffs chose to issue the Subpoena out of this Court

except as an effort to forum shop and avoid unfavorable precedent in the federal district courts in

Texas, to take advantage of perceived favorable precedent in this district, or simply to cause

confusion as to where the proper challenges to the discovery efforts can be made.3 Plaintiff’s

penchant to forum shop (or forum “avoid”) is revealed in the procedural posture of this very

action – before the Underlying Action was filed, Plaintiff had previously filed in this Court a

substantially identical complaint involving the same IP addresses, facts and claims. Once that

complaint was assigned to Judge Wilkins, who had in a previous case denied a copyright

infringement plaintiff’s motion for an ex parte discovery order, Plaintiff voluntarily dismissed

the action and re-filed the Underlying Action in the Southern District of Texas. However, even

though the Underlying Action is now pending in Texas, Plaintiff chose to issue the Subpoena out


3 Indeed, Plaintiff filed in the Southern District of Texas as at least the Northern District has
disallowed early discovery in these types of cases. Funimation Entm’t v. Does 1-1,337, No.
3:11-cv-00147, Order Vacating the Court’s Order Granting Plaintiff’s Motion for Leave to Take
Discovery Prior to Rule 26(f) Conference and Order to Show Cause [Doc. No. 6] (N.D. Tex.
Feb. 7, 2011); Steve Hardeman, LLC v. Does 1-168, No. 3:11-cv-00056, Order Severing Does 2-
168 [Doc. No. 6.] (N.D. Tex. Feb. 10, 2011).



3

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 10 of 28

of this Court, likely to take advantage of perceived favorable opinions regarding joinder issued

by other judges in this district.4 This Court should not countenance such gamesmanship.



Given the apparent and expected abuse of the discovery process, these procedural

anomalies, and inherent substantive defects in the Underlying Action, not only would Comcast

be unduly burdened by having to comply with the Subpoena, its subscribers’ privacy interests

would not be adequately protected and they would be inappropriately drawn into a civil action

that could not be commenced against them individually in the jurisdiction where the Underlying

Action is pending.



Additionally, even if the Court directs Comcast to comply with the Subpoena, the Court

should enter a protective order allowing for a reasonable time for Comcast to comply, notify

subscribers as required by law, and allow the subscribers the opportunity to contest the validity

of the claims being asserted before being identified and pursued by Plaintiff for settlement.

A. Legal Standard

ARGUMENT

When a motion to compel compliance with a subpoena is filed against a non-party, Fed.



R. Civ. P. 45 “requires that district courts quash subpoenas that call for privileged matter or

would cause an undue burden.” Watts v. SEC, 482 F.3d 501, 508 (D.C. Cir. 2007). Discovery

commencing before a Rule 26 conference – including jurisdictional discovery to identify

defendants – should be permitted only where “good cause” supports it. See, e.g., Caribbean

Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998) (plaintiff

4 Though Plaintiff might believe it “fished its wish” by avoiding Judge Wilkins when it filed this
miscellaneous action, had Plaintiff properly identified the previously dismissed identical action
before Judge Wilkins as a “related case,” this action would have been assigned to Judge Wilkins.
Given Plaintiff’s lack of candor with the Court in this regard, Comcast is filing a “Notice of
Related Case and Request for Reassignment” concurrently with this Opposition.




4

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 11 of 28

“must have at least a good faith belief that such discovery will enable it to show that the court

has personal jurisdiction over the defendant”).

Where, as here, the underlying action is procedurally defective or the Doe Defendants are

not subject to suit, any burden put upon a non-party to identify Defendants is an undue burden.

Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 37 (D.D.C. 2011) (Wilkins, J.) (denying

motion for discovery in a similar action seeking ISPs’ subscribers’ identities); see also Linder v.

Department of Def., 133 F.3d 17, 24 (D.C. Cir. 1998) (whether a subpoena is proper “‘must be

determined according to the facts of the case,’ such as the party’s need . . . and the nature and

importance of the litigation”); In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 9 (D.D.C. 2010)

(“The ‘undue burden’ test requires district courts to be ‘generally sensitive’ to the costs imposed

on third parties.”); United States v. Columbia Broad. Sys., Inc., 666 F.2d 364, 371-72 (9th Cir.

