August Term, 2009 Argued: November 20, 2009 Decided: April 29, 2010 Docket No.… v. - Doe 3

<!-- PageHeader="09-0905-CV Arista Records LLC v. Doe 3" -->

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2009

(Argued: November 20, 2009

Decided: April 29, 2010)

Docket No. 09-0905-Cv

ARISTA RECORDS LLC, a Delaware limited liability
company; ATLANTIC RECORDING CORPORATION, a Delaware
Corporation; BMG MUSIC, a New York general
partnership; CAPITOL RECORDS, LLC, a Delaware limited
liability company; ELEKTRA ENTERTAINMENT GROUP INC.,
a Delaware corporation; INTERSCOPE RECORDS, a
California general partnership; MAVERICK RECORDING
COMPANY, a California joint venture; MOTOWN RECORD
COMPANY, L.P., a California limited partnership; SONY
BMG MUSIC ENTERTAINMENT, a Delaware general
partnership; UMG RECORDINGS, INC., a Delaware
corporation; VIRGIN RECORDS AMERICA, INC., a
California corporation; WARNER BROS. RECORDS INC. , a
Delaware corporation; and ZOMBA RECORDING LLC, a
Delaware limited liability company,

Plaintiffs-Appellees,

\- V. -

DOE 3,

Defendant-Appellant,

DOES 1-2 and DOES 4-16,

Defendants.

Before: KEARSE, KATZMANN, and LIVINGSTON, Circuit Judges.
Appeal from an order of the United States District Court
for the Northern District of New York, Glenn T. Suddaby, Judge,

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rejecting anonymous defendant-appellant's objections to magistrate
judge's denial of motion to quash subpoena served on Internet
service provider for disclosure of identities of Internet users
allegedly downloading and/or distributing music online in
violation of plaintiffs' copyrights.

Affirmed.

TIMOTHY M. REYNOLDS, Denver, Colorado
(Katheryn J. Coggon, Thomas M. Kerr,
Holme Roberts & Owen, Denver,
Colorado, on the brief), for
Plaintiffs-Appellees.

RICHARD A. ALTMAN, New York, New York, for
Defendant-Appellant.

KEARSE, Circuit Judge:

Defendant "Doe 3," whose identity is not known to
plaintiffs Arista Records LLC et al., appeals from an order of the
United States District Court for the Northern District of New
York, Glenn T. Suddaby, Judge, rejecting Doe 3's objections to
the denial by United States Magistrate Judge Randolph F. Treece of
Doe 3's motion (originally brought by other anonymous defendants)
to quash a subpoena served on his Internet service provider to
obtain information sufficient to disclose his identity. The
magistrate judge ruled that defendants' qualified First Amendment
right of anonymity was outweighed by, inter alia, plaintiffs'
allegations that defendants were downloading and/or distributing
music over the Internet in violation of plaintiffs' copyrights and
plaintiffs' need for the information in order to enforce their

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affirm.

rights. On appeal, Doe 3 contends principally that the
allegations in the Complaint are not sufficient to overcome his
First Amendment right of anonymity; in addition, he contends that
the reference of his motion to the magistrate judge and the
district judge's review of the magistrate judge's decision were
procedurally flawed. Finding no merit in Doe 3's contentions, we

# I. BACKGROUND

Plaintiffs are recording companies that commenced the
present action in July 2008, alleging that 16 defendants -- known to
plaintiffs at that time not by name but only by the Internet
Protocol ("IP") addresses assigned to them at certain specific
times by their Internet service provider ( "ISP") -- had infringed
plaintiffs' copyrights by, without plaintiffs' permission or
consent, downloading and/or distributing to the public various
music recordings through an online file-sharing network. (See
Complaint 11 18, 22.) File-sharing (or "peer-to-peer" or "P2P")
networks allow users to exchange files directly between their
computers without intermediate servers. Attached to the Complaint
is an "Exhibit A" listing for each "Doe" defendant, inter alia,
his or her IP address at a stated date and time, the name of the
file-sharing network used ( "Gnutella" or "AresWarez"), the titles
of 6-10 songs downloaded from the IP address, and, for each song,
which plaintiff was the copyright owner. The Complaint requests,

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inter alia, damages and injunctive relief prohibiting further
direct and indirect infringement of plaintiffs' copyrights.

In order to identify the defendants, plaintiffs sought
authorization to serve a subpoena on defendants' common ISP, the
State University of New York at Albany ( "SUNYA"), for disclosure
of each defendant's name, current and permanent address,
telephone number, email address, and Media Access Control address
identifying the device engaged in the online communication. In
support of their subpoena request, plaintiffs submitted a July 8,
2008 declaration by Carlos Linares ( "Linares Decl. "), Vice
President for Anti-Piracy Legal Affairs, Recording Industry
Association of America, Inc. ( "RIAA"), who was responsible for the
collection of facts alleged in the Complaint's Exhibit A. Linares
described, inter alia, the retention of a third-party investigator
that had proceeded to detect numerous copyrighted music files in
the various Doe defendants' file-sharing folders on peer-to-peer
networks, including the songs listed in Exhibit A, and he
described the RIAA's review of the investigator's evidence to
verify that each individual was infringing. (See Linares Decl.
11 11, 14-15, 18-19.) The court issued the subpoena but required
SUNYA to "notify each Doe Defendant that it intends to disclose
the requested ISP identifying information to Plaintiffs; and
send to each Doe Defendant a copy of the subpoena
#1
Order
dated July 22, 2008, at 2.

