Media Products, Inc. v. Unknown
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/4/2012 ORDERING that plaintiff's 4 ex parte application and motion for leave to take expedited discovery is GRANTED IN PART; plaintiff may immediately serv e a Rule 45 subpoena, along with a copy of this order, on the ISP Sprint PCS to obtain the information regarding the subscriber (defendant John Doe 1); the ISP, in turn, shall serve a copy of the subpoena and a copy of this order upon its relevent s ubscriber within 30 days; the subscriber and the ISP shall each have 30 days from the respective dates of service upon them to file any motions contesting the subpoena, if that date elapses without the filing of a contesting motion, the ISP shall hav e 14 days thereafter to produce the information responsive to the subpoena to plaintiff; plaintiff's request for an order authorizing plaintiff to subpoena the Media Acess Control address of any Doe defendant is DENIED without prejudice; plaint iff's request for an order authorizing plaintiff to subpoena the ISP's terms of service applicable for any Doe defendant is DENIED without prejudice (SEE ORDER FOR DETAILS); and RECOMMENDING that Does 1-28 be dismissed without prejudice. Referred to Judge Lawrence K. Karlton; Objections due within 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MEDIA PRODUCTS, INC. dba
DEVIL’S FILM, a California
Corporation,
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Plaintiff,
No. 2:12-cv-01937 LKK DAD
vs.
DOES 1-128, inclusive,
ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendants.
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In this action plaintiff alleges that Doe defendants 1-128 infringed on its copyright
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with respect to a pornographic motion picture, the graphic title of which is identified in plaintiff’s
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complaint. Specifically, plaintiff alleges that in the course of monitoring Internet-based
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infringement of its copyrighted content, its agents observed unlawful reproduction and
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distribution of the subject motion picture by the 128 Doe defendants via the Bit Torrent file
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transfer protocol. Although plaintiff does not know the names of the Doe defendants, its agents
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created a log identifying the Doe defendants by their IP addresses and the dates and times of their
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alleged unlawful activity. The IP addresses, internet service providers (“ISPs”), and dates and
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times of the alleged unlawful activity by the 128 Doe defendants are identified in an exhibit to
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plaintiff’s complaint.
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Plaintiff has filed an ex parte application for expedited discovery to serve Rule 45
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subpoenas on the ISPs to obtain the names, addresses, e-mail addresses, Media Access Control
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(“MAC”) address, and the ISP’s terms of service applicable for each of the 128 Doe defendants.
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With respect to the requested expedited discovery as to Doe 1, the court finds plaintiff has shown
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good cause to conduct expedited discovery and the request will be granted.1 With respect to the
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remaining Doe defendants, however, it appears that plaintiff’s joinder of unrelated defendants is
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improper under Federal Rule of Civil Procedure 20. Given the technical complexities of
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BitTorrent swarm functions,2 it appears unlikely that the 128 Doe defendants engaged in any
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coordinated effort or concerted activity. See, e.g., Boy Racer, Inc. v. Does 1-60, No. C 11-01738
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Plaintiff does not address the relevance of the MAC address or how it will aid plaintiff
in discovering the identity of any Doe defendant . Nor has plaintiff addressed how discovering
the ISP’s terms of service applicable to each Doe defendant will aid plaintiff in discovering their
identity. Accordingly, the court finds that plaintiff has not shown good cause for an order
authorizing the production of the MAC address or the ISP’s terms of service pursuant to
subpoena. Plaintiff’s request for an order authorizing plaintiff to subpoena the MAC address or
the ISP’s terms of service of any Doe defendant will therefore be denied without prejudice.
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The BitTorrent protocol has been summarized as follows:
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In the BitTorrent vernacular, individual downloaders/distributors
of a particular file are called “peers.” The group of peers involved
in downloading/distributing a particular file is called a “swarm.” A
server which stores a list of peers in a swarm is called a “tracker.”
A computer program that implements the BitTorrent protocol is
called a BitTorrent “client.”
The BitTorrent protocol operates as follows. First, a user locates a
small “torrent” file. This file contains information about the files
to be shared and about the tracker, the computer that coordinates
the file distribution. Second, the user loads the torrent file into a
BitTorrent client, which automatically attempts to connect to the
tracker listed in the torrent file. Third, the tracker responds with a
list of peers and the BitTorrent client connects to those peers to
begin downloading data from and distributing data to the other
peers in the swarm. When the download is complete, the
BitTorrent client continues distributing data to the peers in the
swarm until the user manually disconnects from the swarm or the
BitTorrent client otherwise does the same.
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Diabolic Video Prods., Inc. v. Does 1-2099, No. 10-cv-5865-PSG, 2011 WL 3100404 at *1-2
(N.D. Cal. May 31, 2011).
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SI, 2011 WL 3652521, at *4 (N.D. Cal. Aug. 19, 2011) (“Because Doe defendants 2-60 were
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improperly joined in the matter, the Court is authorized under Rule 21 to ‘drop’ these
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defendants.”) Under these circumstances, permissive joinder under Federal Rule of Civil
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Procedure 20(a)(2) is not warranted.3 See Third Degree Films, Inc. v. Does 1-131, 280 F.R.D.
