World Digital Rights, Inc. v. John Does 1-80
Filing
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ORDER granting 4 Plaintiff's Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference. SEE ORDER FOR DETAILS. Signed by Magistrate Judge Sheri Polster Chappell on 5/8/2012. (LMH)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WORLD DIGITAL RIGHTS, INC.,
Plaintiff,
V.
Case No: 2:12-CV-225-FtM-UASPC
JOHN DOES 1-80,
Defendants.
___________________________________/
ORDER
This matter comes before the Court on Plaintiff's Motion for Leave to Serve Third Party
Subpoenas Prior to a Rule 26(f) Conference (Doc. #4) filed on May 3, 2012. On April 20, 2012,
the Plaintiff, World Digital Rights, Inc., as exclusive licensee for the album entitled “This Is
Where It Ends” (“the Work”), filed the instant copyright infringement action (Doc. #3), alleging
that each John Doe Defendant is liable for direct copyright infringement in violation of 17 U.S.C.
§§ 101 et seq. and contributory copyright infringement. Subsequent to the filing of the Amended
Complaint, the Plaintiff filed the instant motion to take early discovery on May 3, 2012.
The Plaintiff alleges that each of the Defendants copied and distributed the Work. A P2P
network is an online media distribution network that allows users to make copies and transfers of
files between other internet users. In this instance, the Plaintiff alleges that the Defendants went
to a torrent site to download a torrent file and then downloaded and uploaded the copyrighted
Work within the BitTorrent network.
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With regard to the instant Motion, Plaintiff alleges that it does not know Defendants’
names and addresses and therefore is unable to locate them to effect service of process. Plaintiff
has been able to obtain only the IP addresses for each of the Defendants and the ISP for each IP
address. The Plaintiff states that while the identity and address of every infringer is not currently
known, upon information and belief, each act or a majority of the copyright infringements may
be traced to Defendants with a physical address located within Florida.
The Plaintiff alleges that the John Doe Defendants, without Plaintiff’s consent or
permission, used a peer-to-peer file sharing protocol to distribute the Work or portions of the
Work. As a result, Plaintiff alleges that he has incurred monetary damages, including lost sales,
price erosion, and a diminution of the value of its copyright. Plaintiff seeks monetary and
injunctive relief, and costs and attorneys’ fees. The Plaintiff requests that the Court allow it to
serve Federal Rule 45 subpoenas on certain Internet Service Providers (“ISPs”) to obtain
identifying information for the John Doe Defendants so that Plaintiff may complete service of
process on them.
A court may authorize early discovery before the Rule 26(f) conference for the parties’
and witnesses’ convenience and in the interests of justice. Fed. R. Civ. Proc. 26(d). Pursuant to
Federal Rule 26(b), courts may order discovery of any relevant matter for good cause. Courts
who have dealt with these sorts of cases generally consider whether a plaintiff has shown “good
cause” for the early discovery. Patrick Collins Inc. v. Does 1-1219, No. C10-04468LB, 2010
WL 5422569, *2 (N.D. Cal. Dec. 28, 2010) (collecting cases and standards). “A plaintiff who is
unaware of the identity of the person who has wronged her can . . . proceed against a ‘John Doe’
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. . . when discovery is likely to reveal the identity of the correct defendant.” Penalbert-Rosa v.
Fortuno-Burset, 631 F.3d 592 (1st Cir. 2011). “In Internet infringement cases, courts routinely
find good cause exists to issue a Rule 45 subpoena to discover a Doe defendant’s identity, prior
to a Rule 26(f) conference, where a plaintiff makes: (1) a prima facie showing of infringement,
(2) there is no other way to identify the Doe Defendant, and (3) there is a risk an ISP will destroy
its logs prior to the conference.” UMG Recording, Inc. v. Doe, 2008 WL 4104214, *4 (N.D.
Cal. 2008). In addition, some courts also analyze a defendant’s First Amendment right to
privacy in determining whether to allow the discovery. In these cases, courts require Plaintiff to
(4) specify the discovery requested, (5) demonstrate a central need for the subpoenaed
information to advance the asserted claims, and (6) establish that the party’s expectation of
privacy does not outweigh the need for the requested discovery. Sony Music Entertainment v.
Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004).
In this case, Plaintiff has satisfied the above-listed factors. First, Plaintiff has made a
concrete showing of a prima facie claim of copyright infringement. In its Amended Complaint,
the Plaintiff asserts that it holds the copyright of the Work. (Doc. #3 at ¶ 45). Further, the
signed declaration of Pavel Karaoglanov states that the Plaintiff’s research has indicated that the
Work has been infringed upon and that he was able to isolate the transactions and the IP
addresses being used on the peer-to-peer network to reproduce, distribute, display, or perform
Plaintiff’s copyrighted works. (Doc. #5-1).1 “Moreover, the use of P2P systems to download
and distribute copyrighted music has been held to constitute copyright infringement.” Sony
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Plaintiff hired SKB UG, a company that provides, among other things, forensic investigation services to copyright
owners. (Doc. #5-1). Karaoglanov is employed by SKB UG.
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Music, 326 F. Supp. 2d at 565-66. Second, Plaintiff has established that it lacks any other means
of obtaining the subpoenaed information. Plaintiff only has the IP addresses and cannot locate
any further information. Rather, once the IP addresses, plus the date and time of the detected and
documented infringing activity are provided to the ISP, the ISPs can access the identifying
information of the subscriber. It appears that Plaintiff has taken all of the steps it can to identify
the John Doe Defendants.
Third, Plaintiff, through the Declaration of Pavel Karaoglanov,
informs the Court that “in general, the data retention policies of ISPs for information sufficient to
correlate an IP address to a subscriber is a very limited amount of time.” (Doc. #5-1 ¶ 12).
Thus, there is a chance that the ISPs will destroy the logs needed by Plaintiff.
Fourth, Plaintiff has sufficiently described the John Doe Defendants by listing the IP
address assigned to them on the day Plaintiff alleges the Defendant engaged in the infringing
conduct in a chart attached to the Complaint. (Doc. #3-1). Fifth, Plaintiff has demonstrated the
need for the subpoenaed information in order to advance its claims as there appears no other
means of obtaining this information and the information is needed in order to prosecute
Plaintiff’s viable claim for copyright infringement. Sixth, and finally, Plaintiff’s interest in
knowing Defendants’ true identities outweighs Defendants’ interests in remaining anonymous.
Plaintiff has a strong legitimate interest in protecting its copyrights and it has been held that
copyright infringers have no legitimate expectation of privacy in the subscriber information they
provide to ISPs. “[A] number of other jurisdictions who have deemed that a file sharer’s First
Amendment right to anonymity is “exceedingly small.” Call of the Wild Movie, LLC v. Does 11062 et al., 770 F. Supp. 2d 332, 347-48 (D.D.C. 2011).
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Based on the above discussion of the factors, the Court finds that the Plaintiff has
demonstrated good cause to grant Plaintiff leave to conduct early discovery to identify the John
Doe Defendants.
Accordingly, it is now
ORDERED:
Plaintiff's Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f)
Conference (Doc. #4) is GRANTED.
(1) Plaintiff may serve each of the ISPs with a Rule 45 subpoena commanding each
ISP to provide Plaintiff with the true name, address, telephone number, e-mail
address, and Media Access Control (“MAC”) address of the Defendant to whom
the ISP assigned an IP address as set forth in Exhibit A to the Complaint (Doc.
#3-1). Plaintiff shall attach to any such subpoena a copy of the Complaint,
Motion, and this Order.
(2) Plaintiff may also serve a Rule 45 subpoena in the same manner as above or on
any service provider that is identified in response to a subpoena as a provider of
internet services to one of the Defendants.
(3) Each of the ISPs that qualify as a “cable operator,” as defined by 47 U.S.C. §
522(5), which states:
the term “cable operator” means any person or group of
persons (A) who provides cable services over a cable
system and directly or through one or more affiliates owns
a significant interest in such cable system, or (B) who
otherwise controls or is responsible for, through any
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arrangement, the management and operation of such a
cable system
shall comply with 47 U.S.C. § 551(c)(2)(B), which states:
A cable operator may disclose such [personal identifying]
information if the disclosure is . . . 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
by sending a copy of the Complaint, the Motion and this Order to the Defendant.
(4) The subpoenaed ISPs shall not require Plaintiff to pay a fee in advance of
providing the subpoenaed information; nor shall the subpoenaed ISPs require
Plaintiff to pay a fee for an IP address that is not controlled by such ISP, or for
duplicate IP addresses that resolve to the same individual, or for an IP address that
does not provide the name of a unique individual, or for the ISP’s internal costs to
notify its consumers. If necessary, the Court shall resolve any disputes between
the ISPs and Plaintiff regarding the reasonableness of the amount proposed to be
charged by the ISP after the subpoenaed information is provided to Plaintiff.
(5) Plaintiff may only use the information disclosed in response to a Rule 45
subpoena served on an ISP for the purpose of protecting and enforcing Plaintiff’s
rights as set forth in its Complaint.
DONE and ORDERED in Fort Myers, Florida this 8th Day of May, 2012.
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Copies: All Parties of Record
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