Patrick Collins, Inc. v. Unknown

Filing 8

ORDER signed by Magistrate Judge John F. Moulds on 6/28/2012 GRANTING 5 Ex Parte Application for leave to serve third party subpoenas prior to a Rule 26(f) Conference. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICK COLLINS, INC., a
12 California corporation,
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Plaintiff,
v.

15 JOHN DOES 1 through 11,
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Case No. 2:12-cv-1458-GEB-JFM
ORDER GRANTING PLAINTIFF’S
EX PARTE APPLICATION FOR
LEAVE TO SERVE THIRD PARTY
SUBPOENAS PRIOR TO A RULE
26(f) CONFERENCE

Defendants.

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Order Granting Plaintiff’s Ex Parte Application for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f)
Conference

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THIS CAUSE came before the Court upon Plaintiff’s Ex Parte Application

2 for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference (the
3 “Motion”), and the Court being duly advised in the premises does hereby:
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FIND, ORDER AND ADJUDGE:

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1.

Plaintiff Patrick Collins, Inc., is the registered owner of the copyrights

6 to the motion picture titled “Gangbanged #2.”
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2.

Plaintiff filed a complaint against Doe defendants alleging direct

8 copyright infringement and contributory copyright infringement. Compl. ¶¶ 45-61.
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3.

The Cable Privacy Act generally prohibits cable operators from

10 disclosing personally identifiable information regarding subscribers without either
11 (1) the prior written or electronic consent of the subscriber; or (2) a court order,
12 provided the cable operator provides the subscriber with notice of the disclosure. 47
13 U.S.C. § 551(c)(1),(c)(2)(B). A cable operator is defined as “any person or group
14 of persons (A) who provides cable service over a cable system and directly or
15 through one or more affiliates owns a significant interest in such cable system, or
16 (B) who otherwise controls or is responsible for, through any arrangement, the
17 management and operation of such a cable system.”

47 U.S.C. § 522(5).

18 Accordingly, Plaintiff seeks a court order instructing Comcast Cable to produce
19 documents and information sufficient to identify the users of the IP addresses. A
20 chart of the Internet Protocol Addresses and corresponding Internet Service
21 Providers is below:
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24.2.54.127
24.23.35.83
67.174.152.178
67.181.163.90
67.181.53.142
67.182.0.81
71.193.57.237

Comcast Cable
Comcast Cable
Comcast Cable
Comcast Cable
Comcast Cable
Comcast Cable
Comcast Cable
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Order Granting Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference

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71.195.175.82
71.195.177.186
98.208.115.45
98.238.163.122

Comcast Cable
Comcast Cable
Comcast Cable
Comcast Cable

Consistent with the vast majority of district courts in this Circuit to

5 consider the issue, the undersigned finds that good cause supports permitting
6 plaintiff to conduct limited early discovery in order to discover the identities of the
7 Doe defendants. First, Plaintiff has only named Doe Defendants in this action, has
8 declared through its counsel that the identities of the Doe Defendants are unknown
9 to Plaintiff at this time, and has credibly declared through its counsel that Plaintiff
10 cannot serve the Complaint until it conducts discovery into the identities of the
11 persons associated with the IP addresses in Exhibit A to Plaintiff's counsel's
12 declaration. See Declaration of Leemore Kushner (“Kushner Decl.”) at ¶¶ 3-4.
13 Second, Plaintiff plainly cannot conduct a Rule 26(f) conference without knowing
14 the names and contact information of the Doe defendants. Kushner Decl. at ¶ 3.
15 Third, Plaintiff's representations presently support that each IP address is associated
16 with a particular individual and that the discovery sought will facilitate
17 identification of the defendants and service of process. Kushner Decl. at ¶ 4. The
18 Court also finds that the ISPs will not suffer any material prejudice by being served
19 with Rule 45 subpoenas that require the ISPs to provide the names and contact
20 information of some of its customers. Plaintiff's discovery is limited in terms of the
21 type of information sought.
5.
Courts in the Ninth Circuit have considered four factors derived from
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23 Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D.Cal. 1999), in evaluating
24 motions for permission to conduct early discovery in cases such as this one,
25 “whether the plaintiff: (1) identifies the Doe Defendant with sufficient specificity
26 that the court can determine that the defendant is a real person who can be sued in
27 federal court, (2) recounts the steps taken to locate and identify the defendant, (3)
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Order Granting Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference

1 demonstrates that the action can withstand a motion to dismiss, and (4) proves that
2 the discovery is likely to lead to identifying information that will permit service of
3 process.”

See MCGIP, LLC v. Does 1-49, 2011 WL 3607666 at *2 (citing

4 Columbia Ins. Co., 185 F.R.D. at 578-80).
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A.

Identification of Defendants: Plaintiff provides the Court with the

6 unique IP addresses and names of the ISPs that provided internet access for the users
7 of the identified IP addresses.

IPP Limited, Plaintiff’s investigator, allegedly

8 recorded each IP address assigned to the defendants by the ISP, sending it a piece of
9 plaintiff’s copyrighted work in violation of plaintiff’s exclusive distribution right
10 under 17 U.S.C. §106. The requested discovery will provide the true names and
11 addresses of the individuals Plaintiff alleged performed the infringing acts. Plaintiff
12 has alleged and Plaintiff’s counsel has declared that, the ISP has the ability to
13 correlate the IP Address used to commit the infringement to the subscriber of
14 internet service, who Plaintiff alleged committed the infringement. See Kushner
15 Decl. at ¶ 5. The court finds that plaintiff has sufficiently identified each John Doe
16 defendant such that the court can determine that the defendants are real persons or
17 entities who may be sued in federal court.
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B.

