QOTD Film Investment LTD. v. Doe-72.220.214.236, No. 3:2016cv00759 - Document 6 (S.D. Cal. 2016)
Court Description: ORDER granting plaintiff's 5 Ex Parte Motion to Expedite Discovery. Signed by Magistrate Judge Jill L. Burkhardt on 4/5/16. (kas)
Download PDF
<![CDATA[
QOTD Film Investment LTD. v. Doe-72.220.214.236 Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 QOTD Film Investment LTD., Case No.: 16-cv-00759-LAB (JLB) Plaintiff, 12 13 14 ORDER GRANTING PLAINTIFF’S EX PARTE MOTION TO EXPEDITE DISCOVERY v. Doe-72.220.214.236, 15 Defendant. 16 [ECF No. 5] 17 18 19 Presently before the Court is Plaintiff’s Ex Parte Motion to Expedite Discovery. 20 (ECF No. 5.) No opposition was filed, as no defendant has been named or served. For the 21 reasons set forth below, Plaintiff’s Motion is GRANTED. 22 I. BACKGROUND 23 Plaintiff is an affiliate of Benaroya Pictures, a production company with a catalog 24 of major motion pictures. (ECF No. 1 at 2, ¶5.) Plaintiff claims to be the registered 25 copyright owner of the motion picture Queen of the Desert. (ECF No. 5-1 at 1.) Plaintiff 26 asserts the person or entity assigned Internet Protocol (“IP”) address 72.220.214.236 “is a 27 BitTorrent user, or ‘peer,’ whose computer is interconnected with others and used for 28 illegally copying and distributing Plaintiff’s motion picture to others.” (Id.) 1 16-cv-00759-LAB (JLB) Dockets.Justia.com 1 On March 31, 2016, Plaintiff filed a Complaint against Defendant “Doe- 2 72.220.214.236.” (ECF No. 1.) The Complaint alleges direct copyright infringement 3 against Defendant and asserts Plaintiff is the registered copyright holder for the motion 4 picture allegedly infringed by Defendant. (Id. at ¶¶6-8, 13) Plaintiff asserts Defendant 5 used the BitTorrent file distribution network to copy and distribute Plaintiff’s copyrighted 6 motion picture without Plaintiff’s consent “on over 120 occasions, between 01/29/2016 at 7 01:19:46 (UST) and 1/31/2016 at 17:17:45 (UST).” (Id. at ¶13.) 8 Because Defendant used the Internet to commit the alleged copyright infringement, 9 Plaintiff knows Defendant only by his, her, or its IP address, which was assigned to 10 Defendant by his, her, or its Internet Service Provider (“ISP”), Cox Communications. 11 (ECF No. 5-1 at 2.) In the present Motion, Plaintiff asserts Cox Communications has “the 12 records which tie the IP address used to infringe Plaintiff’s rights to a specific party who 13 contracted with Cox Communications for service” and thus Cox Communications can use 14 the above-listed IP address to identify Defendant. (Id.) Accordingly, “Plaintiff seeks leave 15 to serve a Rule 45 subpoena on the ISP Cox Communications. . . . limited to the name and 16 address of the individual/individuals associated with the IP address named as Defendant” 17 in order to prosecute Plaintiff’s copyright infringement against Defendant. (Id.) 18 19 II. LEGAL STANDARDS A. Early Discovery 20 Generally, discovery is not permitted absent a court order before the parties have 21 conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed R. Civ. P. 26(d)(1). 22 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 23 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 24 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 25 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.3d 637, 642 (9th 26 Cir. 1980)). Requests to conduct discovery prior to a Rule 26(f) conference are granted 27 upon a showing of good cause by the moving party, which may be found “where the need 28 for expedited discovery, in consideration of the administration of justice, outweighs the 2 16-cv-00759-LAB (JLB) 1 prejudice to the responding party.” 2 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). With respect to Internet infringement cases, 3 “courts routinely find good cause exists to issue a Rule 45 subpoena to discover[ ] a Doe 4 defendant’s identity prior to a Rule 26(f) conference, where a plaintiff makes a prima facie 5 showing of infringement, there is no other way to identify a Doe defendant, and there is a 6 risk an ISP will destroy its logs prior to the conference.” Bright Solutions for Dyslexia, 7 Inc. v. Doe 1, 15-cv-1618-JSC, 2015 WL 5159125, at *1 (N.D. Cal. Sept. 2, 2015) (quoting 8 UMG Recordings, Inc. v. Doe, C-08-1193-SBA, 2008 WL 4104207, at *4 (N.D. Cal. Sept. 9 3, 2008)). Semitool, Inc. v. Tokyo Electron Am., Inc., 10 District courts in the Ninth Circuit apply a three-factor test for determining whether 11 good cause exists to allow for expedited discovery to identify Doe defendants. 12 Columbia Ins. Co., 185 F.R.D. at 578–80. “First, the plaintiff should identify the missing 13 party with sufficient specificity such that the Court can determine that defendant is a real 14 person or entity who could be sued in federal court.” Id. at 578. Second, the plaintiff 15 “should identify all previous steps taken to locate the elusive defendant” to ensure the 16 plaintiff has made a good faith effort to identify and serve process on the defendant. 17 Id. at 579. Third, the plaintiff “should establish to the Court’s satisfaction that plaintiff’s 18 suit against defendant could withstand a motion to dismiss.” Id. (citing Gillespie, 629 F.2d 19 at 642). 20 B. The Cable Privacy Act 21 The Cable Privacy Act generally prohibits cable operators from disclosing 22 personally identifiable information about subscribers without the prior written or electronic 23 consent of the subscriber. 47 U.S.C. § 551(c)(1) (2015). However, a cable operator may 24 disclose a subscriber’s personally identifiable information if the disclosure is made 25 pursuant to a court order and the cable operator provides the subscriber with notice of the 26 order. Id. § 551(c)(2)(B). A cable operator is defined as “any person or group of persons 27 (A) who provides cable service over a cable system and directly or through one or more 28 affiliates owns a significant interest in such cable system, or (B) who otherwise controls or 3 16-cv-00759-LAB (JLB) 1 is responsible for, through any arrangement, the management and operation of such a cable 2 system.” Id. § 522(5). 3 4 III. DISCUSSION A. Early Discovery 5 Plaintiff seeks an order allowing it to serve a Rule 45 subpoena on Cox 6 Communications before the parties conduct a Rule 26(f) Conference in this case so Plaintiff 7 may obtain the true name and address of Defendant to protect and enforce Plaintiff’s rights 8 as set forth in the Complaint. (ECF No. 5-1.) For the reasons set forth below, Plaintiff’s 9 Motion is GRANTED. 10 1. 11 For the Court to grant Plaintiff’s Motion, Plaintiff must first identify Defendant with 12 enough specificity to enable the Court to determine Defendant is a real person or entity 13 who would be subject to the jurisdiction of this Court. See Columbia Ins. Co., 185 F.R.D. 14 at 578. This court has previously determined that “a plaintiff identifies Doe defendants 15 with sufficient specificity by providing the unique IP addresses assigned to an individual 16 defendant on the day of the allegedly infringing conduct, and by using ‘geolocation 17 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC v. 18 Collective of December 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29C 19 D63C23C91, 2012 WL 1648838, at *4 (S.D. Cal. May 4, 2012) (citing Openmind 20 Solutions, Inc. v. Does 1–39, No. C-11-3311 MEJ, 2011 WL 4715200, at *2 (N.D. Cal. 21 Oct. 7, 2011)); Pink Lotus Entm’t, LLC v. Does 1–46, No. C-11-02263 HRL, 2011 WL 22 2470986, at *3 (N.D. Cal. June 21, 2011)). Identification of Missing Party with Sufficient Specificity 23 Here, the Court finds Plaintiff’s Complaint and the declaration of James S. Davis 24 filed in support of the present Motion sufficiently specify that Defendant would be subject 25 to this Court’s jurisdiction. The declaration of