Frontier Communications Corporation

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

In re: FOR PUBLICATION

FRONTIER COMMUNICATIONS Chapter 11

CORPORATION, et al.,

Case No. 20-22476 (MG)

Reorganized Debtors.

OPINION GRANTING MOVIE COMPANY CLAIMANTS’ REQUEST TO SERVE CABLE

COMMUNICATIONS ACT SUBPOENAS ON FRONTIER AND AUTHORIZING FRONTIER

TO DISCLOSE SUBSCRIBER INFORMATION

A P P E A R A N C E S:

MORGAN, LEWIS & BOCKIUS LLP

Counsel for the Record Company Claimants

101 Park Avenue

New York, NY 10178

By: Michael Luskin, Esq.

Stephen E. Hornung, Esq.

and

OPPENHEIM + ZEBRAK, LLP

Counsel for the Record Company Claimants

4350 Wisconsin Avenue, NW, Fifth Floor

Washington, DC 20016

By: Matthew J. Oppenheim, Esq.

461 Fifth Avenue, 19th Floor

New York, New York 10017

By: Alexander Kaplan, Esq.

Carly Kessler Rothman, Esq.

AKERMAN LLP

Counsel for Frontier

71 South Wacker Drive 47th Floor

Chicago, Il. 60606

By: Rubén Castillo, Esq.

Ildefonso Mas, Esq.

CULPEPPER IP

Counsel for the Movie Company Claimants

75-170 Hualalai Road, Suite B204

Kailua-Kona, HI 96740

By: Kerry S. Culpepper, Esq.

MARTIN GLENN

CHIEF UNITED STATES BANKRUPTCY JUDGE

This opinion addresses whether the Court should authorize issuance of subpoenas by

Movie Company Claimants (defined below) that filed claims in the Chapter 11 case of Frontier

Communications Corporation (“Frontier”) alleging contributory copyright infringement by

Frontier, a telecommunications and internet services provider (“ISP”). The subpoenas would

require Frontier to disclose personally identifiable information of Frontier’s internet subscribers

(“Subscribers,” and such information, “Subscriber PII”) who allegedly directly infringed Movie

Company Claimants’ copyrights by transferring copyrighted movies over Frontier’s internet

network. Movie Company Claimants have identified the IP addresses of the alleged infringers

but cannot identify those infringers’ names and other identifying information without obtaining

that information pursuant to the subpoenas from Frontier. The Cable Communications Privacy

Act, 47 U.S.C. § 551, et seq. (“CCPA”), regulates but does not prohibit the disclosure of such

subscriber information. Frontier objects to the issuance of the subpoenas.

For the reasons explained below, the Court overrules Frontier’s objection and authorizes

the issuance of the subpoenas (the “CCPA Subpoenas”), limited to the time period beginning

October 13, 2016, and subject to the requirement in CCPA section 551(c)(2)(B) that Frontier

notify the subscriber that the proposed disclosure is “made pursuant to a court order authorizing

such disclosure . . . .” 47 U.S.C. § 551(c)(2)(B).

I. BACKGROUND

A. Frontier’s Chapter 11 Case

On April 14, 2020, Frontier filed a voluntary petition for relief under Chapter 11 of the

Bankruptcy Code in this Court. (See ECF Doc. # 1.) On August 27, 2020, the Court confirmed

Frontier’s Chapter 11 plan of reorganization (ECF Doc. # 1005-1). The plan became effective

and Frontier emerged from the Chapter 11 case on April 30, 2021. The Record Company

Claimants1 and Movie Company Claimants2 (together, “Claimants”) filed proofs of claim for

pre-petition and post-petition (pre-effective date administrative expenses) copyright infringement

against Frontier.3 Frontier objected to Claimants’ claims and administrative expenses (see ECF

Doc. ## 1818, 1951), to which Claimants responded (see ECF Doc. ## 1902, 1984) (these claims

and administrative expenses, the “Contested Matters”).