Previous Steps Taken to Locate Defendants: Plaintiff has identified the

19 Doe defendants' IP addresses and ISPs. Because the transactions at issue occurred
20 entirely online, the IP addresses and ISPs are the defendants' only available
21 identifying information. Without discovery, there are no other measures Plaintiff
22 can take to identify the Doe defendants or obtain their personal information. The
23 Court therefore finds that Plaintiff has made a good faith effort to comply with the
24 requirements of service of process and specifically identify defendants. See
25 Columbia Ins. Co., 185 F.R.D. at 579.
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C.

The Action can Withstand a Motion to Dismiss: “[A] plaintiff who

27 claims copyright infringement must show: (1) ownership of a valid copyright; and
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Order Granting Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference

1 (2) that the defendant violated the copyright owner's exclusive rights under the
2 Copyright

Act.”

Ellison

v.

Robertson, 357

F.3d

1072,

1076

(9th

3 Cir.2004) (citing 17 U.S.C. § 501(a) (2003); Ets–Hokin v. Skyy Spirits, Inc., 225
4 F.3d 1068, 1073 (9th Cir.2000)). To prove a claim of direct copyright infringement,
5 “a plaintiff must show that he owns the copyright and that the defendant himself
6 violated one or more of the plaintiff's exclusive rights under the Copyright Act,”
7 whereas “[o]ne who, with knowledge of the infringing activity, induces, causes or
8 materially contributes to the infringing conduct of another may be liable as a
9 ‘contributory’ [copyright] infringer. Id. (alteration in original) (citation omitted).
10 The Ninth Circuit has “interpreted the knowledge requirement for contributory
11 copyright infringement to include both those with actual knowledge and those
12 who have reason to know of direct infringement.” Id. (alteration in original)
13 (citation omitted). Plaintiff alleges that it is the owner, and holds the copyright
14 registration certificate, of a motion picture that Defendants copied and publicly
15 distributed without authorization. Plaintiff alleges that the Defendants knew or
16 should have known that other BitTorrent users in a swarm with it, here the other
17 Defendants, were directly infringing Plaintiff’s copyrighted Work by copying
18 constituent elements of the registered Work that are original and each Defendant
19 directly participated in and therefore materially contributed to each other
20 Defendant’s infringing activities. Compl. ¶¶ 57-59. Accordingly, Plaintiff has
21 alleged the prima facie elements of both direct and contributory copyright
22 infringement and could withstand a motion to dismiss these claims. See Columbia
23 Ins. Co., 185 F.R.D. at 579–80. In this case, Patrick Collins, Inc., has alleged
24 sufficient facts to withstand a motion to dismiss on its claim asserted in this lawsuit.
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i.

Joinder: Consistent with the overwhelming majority of Courts to

26 consider the issue, prior to the identification of the Doe Defendants, this Court finds
27 joinder is proper. This finding is made without prejudice to the Defendant’s ability
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Order Granting Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference

1 to raise the issue after the disclosure of the Doe Defendants’ identities. (See Liberty
2 Media Holdings, LLC v. Does 1-62, 2011 WL 1869923 (S.D. Cal. 2011);
3 OpenMind Solutions, Inc. v. Does 1-39, 2011 WL 4715200 (N.D. Cal. 2011)).
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Reasonable Likelihood that Discovery will Lead to Identification: The

5 fourth factor examines whether Plaintiff has demonstrated that there is a reasonable
6 likelihood that the discovery it requests will lead to the identification of Defendants
7 such that it may effect service of process. Columbia Ins. Co., 185 F.R.D. at 580. As
8 indicated above, Plaintiff contends that the key to locating Defendants is through the
9 IP addresses associated with the alleged activity on BitTorrent.

Specifically,

10 Plaintiff contends that because ISPs assign a unique IP address to each subscriber
11 and retain subscriber activity records regarding the IP addresses assigned, the
12 information sought in the subpoena will enable Plaintiff to serve Defendants and
13 proceed with this case. Taking this into account, the Court finds that Plaintiff has
14 made a sufficient showing as to this factor.
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6.

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(A) Plaintiff Patrick Collins, Inc., may serve a subpoena, pursuant

For Good Cause shown, It Is Hereby Ordered that:

17 to Fed.R.Civ.P. 45, on Comcast Cable that seeks information sufficient to identify
18 the Defendants, including their names, current addresses, telephone numbers and e19 mail addresses;
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(B)

Plaintiff Patrick Collins, Inc. may only use the information disclosed

21 for the sole purpose of protecting its rights in pursuing this litigation;
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(C)

Within thirty (30) calendar days after service of the subpoena,

23 Comcast Cable shall notify the subscribers that their identities are sought by Patrick
24 Collins, Inc. and shall deliver a copy of this order to them;
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Comcast Cable shall not require plaintiff to pay a fee in advance of providing

26 the subpoenaed information; nor shall Comcast Cable require plaintiff to pay a fee
27 for an IP address that is not controlled by it, or for duplicate IP addresses that
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Order Granting Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference

1 resolve to the same individual, or for an IP address that does not provide the name
2 of a unique individual, or for their internal costs to notify its customers.

If

3 necessary, the Court shall resolve any disputes between Comcast Cable and Plaintiff
4 regarding the reasonableness of the amount proposed to be charged by Comcast
5 Cable after the subpoenaed information is provided to plaintiff.
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IT IS SO ORDERED.

7 Date: 6/28/2012.
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______________________________________
UNITED STATES MAGISTRATE JUDGE

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Order Granting Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference