Strike 3 Holdings, LLC et al, No. 3:2018cv01352 - Document 9 (S.D. Cal. 2018)

Court Description: ORDER Granting 5 Plaintiff's Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Plaintiff may serve on Time Warner a subpoena, pursuant to and compliant with the procedures of Federal Rule of Civil Procedure 45, seeking only the name and address of the subscriber assigned IP address 66.27.124.79 for the relevant time period of the alleged infringement. Plaintiff shall not seek from Time Warner any other personally identifiable information abou t the subscriber. Within 14 calendar days after service of the subpoena, Time Warner shall notify the subscriber assigned IP address 66.27.124.79 that his, her, or its identity has been subpoenaed by Plaintiff and shall provide the subscriber a copy of this Order with the required notice. The subscriber whose identity has been subpoenaed shall have 30 calendar days from the date of such notice to challenge Time Warner' disclosure of his, her, or its name and address by filing an appropriat e pleading with this Court contesting the subpoena. Plaintiff may only use the information disclosed in response to a Rule 45 subpoena served on Time Warner for the purpose of protecting and enforcing Plaintiff's rights as set forth in its Complaint. If the Defendant wishes to proceed anonymously, Plaintiff may not release any identifying information without a court order allowing the release of the information. Signed by Magistrate Judge Jill L. Burkhardt on 8/10/2018. (rmc)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA STRIKE 3 HOLDINGS, LLC, Plaintiff, v. JOHN DOE, subscriber assigned IP address 66.27.124.79, Defendant. 17 18 19 20 21 22 23 24 ORDER GRANTING PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(F) CONFERENCE [ECF No. 5] 15 16 Case No. 18-cv-01352-MMA-JLB Presently before the Court is Plaintiff’s Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. (ECF No. 5.) No opposition was filed as no defendant has been named or served in this case. For the reasons set forth below, Plaintiff’s Motion is GRANTED. I. BACKGROUND Plaintiff alleges copyright infringement claims against a John Doe defendant. (ECF No. 1.) Plaintiff alleges that it is the copyright owner of motion pictures distributed through adult content websites Blacked, Tushy, Blacked Raw, and Vixen. (ECF No. 1 at ¶¶ 2–3, 32.) Plaintiff alleges that between December 19, 2017 and May 13, 2018, the person or 25 entity assigned Internet Protocol (“IP”) address 66.27.124.79 illegally copied, downloaded, 26 and/or distributed Plaintiff’s motion pictures through his, her, or its use of the online 27 BitTorrent file distribution network. (ECF No. 1 at ¶¶ 24–30; ECF No. 1-2 at 1–4.) On 28 1 18-cv-01352-MMA-JLB 1 June 20, 2018, Plaintiff commenced the instant action by filing a Complaint against 2 Defendant “John Doe, subscriber assigned IP address 66.27.124.79.” (ECF No. 1.) The 3 Complaint alleges a single claim of copyright infringement. (Id. at ¶¶ 35–40.) 4 Because Defendant used the Internet to commit the alleged infringement, Plaintiff 5 knows Defendant only by his, her, or its IP address, which Plaintiff believes was assigned 6 to Defendant by the Internet Service Provider (“ISP”) Spectrum (Time Warner) Cable. 7 (ECF No. 5-1 at 17.) In the present Motion, Plaintiff asserts that Time Warner is the owner 8 of Defendant’s IP address, and thus, a party with the information necessary to identify 9 Defendant by correlating the IP address with Defendant’s identity. (Id.) Accordingly, 10 Plaintiff seeks leave to serve a Rule 45 subpoena on Time Warner to obtain the name and 11 address associated with IP address 66.27.124.79. (Id.) 12 II. LEGAL STANDARDS 13 Discovery is not permitted before the parties have conferred pursuant to Federal Rule 14 of Civil Procedure 26(f) unless authorized by court order. Fed R. Civ. P. 26(d)(1). 15 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 16 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 17 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 18 F.R.D. 573, 577 (N.D. Cal. 1999). Requests to conduct discovery prior to a Rule 26(f) 19 conference are granted upon a showing of good cause by the moving party, which may be 20 found “where the need for expedited discovery, in consideration of the administration of 21 justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron 22 Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “A district court’s decision to grant 23 discovery to determine jurisdictional facts is a matter of discretion.” Columbia Ins. Co., 24 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 25 430 n.24 (9th Cir. 1977)). 