Malibu Media, LLC v. Doe, No. 3:2016cv00444 - Document 5 (S.D. Cal. 2016)
Court Description: ORDER Granting 4 Ex Parte Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Bernard G. Skomal on 4/22/16. (dlg)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MALIBU MEDIA, LLC, Case No.: 16cv444 GPC (BGS) Plaintiff, 12 13 14 ORDER GRANTING EX PARTE MOTION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE v. JOHN DOE subscriber assigned IP address 76.216.255.36, 15 Defendant. 16 [ECF No. 4.] 17 18 19 I. BACKGROUND On February 18, 2016, Plaintiff, Malibu Media, LLC, filed a complaint against the 20 21 John Doe subscriber assigned IP address 76.216.255.36 for copyright infringement. 22 (ECF No. 1.) On March 18, 2016, Plaintiff filed an Ex Parte Motion for Leave to Serve 23 Third-Party Subpoenas Prior to a Rule 26(f) Conference in order to ascertain the identity 24 25 of this John Doe Defendant. (ECF No. 4.) 26 In its complaint, Plaintiff asserts the defendant is liable for direct copyright 27 infringement. (Compl. at pp. 5-7; ECF. No. 1.) Plaintiff alleges it owns the copyrights for 28 1 16cv444 GPC (BGS) 1 2 movies contained on its website and the defendant used BitTorrent, a peer-to-peer file sharing system, to copy and distribute the movies without consent. (Id. at p. 3.) To 3 4 identify the Internet Protocol (“IP”) address of the defendant using BitTorrent, Plaintiff 5 hired forensic investigator, Excipio GmbH (“Excipio”). (Declaration of Daniel Susac 6 “Susac Decl.”, ECF No. 4-3 at 2:1-7.) 7 Since it can only identify the defendant by the IP address used, Plaintiff requests 8 9 10 permission to serve a Rule 45 subpoena on the Internet Service Provider (ISP) that issued the IP address to the defendant. (Pl.’s Mot., ECF. No. 4-1 at 8:19-23.) The proposed 11 12 13 14 subpoena will demand only the name and address of the defendant. (Id. at 23:10-12.) Plaintiff asserts it will only use this information to prosecute the claims made in its Complaint. Id. 15 Plaintiff claims good cause exists to grant the motion because: (1) it has 16 17 18 sufficiently pled a prima facie claim for copyright infringement, (2) it cannot identify the defendant without the discovery requested, (3) there is a risk the ISP will not retain 19 20 21 22 records correlating the defendant’s identity, (4) the defendant has been identified with specificity through geolocation technology and forensic investigation, (5) the information sought for the subpoena will enable Plaintiff to serve the defendant and proceed with the 23 24 25 26 suit, and (6) Plaintiff’s interest in the narrowly-tailored request for information to enforce its copyrights outweighs any prejudice to the defendant. (Id. at pp. 12-25.) /// 27 28 /// 2 16cv444 GPC (BGS) 1 2 II. STANDARD OF REVIEW A. The Cable Privacy Act 3 4 5 6 The Cable Privacy Act generally prohibits cable operators from disclosing personally identifiable information regarding subscribers without the prior written or electronic consent of the subscriber. 47 U.S.C. § 551(c)(1). However, a cable operator 7 8 9 10 may disclose such information if the disclosure is made pursuant to a court order and the cable operator provides the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B). A cable operator is defined as “any person or group of persons (A) who 11 12 13 14 provides cable service 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 arrangement, the management and operation of such a cable 15 16 17 18 system.” 47 U.S.C. § 522(5). Accordingly, Plaintiff seeks an Order instructing the ISP to produce documents and information sufficient to identify the user of the specified IP address. 19 20 21 22 B. Requests for Discovery Before The Rule 26(f) Conference Unless a court order permits early discovery, it is not allowed until parties meet and confer pursuant to Federal Rule of Civil Procedure 26(f). See Fed. R. Civ. P. 23 24 25 26 26(d)(1). To determine if early discovery is warranted in a particular case, the court applies a “good cause” test by weighing the need for discovery to further justice with the prejudice it may cause the opposing party. