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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MILLENNIUM TGA, INC.,

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Plaintiff,

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v.

For the Northern District of California

United States District Court

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DOES 1-21,
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Defendants.

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Case No. 11-2258 SC
ORDER DENYING REQUEST FOR
LEAVE TO TAKE EARLY
DISCOVERY

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I.

INTRODUCTION
On May 6, 2011, Plaintiff Millennium TGA, Inc. ("Plaintiff")

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filed a Complaint against twenty-one unnamed defendants ("Doe

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Defendants"), alleging copyright infringement and common law civil

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conspiracy.

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Plaintiff seeks leave to take third-party discovery prior to the

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required Rule 26 conference in order to identify the Doe

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Defendants.

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the Court DENIES Plaintiff's Motion.

ECF No. 1 ("Compl.").

In an Ex Parte Application,

ECF No. 6 ("Application").

For the following reasons,

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II.

BACKGROUND
Plaintiff produces and distributes adult entertainment.

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Compl. ¶ 6.

Specifically, Plaintiff alleges that it owns the

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copyright to an adult video, "Ladyboy-Ladyboy-Kae" ("the Work").

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Id. ¶ 7.

Plaintiff claims that this Work "is the subject of a

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copyright registration application and the application is currently

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pending in the United States Copyright Office."

Id. ¶ 20.

BitTorrent is, in Plaintiff's words, a popular Internet

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protocol "allowing for 'peer-to-peer' data exchanging."

Id. ¶ 8.

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It is a decentralized file-sharing system allowing a large number

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of users (in Internet parlance, a "swarm") to distribute a data

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file by exchanging pieces of the file with each other, so that each

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user eventually obtains a whole copy of the file.

Id. ¶¶ 11-13.

Plaintiff alleges that its Work "has been uploaded to

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United States District Court

For the Northern District of California

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virtually every one of the major BitTorrent piracy websites

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worldwide and has been the subject of large-scale piracy."

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7.

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users who unlawfully reproduced and distributed the Work through

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BitTorrent.

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Internet-based infringement of its copyrighted content, its

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"agents" observed unlawful reproduction by users operating at

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certain internet protocol ("IP") addresses.

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Complaint is a list of twenty-one IP addresses, the date and time

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of each alleged infringement, and the Internet service provider

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("ISP") associated with each IP address.

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Plaintiff claims that due to BitTorrent's decentralized nature, it

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can only identify the names and addresses of individuals associated

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with these IP addresses by subpoenaing the ISPs associated with

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these IP addresses.

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Rule of Civil Procedure 45 third-party subpoenas on eight ISPs --

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Dataframe Logistics, Covad Communications, Cox Communications,

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Verizon Online, Charter Communication, Road Runner HoldCo, Comcast

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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

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to provide the name, address, telephone number, e-mail address, and

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media access control address of each Doe Defendant.

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Application at 12; IP Log.

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will allow it to identify and serve the Doe Defendants, and also

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states that it "will allow Plaintiff to identify additional

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Defendants not listed in the Exhibit A, as infringement monitoring

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is ongoing."

See

Plaintiff alleges that this information

Compl. ¶ 8.

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United States District Court

For the Northern District of California

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III. LEGAL STANDARD
Generally, a party may not initiate discovery before the

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parties have met and conferred pursuant to Federal Rule of Civil

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Procedure 26(f).

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"for the convenience of parties and witnesses and in the interests

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of justice."

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demonstrate good cause for earlier discovery.

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v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002).

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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.

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Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).

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leave to conduct discovery to identify a Doe defendant, the moving

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party must: (1) identify the defendant with enough specificity to

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allow the Court to determine whether the defendant is a real person

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or entity who could be sued in federal court; (2) recount the steps

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taken to locate the defendant; (3) show that its action could

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For

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survive a motion to dismiss; and (4) file a request for discovery

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with the Court identifying the persons or entities on whom

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discovery process might be served and for which there is a

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reasonable likelihood that the discovery process will lead to

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identifying information.

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F.R.D. 573, 578-80 (N.D. Cal. 1999).