Thereafter, plaintiffs voluntarily dismissed the action
against most of the defendants. The remaining defendants,

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eventually including Doe 3, moved to quash the subpoena or, in the
alternative, to have the court order a severance requiring that
each defendant be sued separately. In support of the motion to
quash, these defendants argued that the First Amendment affords a
qualified right to use the Internet anonymously and that the court
that has issued a subpoena must quash or modify the subpoena when
it "requires disclosure of privileged or other protected matter,
if no exception or waiver applies," Fed. R. Civ. P.
45 (c) (3) (A) (iii) . While acknowledging that " [t]he First Amendment
right to communicate anonymously is, of course, not a license to
infringe copyrights, " the moving defendants argued
principally that their privilege "can only be overcome by a
substantial and particularized showing," sufficient to "plead a
prima facie case of copyright infringement. " (Amended Memorandum
of Law of Doe Defendants 3, 7, 11, and 15 in Support of Motion To
Quash ( "Does' Amended Memorandum") at 10 (internal quotation marks
omitted) .) They argued that the Complaint "fall [s] far short of
that showing. " (Id. )

The moving defendants argued that -- in accordance with what
they characterized as "the heightened pleading standards imposed
since
Bell Atlantic [Corp.] v. Twombly, [550 U.S. 544]
(2007) " (Does' Amended Memorandum at 15) -- in order to overcome the
First Amendment privilege, "plaintiffs must state, on personal
knowledge, a specific claim for copyright infringement against
each and every Doe defendant" (id. at 13-14). The moving
defendants contended that plaintiffs were required

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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.

(Id. at 14.) They also argued that the Complaint "fails to allege
any actual distribution of song files to the public" and hence
"does not state a claim upon which relief can be granted, " id. at
17; and that "[i]n addition to establishing that [plaintiffs']
action can withstand a motion to dismiss for failure to state a
claim, " plaintiffs, in order to secure disclosure of the Doe
defendants' identities, "must produce sufficient evidence
supporting each element of" their claims, id. at 12 (emphasis and
internal quotation marks omitted) .

As amended, defendants' notice of motion stated that the
motion to quash would be returnable before District Judge Suddaby.
However, the motion was referred to Magistrate Judge Treece.

A. The Magistrate Judge's Denial of Defendants' Motion To Quash
In a Memorandum Decision and Order dated February 18,
2009, see Arista Records LLC v. Does 1-16, No. 1:08-CV-
765 (GTS/RFT), 2009 WL 414060 (N.D.N.Y. Feb. 18, 2009)
("Arista I"), the magistrate judge denied the motion to quash the
subpoena. Noting the need to balance "the modest First Amendment
right to remain anonymous" against "a copyright owner's right to
disclosure of the identity of a possible trespasser of its

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intellectual property interest," Arista I, 2009 WL 414060, at *3,
the magistrate judge looked to the five-factor test set out by
then-District Judge Denny Chin in Sony Music Entertainment Inc. v.
Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004) ("Sony Music"), and
evaluated the defendants' expectation of privacy, the prima facie
strength of plaintiffs' claims of injury, the specificity of the
discovery request, plaintiffs' need for the information, and its
availability through other means.

The magistrate judge found that all five factors
counseled against quashing the subpoena. He noted that plaintiffs
had sufficiently pleaded copyright infringement claims, alleging
ownership of the copyrights, copying, and distribution of the
protected works by the Doe defendants without the consent of the
owners. See Arista I, 2009 WL 414060, at *1, *5. The court also
noted that plaintiffs' allegations of distribution were supported
16 by Exhibit A to the Complaint, specifying their investigator's
"sampl [ing of] some of the downloads from shared folders, " id.
at *5. The magistrate judge also found that the disclosure
request was reasonable in scope, that identification of the
alleged infringers was indispensable for the vindication of
plaintiffs' copyright rights, and that the identifying information
was unavailable through alternative means.

The magistrate judge found that these factors were not
outweighed by the First Amendment rights of the Doe defendants.
He stated that the "Doe Defendants have a minimal expectation of
privacy, especially when they allegedly engaged in P2P network

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sharing" because "the notion of allowing others to have access to
one's database by virtue of the Internet in order to pluck from a
computer information and data that the computer owner or user
wishes to share renders void any pretext of privacy." Id. at *6.
Accordingly, the magistrate judge denied the motion to quash.