B. Discovery of Personally Identifying Information of Frontier’s Subscribers

Who Directly Infringed Movie Company Claimants’ Copyrights

On November 6, 2023, counsel for Frontier and Claimants submitted a Joint Status

Report and Proposed Case Management and Scheduling Orders re the Copyright Claimants’

1 The Record Company Claimants are: UMG Recordings, Inc. and Capitol Records, LLC; ABKCO Music &

Records, Inc.; Sony Music Entertainment, Arista Music, Arista Records LLC, LaFace Records LLC, Sony Music

Entertainment US Latin, Volcano Entertainment III, L.L.C., and Zomba Recording LLC; Atlantic Recording

Corporation, Atlantic Records Group LLC, Bad Boy Records LLC, Big Beat Records Inc., Elektra Entertainment

Group Inc., Fueled by Ramen LLC, Maverick Recording Company, Nonesuch Records Inc., Rhino Entertainment

Company, Rhino Entertainment LLC, Roadrunner Records, Inc., Warner Music Inc., Warner Music International

Services Limited, Warner Music Nashville LLC, and Warner Records Inc.

2 The Movie Company Claimants are: Voltage Holdings, LLC; Backmask, LLC; Union Patriot Capital

Management, LLC; Venice PI, LLC; Bedeviled, LLC; MON, LLC; Colossal Movie Productions, LLC; TBV

Productions, LLC; Definition Delaware LLC; I Am Wrath Productions, Inc.; Hannibal Classics Inc.; Justice

Everywhere Productions LLC; Badhouse Studios, LLC; After Productions, LLC; Rise Up, LLC; Status Update

LLC; Morgan Creek Productions, Inc.; Shock and Awe, LLC; Fun Mom Dinner, LLC; Dead Trigger Movie, LLC;

YAR Productions, Inc.; Gunfighter Productions, LLC; Ace in the Hole Productions, LP; SF Film, LLC; The Rest of

Us, Inc.; Killing Link Distribution, LLC; Cell Film Holdings, LLC; Dallas Buyers Club, LLC; Screen Media

Ventures, LLC; Rambo V Productions, Inc.; Millennium Funding, Inc.; Millennium IP, Inc.; LHF Productions, Inc.;

UN4 Productions, Inc.; Millennium Media, Inc.; Bodyguard Productions, Inc.; Hunter Killer Productions, Inc.;

Fallen Productions, Inc.; HB Productions, Inc.; Laundry Productions, Inc.; Black Butterfly Film, LLC; AMBI

Distribution Corp.; Dubious Productions, Inc.; Rupture CAL, Inc.; Future World One, LLC; Groove Tails

Infringement Claims Against the Reorganized Debtors (the “Status Report,” ECF Doc. # 2227).

The Status Report addressed whether the Court should authorize the issuance of subpoenas that

require Frontier to disclose Subscriber PII about Subscribers who allegedly directly infringed

Movie Company Claimants’ copyrights, and the time period over which discovery should be

permitted.

On November 21, 2023, the Court held a case management conference concerning the

contested issues raised in the Status Report. Following the conference, the Court entered Case

Management Order #1 After Conference in Contested Matters of Copyright Claims Objections

(“Management Order #1,” ECF Doc. # 2229). The Court did not address all contested issues in

Management Order #1. The Court writes here separately to address the issue of CCPA

Subpoenas.

C. The Bankruptcy Court Copyright Claims and the District Court Actions

In addition to the Claims filed in the Bankruptcy Court, Claimants as plaintiffs filed

actions in the U.S. District Court for the Southern District of New York4 (the “District Court

Actions”) alleging post-effective date copyright infringement against Frontier, again based on

alleged contributory copyright infringement by Frontier of its subscribers’ direct copyright

Productions, LLC; Family of the Year Productions, LLC; Eve Nevada, LLC; After II Movie, LLC; and Wonder

One, LLC.

