Strike 3 Holdings, LLC v. John Doe, No. 3:2022cv00296 - Document 5 (S.D. Cal. 2022)
Court Description: ORDER Granting Plaintiffs Ex Parte Motion For Leave To Serve A Third-Party Subpoena Prior To A Rule 26(F) Conference[ECF No. 4 ]. Signed by Magistrate Judge Jill L. Burkhardt on 3/29/2022. (ddf).
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Strike 3 Holdings, LLC v. John Doe Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 22-cv-00296-LL-JLB Plaintiff, 12 13 v. 14 JOHN DOE, Subscriber Assigned IP Address 75.80.132.231, 15 ORDER GRANTING PLAINTIFF’S EX PARTE MOTION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE Defendant. 16 [ECF No. 4] 17 18 19 Before the Court is an Ex Parte Motion for Leave to Serve a Third-Party Subpoena 20 Prior to a Rule 26(f) Conference filed by Plaintiff Strike 3 Holdings, LLC (“Plaintiff”). 21 (ECF No. 4.) No opposition has been filed, as no defendant has been named or served in 22 this case. For the reasons set forth below, Plaintiff’s ex parte motion is GRANTED. I. 23 BACKGROUND 24 This is one of the numerous cases filed by Plaintiff alleging copyright infringement 25 claims against a John Doe defendant using the BitTorrent file-sharing system.1 Plaintiff 26 27 28 1 From January 2020 to date, Strike 3 Holdings, LLC has filed seventy-two cases, including the present case, in this District. 1 22-cv-00296-LL-JLB Dockets.Justia.com 1 alleges that it is the copyright owner of motion pictures distributed through adult content 2 websites Blacked, Tushy, Vixen, and Blacked Raw. (ECF No. 1 ¶¶ 2–4.) Plaintiff alleges 3 that between April 25, 2021, and January 20, 2022,2 the person or entity assigned Internet 4 Protocol (“IP”) address 75.80.132.231 illegally downloaded and distributed twenty-nine of 5 Plaintiff’s motion pictures through his, her, or its use of the online BitTorrent file 6 distribution network. (Id. ¶¶ 4–5, 44, 49–53; ECF No. 1-2.) Plaintiff commenced this 7 action against Defendant “John Doe, subscriber assigned IP address 75.80.132.231” on 8 March 4, 2022, alleging a single cause of action of direct copyright infringement. (ECF 9 No. 1 ¶¶ 48–53.) 10 Because Defendant used the Internet to commit the alleged infringement, Plaintiff 11 alleges that it knows Defendant only by his, her, or its IP address, which was assigned to 12 Defendant by the Internet Service Provider (“ISP”), Spectrum. (Id. ¶¶ 5, 13.) In the instant 13 motion, Plaintiff asserts that Spectrum is the owner of Defendant’s IP address, and thus, 14 “is the only party with the information necessary to identify Defendant.” (ECF No. 4-1 at 15 7.) Plaintiff therefore seeks leave to serve a Rule 45 subpoena on Spectrum requesting the 16 name and address associated with IP address 75.80.132.231. (Id. at 7–8.) Without 17 Defendant’s identity, Plaintiff cannot serve Defendant and prosecute this case. 18 II. LEGAL STANDARD 19 Discovery is not permitted before the parties have conferred pursuant to Federal Rule 20 of Civil Procedure 26(f) unless authorized by court order. Fed. R. Civ. P. 26(d)(1). 21 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 22 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 23 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 24 25 26 27 28 2 Plaintiff does not specifically allege this infringement period in the Complaint. However, attached as an exhibit to the Complaint is a table reflecting that the subscriber assigned IP address 75.80.132.231 engaged in allegedly infringing activity between April 25, 2021 and January 20, 2022. (ECF No. 1-2.) 2 22-cv-00296-LL-JLB 1 F.R.D. 573, 577 (N.D. Cal. 1999). Requests to conduct discovery prior to a Rule 26(f) 2 conference are granted upon a showing of good cause by the moving party, which may be 3 found “where the need for expedited discovery, in consideration of the administration of 4 justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron 5 Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “A district court’s decision to grant 6 discovery to determine jurisdictional facts is a matter of discretion.” Columbia Ins. Co., 7 185 F.R.D. at 578. 