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B. The District Court's Review of the Magistrate Judge's Order
Pursuant to Fed. R. Civ. P. 72, Doe 3 objected to the
magistrate judge's denial of the motion to quash, and sought "de
novo review, " "reversing" and "overruling" that order. As a
threshold procedural matter, Doe 3 argued that the motion to quash
had been referred to the magistrate judge "without the consent of
either party, and without an actual order of referral from the
District Judge" (Supporting Declaration of Richard A. Altman dated
March 2, 2009, 1 3). He also argued that the motion should not
have been referred to a magistrate judge for decision because
" [t]he motion, while styled as one to quash a subpoena, actually
challenged the legal sufficiency of the complaint in the nature of
a motion under F. R.Civ. P. 12 (b) (6). As such it is dispositive"
because "the motion to quash would for practical purposes be
determinative of the outcome of the present litigation
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(Doe 3's Objections to Magistrate Judge's Memorandum Decision and
Order at 1, 2). Doe 3 argued that the magistrate judge thus
lacked jurisdiction to decide the motion to quash and that Doe 3
was entitled to have the district judge review the magistrate
judge's decision de novo. As to substance, Doe 3 contended, to
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the extent pertinent to this appeal, that the magistrate judge's
order erred in "its conclusion that the complaint states a legally
cognizable claim, and that 'making available' music files is
automatically copyright infringement." (Id. at 5.)

In a Decision and Order dated March 5, 2009 ("Arista II"),
District Judge Suddaby rejected Doe 3's objections. The court
first rejected Doe 3's contention that his motion -- which had
requested the quashing of the subpoena or the severance of the
claims against the various defendants -- was a dispositive motion.
See, e.g., Arista II at 2 ("generally a motion to quash a subpoena
is a non-dispositive matter"); id. at 3 (a "motion for severance
of claims
is also properly viewed as a non-dispositive
matter since the practical effect of the motion, if granted, would
not be to terminate Plaintiff's claims against Defendants (nor
would it be to necessarily terminate the current action) "). The
court rejected the proposition that the motion to quash was in
essence a motion to dismiss under Rule 12 (b) (6) and hence was a
dispositive motion, noting that that Rule, by its terms, confers
the right to move for dismissal for failure to state a claim on
"'a party. '" Id. at 2. The defendants, not having been served
with process, were "not yet 'parties'" and thus could "not
properly move for dismissal for failure to state a claim." Id. at
2-3. Given that the motion to quash or sever was a nondispositive
motion, the court implicitly rejected Doe 3's contention that the
magistrate judge lacked authority to rule on it.

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Further, because the motion to quash or sever was a
nondispositive motion, the district judge concluded that the
proper standard for reviewing the magistrate judge's order was
"clear error, not de novo." Id. at 3. The court found no clear
error in the magistrate judge's order. It also determined that it
would reach the same conclusion "even [upon] de novo review. " Id.

This appeal followed. The order is appealable under the
collateral order doctrine, as the subpoena at issue "'is directed
against a third party who is unlikely to risk being held in
contempt to vindicate someone else's rights. '" In re Grand Jury
Subpoena Duces Tecum Dated May 29, 1987, 834 F.2d 1128, 1130 (2d
Cir. 1987) (quoting In re Katz, 623 F.2d 122, 124 (2d Cir. 1980)
(brackets in In re Grand Jury omitted) ) . On motion of Doe 3, this
Court stayed SUNYA's compliance with the subpoena with respect to
information pertaining to Doe 3 pending resolution of the appeal.

## II. DISCUSSION

On appeal, Doe 3 principally argues that the Complaint
does not state a claim sufficient to overcome his First Amendment
privilege of anonymity. He also pursues his contentions that his
motion to quash was improperly referred to the magistrate judge
and that the district court thus erred by not reviewing the
magistrate judge's decision de novo. We find no merit in Doe 3's
contentions.

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A. The Procedural Challenge

The district court may designate a magistrate judge to
hear and decide a pretrial matter that is "not dispositive of a
party's claim or defense." Fed. R. Civ. P. 72 (a) ; see 28 U.S.C.
§ 636 (b) (1) (A). Dispositive matters may be referred to a
magistrate judge only for recommendation, not for decision; such
matters principally include motions for injunctive relief and
motions for dismissal. See 28 U.S.C. § 636 (b) (1) (B) ; Fed. R. Civ.
P. 72 (b) . "Matters concerning discovery generally are considered
'nondispositive' of the litigation. " Thomas E. Hoar, Inc. v. Sara
Lee Corp., 900 F.2d 522, 525 (2d Cir.), cert. denied, 498 U.S. 846
(1990) . Like most discovery requests directed to opposing
parties, subpoenas to nonparties are designed to elicit
information. A motion to quash a subpoena in an action seeking
relief other than production of the subpoenaed information is not
normally a dispositive motion.

As to a nondispositive matter, "[t]he district judge in
the case must consider timely objections and modify or set aside
any part of the [magistrate judge's] order that is clearly
erroneous or is contrary to law." Fed. R. Civ. P. 72 (a). As to a
dispositive matter, any part of the magistrate judge's
recommendation that has been properly objected to must be reviewed
by the district judge de novo. See id. 72 (b) .