26 District courts in the Ninth Circuit apply a three-factor test for determining whether 27 good cause exists to allow for expedited discovery to identify Doe defendants. See 28 Columbia Ins. Co., 185 F.R.D. at 578–80. “First, the plaintiff should identify the missing 2 18-cv-01352-MMA-JLB 1 party with sufficient specificity such that the Court can determine that defendant is a real 2 person or entity who could be sued in federal court.” Id. at 578. Second, the plaintiff 3 “should identify all previous steps taken to locate the elusive defendant” to ensure that the 4 plaintiff has made a good faith effort to identify and serve process on the defendant. Id. at 5 579. Third, the plaintiff “should establish to the Court’s satisfaction that plaintiff’s suit 6 against defendant could withstand a motion to dismiss.” Id. (citing Gillespie, 629 F.2d at 7 642). Further, the plaintiff “should file a request for discovery with the Court, along with 8 a statement of reasons justifying the specific discovery requested as well as identification 9 of a limited number of persons or entities on whom discovery process might be served and 10 for which there is a reasonable likelihood that the discovery process will lead to identifying 11 information about defendant that would make service of process possible.” Id. at 580 12 (citing Gillespie, 629 F.2d at 642). 13 III. DISCUSSION 14 Plaintiff seeks an order allowing it to serve a Rule 45 subpoena on Time Warner 15 before the parties have conducted a Rule 26(f) Conference so that Plaintiff may obtain the 16 true name and address of Defendant. (ECF No. 5-1 at 17.) For the reasons set forth below, 17 Plaintiff’s Motion is GRANTED. 18 A. Identification of Missing Party with Sufficient Specificity 19 For the Court to grant Plaintiff’s Motion, Plaintiff must first identify Defendant with 20 enough specificity to enable the Court to determine Defendant is a real person or entity 21 who would be subject to the jurisdiction of this Court. See Columbia Ins. Co., 185 F.R.D. 22 at 578. This Court has previously determined that “a plaintiff identifies Doe defendants 23 with sufficient specificity by providing the unique IP addresses assigned to an individual 24 defendant on the day of the allegedly infringing conduct, and by using ‘geolocation 25 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC v. 26 Collective of December 29, 2011 Sharing Hash, No. 12-cv-00186 MMA (RBB), 2012 WL 27 12884688, at *4 (S.D. Cal. May 8, 2012) (citing Openmind Solutions, Inc. v. Does 1–39, 28 No. C-11-3311 MEJ, 2011 WL 4715200, at *5–6 (N.D. Cal. Oct. 7, 2011); Pink Lotus 3 18-cv-01352-MMA-JLB 1 Entm’t, LLC v. Does 1–46, No. C-11-02263 HRL, 2011 WL 2470986, at *6–7 (N.D. Cal. 2 June 21, 2011)). 3 In cases where it is unclear whether the subject IP address is “dynamic” or “static,” 4 such as here, it matters when Plaintiff’s geolocation efforts were performed.1 In the context 5 of dynamic IP addresses, “a person using [a particular IP] address one month may not have 6 been the same person using it the next.” State v. Shields, No. CR06352303, 2007 WL 7 1828875, at *6 (Conn. Sup. Ct. June 7, 2007). It is likely that the user of IP address 8 66.27.124.79 is a residential user and that the IP address assigned by Time Warner is 9 dynamic.2 Thus, if Plaintiff’s geolocation efforts were performed close in time to the 10 offending downloads, they may be probative of the physical location of the subject IP 11 subscriber. If not, the geolocation of the subject IP address may be irrelevant. 12 Here, the instant Motion sufficiently demonstrates that Defendant is likely subject 13 to the Court’s jurisdiction. Plaintiff attaches to its Complaint a table reflecting that the user 14 of IP address 66.27.124.79 engaged in allegedly infringing activity between December 19, 15 2017 and May 13, 2018. (ECF No. 1-2 at 1–4.) Plaintiff attaches to its Motion the 16 declaration of Tobias Fieser, an employee of IPP International UG (IPP), a forensic 17 investigation services company. (ECF No. 5-2.) Fieser declares that IPP connected to an 18 electronic device using IP address 66.27.124.79, which was observed distributing multiple 19 pieces of Strike 3 Holding’s motion pictures. (Id. at ¶ 7.) Fieser also declares that, 20 according to IPP’s ancillary surveillance program, IP address 66.27.124.79 is associated 21 with significant and long-term BitTorrent use. (Id. at ¶ 12.) Plaintiff further asserts that 22 its independent forensic expert, Philip Pasquale, confirmed that Defendant’s IP address 23 24 25 26 27 28 “Static IP addresses are addresses which remain set for a specific user. Dynamic IP addresses are randomly assigned to internet users and change frequently. Consequently, for dynamic IP addresses, a single IP address may be re-assigned to many different computers in a short period of time.” Call of the Wild Movie, LLC v. Does, 770 F. Supp. 2d 332, 356 (D.D.C. 2011) (citing London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 160 (D. Mass. 2008)). 