1981) (“Nonparty witnesses are powerless to control the scope of litigation and discovery, and

should not be forced to subsidize an unreasonable share of the costs of a litigation to which they

are not a party.”).5 While the issue of Plaintiff’s compensation is not at issue, whether the

Court’s processes should be used to allow discovery in the face of procedural irregularities

should be examined closely.






5 See also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 n.17 (1978) (“[W]hen the
purpose of a discovery request is to gather information for use in proceedings other than the
pending suit, discovery properly is denied.”); accord Gillespie v. Civiletti, 629 F.2d 637, 642
(9th Cir. 1980) (pre-Rule 26 discovery should be denied where the court concludes that
discovery “would not uncover [the defendants’] identities, or that the complaint would be
dismissed on other grounds”); Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F.
Supp. 2d 1, 11 (D.D.C. 2009) (plaintiff must “reasonably ‘demonstrate[] that it can supplement
its jurisdictional allegations through discovery’”).



5

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 12 of 28

B. This Court Lacks Personal Jurisdiction Over the Majority of Potential Doe

Defendants Identified in the Subpoena

As Comcast pointed out in its February 29, 2012 letter objecting to Plaintiff’s subpoena



(“Objection Letter”), nearly all of the IP addresses for which Plaintiff seeks discovery in this

case are for individuals not within either this Court’s jurisdiction or the court in the Underlying

Action’s jurisdiction. See February 29, 2012 letter, attached to Motion at 31. Indeed, a

preliminary search of the IP addresses listed in Plaintiff’s Subpoena reveals that just three of the

351 Comcast IP addresses in the Subpoena can be definitely associated with subscribers located

in the District of Columbia, and only 14 of the remaining IP addresses can be definitely traced to

subscribers in Texas.6 Accordingly, the other 334 anonymous subscribers whose personal

information is sought in the Subpoena are not subject to this Court’s jurisdiction or the

jurisdiction of the Southern District of Texas. Comcast should not be subject to the burden –

undue or otherwise – of providing the requested information that ultimately will not even be

useful in the Underlying Action and which, consistent with Plaintiff’s counsel’s tactics in

multiple courts, will likely only ever be used to attempt to extract pre-litigation settlements from

Comcast’s subscribers who are not subject to personal jurisdiction in the Underlying Action.

Nor should Comcast’s customers face the disclosure of their identities to Plaintiff given these

clear procedural defects.

In the Motion, Plaintiff makes no attempt to establish that personal jurisdiction over the

Doe Defendant and his alleged co-conspirators would be proper in the Underlying Action.

Instead, Plaintiff argues that Comcast cannot raise the personal jurisdiction issue at this time, and


6 This information was derived from Comcast’s automated system that performs preliminary
research for an IP address. However, such information is not exact since the complete research
must be performed and verified by an analyst.



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Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 13 of 28

that Plaintiff is not even required to demonstrate that personal jurisdiction exists at this time.

However, Plaintiff’s arguments lack merit in several regards.

First, the Complaint in the Underlying Action was brought in the U.S. District Court for

the Southern District of Texas, with the Subpoena at issue merely issuing out of this Court.

Accordingly, it is the law of the Southern District of Texas – not this Court – as to issues

regarding personal jurisdiction over the Doe Defendant and/or his alleged co-conspirators that

would govern. And, “the court in the Underlying Action may raise the question of personal

jurisdiction sua sponte.” King v. Forest, No. 3:08-cv-1405-L, 2008 WL 4951049, at *4-5 (N.D.

Tex. Nov. 14, 2008) (dismissing action against John Doe defendant for lack of personal

jurisdiction) (citing System Pipe & Supply, Inc. v. M/V VIKTOR KURNATOVSKIY, 242 F.3d

322, 324 (5th Cir. 2001) (approving sua sponte dismissal of action instead of entry of default

judgment); Frass v. Southern Pac. Transp. Co., 810 F. Supp. 189, 190 (S.D. Miss. 1993) (raising

question of personal jurisdiction sua sponte)). It is “well-established that the Texas long-arm

statute authorizes the exercise of personal jurisdiction to the full extent allowed by the Due

Process Clause of the Fourteenth Amendment.” Central Freight Lines v. APA Transp. Corp.,

322 F.3d 376, 380 (5th Cir. 2003). The constitutional due process test is typically met if the

defendant has “minimum contacts” with the forum state (here, Texas) such that the maintenance

of the suit “does not offend ‘traditional notions of fair play and substantial justice.’” Id. (citing