In the present case, the Doe defendants' motion to quash
plaintiffs' subpoena to SUNYA was not a dispositive motion.
Although Doe 3 contends to the contrary, arguing that the

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magistrate judge "necessarily had to decide whether the complaint
stated a claim or not" (Doe 3 brief on appeal at 45), that
argument ignores, inter alia, all factors other than the viability
of the Complaint. Applying the five-factor Sony Music test, the
magistrate judge could have granted the motion to quash despite
the sufficiency of the Complaint if it had found, for example,
that the subpoena was unduly broad or that plaintiffs had easy
access to the Doe defendants' identities through other means.
Quashing the subpoena on such a basis plainly would not have ended
the action.

In addition, Doe 3's contention that the motion to quash
was the equivalent of a motion to dismiss for failure to state a
claim ignores arguments he made to the magistrate judge. He
argued that in order to overcome the qualified privilege, a
plaintiff must produce evidence supporting each element of its
claim "[i]n addition to establishing that its action can withstand
a motion to dismiss for failure to state a claim. " (Does' Amended
Memorandum at 12 (internal quotation marks omitted) (emphasis in
Memorandum) . )

Finally, even if Doe 3 were correct in characterizing the
motion to quash as a dispositive matter, the only consequence
would have been that review by the district judge should have been
de novo. Given that the district judge stated that he would
conclude that the motion should be denied even if he reviewed the
matter de novo, Doe 3's procedural contention provides no basis
for reversal. See generally Fed. R. Civ. P. 61 ("At every stage

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of the proceeding, the court must disregard all errors and defects
that do not affect any party's substantial rights. ") .

### B. The Substantive Challenge

A district court's ruling on a motion to quash a subpoena
is reviewable for abuse of discretion. See, e.g., In re: Subpoena
Issued to Dennis Friedman, 350 F.3d 65, 68 (2d Cir. 2003). A
court abuses its discretion when its decision rests on an error of
law or on a clearly erroneous factual finding, see, e.g., Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); In re Fitch,
Inc., 330 F.3d 104, 108 (2d Cir. 2003), "or [when] its decision --
11 though not necessarily the product of a legal error or a clearly
erroneous factual finding -- cannot be located within the range of
permissible decisions, " id. (internal quotation marks omitted) ;
see, e.g., Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d
Cir. 2001). We see no abuse of discretion in the refusal to quash
the subpoena in the present case.

The fundamental copyright principles are clear. The owner
of a copyright has the exclusive right to -- or to license others
to -- reproduce, perform publicly, display publicly, prepare
derivative works of, and distribute copies of, his copyrighted
work. See 17 U.S.C. § 106. To establish infringement of
copyright, "two elements must be proven: (1) ownership of a
valid copyright, and (2) copying of constituent elements of the
work that are original." Feist Publications, Inc. v. Rural
Telephone Service Co., 499 U.S. 340, 361 (1991); see, e.g., Harper

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& Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 548
(1985) . "The word 'copying' is shorthand for the infringing of
any of the copyright owner's five exclusive rights" described in
§ 106. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013
(9th Cir. 2001) ( "Napster") (internal quotation marks omitted) .
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Further, " [a]lthough ' [t]he Copyright Act does not
expressly render anyone liable for infringement committed by
another, '" Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545
U.S. 913, 930 (2005) ("Grokster") (quoting Sony Corp. v. Universal
City Studios, 464 U.S. 417, 434 (1984)), it is well established,
based on "the common-law doctrine that one who knowingly
participates or furthers a tortious act is jointly and severally
liable with the prime tortfeasor, " that "one who, with knowledge
of the infringing activity, induces, causes or materially
contributes to the infringing conduct of another, may be held
liable as a 'contributory' infringer, " Gershwin Publishing Corp.
v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.
1971) ("Gershwin") (internal quotation marks and footnote
omitted) (emphases ours); see, e.g., Grokster, 545 U.S. at 930.
The knowledge standard is an objective one; contributory
infringement liability is imposed on persons who "know or have
reason to know" of the direct infringement, Napster, 239 F.3d
at 1020 (emphasis added) ; see, e.g., In re: Aimster Copyright
Litigation, 334 F.3d 643, 650 (7th Cir. 2003) (" [w]illful
blindness is knowledge"), cert. denied, 540 U.S. 1107 (2004) ;
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Cable/Home Communication Corp. v. Network Productions, Inc., 902

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F.2d 829, 845 (11th Cir. 1990) ( "Cable/Home") ; Gershwin, 443 F.2d
at 1162. Such "liability exists if the defendant engages in
'personal conduct that encourages or assists the infringement, '"
Napster, 239 F.3d at 1019 (quoting Matthew Bender & Co. v. West
Publishing Co., 158 F.3d 693, 706 (2d Cir. 1998)). The
"'resolution of the issue . . . depends upon a determination of
the function that [the alleged infringer] plays in the total
[reproduction] process. '" Gershwin, 443 F.2d at 1162 n. 8 (quoting
Fortnightly Corp. v. United Artists Television, Inc., 392 U.S.
390, 396-397 (1968) (alterations in Gershwin) ) .