3 The Record Company Claimants filed the following claims: Claim. Nos. 3560, 3821, 3822, and 3832,

amended at Claim Nos. 3944, 3946–48.

The Movie Company Claimants filed the following claims: Claim Nos. 2169, 2137, 2177, 2128, 2132,

2131, 2150, 2167, 2119, 2192, 2269, 1378, 1372, 1394, 1434, 2168, 2121, 2129, 2163, 2125, 2264, 2228, 2236,

2237, 2233, 2193, 2235, 2159, 2283, 2511, 2659, 2742, 2741, 2747, 2748, 2750, 2755, 2752, 2754, 2757, 2756,

2759, 2777, 2853, 2858, 2865, 2901, 2856, 2862 3131, 3806, 3807, 3803, 3808, 3804, and 3812.

4 See UMG Recordings, Inc. v. Frontier Communications Corporation, Case No. 1:21-cv-05050-AT; UMG

Recordings, Inc. v. Frontier Communications Corporation, Case No. 1:21-cv-05253-AT; Voltage Holdings LLC et

al. v. Frontier Communications Corporation, Case No. 1:21-cv-05708-AT.

infringement. The District Court Actions are pending before the Hon. Analisa Torres. The

Contested Matters and the District Court Actions raise many common factual and legal issues.

Claimants filed motions to withdraw the reference of the Contested Matters from the

Bankruptcy Court, which Judge Torres denied in two written orders. (See 21-cv-5050, ECF

Doc. # 15; 21-cv-5708, ECF Doc. # 20.) In prior proceedings in the District Court, Judge

Torres determined that discovery in the Contested Matters and District Court Actions should

proceed together in the Bankruptcy Court.

D. The Discovery Schedule Dispute

The Status Report reflects several disagreements regarding discovery. First, Frontier

and Claimants dispute how long the Court should permit for fact and expert discovery, and the

numbers of fact and expert witness depositions the parties should be permitted to take. Those

issues will be resolved in a comprehensive discovery scheduling order that will be entered after

the parties complete some initial Court imposed requirements. (See Management Order #1).

Another disagreement, which is the subject of this opinion, is whether the Court should

authorize the issuance of CCPA Subpoenas, authorizing the disclosure of Subscriber PII to

Movie Company Claimants, and the time period such CCPA Subpoenas should cover.

1. Frontier’s Position

Frontier opposes the CCPA Subpoenas. It cites two cases for the proposition that

“[CCPA Subpoenas] are disfavored for DMCA claims involving a conduit internet service

provider such as Frontier.” (Status Report at 19–20, citing Malibu Media, LLC v. Doe, No. 15

CIV. 4369 AKH, 2015 WL 4092417 (S.D.N.Y. July 6, 2015) (herein after “Malibu Media”) and

Matter of Cox Comm’ns, LLC, No. MC 23-00263 JMSWRP, 2023 WL 6907124 (D. Haw. Aug.

31, 2023) (herein after “Matter of Cox”).

2. Movie Company Claimants’ Position

Movie Company Claimants request entry of a scheduling order authorizing them to

“immediately serve a request for production of documents requesting identification information

(name, physical address, e-mail address, and lease log identifying time frame IP address was

assigned…)” pursuant to 47 U.S.C. § 551(c)(2)(B). (Status Report at 28.) Movie Company

Claimants further request entry of an order (the “Proposed Cable Act Order,” Status Report at

34) providing that “[p]ursuant to the [CCPA], the Court authorizes [Frontier] to disclose

[Subscriber PII] of the individuals or entities to whom Debtor assigned certain IP addresses

identified by [Movie Company] Claimants.” (Proposed Cable Act Order ¶ 1.)