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). This analysis requires courts

to determine whether “the defendant’s conduct and connection with the forum State are such that

he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 297 (1980). These same personal jurisdiction limitations apply to

copyright infringement actions. Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 177 (1923)



7

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 14 of 28

(the Copyright Act does not permit nationwide service of process). The Texas long-arm statue

authorizes jurisdiction over a non-resident defendant if the defendant commits a tort “in whole or

in part in this state.” Tex. Civ. Prac. & Rem. Code Ann. § 17.042(2). The Southern District of

Texas has found that, for the tort of copyright infringement, the “effects test” provides that

personal jurisdiction “may be proper where the effects of a defendant’s conduct in one state may

cause injury in the forum state.” Healix Infusion Therapy, Inc. v. HHI Infusion Servs., No. H-09-

3440, 2010 WL 2277389, at *3 (S.D. Tex. June 3, 2010) (citation omitted). Here, there is no

allegation that the copyright holder is located in this jurisdiction. Indeed, the Complaint alleges

that Plaintiff is organized under the laws of the State of Hawaii, with its principal place of

business located in Los Angeles, California. Compl. ¶ 2.

Second, even if this Court were ultimately the one that would make the personal

jurisdiction determination, in citing caselaw from this District to support its argument that

discussion of personal jurisdiction is premature, Plaintiff conspicuously ignores the recent

decision by Judge Wilkins in Nu Image.7 In Nu Image, Judge Wilkins analyzed a discovery

request to authorize subpoenas on multiple ISPs to obtain the identifying information for various

IP addresses alleged to have been used to illegally download copyrighted works. The IP

addresses were for a multitude of subscribers not resident in this district and, with a non-resident

plaintiff, Judge Wilkins found no good grounds to assert jurisdiction or venue in D.C. pursuant to

28 U.S.C. § 1400(a). Judge Wilkins required the Nu Image plaintiff to make a prima facie

evidentiary showing that all Doe defendants were likely to reside in this district – before serving

subpoenas on the ISPs – on the grounds that it would comport with fundamental notions of

fairness and would not impose any real burden on plaintiff, given the “geolocation services that

7 Of course, as discussed herein, Plaintiff’s avoidance of Judge Wilkins and his Nu Image
decision is no accident. See infra Section D.



8

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 15 of 28

are generally available to the public to derive the approximate location of the IP addresses

identified for each putative defendant.” 799 F. Supp. 2d at 37-42.8 Here, Plaintiff admits that it

is capable of making preliminary determinations as to the location of the potential Doe

Defendants (Compl. ¶ 6), so there is no reason why it could not have informed the Court of the

many IP Addresses that have no connection to this or the underlying jurisdiction. Further, it is

certainly not proper to require the underlying subscribers/potential defendants who do not reside

here to travel more than 100 miles to anonymously challenge the subpoenas. See Fed. R. Civ. P.

45(c)(3)(A)(ii) (requiring that a subpoena requiring a nonparty witness to travel more than 100

miles from his or her residence or place of business to be modified or quashed).

Given the ever-increasing mass Doe defendant actions being filed throughout the country,

many courts have now had the opportunity to analyze the characteristics of BitTorrent file-

sharing systems, and other courts have reached similar conclusions to Nu Image. Indeed, several

courts have revisited their earlier rulings that permitted broad Doe discovery by way of broad

subpoenas to multiple ISPs. For example, in two similar proceedings in the United States

District Court for the Southern District of New York, the court refused to allow discovery of any

subscriber outside the State of New York, rejecting Plaintiff’s identical argument in the instant

Complaint concerning BitTorrent swarms and seeders. “The mere fact that BitTorrent protocol

and eDonkey network employ ‘swarming’ capacity is insufficient to confer jurisdiction.”

DigiProtect USA Corp. v. Does 1-240, No. 10-cv-8760, 2011 WL 4444666, at *3 (S.D.N.Y.