Columbia Ins. Co. v. seescandy.com, 185

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IV.

DISCUSSION
Plaintiff has the burden of showing, inter alia, that its

United States District Court

For the Northern District of California

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action could survive a motion to dismiss.

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185 F.R.D. at 578-80.

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facts alleged -- if assumed to be true -- could "plausibly give

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rise to an entitlement to relief."

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1937, 1950 (2009).

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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

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cause of action -- common law civil conspiracy.

In California, a

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civil conspiracy cause of action "is merely a mechanism for

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imposing vicarious liability; is not itself a substantive basis for

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liability."

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131 Cal. App. 4th 802, 823 (Ct. App. 2005).

Federal copyright law

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has its own doctrine of vicarious liability.

See Perfect 10, Inc.

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v. Visa Int'l Serv. Ass'n, 494 F.3d 788, 795 (9th Cir. 2007)

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(providing standard for vicarious infringement in the copyright

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context).

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other district courts have held that state law civil conspiracy

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claims based on copyright infringement are preempted.

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Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 565-66 (C.D.

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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,

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E.g., RDF

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Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1193-94 (C.D. Cal.

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2001) (same).

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conspiracy claim could survive a motion to dismiss, this cause of

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action does not support its request for early discovery.

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Because Plaintiff has not established that its

Plaintiff's copyright claim also fails to support this

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Application.

Plaintiff brings this action against twenty-one

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defendants; joinder of these defendants is proper only if "any

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right to relief is asserted against them jointly, severally, or in

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the alternative with respect to or arising out of the same

United States District Court

For the Northern District of California

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transaction, occurrence, or series of transactions or occurrences."

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Fed. R. Civ. P. 20(a)(2).

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separate alleged reproductions of Plaintiff's Work -- which

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occurred over the span of twenty days -- do not satisfy this

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requirement.

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Defendants are jointly or severally liable (or liable in the

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alternative) for each respective reproduction and distribution.

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Thus, the Doe Defendants' individual and

Plaintiff must allege a plausible theory that the Doe

Plaintiff fails to make the required showing.

Plaintiff

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suggests that by participating in BitTorrent's decentralized system

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-- in which each user potentially distributes pieces of a file to

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other users -- Doe Defendants are vicariously liable.

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a novel legal theory, and Plaintiff cites no legal support for it

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in its Application.

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to support such a theory -- such that each user was part of the

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same "swarm" sharing the Work.

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But this is

Nor does Plaintiff allege the facts necessary

For these reasons, the Court finds that Plaintiff has failed

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to establish that either its civil conspiracy claim or its

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copyright claim could survive a motion to dismiss, and thus neither

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claim supports Plaintiff's application for leave to conduct early

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third-party discovery.

In ruling, the Court joins many other

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courts that have denied similar requests.

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Does 1-435, No. 10-4382, 2011 WL 1219290, at *2 (N.D. Cal. Jan. 10,

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2011); Laface Records, LLC v. Does 1–38, 2008 WL 54992, at *2

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(E.D.N.C. Feb. 27, 2008); Interscope Records v. Does 1–25, 2004

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U.S. Dist. LEXIS 27782 (M.D. Fla. Apr. 1, 2004); BMG Music v. Does,

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No. 06–01579, 2006 U.S. Dist. LEXIS 53237 (N.D. Cal. July 31,

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2006).

E.g., IO Group, Inc. v.

Because ex parte motions only provide one side of every story,

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United States District Court

For the Northern District of California

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courts must examine them with particular rigor.

Plaintiff's

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Application fails this examination.

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that were the Court to grant Plaintiff's Application, it would

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"allow Plaintiff to identify additional Defendants."

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(emphasis added).

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one date-stamped IP addresses and asks for an order to subpoena

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eight ISPs with the hope of broadening its case.

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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

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V.

CONCLUSION
For the foregoing reasons, Plaintiff Millennium TGA, Inc.'s

Application to take early third-party discovery is DENIED.

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IT IS SO ORDERED.

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Dated:

May 12, 2011
UNITED STATES DISTRICT JUDGE

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