8 District courts in the Ninth Circuit apply a three-factor test to determine whether 9 good cause exists to allow for expedited discovery to identify a Doe defendant. Id. at 578– 10 80. “First, the plaintiff should identify the missing party with sufficient specificity such 11 that the Court can determine that [the] defendant is a real person or entity who could be 12 sued in federal court.” Id. at 578. Second, the plaintiff “should identify all previous steps 13 taken to locate the elusive defendant” to ensure that the plaintiff has made a good faith 14 effort to identify and serve process on the defendant. Id. at 579. Third, the plaintiff “should 15 establish to the Court’s satisfaction that [the] plaintiff’s suit against [the] defendant could 16 withstand a motion to dismiss.” Id. “Lastly, the plaintiff should file a request for discovery 17 with the Court, along with a statement of reasons justifying the specific discovery requested 18 as well as identification of a limited number of persons or entities on whom discovery 19 process might be served and for which there is a reasonable likelihood that the discovery 20 process will lead to identifying information about [the] defendant that would make service 21 of process possible.” Id. at 580. 22 23 III. A. DISCUSSION Identification of Missing Party with Sufficient Specificity 24 For the Court to grant Plaintiff’s motion, Plaintiff must first identify Defendant with 25 enough specificity to enable the Court to determine that Defendant is a real person or entity 26 who is subject to the Court’s jurisdiction. See Columbia Ins. Co., 185 F.R.D. at 578. The 27 Court finds that Plaintiff has met this burden. 28 Courts in the Ninth Circuit have determined that “a plaintiff identifies Doe 3 22-cv-00296-LL-JLB 1 defendants with sufficient specificity” in cases like the instant case “by providing the 2 unique IP addresses assigned to an individual defendant on the day of the allegedly 3 infringing conduct, and by using ‘geolocation technology’ to trace the IP addresses to a 4 physical point of origin.” 808 Holdings, LLC v. Collective of December 29, 2011 Sharing 5 Hash E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12-cv-00186 MMA 6 (RBB), 2012 WL 12884688, at *4 (S.D. Cal. May 8, 2012); see also Pink Lotus Entm’t, 7 LLC v. Does 1–46, No. C-11-02263, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) 8 (finding that the plaintiff met its burden to identify the Doe defendants with sufficient 9 specificity by identifying the Doe defendants’ IP addresses and then using geolocation 10 technology to trace the IP addresses to a point of origin). 11 Here, Plaintiff has sufficiently demonstrated that Defendant is a real person or entity 12 likely subject to the Court’s jurisdiction. Plaintiff attached to its Complaint a table 13 reflecting that the subscriber assigned IP address 75.80.132.231 engaged in allegedly 14 infringing activity between April 25, 2021, and January 20, 2022, in San Diego, California. 15 (ECF No. 1-2.) To substantiate these claims, Plaintiff attached four declarations to the 16 instant motion. 17 Plaintiff first attached the Declaration of David Williamson, an independent 18 contractor hired by Plaintiff as an Information Systems and Management Consultant. (ECF 19 No. 4-2 at 1–15 (“Ex. A”).) 20 development, and overall creation of the infringement detection system called VXN Scan[,] 21 which [Plaintiff] both owns and uses to identify the IP addresses used by individuals 22 infringing Plaintiff’s movies via the BitTorrent protocol.” (Ex. A ¶ 40.) Mr. Williamson’s 23 declaration explains in detail how VXN Scan operates and its five components. One 24 component of VXN Scan is a proprietary BitTorrent client that emulates the behavior of a 25 standard BitTorrent client by repeatedly downloading data pieces from peers within the 26 BitTorrent network that are distributing Plaintiff’s movies. (Id. ¶¶ 52–55.) Another 27 component of VXN Scan is the PCAP Recorder, which records infringing BitTorrent 28 computer transactions in the form of PCAPs, or packet captures. (Id. ¶¶ 57–70.) The Mr. Williamson states that he “oversaw the design, 4 22-cv-00296-LL-JLB 1 PCAPs contain the IP addresses that connect to the Proprietary Client and send pieces of 2 the computer file containing an infringing copy of one of Plaintiff’s movies to the 3 Proprietary Client through the BitTorrent network. (Id. ¶¶ 57–59.) Not only do PCAPs 4 record the IP addresses used in the network transaction, but they also record the date and 5 time of the transaction, the port number used, and the BitTorrent client used to accomplish 6 each transaction. (Id. ¶ 61.) PCAPs also identify the “Info Hash value that was used to 7 obtain the transacted piece.” (Id. ¶ 62.) This information identifies the data that was shared 8 in the recorded transaction as part of a file containing an infringing copy of one of 9 Plaintiff’s movies. (Id.) This Order touches on only two of the components of VXN Scan, 10 but Mr. Williamson’s eighty-one-paragraph declaration sets forth additional, in-depth 11 details of all five components of the system, providing the Court with a thorough 12 understanding of how the system reliably identifies the IP addresses assigned to individuals 13 infringing Plaintiff’s movies and verifies the infringement. (See id. ¶¶ 63–81.) 