8 Nu Image reconsidered the court’s prior orders that had authorized discovery of the ISPs in
mass copyright actions based on plaintiffs’ representations that the general venue statute, 28
U.S.C. § 1391(b), governed, rather than the specific venue statute for copyright litigation:
“[O]nce the Court realized that 28 U.S.C. § 1400(a) was the appropriate venue statute, and that it
requires that every single defendant can be ‘found here,’ the Court felt compelled to focus more
sharply on personal jurisdiction and the good cause standard for expedited discovery. The Court
recognizes its initial error and seeks to correct it here.” Nu Image, 799 F. Supp. 2d at 41 n.7.



9

Case 1:12-mc-00150-RLW Document 7 Filed 03/26/12 Page 16 of 28

Sept. 26, 2011). In a second DigiProtect case, the court quashed the subpoenas, amended its

earlier order allowing discovery of the ISPs, and held that plaintiff “may only serve subpoenas

on those ISPs whose IP addresses identified by [plaintiff] in [the exhibit listing IP addresses]

correspond to accounts located in” the state where the court is located. DigiProtect USA Corp. v.

Does 1-266, No. 10-cv-8759, 2011 WL 1466073, at *4 (S.D.N.Y. Apr. 13, 2011). See also CP

Prods., Inc. v. Does 1-300, No. 10 C 6255, 2011 WL 737761, at *1 (N.D. Ill. Feb. 24, 2011)

(“[T]here is no justification for dragging into an Illinois federal court, on a wholesale basis, a

host of unnamed defendants over whom personal jurisdiction clearly does not exist and-more

importantly-as to whom [plaintiff’s] counsel could readily have ascertained that fact.”);

Millennium TGA v. Doe, No. 10 C 5603, 2011 U.S. Dist. LEXIS 110135, at *4-5 (N.D. Ill.

Sept. 26, 2011) (denying request for discovery of ISPs and dismissing action where Plaintiff’s

current counsel failed to show any facts show how defendant’s “infringing activities were

directed towards this forum and bring him or her within this court’s jurisdiction”); On The

Cheap, LLC v. Does 1-5011, No. C10-4472, 2011 U.S. Dist. LEXIS 99831, at *7-8 (N.D. Cal.

Sept. 6, 2011) (explaining that the logical effect of Plaintiff’s personal-jurisdiction arguments

“would be that everybody who used . . . BitTorrent would subject themselves to jurisdiction in

every state,” a result inconsistent with Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475

(1985), and other Supreme Court precedent); SBO Pictures, Inc. v. Does 1-87, No. 11-1962,

2012 U.S. Dist. LEXIS 6968, at *6-9 (D.D.C. Jan. 19, 2012) (following Nu Image and denying

request for discovery of ISPs); New Sensations, Inc. v. Does 1-1,474, No. C 11-2770, 2011 U.S.

Dist. LEXIS 140670, at *7-9 (N.D. Cal. Dec. 7, 2011) (citing Nu Image and explaining that,

“[w]here Plaintiff has made no effort to determine jurisdiction, the administration of justice is

not served by requiring out-of-state recipients of subpoenas to bring challenges to the subpoenas



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in far-flung jurisdictions”); Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150 at

1157-65 (N.D. Cal. 2011) (quashing subpoenas where Plaintiff’s counsel failed to provide a

sufficient showing that the Doe defendants were properly subject to suit as part of the same

“swarm”; summarizing decisions that address mechanics of BitTorrent protocols); Hard Drive

Prods., Inc. v. Does 1-30, No. 11cv345, 2011 U.S. Dist. LEXIS 119333, at *7-10 (E.D. Va.

Oct. 17, 2011) (citing Hard Drive, 809 F. Supp. 2d 1150, with approval); Berlin Media Art v.

Does 1-654, No. 11-03770, 2011 U.S. Dist. LEXIS 120257, at *4-6 (N.D. Cal. Oct. 18, 2011)

(denying request for discovery of the identities of Does 1-654 based on jurisdictional principles

and the court’s research: “with minimal effort, the Court was able to utilize one of many free and

publicly available services to look up the locations affiliated with IP addresses for which Plaintiff

seeks discovery”); Patrick Collins, Inc. v. Does 1-2,590, No. C 11-2766, 2011 U.S. Dist. LEXIS

140913, at *4-5 (N.D. Cal. Dec. 7, 2011) (explaining that, “even if one or more of the

unidentified defendants allegedly downloaded the file at some point during the time period in

question from a computer located in this District, the Court is not aware of any caselaw that

suggests that it has personal jurisdiction over all 2,590 Defendants based on this connection”);

