Malibu Media, LLC v. Doe, No. 3:2015cv02928 - Document 6 (S.D. Cal. 2016)
Court Description: ORDER Granting 5 Ex Parte Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Barbara Lynn Major on 2/16/2016. (rlu)
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Malibu Media, LLC v. Doe Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 15CV2928-BTM(BLM) MALIBU MEDIA, LLC, ORDER GRANTI NG EX PARTE MOTI ON FOR LEAVE TO SERVE A THI RD PARTY SUBPOENA PRI OR TO A RULE 26( f) CONFERENCE Plaintiff, 12 13 v. 14 JOHN DOE subscriber assigned IP address 76.167.77.34, 15 [ ECF No. 5] Defendant. 16 17 18 Currently before the Court is Plaintiff’s February 11, 2016 Ex Parte MOTION FOR LEAVE 19 TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE. ECF No. 5. 20 Because the Defendant has not been identified, no opposition or reply briefs have been filed. 21 Having reviewed Plaintiff’s motion and all supporting documents, the Court GRANTS the motion 22 for the reasons set forth below. 23 BACKGROUND 24 Plaintiff alleges that it “operates a popular subscription based website where it displays 25 its copyrighted material.” ECF No. 5. at 8. On December 28, 2015, Plaintiff filed a complaint 26 against John Doe alleging direct copyright infringement. ECF No. 1. Plaintiff alleges that 27 28 1 15CV2928-BTM(BLM) Dockets.Justia.com 1 Defendant has illegally infringed and distributed several of its copyrighted movies1 over the 2 internet. Id. at 1. Plaintiff further alleges that Defendant, who is only known “by his, her, or 3 its IP Address” infringed Plaintiff’s copyrights through the BitTorrent File Distribution Network. 4 Id. at 3. Plaintiff describes the BitTorrent File Distribution Network as a “common per-to-peer 5 file sharing system[ ] used for distributing large amounts of data, including, but not limited to, 6 digital movie files.” Id. Plaintiff states that BitTorrent allows its users to interact directly with 7 one another without the use of an intermediary host and permits the distribution of a large file 8 without creating a heavy load on an individual source computer or network. Id. Plaintiff further 9 explains the process of distributing a large file through BitTorrent and Plaintiff notes that the 10 BitTorrent protocol breaks a file down into several small pieces2 that are exchanged among 11 users, which allows an infringer to then collect the individual pieces and reassemble them in a 12 manner that allows a file to be opened and utilized. Id. 13 On February 11, 2016, Plaintiff filed the instant motion. ECF No. 5. Plaintiff seeks an 14 order from the Court allowing it to serve a subpoena to Defendant’s Internet Service Provider3 15 (“ISP”) seeking Defendant’s true name and address pursuant to Federal Rule of Civil Procedure 16 45. Id. at 8. 17 /// 18 /// 19 /// 20 21 1 24 The movies titles include Made for Each Other, Body Language, Catching the Sun, Keep Cumming Kylie, Cum Inside the Fantasy Suite, Sexy En Noir, Every Mans Sexy Camping Trip, A [ ] Picnic, Competition, Alexis Love Me, Capture Me, Dangerous When Wet, In Love With Little Caprice, Life in the Fast Lane, Casual Sex, Supermodel Sex, and One Show for Each. ECF No. 1 at Exh. B. 25 2 22 23 27 Each piece is assigned a unique cryptographic hash value which is used to properly route the pieces among BitTorrent users. ECF No. 1. at 3-4. Each complete digital file also has a cryptographic hash value. Id. at 4. This hash value is used to determine that a file contains all of its pieces and is complete. Id. 28 3 26 The ISP at issue is Time Warner Cable. ECF No. 5. at 8. 2 15CV2928-BTM(BLM) DI SCUSSI ON 1 2 A. The Cable Privacy Act 3 The Cable Privacy Act generally prohibits cable operators from disclosing personally 4 identifiable information regarding subscribers without the prior written or electronic consent of 5 the subscriber. 47 U.S.C. § 551(c)(1). However, a cable operator may disclose such information 6 if the disclosure is made pursuant to a court order and the cable operator provides the subscriber 7 with notice of the order. 47 U.S.C. § 551(c)(2)(B). A cable operator is defined as “any person 8 or group of persons (A) who provides cable service over a cable system and directly or through 9 one or more affiliates owns a significant interest in such cable system, or (B) who otherwise 10 controls or is responsible for, through any arrangement, the management and operation of such 11 a cable system.” 47 U.S.C. § 522(5). Accordingly, Plaintiff seeks an Order instructing Time 12 Warner Cable to produce documents and information sufficient to identify the user of the 13 specified IP address. 