2 “Most consumer IP addresses are ‘dynamic’ as opposed to ‘static.’” Call of the Wild Movie, 770 F. Supp. 2d at 356. 1 4 18-cv-01352-MMA-JLB 1 was involved in an infringing transaction on May 13, 2018. (ECF No. 5-1 at 6; ECF No. 2 5-2 at 15.) In addition, Plaintiff’s asserts that the IP address 66.27.124.79 belongs to Time 3 Warner and that Plaintiff employed Maxmind’s geolocation technology to locate that IP 4 address within the Southern District of California. (ECF No. 5-1 at 6, 12.) Strike 3 5 employee Emilie Kennedy declares that Defendant’s IP address was traced to Del Mar, CA 6 using the Maxmind Geolocation Database in early December 2017, on July 23, 2018, and 7 again on August 8, 2018. (ECF No. 8-1 at 2.) 8 The Court concludes that based on the timing of the IP address tracing efforts 9 employed by Plaintiff, the documented success of the Maxmind geolocation service, see 10 Criminal Prods., Inc. v. Doe-72.192.163.220, No. 16-CV-2589 WQH (JLB), 2016 WL 11 6822186, at *3 (S.D. Cal. Nov. 18, 2016), and the continued tracing of the IP address to 12 this district, Plaintiff has met its evidentiary burden of showing that IP address 13 66.27.124.79 likely relates to a physical address located in this district. 14 B. 15 For the Court to grant Plaintiff’s Motion, Plaintiff must next identify all of the steps 16 it took to locate Defendant to ensure the Court it made a good faith effort to identify and 17 serve process on Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. The Court 18 concludes that Plaintiff has met this burden. Plaintiff retained a forensic investigation 19 services company, IPP, to monitor the BitTorrent file distribution network for the presence 20 of Plaintiff’s copyrighted works and to identify the IP addresses of devices that are found 21 distributing Plaintiff’s copyrighted works. (ECF No. 5-2 at 11–12.) Through IPP, Plaintiff 22 has been able to identify much about the subscriber of IP address 66.27.124.79, such as 23 his, her, or its ISP and the software used to commit the allegedly infringing acts. (Id. at 24 11–12, 15.) Plaintiff asserts that Defendant’s ISP is the only entity that can correlate the 25 IP address to its subscriber and identify Defendant as the person assigned the IP address 26 66.27.124.79 during the time of the alleged infringement. (Id. at 15.) Based on the above, 27 the Court is satisfied that Plaintiff has made a good faith effort to locate Defendant and that 28 Plaintiff cannot, on its own, locate Defendant with any greater specificity than it already Previous Attempts to Locate Defendant 5 18-cv-01352-MMA-JLB 1 has. Accordingly, the Court finds Plaintiff has sufficiently satisfied the second prong of 2 the “good cause” test. Whether Plaintiff’s Suit Can Withstand a Motion to Dismiss 3 C. 4 For the Court to grant Plaintiff’s Motion, Plaintiff must next show that its suit against 5 Defendant could withstand a motion to dismiss. Columbia Ins. Co., 185 F.R.D. at 579 6 (citing Gillespie, 629 F.2d at 642). The Court finds Plaintiff has met this burden. 7 Plaintiff’s Complaint alleges a single cause of action against Defendant: copyright 8 infringement. (ECF No. 1 at ¶¶ 35–40.) To prove a claim of direct copyright infringement, 9 a plaintiff “must show: (1) ownership of a valid copyright; and (2) that the defendant 10 violated the copyright owner’s exclusive rights under the Copyright Act.” Ellison v. 11 Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a) (2003)). “In 12 addition, direct infringement requires the plaintiff to show causation (also referred to as 13 ‘volitional conduct’) by the defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 14 666 (9th Cir. 2017) (citing Fox Broad. Co., Inc. v. Dish Network L.L.C., 747 F.3d 1060, 15 1067 (9th Cir. 2013)). Here, Plaintiff purports to be the owner of the thirty-seven 16 copyrighted works at issue, and asserts that every work has been registered with the United 17 States Copyright Office or has a pending copyright registration application. (ECF No. 1 at 18 ¶¶ 2, 32, 33; ECF No. 5-1 at 16.) Plaintiff alleges that “Defendant used the BitTorrent file 19 network to illegally download and distribute Plaintiff’s copyrighted motion pictures.” 