James S. Davis, the attorney representing 26 Plaintiff, states that Mr. Davis “personally went through the data provided by Plaintiff’s 27 investigators, MaverickEye UG (‘MaverickEye’) and selected the IP Address based upon 28 the traced distribution of Plaintiff’s Motion Picture.” (ECF No. 5-3 at ¶5.) “The Data 4 16-cv-00759-LAB (JLB) 1 provided by MaverickEye is information that is related to an individual IP Address. This 2 data is the tracking record containing the ISP, unique file hash relating to the Motion 3 Picture, date, location, and number of instances wherein MaverickEye traced or observed 4 IP Address 72.220.214.236 making available an infringing copy of Plaintiff’s Motion 5 Picture.” (Id. at ¶6.) Mr. Davis “identified defendant, DOE-72.220.214.236, which on 6 121 occasions, between 01/29/2016 at 01:19:46 (UST) and 01/31/2016 at 17:17:45 (UST), 7 was observed through direct TCP/IP connection as infringing the Motion Picture . . . with 8 the unique hash 896B438F8D8F7C443F4B88A24322B8763A3E9885.” (Id. at ¶7; see 9 also ECF No. 5-2.) Mr. Davis personally entered the IP Address “into 3 separate websites 10 that contain a function for determining the location of an IP Address” and “confirmed by 11 geolocation trackers” that the Defendant’s use of the IP Address occurred in San Diego 12 County, California. (Id. at ¶¶8-10.) 13 Based on the above, the Court finds Plaintiff has identified Defendant with enough 14 specificity for the Court to determine Defendant is a real person or entity who would be 15 subject to the Court’s jurisdiction. Plaintiff has provided the Court with Defendant’s 16 unique IP address, the dates and times during which Plaintiff’s copyrighted materials were 17 infringed by a computer(s) using Defendant’s unique IP address, and a verified statement 18 that geolocation technology has found Defendant’s unique IP address to be physically 19 located within this district. See 808 Holdings, 2012 WL 1648838, at *4; see also ECF No 20 5-1 at 4; ECF Nos. 5-2 and 5-3. Accordingly, the Court finds Plaintiff has sufficiently 21 satisfied the first prong of the Ninth Circuit’s “good cause” standard. 22 2. 23 For the Court to grant Plaintiff’s Motion, Plaintiff must next identify all of the steps 24 it took to locate Defendant to ensure the Court it made a good faith effort to identify and 25 serve process on Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. The Court finds 26 Plaintiff met this burden. Previous Attempts to Locate Defendant 27 Plaintiff utilized investigators MaverickEye and geolocation trackers to identify the 28 Defendant. (ECF No. 5-3 at ¶¶5-11.) Plaintiff identified who Defendant uses as his or her 5 16-cv-00759-LAB (JLB) 1 ISP, Cox Communications, where Defendant is generally located, and what software 2 Defendant used to commit the alleged acts of infringement. (Id.; ECF No. 5-1 at 5.) 3 However, Plaintiff generally maintains that there are no other practical measures available 4 to determine the actual identity of Defendant. Plaintiff appears to have obtained and 5 investigated the available data pertaining to the alleged infringement in a good faith effort 6 to locate Defendant. Accordingly, the Court finds Plaintiff has sufficiently satisfied the 7 second prong of the Ninth Circuit’s “good cause” standard. Whether Plaintiff’s Suit Can Withstand a Motion to Dismiss 8 3. 9 For the Court to grant Plaintiff’s Motion, Plaintiff must lastly show that its suit 10 against Defendant could withstand a motion to dismiss. Columbia Ins. Co., 185 F.R.D. at 11 579 (citing Gillespie, 629 F.2d at 642). The Court finds Plaintiff has met this burden. 