Movie Company Claimants address the issue of third-party subpoenas in their response

(“Movie Response,” ECF Doc. # 1894) to Frontier’s claim objection (“Movie Objection,” ECF

Doc. # 1818). Movie Company Claimants argue that the information sought in the CCPA

Subpoenas is necessary to establish Subscribers’ direct infringement, which is a prerequisite to

establishing Frontier’s secondary liability for such infringement. (Movie Response at 19.)

II. LEGAL STANDARD

Section 551 of the Cable Communications Privacy Act, the 47 U.S.C. § 551, provides, in

relevant part:

(c) DISCLOSURE OF PERSONALLY IDENTIFIABLE INFORMATION

(1) Except as provided in paragraph (2), a cable operator shall not disclose

personally identifiable information concerning any subscriber without the prior

written or electronic consent of the subscriber concerned and shall take such actions

as are necessary to prevent unauthorized access to such information by

a person other than the subscriber or cable operator.

(2) A cable operator may disclose such information if the disclosure is—

[. . .]

(B) subject to subsection (h), made pursuant to a court order authorizing such

disclosure, if the subscriber is notified of such order by the person to whom the

order is directed;

47 U.S.C. § 551.

III. ANALYSIS

For the reasons explained below, the Court finds that Movie Company Claimants have

established good cause to require Frontier to disclose the alleged infringing Subscribers’ PII that

Movie Company Claimants are seeking. To establish their claims for contributory infringement,

Movie Company Claimants must show direct infringement by the Subscribers for whom they

have IP addresses. Frontier’s caselaw and arguments seeking to bar this discovery are

unpersuasive.

A. Frontier’s Caselaw is Inapposite

Neither case cited by Frontier is instructive here. Malibu Media, 2015 WL 4092417,

concerned a copyright holder directly suing internet subscribers. Matter of Cox Comm’ns, LLC,

2023 WL 6907124, concerned a different type of subpoena, authorized by section 512(h) of the

Digital Media Communications Act (“DMCA”), not 551(c) of the CCPA.

In Malibu Media, plaintiff Malibu Media LLC (“Malibu”) held copyrights to a vast

library of adult content, and was notorious for using such subpoenas to (1) identify individual

users via their IP address and (2) seek “quick, out-of-court settlements” using tactics “clearly

calculated to embarrass defendants” and which “raise[d] serious questions about misuse of court

procedure.” Malibu Media, 2015 WL 4092417, at *3. It was not the “discovery tools” that made

abuse likely, as Frontier suggested; rather, the abuse was Malibu using the CCPA Subpoenas to

target individual internet users and extract “quick, out-of-court settlements.” Id. Here, neither

side has suggested that Movie Company Claimants will use the CCPA Subpoenas to “target”

anyone besides Frontier. Rather, as discussed supra, Movie Company Claimants require the

CCPA Subpoenas to establish direct copyright infringement.

In Matter of Cox, the district court analyzed subpoenas authorized under section 512(h)

of the DMCA (“DMCA Subpoenas”), not those authorized under section 551(c) of the CCPA.

The Court concluded that DMCA Subpoenas were only proper when the internet provider was

“storing” or “hosting” the infringing information, but not when it was merely the conduit.

Matter of Cox, 2023 WL 6907124, at *3. However, Movie Company Claimants are not

requesting DMCA Subpoenas; they are instead requesting CCPA Subpoenas, which Matter of

Cox does not address.

Accordingly, the Court is unpersuaded by Frontier’s arguments.

B. Movie Company Claimants Have Established Good Cause to Issue the CCPA

Subpoenas

Federal Rule of Civil Procedure 26(d)(1) provides that parties “may not seek discovery

from any source before the parties have conferred as required by Rule 26(f) . . . .” FED. R. CIV.

P. 26(d)(1). However, such discovery is permitted when “authorized . . . by court order.” Id.

The standard for granting that order is “generally viewed as requiring a showing of good cause.”

In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 87 (E.D.N.Y. 2012).