14 B. Early Discovery 15 A party may not seek discovery from any source before the Rule 26(f) conference unless 16 that party first obtains a stipulation or court order permitting early discovery. Fed. R. Civ. P. 17 26(d)(1). Courts in the Ninth Circuit apply the “good cause” standard in deciding whether to 18 permit early discovery. Semitol, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. 19 Cal. 2002) (adopting the conventional standard of “good cause” in evaluating a request for 20 expedited discovery). 21 consideration of the administration of justice, outweighs the prejudice to the responding party.” 22 Id. Good cause for expedited discovery has been found in cases involving claims of infringement 23 and unfair competition or in cases where the plaintiff seeks a preliminary injunction. Id. In 24 infringement cases, expedited discovery is frequently limited to allowing plaintiffs to identify Doe 25 defendants. See UMG Recordings, Inc. v. Doe, 2008 WL 4104207, * 3 (N.D. Cal. 2008) (granting 26 leave to take expedited discovery for documents that would reveal the identity and contact 27 information for each Doe defendant). 28 Good cause exists “where the need for expedited discovery, in District courts in the Ninth Circuit apply a three-factor test when considering motions for 3 15CV2928-BTM(BLM) 1 expedited discovery to identify certain defendants. Columbia Ins. Co. v. Seescandy.com, 185 2 F.R.D. 573, 578-80 (N.D. Cal. 1999). First, the plaintiff should “identify the missing party with 3 sufficient specificity such that the Court can determine that the defendant is a real person or 4 entity who could be sued in federal court.” Id. Second, the plaintiff must describe “all previous 5 steps taken to locate the elusive defendant” to ensure that plaintiff has made a good faith effort 6 to identify the defendant. Id. Third, plaintiff should establish that its lawsuit could withstand a 7 motion to dismiss. Id. 8 1. Identification of Missing Party with Sufficient Specificity 9 First, Plaintiff must identify the Doe defendant with sufficient specificity to enable the 10 Court to determine that the Doe defendant is a real person subject to the Court’s jurisdiction. 11 Plaintiff has provided a declaration stating it retained Excipio GmbH, a German company that 12 provides forensic investigation services to copyright owners, to monitor the BitTorrent file 13 distribution network to find IP addresses being used to distribute Plaintiff’s copyrighted works 14 without authorization. ECF No. 5-3 at 1-2, Declaration of Daniel Susac (“Susac Decl.”). While 15 working for Excipio, Mr. Susac used forensic software called Network Activity Recording and 16 Supervision (“NARS”) to scan the BitTorrent network for infringement involving Plaintiff’s 17 copyrighted materials. Id. at 2. 18 transmitted copies or portions of copies of Plaintiff’s copyrighted works. 19 provided a declaration from Mr. Patrick Paige, a former detective in the computer crimes unit of 20 the Palm Beach County Sheriff’s Department and founder of Computer Forensics, LLC. ECF No. 21 5-4 (“Paige Decl.”). Mr. Paige declares that “[ t] he only entity able to correlate an IP address to 22 a specific individual at a given date and time is the Internet Service Provider.” Id. at 3. Mr. 23 Paige further declares that “Plaintiff is likely to identify the infringer,” but that Plaintiff must 24 subpoena that ISP in order to learn the Defendant’s true identity. Id. Finally, Plaintiff states 25 that it has used “proven IP address geolocation technology which has consistently worked in 26 similar cases to ensure that the Defendant’s acts of copyright infringement occurred using an 27 Internet Protocol address (“IP address”) traced to a physical address located within this The scan showed that the IP address identified by Plaintiff Id. Plaintiff also 28 4 15CV2928-BTM(BLM) 1 District.” 4 ECF No. 1 at 2; see also ECF No. 5 at 20. 2 Because Plaintiff has provided the Court with the unique IP address and the dates and 3 time of connection, provided the name of the ISP and/or cable operator that provided Internet 4 access for the user of the identified IP address, and used geolocation technology, the Court finds 5 that Plaintiff has made a satisfactory showing that John Doe is a real person or entity behind 6 the alleged infringing conduct who would be subject to suit in federal court. 7 2. 