14 Second, Plaintiff attached the Declaration of Patrick Paige, a computer forensics 15 expert Plaintiff retained to analyze and retain evidence captured by VXN Scan. (ECF No. 16 4-2 at 16–22 (“Ex. B”).) 17 BitTorrent computer transactions between the system and IP address 75.80.132.231 in the 18 form of PCAPs.” (Ex. B ¶ 13.) Mr. Paige states that, using a program called Wireshark, 19 he viewed and analyzed a PCAP he received from Plaintiff and was able to confirm that on 20 January 20, 2022, “IP address 75.80.132.231 uploaded a piece or pieces of a file 21 corresponding to hash value F7FBE7C20F3E39CEEEE8F065200583B579018D3E to 22 VXN Scan.” (Id. ¶¶ 16–19.) The hash value, or Info Hash, is the data used by BitTorrent 23 to identify and locate other pieces of a desired file; in this case, the desired file contained 24 an infringing copy of one of Plaintiff’s movies. (Id. ¶ 22; see also ECF No. 1-2 at 1.) 25 Based on his experience in similar cases, Mr. Paige opines that Spectrum, Defendant’s ISP, 26 “is the only entity that can correlate the IP address [75.80.132.231] to its subscriber and 27 identify Defendant as the person assigned [this] IP address . . . during the time of the alleged 28 infringement.” (Id. ¶ 28.) Mr. Paige explains that VXN Scan “recorded numerous 5 22-cv-00296-LL-JLB 1 Third, Plaintiff attached the Declaration of Susan B. Stalzer, an employee of 2 Plaintiff’s who verified that each digital file VXN Scan received through its transactions 3 with IP address 75.80.132.231 was identical, strikingly similar, or substantially similar to 4 one of Plaintiff’s original copyrighted works. (ECF No. 4-2 at 23–26 (“Ex. C”).) To do 5 so, Ms. Stalzer viewed each of the digital media files side-by-side with Plaintiff’s original 6 films. (Ex. C ¶¶ 8–10.) 7 Last, Plaintiff attached the Declaration of Emilie Kennedy, Plaintiff’s in-house 8 General Counsel. (ECF No. 4-2 at 27–30 (“Ex. D”).) Ms. Kennedy explains that after 9 Plaintiff received data from VXN Scan identifying IP address 75.80.132.231 as infringing 10 its movies, “the IP address was automatically inputted into Maxmind’s Geolocation 11 Database” on February 24, 2022.3 (Ex. D ¶ 4.) “Maxmind [then] determined that the IP 12 address traced to a location in San Diego, California.” (Id. ¶ 5.) Ms. Kennedy states that 13 Plaintiff inputted IP address 75.80.132.231 again into the Maxmind Database “[p]rior to 14 filing its Complaint” and “before filing [her] [D]eclaration” on January 27, 2021, and both 15 times the IP address traced to San Diego, California. (Id. ¶¶ 6–7.) In its motion, Plaintiff 16 argues that this Court has previously “accepted Maxmind’s findings for purposes of 17 allowing expedited discovery.” (ECF No. 4-1 at 13 (citing Criminal Prods., Inc. v. Doe, 18 No. 16-cv-2589 WQH (JLB), 2016 WL 6822186, at *3 (S.D. Cal. Nov. 18, 2016).) 19 20 3 21 22 23 24 25 26 27 28 Mr. Williamson provides in his declaration that: Maxmind is “an industry-leading provider of IP intelligence and online fraud detection tools.” “Over 5,000 companies use GeoIP data to locate their Internet visitors and show them relevant content and ads, perform analytics, enforce digital rights, and efficiently route Internet traffic.” Maxmind is not “software” or technology, but . . . a database. Maxmind compiles information it receives from Internet Service Providers (ISPs) containing the city and state locations of the users of the ISPs and their respective IP addresses. Maxmind maintains and updates this list weekly and sells access to it. (Ex. A ¶ 77 (footnotes omitted).) 6 22-cv-00296-LL-JLB 1 Based on Plaintiff’s IP address tracing efforts, the timing of its efforts, and Plaintiff’s 2 continued tracing of IP address 75.80.132.231 to a location within San Diego, California, 3 the Court concludes that Plaintiff has met its evidentiary burden of identifying Defendant 4 with sufficient specificity and has shown that Defendant’s IP address likely relates to a 5 physical address within the Court’s jurisdiction. 