Funimation Entm’t v. Does 1-1,337, No. 3:11-cv-00147, Order Vacating the Court’s Order

Granting Plaintiff’s Motion for Leave to Take Discovery Prior to Rule 26(f) Conference and

Order to Show Cause [Doc. No. 6], (N.D. Tex. Feb. 7, 2011) (vacating prior order allowing early

discovery of Does because “the Discovery Motion concerns matters that could materially affect

the interest of the Defendant Does, but because the Defendants’ identities have yet to be

ascertained, the Does cannot represent their interests before this Court”). But see Call of the

Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 345-46 (D.D.C. 2011) (concluding that



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jurisdictional discovery was warranted where plaintiff had a good-faith belief for allegation that

personal jurisdiction existed).9

For these reasons, Plaintiff’s Motion should be denied and the Subpoena should be

quashed.

C. Joinder of the Doe Defendants is Improper

As Comcast also pointed out in its Objection Letter, the exhibit attached to Plaintiff’s

Complaint here reflects that the alleged illegal activity of the different IP addresses occurred on

different days and times over a more than eight-week period. Compl., Exh. A. Accordingly, the

rules for prospective joinder of the Doe Defendant and/or his alleged co-conspirators cannot be

satisfied in the Underlying Action. Without that being shown, compelling discovery of these

alleged co-conspirators is not proper. As expected, Plaintiff cites to several decisions of this

Court involving similar actions where the Court has found certain allegations to preliminarily

satisfy the pleading requirements for joinder. Mot. at 9-10. Plaintiff, however, fail to recognize

that it is the law of the jurisdictions of the Underlying Action – not this district – that would

govern whether joinder is proper. Indeed, in each of the five cases from this district that Plaintiff

cites, there was no underlying action in another jurisdiction – the complaint was filed in this

court. That is not the case here.


9 Given the multitude of mass Doe actions filed by Plaintiff’s counsel throughout the country
(discussed below), Comcast has asked Judge Howell to revisit the Call of the Wild decision in
opposition to a currently pending motion to compel filed by Plaintiff’s counsel against Comcast
in another proceeding before this Court. See AF Holdings v. Does 1-1058, No. 1:12-CV-00048-
BAH, Opposition to Plaintiff’s Motion to Compel Compliance with Subpoena [Doc. No. 12],
(D.D.C. Mar. 5, 2012). Moreover, even if this action does not get transferred to Judge Wilkins
(see supra n.4), Comcast respectfully suggests that Judge Wilkins’ precedent in Nu Image should
be followed here, given that this action is identical to an earlier filed but dismissed action that
was previously assigned to Judge Wilkins. See infra Section D.



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Numerous other cases have made clear that the alleged use of BitTorrent technology, like

earlier P2P technologies, does not satisfy the requirements for permissive joinder. See, e.g.,

Hard Drive, 809 F. Supp. 2d at 1157. Here, just as the court found in Hard Drive, because the

exhibit attached to the Complaint reflects that the activity of the different IP addresses occurred

on different days and times over a more than eight-week period,10 any suggestion that the Doe

Defendants acted in concert is unpersuasive. Id. at 1163-64. See also DigiProtect USA Corp. v.

Does 1-240, 2011 WL 4444666, at *3 n.2 (“To participate, a user must be online at the time of a

swarm.”). Accordingly, the Complaint does not satisfy the “same series of transactions” test for

joinder. Fed. R. Civ. P. 20(a)(2). Indeed, a series of nearly identical recent cases have expressly

prohibited discovery and quashed subpoenas similar to the instant Subpoena. See, e.g., Steve

Hardeman, LLC v. Does 1-168, No. 3:11-cv-00056, Order Severing Does 2-168 [Doc. No. 6],

(N.D. Tex. Feb. 10, 2011) (severing all but one Doe Defendant because “Defendants’ alleged use

of the BitTorrent software system to commit copyright infringement is, without more,

insufficient for permissive joinder under Rule 20”); Hard Drive, 809 F. Supp. 2d 1150 (finding

joinder improper and severing and dismissing all claims against all but one Doe defendant)

(citing Boy Racer, Inc. v. Does 2-52, No. 11-2834 [Doc. No. 12], (N.D. Cal.)) (finding that the

nature of BitTorrent protocol does not justify joinder of otherwise unrelated Doe defendants

because BitTorrent protocol is of the same peer-to-peer architecture of other peer-to-peer

protocols where joinder has been found improper); Diabolic Video Prods., Inc. v. Does 1-2099,

No. 10-CV-5865, 2011 WL 3100404, at *3 (N.D. Cal. May 31, 2011) (“[T]he mere allegation

that defendants have used the same peer-to-peer network to infringe a copyrighted work is

insufficient to meet the standards for joinder set forth in Rule 20.”); Millennium TGA Inc. v.