The relevant First Amendment principles are also well
established. The Supreme Court has recognized that the First
Amendment provides protection for anonymous speech. See, e.g.,
Buckley v. American Constitutional Law Foundation, Inc., 525 U.S.
182, 199-200 (1999) ; McIntyre v. Ohio Elections Commission, 514
U.S. 334, 341-342 (1995); see also NAACP v. Alabama, 357 U.S. 449,
462, 466 (1958) (compelled disclosure of membership list would
impinge on First Amendment right of association). In the context
of political speech, the Supreme Court has recognized that
" [a]nonymity is a shield from the tyranny of the majority, "
McIntyre, 514 U.S. at 357. The Court has also recognized that the
Internet is a valuable forum for the exchange of ideas. See,
e.g., Reno v. ACLU, 521 U.S. 844, 870 (1997) ("Through the use of
chat rooms, any person with a phone line can become a town crier
with a voice that resonates farther than it could from any
soapbox. ") . To the extent that anonymity is protected by the

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First Amendment, a court should quash or modify a subpoena
designed to breach anonymity. See Fed. R. Civ. P. 45 (c) (3) (A)
(the "issuing court must quash or modify a subpoena" when it
"requires disclosure of privileged or other protected matter, if
no exception or waiver applies") .

The First Amendment does not, however, provide a license
for copyright infringement. See, e.g., Harper & Row, Publishers,
471 U.S. at 555-57, 569; Cable/Home, 902 F.2d at 849 (" [w]ith
respect to copyright protection, ' [t]he first amendment is not a
license to trammel on legally recognized rights in intellectual
property'" (quoting Dallas Cowboys Cheerleaders, Inc. v.
Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979) ) ) ;
Sony Music, 326 F. Supp.2d at 563 ("Parties may not use the First
Amendment to encroach upon the intellectual property rights of
others. ") . Thus, to the extent that anonymity is used to mask
copyright infringement or to facilitate such infringement by other
persons, it is unprotected by the First Amendment.

As indicated in Part I.A. above, the legal standard
applied by the district court in the present case in denying the
moving Doe defendants' motion to quash plaintiffs' subpoena to
SUNYA was the standard adopted by the court in Sony Music, 326
F. Supp.2d 556. In Sony Music, after discussing the above
principles, as well as several cases that had dealt with the
tension between First Amendment rights and copyright rights,
then-District Judge Chin concluded that in the analysis of whether

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the qualified privilege requires that the subpoena be quashed, the
principal factors include

(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.

Sony Music, 326 F. Supp.2d at 564-65. We agree that this
constitutes an appropriate general standard for determining
whether a motion to quash, to preserve the objecting party's
anonymity, should be granted.

On this appeal, Doe 3 does not contend that the Sony Music
standard used by the district court here was an erroneous legal
standard. Although he asserts that "downloading, distributing,
or making music available constitutes protected First Amendment
speech" (Doe 3 brief on appeal at 20), he expressly acknowledges
that " [t]he First Amendment right to communicate anonymously is,
of course, not a license to . . . infringe copyrights. . . . Nor
is it an absolute bar against disclosure of one's identity in a
proper case" (id.) .

Nor does Doe 3 articulate any challenge to the court's
evaluation of most of the five factors of the Sony Music standard,
i.e., the specificity of the information request, the plaintiffs'
need for and the limited availability of the information
requested, and the anonymous person's expectation of privacy.
Rather, Doe 3 contends that the court should have found that
plaintiffs did not make a "particularized showing" (Doe 3 brief

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on appeal at 20) sufficient to overcome his qualified privilege.
In support of his position, Doe 3 contends that the Supreme
Court's recent decisions in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) ("Twombly"), and Ashcroft v. Iqbal, 129 S. Ct.
1937 (2009) ("Iqbal"), imposed "heightened pleading standards"
(e.g., Doe 3 brief on appeal at 18, 28-29) such that plaintiffs
were required

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

(id. at 28) . Neither Doe 3's reliance on Twombly/Iqbal nor his
contention that plaintiffs' allegations are insufficiently
specific has merit.

First, the notion that Twombly imposed a heightened
standard that requires a complaint to include specific evidence,
factual allegations in addition to those required by Rule 8, and
declarations from the persons who collected the evidence is belied
by the Twombly opinion itself. The Court noted that Rule 8 (a) (2)
of the Federal Rules of Civil Procedure "requires only 'a short
and plain statement of the claim showing that the pleader is
entitled to relief, ' in order to give the defendant fair notice of
what the
claim is and the grounds upon which it rests, "
Twombly, 550 U.S. at 555 (other internal quotation marks omitted) ;
see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 512
(2002) (holding that, at the pleading stage, an employment