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 27 28 F.R.D. 273, 276 (N.D. Cal. 2002). 3 16cv444 GPC (BGS) 1 2 District courts in the Ninth Circuit apply the following test to determine whether early discovery may be permitted to locate defendants: first, the court may require the 3 4 5 6 plaintiff to sufficiently identify the unknown party so it is clear there exists a real person or entity; second, the court may ask the plaintiff to show it has made a good faith effort to identify and serve the defendant; third, the court may require the plaintiff to prove its 7 8 9 10 claim could withstand a motion to dismiss; finally, the court may also ask the plaintiff to show that the requested discovery will lead to identifying information about the defendant that would make service of process possible. Columbia Ins. Co.v. 11 12 13 14 Seescandy.com 185 F.R.D. 573, 578-80 (N.D. Cal. 1999); see also Openmind Solutions, Inc. v. Does 1-39, No. C 11-3311 MEJ, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7, 2011); 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash, No. 12-CV-0186 15 16 17 18 MMA, ECF, 2012 WL 1648838, at *3 (S.D. Cal. May 4, 2012). For example, in UGM Recordings, Inc. v. Doe., No. C 08-1193 SBA, 2008 WL 4104214, at * 4 (N.D. Cal. Sept. 3, 2008), the court found good cause to grant the 19 20 21 22 plaintiff early discovery to identify an unknown defendant who had downloaded the plaintiff’s copyrighted music recordings via an online peer-to-peer system. 2008 WL 4104214, at *2. The plaintiff only had access to the IP address associated with 23 24 25 26 downloading the recordings and intended to serve a subpoena on the ISP to determine the identity of the defendant. Id. First, the plaintiff satisfied the requirement for sufficiently alleging copyright infringement by showing it owned a valid copyright and that the 27 28 copyrighted works were distributed without its consent over the internet. Id. at *5. 4 16cv444 GPC (BGS) 1 2 Second, Plaintiff was only able to identify the defendant by its IP address and, therefore, could not proceed with a suit absent the requested discovery. Id. Third, Plaintiff alleged 3 4 5 6 the ISP could have potentially disposed of the logs without the discovery request. Id. In addition, the plaintiff showed that, without the discovery, it could not truly identify the defendant and would suffer ongoing harm if not given the opportunity to file a suit. Id. 7 8 9 10 The plaintiff further alleged there would be no prejudice towards the defendant since it asked only for the contact information required to serve process. Id. The UGM Recordings court granted the plaintiff’s motion for early discovery allowing it to request 11 12 13 14 the defendant’s name, address, telephone number, e-mail address, and MAC address. Id. at *6. III. DISCUSSION 15 16 17 18 After careful consideration of the ex parte motion, the Court finds the plaintiff has satisfied the test articulated by the court in Columbia Ins. The Court will address these three factors in turn below. 19 20 21 A. Plaintiff Has Identified Missing Party With Sufficient Specificity So Court Can Determine That Defendant Is Real And Could Be Sued 22 23 24 25 26 The sufficient specificity requirement “is necessary to ensure that federal requirements of jurisdiction and justiciability can be satisfied.” Columbia Ins., 185 F.R.D. at 578. Specifically, “a plaintiff identifies Doe defendants with sufficient 27 specificity by providing the unique IP addresses assigned to an individual defendant on 28 the day of the allegedly infringing conduct, and by using ‘geolocation technology’ to 5 16cv444 GPC (BGS) 1 2 trace the IP addresses to a physical point of origin.” 