6 B. Previous Attempts to Locate Defendant 7 Plaintiff must next identify all steps it took to locate Defendant to ensure the Court 8 that it has made a good-faith effort to identify and serve process on Defendant. See 9 Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this burden. 10 In its motion, Plaintiff states that it has diligently attempted to locate Defendant by 11 searching for Defendant’s IP address using online search engines and “various web search 12 tools.” (ECF No. 4-1 at 14.) Plaintiff has also “review[ed] numerous sources of authority,” 13 such as “legislative reports, agency websites, informational technology guides, [and] 14 governing case law” regarding whether it is possible to identify such a defendant by other 15 means and has “discussed the issue at length with computer investigators and cyber security 16 consultants.” (Id.) Plaintiff argues that it cannot determine any other means of obtaining 17 Defendant’s identity other than through subpoenaing the information from Defendant’s 18 ISP, as it has “exhausted all other alternatives for identifying Defendant.” (Id.) 19 Further, as discussed above, Plaintiff retained Mr. Paige, a computer forensics 20 expert, who analyzed the data captured by VXN Scan and was able to determine that IP 21 address 75.80.132.231 was engaged in the allegedly infringing activity on January 20, 22 2022. (See Ex. B ¶¶ 13–25.) Mr. Paige also opined that Defendant’s ISP is the only entity 23 that can correlate IP address 75.80.132.231 to its subscriber and identify Defendant as the 24 person assigned this IP address during the time of the alleged infringement. 25 ¶ 28.) (Id. 26 Based on the foregoing, the Court is satisfied that Plaintiff has attempted in good 27 faith to locate Defendant and that Plaintiff cannot, on its own, identify Defendant with any 28 greater specificity than as the subscriber assigned by Spectrum to IP address 7 22-cv-00296-LL-JLB 1 75.80.132.231. Accordingly, the Court finds that Plaintiff has made a good-faith effort to 2 identify and locate Defendant before filing the instant motion. 3 C. 4 5 Whether Plaintiff’s Complaint Could Withstand a Motion to Dismiss Lastly, Plaintiff must establish that its Complaint could survive a motion to dismiss. Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this burden. 6 Plaintiff’s Complaint alleges a single cause of action against Defendant: direct 7 copyright infringement. (ECF No. 1 ¶¶ 48–53.) To survive a motion to dismiss for failure 8 to state a claim upon which relief can be granted, “a complaint must contain sufficient 9 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 11 544, 570 (2007)). To state a claim of direct copyright infringement, a plaintiff “must show: 12 (1) ownership of a valid copyright; and (2) that the defendant violated the copyright 13 owner’s exclusive rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 14 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a) (2003)). “In addition, direct infringement 15 requires the plaintiff to show causation (also referred to as ‘volitional conduct’) by the 16 defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017). 17 In the Complaint, Plaintiff alleges to be the owner of the copyrighted movies or 18 “works” at issue and asserts that each work was registered with the United States Copyright 19 Office. (ECF No. 1 ¶¶ 2, 46.) Exhibit A to the Complaint shows the hash values of the 20 purportedly infringed works and the copyright registration number for each of the works 21 that correspond with those hash values. (ECF No. 1-2.) Plaintiff further alleges that 22 Defendant is the user behind IP address 75.80.132.231 who used the BitTorrent file 23 network to “illegally download and distribute Plaintiff’s copyrighted motion pictures” and 24 that the infringement was “continuous and ongoing.” (ECF No. 1 ¶¶ 13, 29, 45.) Lastly, 25 Plaintiff alleges that “[a]t no point in time did [it] authorize, permit or consent to 26 Defendant’s copying, distribution, performance and/or display of its Works, expressly or 27 otherwise.” (Id. ¶ 51.) 28 /// 8 22-cv-00296-LL-JLB 1 The Court finds that Plaintiff has alleged a prima facie case of direct copyright 2 infringement and therefore, its Complaint would likely withstand a motion to dismiss by 3 Defendant. 