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standard
discrimination plaintiff who alleges facts that provide fair
notice of his claim need not also allege "specific facts
establishing a prima facie case, " for such a "heightened pleading
conflicts with Federal Rule of Civil Procedure
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8 (a) (2) ") . The Twombly Court stated that "a complaint attacked by
a Rule 12 (b) (6) motion to dismiss does not need detailed factual
allegations, " but mere "labels and conclusions" or "formulaic
recitation [s] of the elements of a cause of action will not do";
rather, the complaint's " [f]actual allegations must be enough to
raise a right to relief above the speculative level, " Twombly, 550
U.S. at 555 (emphasis added), i.e., enough to make the claim
"plausible," id. at 570. Applying these standards to the
complaint before it, which claimed violations of § 1 of the
Sherman Act, 15 U.S.C. § 1 (prohibiting contracts, combinations,
and conspiracies in restraint of trade), the Twombly Court
concluded that "stating such a claim requires a complaint with
enough factual matter (taken as true) to suggest that an agreement
"
18 was made." 550 U.S. at 556 (emphasis added) . Because the Twombly
complaint's factual allegations described only actions that were
parallel, and were doctrinally consistent with lawful conduct, the
conclusory allegation on information and belief that the observed
conduct was the product of an unlawful agreement was insufficient
to make the claim plausible. See id. at 556-57, 564-66. The

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Twombly plausibility standard, which applies to all civil actions,
see Iqbal, 129 S. Ct. at 1953, does not prevent a plaintiff from
"pleading facts alleged 'upon information and belief'" where the

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facts are peculiarly within the possession and control of the
defendant, see, e.g., Boykin v. KeyCorp, 521 F.3d 202, 215 (2d
Cir. 2008), or where the belief is based on factual information
that makes the inference of culpability plausible, see Iqbal, 129
S. Ct. at 1949 ("A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. ") . The Twombly Court stated that " [a] sking
for plausible grounds to infer an agreement does not impose a
probability requirement at the pleading stage; it simply calls for
enough fact to raise a reasonable expectation that discovery will
reveal evidence of illegal [ity]." 550 U.S. at 556.

Concluding that the complaint before it failed to state a
plausible claim, the Twombly Court stated that " [i]n reaching this
conclusion, we do not apply any 'heightened' pleading standard, "
id. at 569 n.14 (emphasis added). Rather, it emphasized that its
holding was consistent with its ruling in Swierkiewicz that "a
heightened pleading requirement," requiring the pleading of
"' specific facts' beyond those necessary to state [a] claim and
the grounds showing entitlement to relief, " was "impermissibl [e] , "
Twombly, 550 U.S. at 570. "Here, " the Twombly Court stated, "we
do not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its
face." Id. (emphasis added) .

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Nor did Iqbal heighten the pleading requirements. Rather,
it reiterated much of the discussion in Twombly and rejected as

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insufficient a pleading that the Iqbal Court regarded as entirely
conclusory. Accordingly, although Twombly and Iqbal require
"' factual amplification [where] needed to render a claim
plausible, '" Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009)
(quoting Ross v. Bank of America, N.A (USA), 524 F.3d 217, 225 (2d
Cir. 2008) ), we reject Doe 3's contention that Twombly and Igbal
require the pleading of specific evidence or extra facts beyond
what is needed to make the claim plausible.

Even less meritorious is Doe 3's contention that
plaintiffs' showing in the present case was vague and conclusory.
Doe 3 states that

[t]he central allegations in the complaint in
this case are that :

Plaintiffs are informed and believe that each
Defendant, without the permission or consent of
Plaintiffs, has used, and continues to use, an
online media distribution system to download
and/or distribute certain of the Copyrighted
Recordings [.] . . . Through his or her
continuous and ongoing acts of downloading
and/or distributing to the public the
Copyrighted Recordings, each Defendant has
violated Plaintiffs' exclusive rights of
reproduction and distribution. . . . Plaintiffs
are informed and believe that each Defendant
has, without the permission or consent of
Plaintiffs, continuously downloaded and/or
distributed to the public additional sound
recordings owned by or exclusively licensed to
Plaintiffs or Plaintiffs' affiliate record
labels, and Plaintiffs believe that such acts of
infringement are ongoing.

(Doe 3 brief on appeal at 31 (quoting portions of the Complaint
1 22) (alterations in Doe 3 brief) .) Doe 3 criticizes " [t]hese
[as] vague allegations, devoid of both direct knowledge and
specific facts." (Doe 3 brief on appeal at 32.)

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To characterize this criticism by Doe 3 as unfair would be
extremely charitable, for the above ellipses in the Doe 3 brief's
quotation from [ 22 of the Complaint represent deletions of that
paragraph's references to Complaint Exhibit A -- in which plaintiffs
provide ample detail. For example, the first ellipsis omits the
allegation that "Exhibit A identifies on a Defendant-by-Defendant
basis (one Defendant per page) the IP address with the date and
time of capture and a list of copyrighted recordings that each
Defendant has, without the permission or consent of Plaintiffs,
downloaded and/or distributed to the public" (Complaint | 22
(emphasis added) ). The second ellipsis similarly omits the
Complaint's reference to "the sound recordings listed for each
Defendant on Exhibit A" (Complaint | 22) .