808 Holdings, 2012 WL 1648838, at *4 (quoting OpenMind Solutions, Inc. v. Does 1-39, No. C-11-3311 MEJ, 2011 WL 3 4 5 6 4715200 (N.D. Cal. Oct. 7, 2011)). In the declaration of Daniel Susac, the forensic investigator for Excipio GmbH, Mr. Susac explains that he “used forensic software named Network Activity Recording 7 8 9 10 and Supervision (“NARS”) and related technology enabling the scanning of the BitTorrent file distribution network” to identify IP addresses that are being used to distribute Plaintiff’s copyrighted works without authorization. (Susac Decl., ECF No. 4- 11 12 3 at p. 2.) The software used by Mr. Susac identified siterip files that were downloaded, 13 copied and distributed by the subscriber assigned IP address 76.216.255.36, which were 14 identical, strikingly similar or substantially similar to Plaintiff’s original work. (Susac 15 16 17 18 Decl., ECF No. 4-3 at p. 3.) The NARS software also identified the date and time the subscriber/doe defendant distributed the copyrighted works at issue. (Exh A. to Pl.’s Complaint.) Patrick Paige, the founder of Computer Forensic, LLC, has explained in his 19 20 declaration, that “during the initial phase of Internet based investigations, the offender is 21 only known to law enforcement by an IP address.” (Paige Decl., ECF No. 4-4 at 3.) 22 Paige states that “the process used by law enforcement mirrors the process used by 23 24 25 26 Malibu Media to correlate an IP address to an individual.” Id. Based on the information provided to the Court from the Plaintiff, including: (1) the specific subscriber IP address at issue, (2) the dates and times of connection, and (3) the name of internet service 27 28 6 16cv444 GPC (BGS) 1 2 provider for the IP address located, the Court finds the subscriber/doe defendant has been identified with sufficient specificity. 3 4 5 6 B. Plaintiff Has Identified Previous Steps Taken To Locate Defendant The Court in Columbia Ins. explained that “this element is aimed at ensuring that plaintiffs make a good faith effort to comply with the requirements of service of process 7 8 9 10 and specifically identifying defendants.” Columbia Ins., 185 F.R.D. at 579-80. In its ex parte motion, Plaintiff states that in addition to hiring forensic investigators, it has “attempted to correlated Defendant’s IP address to Defendant by searching for 11 12 13 14 Defendant’s IP address on various web search tools, including basic search engines … [and] by reviewing numerous sources of authority….” (Pl.’s Mtn., ECF No. 4-1 at p. 21.) And, as mentioned in the preceding paragraph, Plaintiff has also hired Daniel Susac, the 15 16 forensic investigator for Excipio GmbH, as well as Patrick Paige, the founder of 17 Computer Forensic, LLC, to assist it in locating the IP addresses that are being used to 18 distribute Plaintiff’s copyrighted works without authorization. (Susac Decl., ECF No. 4- 19 20 3; Paige Decl., ECF No. 4-4.) Their investigation has now resulted in a unique IP 21 address, however, “the only entity able to correlate an IP address to a specific individual 22 at a given date and time is the Internet Service Provider.” (Paige Decl., ECF No. 4-4 at p. 23 24 25 3.) The Court, therefore, finds Plaintiff has made a good faith effort to identify the subscriber/doe defendant. 26 27 28 7 16cv444 GPC (BGS) 1 C. Plaintiff's Suit Against Defendant Could Withstand A Motion To Dismiss 2 In order to meet the third factor set forth in the Columbia Ins. test, the plaintiff “must 3 4 make some showing that an act giving rise to civil liability actually occurred and that the 5 discovery is aimed at revealing specific identifying features of the person or entity who 6 committed that act.” Columbia Ins., 185 F.R.D. at 580. 