10 In the Hard Drive case, it was a two-week period. Hard Drive, 809 F. Supp. 2d at 1164.



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Does 1-800, No. 10 C 5603 [Doc. No. 55], (N.D. Ill. Mar. 31, 2011) (court order sua sponte

severing all but one Doe defendant, finding that “merely committing the same type of violation

in the same way does not link defendants together for purposes of joinder”); Pacific Century

Int’l, Inc. v. Does 1-101, No. C-11-02533, 2011 WL 2690142, at *4 (N.D. Cal. July 8, 2011)

(Rule 20(a)(2) joinder was improper because “the only commonality between copyright

infringers of the same work is that each commit[ted] the exact same violation of the law in

exactly the same way”) (internal quotation marks and citation omitted); Millennium TGA, Inc. v.

Does 1-21, No. 11-2258, 2011 WL 1812786, at *3 (N.D. Cal. May 12, 2011) (finding Rule

20(a)(2) joinder of the Doe defendants impermissible because “the Doe [d]efendants’ individual

and separate alleged reproductions of Plaintiff’s Work – which occurred over the span of twenty

days – do not satisfy [the Rule 20(a)(2)] requirement.”)); Hard Drive Prods., Inc. v. Does 1-130,

No. C-11-3826, 2011 U.S. Dist. LEXIS 132449, at *9 (N.D. Cal. Nov. 16, 2011) (dismissing

Does 2-130 and imposing ongoing obligations upon plaintiff and its counsel to demonstrate that

the discovery sought of Doe 1 is used for a proper purpose); Liberty Media Holdings, LLC v.

BitTorrent Swarm, No. 11-cv-21525, 2011 WL 5190048, at *2-4 (S.D. Fla. Nov. 1, 2011) (the

court sua sponte found joinder of multiple Doe defendants improper under Fed. R. Civ. P. 20(a)

and dismissed the claims against all but a single defendant); On the Cheap, LLC, 2011 U.S. Dist.

LEXIS 99831, at *16-17 & n.6 (disapproving the use of mass actions and noting abusive

settlement tactics); Digital Sin, Inc. v. Doe, No. C 11-04397, 2011 U.S. Dist. LEXIS 128033, at

*9 (N.D. Cal. Nov. 4, 2011) (citing other similar cases). In fact, counsel for Plaintiff must be

aware of the Hard Drive, Boy Racer, Pacific Century, Millennium and McGIP 11 cases, given


11 McGIP, LLC v. Does 1-149, No. C 11-02331, 2011 U.S. Dist. LEXIS 108109 (N.D. Cal.
Sept. 16, 2011).



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that its firm (or the firm that merged with its firm) represented the plaintiff in each of those

cases.12

Comcast recognizes that this Court’s decision in Call of the Wild, 770 F. Supp. 2d 332,

reached a different conclusion – i.e., that it was premature at the pleading stage to consider

misjoinder.13 Again, unlike here, the underlying complaint in that action was not pending in

another jurisdiction. Additionally, given the multitude of mass Doe actions filed by Plaintiff’s

counsel throughout the country (discussed below), Comcast respectfully suggests that the Court

should revisit its conclusion in that case. As the court pointed out in the McGIP case, Plaintiff’s

strategy in filing these cases

effectively precludes consideration of joinder issues at a later point
in the proceedings. By not naming or serving a single defendant,
[Plaintiff] ensures that this case will not progress beyond its infant
stages and therefore, the court will never have the opportunity to
evaluate joinder. Deferring a ruling on joinder, then, would
“encourage[] [p]laintiffs … to join (or misjoin) as many doe
defendants as possible….”


McGIP, 2011 U.S. Dist. LEXIS 108109, at *8 (quoting Arista Records, LLC v. Does, No. 07-

CV-2828, 2008 U.S. Dist. LEXIS 90183, at *17 (N.D. Ohio Nov. 3, 2008)) (alterations in

original).

