Cobbler Nevada, LLC v. Doe 1 et al, No. 2:2015cv01408 - Document 9 (W.D. Wash. 2015)
Court Description: ORDER granting 5 Motion to Expedite Discovery by Judge Ricardo S Martinez.(SSM)
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Cobbler Nevada, LLC v. Doe 1 et al Doc. 9 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 ) ) CASE NO. C15-1408RSM ) ) ) ORDER GRANTING PLAINTIFF’S ) MOTION TO EXPEDITE DISCOVERY ) ) ) ) ) COBBLER NEVADA, LLC, 9 Plaintiff, 10 v. 11 12 DOES 1-10, Defendants. 13 14 I. 15 16 INTRODUCTION Plaintiff alleges copyright infringement claims against several unknown John Doe 17 Defendants that appear to be using “peer to peer” or BitTorrent file “swapping” networks to 18 19 illegally obtain and distribute the copyrighted motion picture “The Cobbler.” Dkt. #1 at ¶ ¶ 10- 20 35. It now seeks permission to take limited, expedited discovery from various internet service 21 providers (“ISP”) in order to identify and name the John Doe Defendants in this case so that it 22 can complete service of process and proceed with litigation. Dkt. #5. As further discussed 23 below, Plaintiff has demonstrated that: (1) the John Doe Defendants are real people and/or 24 25 entities that may be sued in federal court; (2) it has unsuccessfully attempted to identify the 26 John Doe Defendants prior to filing this motion; (3) its claims against the John Doe Defendants 27 would likely survive a motion to dismiss; and (4) there is a reasonable likelihood that service of 28 the proposed subpoenas will lead to information identifying the John Doe Defendants. As a ORDER PAGE - 1 Dockets.Justia.com 1 2 result, the Court finds that good cause exists to allow Plaintiff to engage in expedited, preliminary discovery. 3 II. 4 BACKGROUND1 Plaintiff is a limited liability company engaged in the production of the motion picture 5 known as and entitled “The Cobbler” for theatrical exhibition, home entertainment and other 6 7 forms of distribution. Dkt. #1 at ¶ 5. Plaintiff is the owner of the exclusive rights under 8 copyright in the United States in The Cobbler. The Cobbler has been registered with the 9 United States Copyright Office by the author, Cobbler Nevada, LLC, effective October 22, 10 2014, and assigned Registration No. Pau 3-744-688. Id. at ¶ 6 and Ex. A. 11 Plaintiff alleges that each John Doe Defendant copied and distributed Plaintiff’s 12 13 copyrighted motion picture The Cobbler. The true names of Defendants are unknown to 14 Plaintiff at this time. However, each Defendant is known to Plaintiff by the Internet Protocol 15 (“IP”) address assigned by an Internet Service Provider (“ISP”) and the date and at the time at 16 which the infringing activity of each Defendant was observed. Dkt. #1 at ¶ 10. Through 17 18 geolocation, the IP address used by each Defendant has been traced to the Western District of 19 Washington. Dkt. #6 at ¶ 20. In addition, each IP address has also been observed and 20 associated with significant infringing activity and associated with the exchange of other titles 21 on peer-to-peer networks. Dkt. #1 at ¶ 11. The volume, titles and persistent observed activity 22 associated with each Defendant’s IP address indicates that each Defendant is not a transitory or 23 24 occasional guest, but is either the primary subscriber of the IP address or someone who resides 25 with the subscriber and/or is an authorized user of the IP address. Id. The volume of the 26 activity associated with each Defendant’s IP address further indicates that anyone using or 27 1 28 The following background is taken from Plaintiff’s Complaint and the Declaration of Daniel Macek filed in support of Plaintiff’s Motion for Expedited Discovery. Dkts. #1 and #6. ORDER PAGE - 2 1 observing activity on the IP address would likely be aware of the conduct of Defendant. Also, 2 the volume and titles of the activity associated with each Defendant’s IP address indicates that 3 each Defendant is not a child, but an adult, often with mature distinct tastes. Dkt. #1 at ¶ 11. 