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493, 495- 500 (D. Ariz. 2012) (Surveying the various approaches to such cases and discovery
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requests taken by district courts around the country, determining that the joinder question should
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be addressed sua sponte at the outset of the litigation and ultimately dismissing Does 2 through
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131 without prejudice and granting the requested expedited discovery only with respect to Doe
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The court has additional concerns regarding plaintiff’s request for expedited discovery.
A great number of similar cases have been filed in the past several months in this and other
District Courts, many of which appear to be simply using the federal courts as an avenue to
collect money. As one judge aptly observed:
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The Court is familiar with lawsuits like this one. [Citations
omitted.] These lawsuits run a common theme: plaintiff owns a
copyright to a pornographic movie; plaintiff sues numerous John
Does in a single action for using BitTorrent to pirate the movie;
plaintiff subpoenas the ISPs to obtain the identities of these Does;
if successful, plaintiff will send out demand letters to the Does;
because of embarrassment, many Does will send back a
nuisance-value check to the plaintiff. The cost to the plaintiff: a
single filing fee, a bit of discovery, and stamps. The rewards:
potentially hundreds of thousands of dollars. Rarely do these cases
reach the merits.
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The federal courts are not cogs in a plaintiff’s copyrightenforcement business model. The Court will not idly watch what
is essentially an extortion scheme, for a case that plaintiff has no
intention of bringing to trial. By requiring Malibu to file separate
lawsuits for each of the Doe Defendants, Malibu will have to
expend additional resources to obtain a nuisance-value settlement –
making this type of litigation less profitable. If Malibu desires to
vindicate its copyright rights, it must do it the old-fashioned way
and earn it.
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Malibu Media, LLC v. John Does 1 through 10, No. 2:12-cv-3623-ODW (PJWx), 2012 U.S.
Dist. LEXIS 89286 at *8-9 (C.D. Cal. June 27, 2012). See also Malibu Media, LLC v. Does 1-5,
No. 12 Civ. 2950(JPO), 2012 WL 2001968 at *1 (S.D. N.Y. June 1, 2012) (“This court shares
the growing concern about unscrupulous tactics used by certain plaintiffs, particularly in the adult
films industry, to shake down the owners of specific IP addresses from which copyrighted adult
films were allegedly downloaded.”).
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defendant 1.) Accordingly, the court will authorize expedited discovery only as to Doe 1 and
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recommend that the remaining Doe defendants be dismissed without prejudice pursuant to
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Federal Rule of Civil Procedure 21.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s ex parte application and motion for leave to take expedited
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discovery (Doc. No. 4) is granted in part;
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2. Plaintiff may immediately serve a Rule 45 subpoena on the ISP Sprint PCS to
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obtain the following information regarding the subscriber (defendant John Doe 1) corresponding
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to the IP address 107.38.254.7: name, address, and e-mail address. The subpoena shall have a
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copy of this order attached.
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3. The ISP, in turn, shall serve a copy of the subpoena and a copy of this order
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upon its relevant subscriber within 30 days from the date of service upon it. The ISP may serve
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the subscriber using any reasonable means, including written notice sent to the subscriber’s last
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known address, transmitted either by first-class mail or via overnight service, or by e-mail notice.
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4. The subscriber and the ISP shall each have 30 days from the respective dates of
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service upon them to file any motions contesting the subpoena (including a motion to quash or
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modify the subpoena). If that period elapses without the filing of a contesting motion, the ISP
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shall have fourteen (14) days thereafter to produce the information responsive to the subpoena to
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plaintiff.
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5. The subpoenaed ISP shall preserve any subpoenaed information pending the
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production of the information to plaintiff and/or the resolution of any timely-filed motion
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contesting the subpoena.
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6. The ISP that receives a subpoena pursuant to this order shall confer with
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plaintiff before assessing any charge in advance of providing the information requested in the
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subpoena.
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7. Any information disclosed to plaintiff in response to a Rule 45 subpoena may
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not be used for any improper purpose and may only be used for protecting plaintiff’s rights as set
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forth in the Complaint.
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8. Plaintiff’s request for an order authorizing plaintiff to subpoena the Media
Access Control address of any Doe defendant is denied without prejudice.
9. Plaintiff’s request for an order authorizing plaintiff to subpoena the ISP’s terms
of service applicable for any Doe defendant is denied without prejudice
In addition, IT IS HEREBY RECOMMENDED that Does 2-128 be dismissed
without prejudice.
These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen days after being served with these findings and recommendations, any party may file
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written objections with the court and serve a copy on all parties. Such a document should be
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captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the
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objections shall be served and filed within seven days after service of the objections. The parties
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are advised that failure to file objections within the specified time may waive the right to appeal
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the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: October 4, 2012.
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DDAD:6
Ddad1/orders.civil/mediaproducts1937.expdisc.f&rs
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