8 Second, Plaintiff must describe all prior attempts it has made to identify the Doe 9 defendant in a good faith effort to locate and serve them. Plaintiff retained a private computer 10 investigator to identify the IP addresses of BitTorrent users who were allegedly reproducing 11 Plaintiff’s copyrighted material. Susac Decl. Although Plaintiff’s computer investigator obtained 12 John Doe’s IP address, “[ t] he only entity able to correlate an IP address to a specific individual 13 at a given date and time is the Internet Service Provider.” Paige Decl. at 3. Plaintiff also notes 14 that it attempted to find Defendant’s IP address by searching on various web search tools such 15 as Google and reviewing numerous sources of authority. ECF No. 5. at 21. The Court therefore 16 finds that Plaintiff has made a good faith effort to identify and locate John Doe. 17 3. Previous Attempts to Locate Defendants Whether Plaintiff Can Withstand a Motion to Dismiss a. 18 Copyright infringement 19 “[ A] plaintiff who claims copyright infringement must show: (1) ownership of a valid 20 copyright; and (2) that the defendant violated the copyright owner’s exclusive rights under the 21 22 23 24 25 26 27 28 4 “Some district courts in the Ninth Circuit, including this one, have determined that a plaintiff identifies Doe defendants with sufficient specificity by providing the unique IP address assigned to an individual defendant on the [ date] of the alleged infringing conduct, and by using ‘geolocation technology’ to trace the IP address to a physical point of origin.” See Malibu Media, LLC v. Does 1-19, 2012 WL 2152061, at * 3 (S.D. Cal. June 12, 2012) (citing Openmind Solutions, Inc. v. Does 1-39, 2011 WL 4715200, at * 2 (N.D. Cal. Oct. 7, 2011); Pink Lotus Entm’t v. Does 1-46, 2011 WL 2470986, at * 3 (N.D. Cal. June 21, 2011)). Others have found that merely identifying the IP addresses assigned to the defendants on the day of the purported infringement is sufficient to satisfy the first factor. Id. (citing MCGIP, LLC v. Does 1-149, 2011 WL 3607666, at * 2 (N.D. Cal. Aug. 15, 2011)). Here, Plaintiff has done both. ECF No. 1. 5 15CV2928-BTM(BLM) 1 Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 U.S.C. § 2 501(a) (2003); Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1073 (9th Cir. 2000)). To prove 3 a claim of direct copyright infringement, “a plaintiff must show that he owns the copyright and 4 that the defendant himself violated one or more of the plaintiff’s exclusive rights under the 5 Copyright Act.” Id. (citation omitted). 6 Plaintiff purports to be the exclusive rights holder of the copyrighted works at issue. ECF 7 No. 1 at 1, Exh. B. Plaintiff alleges that between January 22, 2015 and November 8, 2015, 8 Defendant infringed Plaintiff’s copyrighted works by using the BitTorrent File Distribution 9 Network. ECF Nos. 1 at Exh. B and 5 at 11. Plaintiff further alleges that Defendant downloaded, 10 copied, and distributed complete copies of Plaintiff’s works without authorization. ECF No. 1 at 11 5, Exh. A. 12 infringement and could withstand a motion to dismiss these claims. See Columbia Ins. Co., 185 13 F.R.D. at 579-80. Accordingly, Plaintiff has alleged the prima facie elements of direct copyright 14 CONCLUSI ON 15 16 17 18 Having found good cause, the Court GRANTS Plaintiff’s motion for expedited discovery. For the foregoing reasons, it is hereby ordered that: 1. Plaintiff may serve a subpoena pursuant to Fed. R. Civ. P. 45, on Time Warner 19 Cable that seeks only the true name and address of John Doe. Plaintiff may not subpoena 20 additional information; 21 22 23 2. Plaintiff may only use the disclosed information for the sole purpose of protecting its rights in pursuing this litigation; 3. Within fourteen (14) calendar days after service of the subpoena, Time Warner 24 Cable shall notify the subscriber that its identity has been subpoenaed by Plaintiff. 25 subscriber whose identity has been subpoenaed shall have thirty (30) calendar days from the 26 date of such notice to challenge the disclosure by filing an appropriate pleading with this Court 27 contesting the subpoena; 28 4. The If Time Warner Cable wishes to move to quash the subpoena, it shall do so before 6 15CV2928-BTM(BLM) 1 the return date of the subpoena. The return date of the subpoena must allow for at least forty- 2 five (45) days from service to production. If a motion to quash or other customer challenge is 3 brought, Time Warner Cable shall preserve the information sought by Plaintiff in the subpoena 4 pending resolution of such motion or challenge; and 5 5. Plaintiff shall serve a copy of this Order with any subpoena obtained and served 6 pursuant to this Order to Time Warner Cable. Time Warner Cable, in turn, must provide a copy 7 of this Order along with the required notice to the subscriber whose identity is sought pursuant 8 to this Order. 9 I T I S SO ORDERED. 10 11 Dated: 2/ 16/ 2016 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 15CV2928-BTM(BLM)
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