7 8 To prevail in a copyright infringement action, a plaintiff “must show: (1) ownership 9 of a valid copyright; and (2) that the defendant violated the copyright owner’s exclusive 10 rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) 11 12 13 14 (citing 17 U.S.C. § 501(a) (2003); Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1073 (9th Cir. 2000)). Plaintiff’s complaint lists the copyrighted movie titles which it owns and has 15 16 17 18 registered, with a listing of the copyright registration numbers of the allegedly infringed works at issue. Exh. B to Pl.’s Complaint, ECF No. 1-3 and ECF No. 1-5. Plaintiff also alleges the subscriber/doe defendant used the BitTorrent file sharing system, to copy and 19 20 21 22 distribute the movies without consent. Exhs. A-C to Pl.’s Complaint, ECF No. 1-2, 1-3 and 1-4. Plaintiff has alleged a prima facie case of copyright infringement which may withstand a motion to dismiss. (Compl. at pp. 5-7; ECF. No. 1.) The plaintiff has also 23 24 25 26 demonstrated through the declarations of its forensic computer experts that an ISP maintains the subscriber records that contain the name and address information they seek. (Paige, Decl., ECF No. 4-4 at 3.) Accordingly, Plaintiff has made a prima facie showing 27 28 8 16cv444 GPC (BGS) 1 2 of copyright ownership and a violation of the copyright that could survive a motion to dismiss. Thus, the third factor for granting early discovery has been met. 3 4 D. Plaintiff Has Shown Requested Discovery Will Lead to Identifying 5 6 Information Plaintiff has satisfied the last inquiry required in Columbia Ins. by demonstrating the 7 8 requested discovery will lead to identifying information about the defendant that would 9 make service of process possible. Columbia Ins., 185 F.R.D. at 580. As explained above, 10 Plaintiff’s investigation has revealed a unique IP address. Due to the fact that the only 11 12 13 14 entity able to correlate an IP address to a specific individual is the Internet Service Provider, the requested Rule 45 subpoena requiring the ISP to provide Plaintiff with the true name and address of the Defendant to whom the IP address belongs would lead to information 15 16 17 18 making physical service of process possible. IV. CONCLUSION AND ORDER THEREON Plaintiff has met its burden of showing good cause and the ex parte motion is 19 20 21 22 GRANTED. IT IS HEREBY ORDERED that: 1. Plaintiff may serve the ISP with a Rule 45 subpoena commanding the ISP to provide Plaintiff with the true name and address of the Defendant to whom the ISP assigned 23 24 25 26 an IP address as set forth in Exhibit A to the Complaint. Plaintiff may not subpoena additional information. 2. Plaintiff shall attach a copy of this Order to any Rule 45 subpoena issued 27 28 pursuant to this Order. 9 16cv444 GPC (BGS) 1 2 3. Within 14 calendar days after service of the subpoena, the ISP shall notify the subscriber that its identity has been subpoenaed by Plaintiff. The subscriber whose identity 3 4 5 6 has been subpoenaed shall have thirty (30) calendar days from the date of such notice to challenge the disclosure by filing an appropriate pleading with this Court contesting the subpoena. 7 4. 8 9 10 If the ISP wishes to move to quash the subpoena, it shall do so before the return date of the subpoena. The return date of the subpoena must allow for at least fortyfive (45) days from service to production. If a motion to quash or other customer challenge 11 12 13 is brought, the ISP shall preserve the information sought by Plaintiff in the subpoena pending resolution of such motion or challenge. 14 5. If the ISP qualifies as a “cable operator,” as defined by 47 U.S.C. § 522(5)1, 15 16 17 18 that ISP shall comply with 47 U.S.C. § 551(c)(2)(B)2, by sending a copy of this Order to the Defendant. /// 19 20 21 /// /// 22 23 1 Under 47 U.S.C. § 522(5), the term “cable operator” means any person or group of persons: 24 (A) 25 (B) 26 27 28 who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system. “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.” 47 U.S.C. § 551(c)(2)(B). 2 10 16cv444 GPC (BGS) 1 2 6. Plaintiff may only use the information disclosed in response to a Rule 45 subpoena served on the ISP for the sole purpose of enforcing Plaintiff’s rights as set forth 3 4 5 in its Complaint. Dated: April 22, 2016 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 16cv444 GPC (BGS)
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