Millennium TGA, Inc v. Does 1-21

Filing 8

ORDER by Judge Samuel Conti denying 6 Ex Parte Application (sclc1, COURT STAFF) (Filed on 5/12/2011)

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 MILLENNIUM TGA, INC., 8 ) ) ) ) ) ) ) ) ) ) Plaintiff, 9 v. For the Northern District of California United States District Court 10 DOES 1-21, 11 Defendants. 12 Case No. 11-2258 SC ORDER DENYING REQUEST FOR LEAVE TO TAKE EARLY DISCOVERY 13 14 I. INTRODUCTION On May 6, 2011, Plaintiff Millennium TGA, Inc. ("Plaintiff") 15 16 filed a Complaint against twenty-one unnamed defendants ("Doe 17 Defendants"), alleging copyright infringement and common law civil 18 conspiracy. 19 Plaintiff seeks leave to take third-party discovery prior to the 20 required Rule 26 conference in order to identify the Doe 21 Defendants. 22 the Court DENIES Plaintiff's Motion. ECF No. 1 ("Compl."). In an Ex Parte Application, ECF No. 6 ("Application"). For the following reasons, 23 24 25 II. BACKGROUND Plaintiff produces and distributes adult entertainment. 26 Compl. ¶ 6. Specifically, Plaintiff alleges that it owns the 27 copyright to an adult video, "Ladyboy-Ladyboy-Kae" ("the Work"). 28 Id. ¶ 7. Plaintiff claims that this Work "is the subject of a 1 copyright registration application and the application is currently 2 pending in the United States Copyright Office." Id. ¶ 20. BitTorrent is, in Plaintiff's words, a popular Internet 3 4 protocol "allowing for 'peer-to-peer' data exchanging." Id. ¶ 8. 5 It is a decentralized file-sharing system allowing a large number 6 of users (in Internet parlance, a "swarm") to distribute a data 7 file by exchanging pieces of the file with each other, so that each 8 user eventually obtains a whole copy of the file. Id. ¶¶ 11-13. Plaintiff alleges that its Work "has been uploaded to 9 United States District Court For the Northern District of California 10 virtually every one of the major BitTorrent piracy websites 11 worldwide and has been the subject of large-scale piracy." 12 7. 13 users who unlawfully reproduced and distributed the Work through 14 BitTorrent. 15 Internet-based infringement of its copyrighted content, its 16 "agents" observed unlawful reproduction by users operating at 17 certain internet protocol ("IP") addresses. 18 Complaint is a list of twenty-one IP addresses, the date and time 19 of each alleged infringement, and the Internet service provider 20 ("ISP") associated with each IP address. 21 Plaintiff claims that due to BitTorrent's decentralized nature, it 22 can only identify the names and addresses of individuals associated 23 with these IP addresses by subpoenaing the ISPs associated with 24 these IP addresses. 25 Rule of Civil Procedure 45 third-party subpoenas on eight ISPs -- 26 Dataframe Logistics, Covad Communications, Cox Communications, 27 Verizon Online, Charter Communication, Road Runner HoldCo, Comcast 28 Cable Communications, and AT&T Internet Services -- to compel them Id. ¶ Plaintiff claims that Doe Defendants are individual BitTorrent Id. ¶ 8. Plaintiff claims that through monitoring Id. Id. Attached to its Id. Ex. A ("IP Log"). Plaintiff seeks leave to serve Federal 2 1 to provide the name, address, telephone number, e-mail address, and 2 media access control address of each Doe Defendant. 3 Application at 12; IP Log. 4 will allow it to identify and serve the Doe Defendants, and also 5 states that it "will allow Plaintiff to identify additional 6 Defendants not listed in the Exhibit A, as infringement monitoring 7 is ongoing." See Plaintiff alleges that this information Compl. ¶ 8. 8 9 United States District Court For the Northern District of California 10 III. LEGAL STANDARD Generally, a party may not initiate discovery before the 11 parties have met and conferred pursuant to Federal Rule of Civil 12 Procedure 26(f). 13 "for the convenience of parties and witnesses and in the interests 14 of justice." 15 demonstrate good cause for earlier discovery. 16 v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). 17 18 19 20 21 However, a court may authorize earlier discovery Fed. R. Civ. P. 26(d). The requesting party must See Semitool, Inc. According to the Ninth Circuit: [W]here the identity of alleged defendants will not be known prior to the filing of a complaint[,] . . . the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds. 22 23 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 24 leave to conduct discovery to identify a Doe defendant, the moving 25 party must: (1) identify the defendant with enough specificity to 26 allow the Court to determine whether the defendant is a real person 27 or entity who could be sued in federal court; (2) recount the steps 28 taken to locate the defendant; (3) show that its action could 3 For 1 survive a motion to dismiss; and (4) file a request for discovery 2 with the Court identifying the persons or entities on whom 3 discovery process might be served and for which there is a 4 reasonable likelihood that the discovery process will lead to 5 identifying information. 