4 Plaintiff alleges that Defendants are each participants in a peer-to-peer (“P2P”) network 5 using the BitTorrent protocol. Id. at ¶ 12. The BitTorrent protocol makes even small 6 7 computers with low bandwidth capable of participating in large data transfers across a P2P 8 network. To begin an exchange, the initial file-provider intentionally elects to share a file with 9 a torrent network. This initial file is called a seed. Other users (“peers”) connect to the 10 network and connect to the seed file to download. As additional peers request the same file 11 each additional user becomes a part of the network from where the file can be downloaded. 12 13 However, unlike a traditional peer-to-peer network, each new file downloader is receiving a 14 different piece of the data from users who have already downloaded the file that together 15 comprises the whole. This piecemeal system with multiple pieces of data coming from peer 16 members is usually referred to as a “swarm.” The effect of this technology makes every 17 18 downloader also an uploader of the illegally transferred file(s). This means that every “node” 19 or peer user who has a copy of the infringing copyrighted material on a torrent network can 20 also be a source of download, and thus distributor for that infringing file. Id. 21 Plaintiff further alleges that Defendants’ actions are part of a common design, intention 22 and purpose to hide behind the apparent anonymity provided by the Internet and the BitTorrent 23 24 technology to download pieces of the copyrighted motion picture in a manner that, but for the 25 investigative technology used by Plaintiff, would be untraceable, leaving the Plaintiff without 26 the ability to enforce its copyright rights. Dkt. #1 at ¶ 14. By participating in the “swarm” to 27 download Plaintiff’s copyright motion picture, the Defendants agreed with one another to use 28 ORDER PAGE - 3 1 2 3 4 the Internet and BitTorrent technology to engage in violation of federal statute to accomplish and unlawful objective. Dkt. #1 at ¶ 14. Plaintiff has identified each Defendant by the IP address assigned by the ISP used by each Defendant and the date and at the time at which the infringing activity of each Defendant 5 was observed. Id. at ¶ 15. This is accomplished using forensic software to collect, identify and 6 7 record the IP addresses in use by those people that employ the BitTorrent protocol to share, 8 copy, reproduce and distribute copyrighted works. 9 infringing transactions and the IP addresses of the users responsible for copying and 10 The end result are evidence logs of distributing the audiovisual work, here The Cobbler. Dkt. #1 at ¶ 17. The IP addresses, hash 11 value, dates and times, ISP and geolocation contained in Exhibit B correctly reflect the 12 13 subscribers using the IP addresses and that they were all part of a “swarm” of users that were 14 reproducing, distributing, displaying or performing the copyrighted work. Id. 15 Plaintiff believes that each Defendant, without the permission or consent of Plaintiff, 16 has used, and continues to use, an online media distribution system to wrongfully 17 18 misappropriate, reproduce and distribute to the public, including by making available for 19 distribution to others, The Cobbler. Dkt. #1 at ¶28. Plaintiff further believes that each 20 Defendant participated in a swarm and/or reproduced and/or distributed the same seed file of 21 The Cobbler in digital form either directly with each other. Plaintiff has identified each 22 Defendant by the IP address assigned to that Defendant by his or her ISP and the date and at the 23 24 time at which the infringing activity of each Defendant was observed. Id. In addition or in the 25 alternative, Plaintiff believes that Defendants obtained Internet access through an ISP and 26 permitted, facilitated and materially contributed to the extensive use of the Internet through his 27 ISP for infringing Plaintiff’s exclusive rights under The Copyright Act by others. Id. at ¶ 29. 28 ORDER PAGE - 4 1 Defendants, with knowledge of the infringing conduct, failed to reasonably secure, police and 2 protect the use of his Internet service against use for improper purposes such as piracy, 3 including the downloading and sharing of Plaintiff’s motion picture by others. Dkt. #1 at ¶ 29. 