Indeed, in another case brought by Plaintiff’s counsel pending in the Northern District of

California, the court issued an order to show cause requiring Plaintiff’s lawyers to file a


12 The existence of these, and other, unfavorable decisions suggests that such plaintiffs appear to
be engaged in forum shopping – i.e., selecting venues based on an assessment of where they are
likely to obtain the largest amount of subscriber information with the least judicial resistance.
See infra Section D.
13 See also Voltage Pictures, LLC v. Does 1-5000, No. 10-0873, 2011 U.S. Dist. LEXIS 50787,
at *42 (D.D.C. May 12, 2011) (noting that “[c]ourts have varying thresholds for the exercise of
their discretion to sever defendants in such cases”).



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declaration listing the cases it has pending in federal court and the number of defendants who

had actually been served in each case. Attached hereto as Exhibit 1 is a true and correct copy of

the January 19, 2012 Order. In response, Plaintiff’s counsel declared that in none of the 118

federal actions filed during the last two years by the Prenda law firm (or its predecessors) has a

single Defendant been served.14 Attached hereto as Exhibit 2 is a true and correct copy of the

Declaration of Charles E. Piehl dated February 24, 2012, along with the listing of cases filed

where not a single Doe defendant has been served. This striking admission confirms the modus

operandi employed by Plaintiff’s counsel – they simply move from court to court seeking

authorization to serve subpoenas to the broadest number of subscribers – imposing ever-

increasing burdens on the ISPs – without using the information gathered for the purpose of

litigating any case on its merits. Instead, “plaintiffs have used the offices of the Court as an

inexpensive means to gain the Doe defendants’ personal information and coerce payment from

them.”15 K-Beech, Inc. v. Does 1-85, No. 11-CV-00469, 2011 U.S. Dist. LEXIS 124581, at *7

(E.D. Va. Oct. 5, 2011).16 These facts weigh heavily in favor of addressing compliance with


14 The Court ordered Plaintiff’s counsel to disclose “a list of the BitTorrent copyright
infringement cases involving multiple joined John Doe Defendants filed [by] Plaintiff’s
counsel’s law firm or predecessor firm in federal court.” (Emphasis added.) Plaintiff’s counsel
took the judge’s Order quite literally and disclosed only those cases in which more than one Doe
defendant had been named in the complaint. Plaintiff’s counsel did not disclose the numerous
other cases (approximately 60) it has also filed in various federal courts, in which only one Doe
is named as a defendant, but where discovery of alleged “co-conspirators” is sought in the same
manner as the “multiple joined” Doe defendant cases. Plaintiff’s counsel’s Doe-plus-co-
conspirator approach is just one of its latest tactics to test the judicial waters for obtaining
subscriber information.
15 In a separate action involving K-Beech, Inc. as a plaintiff, one of the defendants asserted a
counterclaim alleging that the plaintiff intentionally placed its work on a BitTorrent server and
allowed the BitTorrent swarm to continue for the sole purpose of logging IP addresses in order to
coerce users to settle copyright infringement claims. K-Beech, Inc. v. Marc Puskas et al., No.
11-cv-01601, Counterclaim [Doc. No. 12], (D. Ariz. Feb. 29, 2012).
16 In yet another similar action, in an order denying counsel proposed discovery, a federal judge
remarked that, “[i]f plaintiff and [plaintiff’s counsel, different from this case] had displayed the



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Rule 20 at the outset. E.g., McGIP, supra, at *10 (in these specific circumstances, a threshold

evaluation of joinder “is critical to ensuring compliance with the Federal Rules of Civil

Procedure”); Boy Racer, Inc. v. Does 2-52, No. 11-2834 [Doc. No. 12], (N.D. Cal.) at 2

(“[B]efore allowing expedited discovery to uncover the identity of unnamed defendants, the

district courts of this circuit must determine whether [joinder is justified].”). For these additional

reasons, Plaintiff’s Motion should be denied and the Subpoena should be quashed.