To the extent that | 22's allegations are made on
information and belief, virtually all of them are supported by
factual assertions in Exhibit A. For example, the allegation that
each Doe defendant "has used" file-sharing networks to download
and distribute plaintiffs' music is supported by Exhibit A's lists
of specific songs found in the respective Doe defendants' file-
sharing folders, on the date shown, at the time indicated, on the
specified online, peer-to-peer, file-sharing network. The
allegation that there was "continue [d] " use is supported by, inter
alia, the utter improbability that the songs observed by
plaintiffs' investigators in a given Doe defendant's file-sharing
folder at a particular time were there only at the precise instant
at which they were observed, and not before and not afterwards;

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the inference of continued use is also supported by the facts that
Exhibit A lists each of the "Doe" defendants as engaging in such
file-sharing on a different date and that defendants' attorney has
represented that some of the "Doe" defendants are in fact the same
person (see, e.g., Doe 3 brief on appeal at 16 n. 13; Amended
Supporting Declaration of Richard A. Altman dated October 6, 2008,
at 1 n.1). The principal assertion made only on information-and-
belief is that defendants' copying and/or distribution of
plaintiffs' music were without permission. But no more definitive
assertion as to lack of permission seems possible when the users
remain anonymous.

The Complaint's Exhibit A itself is never mentioned in
Doe 3's brief. Page 3 of that Exhibit makes assertions as to
Doe 3 and could hardly be more specific. It specifies that at
"IP Address [] 169.226.226.24" at 2:15:57 a.m. on April 12, 2007,
the "P2P Network [] AresWarez" was in use (emphases in original) ;
that a total of 236 audio files were present in a file-sharing
folder at that IP address at that time; and that among those files
were the following songs, whose respective copyrights were owned
by the plaintiffs indicated:

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1

Copyright

Recording

Album

2

Owner

Artist

Title

Title

3

UMG Recordings,

Beastie Boys

Girls

Licensed

4

Inc.

To Ill

5

UMG Recordings,

Jodeci

Come and

Forever My

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Inc.

Talk to Me

Lady

7

Motown Record

Lionel Richie

Hello

Can't Slow

8

Company L. P.

Down

9

Interscope Records

Eminem

Superman

Eminem Show

10

Capitol Records,

Poison

Every rose

Open Up &amp;

11

LLC

has its

Say . . . . Ahh !

12

thorn

13

SONY BMG MUSIC

Good Charlotte

Lifestyles of

The Young

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ENTERTAINMENT

of the Rich

and the

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and Famous

Hopeless

(Complaint Exhibit A, at 3.) The Complaint alleges that notice of
copyright pursuant to 17 U.S.C. § 401 had been placed on each such
album cover and on the published copies of each of the sound
recordings identified in Exhibit A. (Complaint | 23.) Given the
factual detail in the Complaint and its Exhibit, plaintiffs'
pleading plainly states copyright infringement claims that are
plausible. See generally Grokster, 545 U.S. at 920 (individual

"users of peer-to-peer networks
have prominently employed

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those networks in sharing copyrighted music and video files
without authorization") ; In re: Aimster Copyright Litigation, 334
F.3d at 645 ( "Teenagers and young adults who have access to the
Internet like to swap computer files containing popular music. If
the music is copyrighted, such swapping, which involves making and
transmitting a digital copy of the music, infringes copyright.
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copyright and in any event discount the likelihood of being sued
or prosecuted for copyright infringement, are the direct
infringers. ") .

In addition, the Linares declaration submitted in support
of plaintiffs' subpoena request pointed out that Exhibit A lists
only samples of the numerous "audio files that were being shared
by [the Doe defendants at the time that the RIAA's agent
observed the infringing activity" (Linares Decl. | 19; see
Complaint Exhibit A, stating that as many as 1,143 audio files
were found in some of the Doe defendants' file-sharing folders),
and that complete lists would be provided to the court upon
request (Linares Decl. [ 19). No greater specificity in the
Complaint or in plaintiffs' submissions in support of their
request for the subpoena to SUNYA was required.

Doe 3 argues that the Complaint does not adequately allege
copyright infringement because, he argues, merely "making . .
available" a work on a peer-to-peer network does not violate a
copyright holder's distribution right absent proof of actual
distribution (Doe 3 brief on appeal at 5). We need not address
the question of whether copyright infringement occurs when a work
is simply made available, however, because the Complaint alleges
not that defendants merely made songs available on the network but
that defendants both actually downloaded plaintiffs' copyrighted
works and distributed them. (Complaint | 22 ("Exhibit A includes
the currently-known total number of audio files being distributed
by each Defendant. ") .) The Complaint thus alleges violations of

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the copyright holders' reproduction and distribution rights under
17 U.S.C. §§ 106 (1) and (3) . See, e.g., London-Sire Records, Inc.
v. Doe 1, 542 F.Supp.2d 153, 166 & n.16, 169 (D. Mass. 2008)
(violations of copyright owner's reproduction and distribution
rights were adequately alleged by complaint stating that the
defendants used a peer-to-peer network to download copyrighted
works without permission and to distribute them to the public) .

For the reasons stated above, the facts asserted in the Complaint
are adequate to support these allegations. See id. at 169 ("The
Court can draw from the [c]omplaint and the current record a
reasonable inference in the plaintiffs' favor -- that where the
defendant has completed all the necessary steps for a public
distribution, a reasonable fact-finder may infer that the
distribution actually took place." (emphasis omitted) ) .