12 Plaintiff’s Complaint alleges only one cause of action against Defendant: direct 13 copyright infringement. (ECF No. 1 at 5–7.) To prove a claim of direct copyright 14 infringement, a plaintiff “must show: (1) ownership of a valid copyright; and (2) that the 15 defendant violated the copyright owner’s exclusive rights under the Copyright Act.” 16 Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a) 17 (2003)). Here, Plaintiff alleges it owns the registered copyright of the work that Defendant 18 allegedly copied and distributed using the BitTorrent file distribution network. (ECF No. 19 1 at ¶¶4, 6, 12; ECF No. 5-1 at 5.) In addition, Plaintiff also alleges it did not permit or 20 consent to Defendant’s copying or distribution of its work. (ECF No. 1 at ¶35; ECF No. 21 5-1 at 5.) Accordingly, the Court finds Plaintiff has alleged the prima facie elements of 22 direct copyright infringement and its suit against Defendant would likely withstand a 23 motion to dismiss.1 24 /// 25 26 1 27 28 Personal jurisdiction and venue appear to be sufficiently pled as well given Plaintiff’s allegations that Defendant’s IP Address has been traced to San Diego County (and therefore Defendant can be found in this district) and the infringing acts complained of occurred in this district. (ECF No. 1 at ¶¶3, 13-16; ECF Nos. 1-2, 5-2, and 5-3.) 6 16-cv-00759-LAB (JLB) 1 Based on the above, the Court finds good cause exists to allow Plaintiff to serve a 2 Rule 45 subpoena upon Cox Communications at this time, and Plaintiff’s Motion is 3 therefore GRANTED. 4 B. The Cable Privacy Act 5 Cox Communications is a “cable operator” within the meaning of the Cable Privacy 6 Act, and therefore the Court must consider the requirements of the Act in granting 7 Plaintiff’s Motion. The Cable Privacy Act generally prohibits cable operators from 8 disclosing personally identifiable information regarding subscribers without the prior 9 written or electronic consent of the subscriber, 47 U.S.C. § 551(c)(1), but cable operators 10 may disclose personally identifiable information if the disclosure is made pursuant to a 11 court order and the cable operator provides the subscriber with notice of the order. As 12 such, IT IS HEREBY ORDERED THAT: 13 1. Plaintiff may serve on Cox Communications a Federal Rule of Civil Procedure 14 45 subpoena seeking the name and address of Defendant, the Cox 15 Communications subscriber assigned IP address 72.220.214.236. The Court 16 finds this information should be sufficient for Plaintiff to identify, locate, and 17 serve process on Defendant, and Plaintiff shall not seek from Cox 18 Communications any other personally identifiable information about Defendant 19 in its subpoena; 20 2. Plaintiff’s subpoena to Cox Communications must provide a minimum of 21 45 calendar days’ notice before any production responsive to the subpoena shall 22 be made to Plaintiff; 23 24 3. At the time Plaintiff serves its subpoena on Cox Communications, Plaintiff shall also serve on Cox Communications a copy of this Order; 25 4. Within 14 calendar days after service of the subpoena, Cox Communications 26 shall notify the subscriber assigned IP address 72.220.214.236 that his, her, or its 27 identity has been subpoenaed by Plaintiff and shall provide the subscriber a copy 28 of this Order with the required notice; 7 16-cv-00759-LAB (JLB) 1 5. The subscriber whose identity has been subpoenaed shall have 30 calendar days 2 from the date of such notice to challenge Cox Communications’ disclosure of his, 3 her, or its name and address to Plaintiff by filing an appropriate pleading with 4 this Court contesting the subpoena; 5 6. If Cox Communications wishes to move to quash the subpoena, it shall do so 6 before it is required to respond to the subpoena by filing a motion to quash with 7 this Court; and 8 7. If a motion to quash or subscriber challenge is brought, Cox Communications 9 shall preserve the information sought by Plaintiff in the subpoena pending 10 11 resolution of any such motion or challenge. Dated: April 5, 2016 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 16-cv-00759-LAB (JLB)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