4 D. Specific Discovery Request 5 Finally, before the Court grants Plaintiff’s Motion, Plaintiff “should file a request 6 for discovery with the Court.” Columbia Ins. Co., 185 F.R.D. at 580. Plaintiff has not 7 provided the Court with a proposed subpoena, but the Court has sufficient information to 8 determine that “there is a reasonable likelihood that [a subpoena] will lead to identifying 9 information about [D]efendant that would make service of process possible.” Id. Plaintiff 10 states that it plans to issue a subpoena upon Spectrum, Defendant’s ISP, requesting only 11 “the true name and address” of Defendant, the subscriber of IP address 75.80.132.231. 12 (ECF No. 4-1 at 8.) Further, Plaintiff provides that Spectrum is the only entity that can 13 identify Defendant by his, her, or its IP address. (Ex. B ¶ 28.) Accordingly, the Court 14 finds that Plaintiff need not file the proposed subpoena with the Court. 15 IV. CONCLUSION 16 For the reasons set forth above, the Court finds good cause to grant Plaintiff leave to 17 serve a Rule 45 subpoena upon Spectrum in advance of the Rule 26(f) conference. 18 However, despite Plaintiff’s representations of good faith (ECF No. 4-1 at 9–10), the Court 19 shares the concern noted by other courts in this District of “‘unscrupulous tactics [being] 20 used by certain plaintiffs, especially in the adult film industry, to shake down the owners 21 of IP addresses’ to exact quick and quiet settlements from possibly innocent defendants 22 who pay out only to avoid potential embarrassment.” Malibu Media, LLC v. John Doe, 23 No. 16-cv-00786-JLS-NLS, 2016 WL 9488778, at *4 (S.D. Cal. May 6, 2016) (quoting 24 Malibu Media, LLC v. Does 1–5, No. 12 Civ. 2950(JPO), 2012 WL 2001968, at *1 25 (S.D.N.Y. June 1, 2012)). The Court therefore finds that a limited protective order is 26 necessary to protect Defendant’s privacy. Further, Plaintiff has invited the Court to issue 27 a protective order establishing procedural safeguards, “should the Court find such 28 9 22-cv-00296-LL-JLB 1 procedures to be appropriate.” (ECF No. 4-1 at 18.) Accordingly, the Court GRANTS 2 Plaintiff’s ex parte motion (ECF No. 4) and ORDERS as follows: 3 1. Plaintiff may serve on Spectrum a subpoena, pursuant to and compliant with 4 the procedures of Federal Rule of Civil Procedure 45, seeking only the name and address 5 of the subscriber assigned IP address 75.80.132.231 for the relevant time period of the 6 alleged infringement. 7 identifiable information about the subscriber. 8 9 2. Plaintiff. 11 3. 13 Plaintiff’s subpoena to Spectrum must provide a minimum of forty-five (45) calendar days’ notice before any production responsive to the subpoena shall be made to 10 12 Plaintiff shall not seek from Spectrum any other personally At the time Plaintiff serves its subpoena on Spectrum, Plaintiff shall also serve on Spectrum a copy of this Order. 4. Within fourteen (14) calendar days after service of the subpoena, Spectrum 14 shall notify the subscriber assigned IP address 75.80.132.231 that his, her, or its identity 15 has been subpoenaed by Plaintiff and shall provide the subscriber a copy of this Order with 16 the required notice. 17 5. The subscriber whose identity has been subpoenaed shall have thirty (30) 18 calendar days from the date of such notice to challenge Spectrum’s disclosure of his, her, 19 or its name and address by filing an appropriate pleading with this Court contesting the 20 subpoena. 21 22 23 6. If Spectrum seeks to modify or quash the subpoena, it shall do so as provided by Federal Rule of Civil Procedure 45(d)(3). 7. In the event a motion to quash, modify, or otherwise challenge the subpoena 24 is brought properly before the Court, Spectrum shall preserve the information sought by 25 the subpoena pending the resolution of any such motion. 26 8. Plaintiff may only use the information disclosed in response to a Rule 45 27 subpoena served on Spectrum for the purpose of protecting and enforcing Plaintiff’s rights 28 as set forth in the Complaint (ECF No. 1). If Defendant wishes to proceed anonymously, 10 22-cv-00296-LL-JLB 1 Plaintiff may not release any identifying information without a court order allowing the 2 release of the information. 3 4 IT IS SO ORDERED. Dated: March 29, 2022 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 22-cv-00296-LL-JLB
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