Factors to consider in determining whether there is “good cause” for the disclosure of an

alleged infringer’s information through an ISP include: “(1) a concrete showing of a prima facie

claim; (2) a specific 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) a minimal expectation of privacy by the defendant in the requested information.” Rotten

Records, Inc. v. Doe, 107 F. Supp. 3d 257, 258–59 (W.D.N.Y. 2015) (quoting Catlin v. Global,

No. 14-CV-6324L, 2014 WL 3955220, at *2 (W.D.N.Y. Aug. 13, 2014)).

These factors were announced by the Second Circuit in Arista Records LLC v. Doe, 604

F.3d 110 (2d Cir. 2010), originally as a test for determining when to quash a subpoena seeking

personally identifiable information from ISP subscribers. However, courts have also applied the

Arista factors to the “good cause” inquiry to issue such a subpoena, as outlined above. Rotten

Records, Inc. v. Doe, 107 F. Supp. 3d 257.

1. Movie Company Claimants have made a prima facie claim of infringement

To establish direct copyright infringement, a plaintiff must “establish (1) ownership of a

valid copyright and (2) unauthorized copying or a violation of one of the other exclusive rights

afforded copyright owners pursuant to the Copyright Act.” Byrne v. British Broad. Corp., 132

F. Supp. 2d 229, 232 (S.D.N.Y. 2001) (citing Twin Peaks Prods. v. Publ’ns Int’l. Ltd., 996 F.2d

1366, 1372 (2d Cir. 1993)). Movie Company Claimants have made a prima facie claim of direct

infringement by the Subscribers.

Movie Company Claimants have alleged ownership of the copyrights to the movies listed

in Exhibit 1 of the Movie Response (ECF Doc. # 1894-1), which relate to their pre-petition5 and

post-petition6 claims. Movie Company Claimants have engaged a third-party agent who,

through the use of proprietary software, monitored the networks for “acts of distribution” and

identified “detailed confirmed infringements of specific movie titles, at specific [IP] addresses.”

(Movie Response at 3, 7.) Movie Company Claimants’ allegations are sufficient to establish a

prima facie case of infringement. This factor thus weighs in favor of granting the CCPA

Subpoenas.

5 See Claim Nos. 2169, 2137, 2177, 2128, 2132, 2131, 2150, 2167, 2119, 2192, 2269, 1378, 1372, 1394,

1434, 2168, 2121, 2129, 2163, 2125, 2264, 2228, 2236, 2237, 2233, 2193, 2235, 2159, 2283, 2511, 2659, 2742,

2741, 2747, 2748, 2750, 2755, 2752, 2754, 2757, 2756, 2759, 2777, 2853, 2858, 2865, 2901, 2856, 2862 and 3131.

6 See Claim Nos. 3806, 3807, 3803, 3808, 3804, and 3812.

2. Specific Discovery Request

The Proposed Cable Act Order authorizes the disclosure of the “names, physical

addresses, and e-mail addresses” of “individuals or entities to whom Debtor assigned certain IP

addresses identified by [Movie Company] Claimants.” (Proposed Cable Act Order ¶ 1.) The

CCPA Subpoenas, identifying Subscribers by their IP address, would be specific, targeted

requests related to specific, identified instances of infringement. This factor thus weighs in favor

of granting the CCPA Subpoenas.

3. Absence of Alternative Means and Need for Subpoenaed Information

A CCPA Subpoena is the only way Movie Company Claimants can obtain the

information they seek, and the information they seek is necessary to establish and advance their

claim against Frontier. Without a subpoena, ISPs who qualify as “cable operators” under 47

U.S.C. § 522(5), such as Frontier, are “effectively prohibited by 47 U.S.C. § 551(c) from

disclosing the identities of [Subscribers] to [Movie Company Claimants].” Digital Sin, Inc. v.

Does 1-179, No. 11 Civ. 8172(PAE), 2012 WL 8282825, at *3 (S.D.N.Y. Feb. 1, 2012). This

factor thus weighs in favor of granting the CCPA Subpoenas.