We need not decide whether the requirement we endorse
today, that a plaintiff seeking to subpoena an anonymous Internet
defendant's identifying information must make a "concrete showing
of a prima facie claim of actionable harm, " would be satisfied by
a well-pleaded complaint unaccompanied by any evidentiary showing.
Here, plaintiffs' Complaint, attached exhibit, and supporting
declaration are clearly sufficient to meet that standard.

We note that Doe 3 disparages the contents of the Linares
declaration, arguing that it is "fatally short on averments on
personal knowledge about the supposed infringements by Doe 3"
(Doe 3 brief on appeal at 28 (emphasis in original) ) . On the face
of the record -- even assuming that such a summary-judgment-level or

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trial-level standard were applicable -- that criticism is
unjustified. Linares stated in his declaration, "under penalty of
perjury, " that he "ha [d] personal knowledge of the facts stated
[therein] " (Linares Decl. introductory paragraph), that he had
provided "oversight over the review of the lists contained in
Exhibit A to the Complaint, " and that he "attest [ed] to the
veracity of those lists" (id. | 15). He stated: "this
Declaration is based on my personal knowledge, and if called upon
to do so, I would be prepared to testify as to its truth and
accuracy." (Id. [ 2.) Further, even if Linares did not himself
view the contents of defendants' file-sharing folders, his
testimony may well be sufficient to have the results of the
investigation he commissioned admitted in evidence at trial. See,
e.g., Keith v. Volpe, 858 F.2d 467, 481 (9th Cir. 1988) (testimony
by a witness who "functioned as the survey director, even though
he contracted with another firm to provide interviewers" for the
survey, "is sufficient to establish a foundation" for
admissibility of the survey at trial), cert. denied, 493 U.S. 813
(1989) ; Piper Aircraft Corp. v. Wag-Aero, Inc., 741 F.2d 925, 931
(7th Cir. 1984) ("We agree with the suggestion in McCarthy's

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treatise that the testimony of a survey director alone can

establish the foundation for the admission of survey results."
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(citing 2 J.T. McCarthy, Trademarks and Unfair Competition § 32:53
(1973) ) ). No greater proof was required in opposition to the
motion to quash the subpoena seeking the identities of the persons
who downloaded and/or distributed plaintiffs' copyrighted works.

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Finally, we note that Doe 3 several times mentions the
copyright doctrine of "fair use, " stating, for example, that "the
right to make a personal copy of copyrighted material may be
protected as fair use" (Doe 3 brief on appeal at 5), and that
"some downloading may be permissible as fair use" (id. at 25) .
Whether or not these and other statements are intended to suggest
that Doe 3 has a fair-use defense to plaintiffs' claims of
copyright infringement, we reject the proposition that these
arguments are sufficient to warrant quashing plaintiffs' subpoena.
"Fair use" is an equitable doctrine, the applicability of which
presents mixed questions of law and fact. See, e.g., Harper &
Row, Publishers, 471 U.S. at 560. "Fair use presupposes good
faith and fair dealing, " and one pertinent consideration is
"whether the user stands to profit from exploitation of the
copyrighted material without paying the customary price." Id.
at 562 (internal quotation marks omitted) .

[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.

Id. at 560-61. Here, the second, third, and fourth elements are
clear. The works at issue are original musical compositions,
present in the respective Doe defendants' file-sharing folders in
their entirety; and, assuming lack of the copyright owners'
consent, the likely detrimental effect of file-sharing on the
value of copyrighted compositions is well documented, see, e.g.,

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Grokster, 545 U.S. at 923 (anecdotal and statistical evidence
"gives reason to think that the vast majority of users' downloads
are acts of infringement, and because well over 100 million copies
of the software in question are known to have been downloaded, and
billions of files are shared across the FastTrack and Gnutella
networks each month, the probable scope of copyright infringement
is staggering") . And although Doe 3 indicates that he "may" have
had a permissible purpose for copying and sharing the music found
in his file-sharing folder, any assertion of such a purpose raises
questions of credibility and plausibility that cannot be resolved
while Doe 3 avoids suit by hiding behind a shield of anonymity.

We note that we are skeptical of the magistrate judge's
view that "any pretext of privacy" on the part of a computer
owner is "render [ed] void" simply by "the notion [that he]
allow [s] others to have access to [his] database by virtue of the
Internet in order to pluck from a computer information and data
that the computer owner or user wishes to share, " Arista I, 2009
WL 414060, at *6. The privacy claimed here is not for the
information that the computer owner or user wishes to share but
rather for his or her identity. Instead, we regard Doe 3's
expectation of privacy for sharing copyrighted music through an
online file-sharing network as simply insufficient to permit him
to avoid having to defend against a claim of copyright
infringement .

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# CONCLUSION

We have considered all of Doe 3's contentions on this
appeal and have found them to be without merit. The order of the
district court denying the motion to quash the subpoena is
affirmed.

The stay of SUNYA's compliance with so much of the
subpoena as sought information pertaining to Doe 3, previously
granted by this Court pending resolution of the appeal, is hereby
lifted.

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