20 (ECF No. 1 at ¶ 24.) IPP declares that it observed the device using IP address 66.27.124.79 21 distributing multiple pieces of Strike 3 Holding’s motion pictures, and when assembled, 22 the distributed pieces constitute a fully playable digital movie. (ECF No. 5-2 at 12.) 23 Plaintiff has verified that each digital file is a copy of Strike 3’s motion pictures. (Id. at 24 19–20.) IPP also declares that this IP address is associated with significant and long-term 25 BitTorrent use. (Id. at 12.) Lastly, Plaintiff alleges that “[a]t no point in time did Plaintiff 26 authorize, permit or consent to Defendant’s distribution of its Works, expressly or 27 otherwise.” (ECF No. 1 at ¶ 38.) Accordingly, the Court finds Plaintiff has alleged the 28 prima facie elements of direct copyright infringement and its suit against Defendant would 6 18-cv-01352-MMA-JLB 1 likely withstand a motion to dismiss. 2 D. 3 Finally, for the Court to grant Plaintiff’s Motion, Plaintiff “should file a request for 4 discovery with the Court.” Columbia Ins. Co., 185 F.R.D. at 580 (citing Gillespie, 629 5 F.2d at 642). Although Plaintiff did not provide the Court with a proposed subpoena, 6 Plaintiff has provided the Court with sufficient information regarding its requested 7 discovery by stating in its Motion that it will seek from Time Warner only the name and 8 address of the subscriber of IP address 66.27.124.79. (ECF No. 5-1 at 17.) 9 E. Specific Discovery Request Additional Considerations 10 This Court shares the concern noted by other courts in this district of “‘unscrupulous 11 tactics [being] used by certain plaintiffs, especially in the adult film industry, to shake down 12 the owners of IP addresses’ to exact quick and quiet settlements from possibly innocent 13 defendants who pay out only to avoid potential embarrassment.” Strike 3 Holdings, LLC 14 v. John Doe, No. 17-cv-2312-MMA-NLS (S.D. Cal. Dec. 7, 2017) (citing Malibu Media, 15 LLC v. Does 1-5, 2012 U.S. Dist. LEXIS 77469, *1 (S.D.N.Y. June 1, 2012)). 16 Accordingly, the Court issues an order establishing procedural safeguards to protect the 17 privacy of Defendant. See e.g., Malibu Media v. Doe, 2014 U.S. Dist. Lexis 79595, *5 18 (M.D. Fla. Apr. 10, 2014) (imposing conditions and citing cases that do the same); see also 19 Malibu Media, LLC v. Doe, 2016 U.S. Dist. LEXIS 35534, *17 (E.D. Cal. Mar. 18, 2016). 20 III. CONCLUSION 21 For the reasons set forth above, the Court finds good cause to allow Plaintiff to serve 22 a Rule 45 subpoena upon Time Warner at this time. Accordingly, Plaintiff’s Motion is 23 GRANTED as follows: 24 1. Plaintiff may serve on Time Warner a subpoena, pursuant to and compliant 25 with the procedures of Federal Rule of Civil Procedure 45, seeking only the name and 26 address of the subscriber assigned IP address 66.27.124.79 for the relevant time period of 27 the alleged infringement. Plaintiff shall not seek from Time Warner any other personally 28 identifiable information about the subscriber; 7 18-cv-01352-MMA-JLB 1 2. Plaintiff’s subpoena to Time Warner must provide a minimum of forty-five 2 (45) calendar days’ notice before any production responsive to the subpoena shall be made 3 to Plaintiff; 4 5 6 3. At the time Plaintiff serves its subpoena on Time Warner, Plaintiff shall also serve on Time Warner a copy of this Order; 4. Within fourteen (14) calendar days after service of the subpoena, Time 7 Warner shall notify the subscriber assigned IP address 66.27.124.79 that his, her, or its 8 identity has been subpoenaed by Plaintiff and shall provide the subscriber a copy of this 9 Order with the required notice; 10 5. The subscriber whose identity has been subpoenaed shall have thirty (30) 11 calendar days from the date of such notice to challenge Time Warner’ disclosure of his, 12 her, or its name and address by filing an appropriate pleading with this Court contesting 13 the subpoena; 14 6. 15 16 If Time Warner 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 17 is brought properly before the Court, Time Warner shall preserve the information sought 18 by the subpoena pending the resolution of any such motion; and 19 8. Plaintiff may only use the information disclosed in response to a Rule 45 20 subpoena served on Time Warner for the purpose of protecting and enforcing Plaintiff’s 21 rights as set forth in its Complaint. If the Defendant wishes to proceed anonymously, 22 Plaintiff may not release any identifying information without a court order allowing the 23 release of the information. 24 25 IT IS SO ORDERED. Dated: August 10, 2018 26 27 28 8 18-cv-01352-MMA-JLB

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