4. Expectation of Privacy

Even in cases where copyright holders sought to hold the subscribers themselves liable

for copyright infringement, the plaintiff’s interest in defending their copyrights outweighed the

defendants’ expectation of privacy. See Arista Records LLC v. Doe, 604 F.3d at 124

(“Defendants have a minimal expectation of privacy, especially when they allegedly engaged in

P2P network sharing… the notion of [P2P sharing] renders void any pretext of privacy”). See

also Strike 3 Holdings, LLC v. Doe, No. 1:23-CV-00764 EAW, 2023 WL 6973168 (W.D.N.Y.

Oct. 23, 2023); Rotten Records, Inc. v. Doe, 107 F. Supp. 3d 257 (W.D.N.Y. 2015).

Here, Movie Company Claimants are not seeking to advance claims against the

Subscribers; but even if they were, this heightened burden would be met. Movie Company

Claimants’ interest in obtaining Subscriber PII relevant to their infringement claims outweighs

the Subscribers’ privacy interest. Accordingly, this factor weighs in favor of approving the

CCPA Subpoenas.

C. Frontier May Not Withhold Proof of Primary Infringement

It is Frontier’s position that “Claimants cannot establish any direct and actual copyright

infringement by Frontier subscribers, which is a prerequisite to impose any secondary liability on

Frontier.” (Movie Objection ¶ 15(a).) Parties do not dispute that primary liability is necessary to

establish secondary liability. In order to establish such primary liability, Movie Company

Claimants must identify the infringers, for which it must rely on the CCPA Subpoenas. Frontier

may not circumvent secondary liability by refusing to provide the information necessary to

establish primary liability.

D. Subpoenas Will Be Limited to the Period Beginning October 13, 2016

A remaining issue is the beginning date for which discovery may be sought by the CCPA

Subpoenas. The statute of limitations for copyright infringement, direct and contributory, is

governed by 17 U.S.C. § 507(b), which provides in relevant part: “No civil action shall be

maintained under the provisions of this title unless it is commenced within three years after the

claim accrued.” Since Frontier filed its Chapter 11 petition on April 14, 2020, section 108(c) of

the Bankruptcy Code has the effect of extending back the statute of limitations for claims against

Frontier filed by the bar date, for three years from the day “before filing of the petition:” April

13, 2017. 11 U.S.C § 108(c).

There is authority that permits discovery for an earlier time period for which any

recovery is already barred by the statute of limitations. Evidence relating to activity outside the

three-year statute of limitations may be “relevant, probative and admissible,” “[a]lthough a

Plaintiff may not recover damages for conduct that occurred outside the limitations period . . . .”

Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 398, 418 (S.D.N.Y. 2011). “[S]uch

conduct may be admissible to shed light on the motives with which acts within the limitations

period were performed.” Id. (quoting Cooper v. Parsky, 140 F. 3d 433, 440−41 (2d Cir. 1998)).

While infringement claims against Subscribers who are the alleged direct infringers for acts

preceding the Petition Date are already barred by the statute of limitations, the contributory

infringement claims against Frontier rest on proof of the direct infringing conduct. Balancing the

privacy interests of Subscribers against the clear interests of Movie Company Claimants in

proving and recovering for contributory infringement against Frontier, the Court will permit the

issuance of subpoenas for Subscriber PII that reach back six months before the limitations

periods expired: October 14, 2016.

IV. CONCLUSION

Accordingly, the Court finds that Movie Company Claimants are entitled to the

information sought by the CCPA Subpoenas. The Court will authorize Frontier, through an

order substantially in the form of the Proposed Cable Act Order, to release such information.

A separate Order granting the requested relief will be entered.

Dated: December 1, 2023

New York, New York

Martin Glenn

MARTIN GLENN

Chief United States Bankruptcy Judge