D. Permitting Discovery of Comcast in This Action Would Encourage Forum Shopping

and Risk Other Ill Effects

Given the dramatic rise in the number of mass Doe actions being filed nationwide, and

the increasing concerns voiced by courts that “plaintiffs have used the offices of the Court as an

inexpensive means to gain the Doe defendants’ personal information and coerce payment from

them,”17 plaintiffs appear be selecting venues based on an assessment of where they are likely to

obtain the largest amount of subscriber information with the least resistance. Indeed, this

appears to be just what has happened in this case.

Court records demonstrate that, before the complaint in the Underlying Action was filed,

Plaintiff had previously filed in this Court a substantially identical complaint involving the same

parties, facts and claims. In Millennium TGA v. Does 1-939, No. 1:11-cv-02176-RLW,

Plaintiff’s counsel filed the complaint on December 7, 2011. Once that action was assigned to

Judge Wilkins, Plaintiff voluntarily dismissed the action on December 16, 2011. See Pacer

Docket Sheet, attached hereto as Exhibit 3. Plaintiff’s counsel then re-filed the Underlying

slightest degree of candor with the court, they would have disclosed to the court in their motion
for leave [to take expedited discovery] that judges in this district had raised serious questions
concerning the propriety of the filing of actions such as this and the discovery techniques
employed by Stone and his clients in all, or a large number, of the suits they filed in the Dallas
Division.” Well Go USA, Inc. v. Does, No. 4:11cv00554A (N.D. Tex. Sept. 28, 2011) (Order)
(emphasis added).
17 K-Beech, Inc. v. Does 1-85, 2011 U.S. Dist. LEXIS 124581, at *7.



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Action in the Southern District of Texas. The only change Plaintiff’s counsel made to the re-

filed complaint was to caption the case in Texas as against one Doe, but seek discovery of the

other 938 by way of multiple subpoenas to the ISPs. The complaints pertain to the same movie

and a comparison of the IP addresses shows the same dates and times in both complaints.

The reason for voluntarily dismissing the earlier complaint assigned to Judge Wilkins is

absolutely clear: In June 2011, Judge Wilkins denied a copyright infringement plaintiff’s motion

for an ex parte discovery order. Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34 (D.D.C.

2011); see supra Section B (discussing Nu Image). It seems beyond question that, in light of the

Nu Image order, once the initial complaint was assigned to Judge Wilkins, Plaintiff’s counsel

found no point in pursuing it any further.

Perhaps this is an example better characterized as “forum avoidance” rather than

“shopping,” but that is a fine distinction to make and it would be disingenuous to deny that

selective filing and dismissals were pursued based on the Judge drawn. Filing complaints in

multiple jurisdictions, and then serving subpoenas in different jurisdictions, seems only designed

to maximize the opportunities to gain discovery with least resistance. The burdens on the

judicial system and litigants (as well as third-parties) caused by forum shopping of this type are

well-recognized. Abex Corp. v. Maryland Cas. Co., 790 F.2d 119, 125 (D.C. Cir. 1986); see also

Eisel v. Secretary of Army, 477 F.2d 1251, 1263 (D.C. Cir. 1973) (“If one were permitted to

establish jurisdiction by merely being before the court, a petitioner could select any forum he

wished; this would be forum shopping in its most extreme form.”).

Given this blatant abuse of the judicial and discovery process, Plaintiff’s Motion should

be denied and the Subpoena should be quashed.





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E. Even if Compliance with the Subpoena is Ordered, the Court Should Allow a

Reasonable Time for Compliance

As a cable operator, Comcast must protect its cable, telephone, and Internet subscribers’



privacy in compliance with federal law. Comcast may not provide any subscriber’s personally

identifiable information (“PII”) to a third party without first ensuring compliance with the

requirements of Section 631(c) of the Communications Act, 47 U.S.C. § 551(c). That Section

generally prohibits cable operators from disclosing such information without the subscriber’s

express written consent and also imposes an affirmative obligation on a cable operator to “take

such actions as are necessary to prevent unauthorized access to such information by a person

other than the subscriber or cable operator.” 47 U.S.C. § 551(c)(1).

Section 631(c)(2) provides three exceptions to the general ban on disclosing personally

identifiable information without the subscribers’ express consent. Disclosure is permitted:

(1) “when necessary to render, or conduct a legitimate business activity related to, a cable service

or other service provided by the cable operator to the subscriber,” 47 U.S.C. § 551(c)(2)(A);

(2) “pursuant to a court order authorizing such disclosure, if the subscriber is notified of s