6 F.R.D. 573, 578-80 (N.D. Cal. 1999). Columbia Ins. Co. v. seescandy.com, 185 7 8 9 IV. DISCUSSION Plaintiff has the burden of showing, inter alia, that its United States District Court For the Northern District of California 10 action could survive a motion to dismiss. 11 185 F.R.D. at 578-80. 12 facts alleged -- if assumed to be true -- could "plausibly give 13 rise to an entitlement to relief." 14 1937, 1950 (2009). 15 See Columbia Ins. Co., Therefore, Plaintiff must prove that the Ashcroft v. Iqbal, 129 S. Ct. This requirement poses obvious problems for Plaintiff's second 16 cause of action -- common law civil conspiracy. In California, a 17 civil conspiracy cause of action "is merely a mechanism for 18 imposing vicarious liability; is not itself a substantive basis for 19 liability." 20 131 Cal. App. 4th 802, 823 (Ct. App. 2005). Federal copyright law 21 has its own doctrine of vicarious liability. See Perfect 10, Inc. 22 v. Visa Int'l Serv. Ass'n, 494 F.3d 788, 795 (9th Cir. 2007) 23 (providing standard for vicarious infringement in the copyright 24 context). 25 other district courts have held that state law civil conspiracy 26 claims based on copyright infringement are preempted. 27 Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 565-66 (C.D. 28 Cal. 2005) (conspiracy claim dismissed on a Rule 12(b) motion); Berg & Berg Enter., LLC v. Sherwood Partners, Inc., While the Ninth Circuit has not addressed the subject, 4 E.g., RDF 1 Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1193-94 (C.D. Cal. 2 2001) (same). 3 conspiracy claim could survive a motion to dismiss, this cause of 4 action does not support its request for early discovery. 5 Because Plaintiff has not established that its Plaintiff's copyright claim also fails to support this 6 Application. Plaintiff brings this action against twenty-one 7 defendants; joinder of these defendants is proper only if "any 8 right to relief is asserted against them jointly, severally, or in 9 the alternative with respect to or arising out of the same United States District Court For the Northern District of California 10 transaction, occurrence, or series of transactions or occurrences." 11 Fed. R. Civ. P. 20(a)(2). 12 separate alleged reproductions of Plaintiff's Work -- which 13 occurred over the span of twenty days -- do not satisfy this 14 requirement. 15 Defendants are jointly or severally liable (or liable in the 16 alternative) for each respective reproduction and distribution. 17 Thus, the Doe Defendants' individual and Plaintiff must allege a plausible theory that the Doe Plaintiff fails to make the required showing. Plaintiff 18 suggests that by participating in BitTorrent's decentralized system 19 -- in which each user potentially distributes pieces of a file to 20 other users -- Doe Defendants are vicariously liable. 21 a novel legal theory, and Plaintiff cites no legal support for it 22 in its Application. 23 to support such a theory -- such that each user was part of the 24 same "swarm" sharing the Work. 25 But this is Nor does Plaintiff allege the facts necessary For these reasons, the Court finds that Plaintiff has failed 26 to establish that either its civil conspiracy claim or its 27 copyright claim could survive a motion to dismiss, and thus neither 28 claim supports Plaintiff's application for leave to conduct early 5 1 third-party discovery. In ruling, the Court joins many other 2 courts that have denied similar requests. 3 Does 1-435, No. 10-4382, 2011 WL 1219290, at *2 (N.D. Cal. Jan. 10, 4 2011); Laface Records, LLC v. Does 1–38, 2008 WL 54992, at *2 5 (E.D.N.C. Feb. 27, 2008); Interscope Records v. Does 1–25, 2004 6 U.S. Dist. LEXIS 27782 (M.D. Fla. Apr. 1, 2004); BMG Music v. Does, 7 No. 06–01579, 2006 U.S. Dist. LEXIS 53237 (N.D. Cal. July 31, 8 2006). E.g., IO Group, Inc. v. Because ex parte motions only provide one side of every story, 9 United States District Court For the Northern District of California 10 courts must examine them with particular rigor. Plaintiff's 11 Application fails this examination. 12 that were the Court to grant Plaintiff's Application, it would 13 "allow Plaintiff to identify additional Defendants." 14 (emphasis added). 15 one date-stamped IP addresses and asks for an order to subpoena 16 eight ISPs with the hope of broadening its case. 17 not issue fishing licenses; Plaintiff's Application is DENIED. Plaintiff tellingly claims Compl. ¶ 8 Plaintiff comes to court with a list of twenty- This Court does 18 19 20 21 V. CONCLUSION For the foregoing reasons, Plaintiff Millennium TGA, Inc.'s Application to take early third-party discovery is DENIED. 22 23 IT IS SO ORDERED. 24 25 26 Dated: May 12, 2011 UNITED STATES DISTRICT JUDGE 27 28 6