4 Defendants had the right and ability to supervise and control the activity constituting the 5 infringement. Id. Plaintiff now seeks expedited discovery to identify the Defendants. 6 III. 7 8 9 10 DISCUSSION A. Legal Standard This 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. P. 26(d). 11 Courts within the Ninth Circuit generally consider whether a plaintiff has shown “good cause” 12 13 for such early discovery. See, e.g., Yokohama Tire Crop. v. Dealers Tire Supply, Inc., 202 14 F.R.D. 612, 613-14 (D. Ariz. 2001) (collecting cases and standards). When the identities of 15 defendants are not known before a Complaint is filed, a plaintiff “should be given an 16 opportunity through discovery to identify the unknown defendants, unless it is clear that 17 18 discovery would not uncover the identities, or that the complaint would be dismissed on other 19 grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In evaluating whether a 20 plaintiff establishes good cause to learn the identity of John Doe defendants through early 21 discovery, courts examine whether the plaintiff (1) identifies the John Doe defendant with 22 sufficient specificity that the Court can determine that the defendant is a real person who can be 23 24 sued in federal court, (2) recounts the steps taken to locate and identify the defendant, (3) 25 demonstrates that the action can withstand a motion to dismiss, and (4) proves that the 26 discovery is likely to lead to identifying information that will permit service of process. 27 Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). 28 ORDER PAGE - 5 1 B. Plaintiff Has Shown Good Cause to Take Early Discovery 2 Here, Plaintiff established good cause to engage in early discovery to identify the John 3 Doe Defendants. First, Plaintiff has associated the John Doe Defendants with specific acts of 4 employ the BitTorrent protocol to share, copy, reproduce and distribute copyrighted works. 5 Dkts. #1 at ¶ 17 and #6 at ¶ 20. Plaintiff has been able to trace the alleged infringing activity to 6 7 individual IP addresses in this judicial District. Dkt. #6 at ¶ ¶ 20-21. Second, Plaintiff has 8 adequately described the steps it took in an effort to locate and identify the John Doe 9 Defendants. 10 Dkt. #6. Specifically, it utilized its geolocation technology locate the IP addresses in this District. Dkt. #6 at ¶ ¶ 20-21. Third, Plaintiff has pleaded the essential 11 elements to state a claim for Copyright Infringement under 17 U.S.C. § 501, et seq. Dkts. #1 at 12 13 ¶ ¶ 25-25 and #8, Exs. A-B. Fourth, the information proposed to be sought through a Rule 45 14 subpoena appears likely to lead to identifying information that will allow Plaintiff to effect 15 service of process on the John Doe Defendants. Dkt. #5. Specifically, Plaintiff states it will 16 seek subscriber information associated with the alleged infringing IP address. Dkt. #6 at ¶ 21. 17 18 Taken together, the Court finds that the foregoing factors demonstrate good cause to 19 grant Plaintiff’s motion for leave to conduct limited expedited discovery. See Semitool, 208 20 F.R.D. at 276. 21 information that will allow Plaintiff to determine the identities of the John Doe Defendants in Therefore, the Court will grant discovery limited to documents and/or 22 order to effect service of process. 23 IV. 24 25 CONCLUSION For the reasons set forth above, the Court hereby ORDERS: 26 27 28 ORDER PAGE - 6 1 1. Plaintiff may immediately serve on its identified Internet Service Providers (or their 2 associated downstream ISPs) a Rule 45 subpoena to obtain documents and/or 3 information to identify the John Does Defendants. 4 2. At this time, any documents requests shall be limited to documents sufficient to 5 identify all names, physical addresses, PO boxes, electronic addresses (including 6 email addresses), telephone numbers, or other customer identifying information that 7 8 are or have been associated with the alleged infringing IP addresses contained at 9 Dkt. #8, Ex. B. 10 DATED this 10th day of September, 2015. 11 13 A 14 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 12 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER PAGE - 7
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