Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 67.180.85.215

Filing 13

ORDER STAYING COMPLIANCE WITH THIRD-PARTY SUBPOENA by Hon. William Alsup granting 9 Motion to Quash.(whalc1, COURT STAFF) (Filed on 6/20/2016)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 MALIBU MEDIA, LLC, 11 For the Northern District of California United States District Court 10 12 13 14 15 No. C 16-01006 WHA Plaintiff, v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 67.180.85.215, ORDER STAYING COMPLIANCE WITH THIRD-PARTY SUBPOENA Defendant. / 16 17 18 INTRODUCTION In this copyright infringement action, plaintiff has identified defendant based on his 19 Internet Protocol address. An order granted plaintiff leave to serve a third-party subpoena on 20 defendant’s Internet provider in order to receive his identifying information for the purpose of 21 effecting service. Defendant moves to quash the subpoena. For the reasons stated below, this 22 order STAYS compliance with the subpoena pending submission of certain sworn evidence. 23 24 STATEMENT Since September 2015, plaintiff Malibu Media, LLC, has filed 178 copyright 25 infringement actions in this district. The complaints in all such actions are virtually identical. 26 In this action, Malibu Media accuses defendant, an Internet subscriber assigned IP address 27 67.180.85.215 by his Internet service provider, Comcast Communications, Inc., of copying and 28 distributing 131 of Malibu Media’s copyrighted pornographic films between April 2014 and 1 December 2015. As with each of Malibu Media’s actions, it accuses defendant of using a 2 digital file-sharing protocol known as BitTorrent to download, copy, and distribute these works. 3 The BitTorrent protocol called for splitting large files, such as Malibu Media’s videos, 4 into many smaller pieces. Once a file was broken down into those pieces, users of the protocol 5 could then copy and share the pieces of the larger file with each other, and once a user received 6 all of the pieces of a given file, each of which may have come from a different user, software on 7 the user’s computer called a BitTorrent “client” reassembled the pieces into a complete file. 8 This scheme facilitated an efficient and decentralized distribution scheme as compared to 9 sharing a single large file from a single host site. Malibu Media hired Excipio GmbH, which utilized the BitTorrent protocol to download 11 For the Northern District of California United States District Court 10 several of Malibu Media’s files from the Internet. Excipio monitored the IP addresses of the 12 distributors of each piece of each file it received. Malibu Media alleges that Excipio received at 13 least one piece of each of 131 individual videos from the above-captioned IP address. 14 When it commenced this action in February 2016, Malibu Media could only identify 15 defendant by his Internet Protocol address, which is a numerical identifier assigned to each 16 Internet service subscriber by Comcast. The complaint alleged that Malibu Media “used proven 17 IP address geolocation technology which has consistently worked in similar cases” to trace the 18 accused infringer’s IP address to within this district (Compl. ¶ 6). In March 2016, Malibu 19 Media sought leave to serve a third-party subpoena on Comcast for defendant’s name and 20 address for the purpose of effecting service (Dkt. No. 6). Malibu Media filed a sworn 21 declaration describing Excipio’s work detecting the accused infringer’s IP address and another 22 declaration explaining that serving a subpoena on an Internet provider is the only means to 23 discover the identity of a subscriber assigned to a given IP address. It provided no declaration 24 explaining the use of geolocation technology to ascertain the approximate location of the IP 25 address. 26 Leave to serve the subpoena was granted, subject to a protective order, which required 27 Malibu Media to file any and all documents including defendant’s identifying information 28 under seal, with all such information redacted on the public docket (Dkt. No. 7). 2 1 Defendant, who is represented by Attorney Thomas A. Pedreira, moves to quash the 2 subpoena. This order follows full briefing and oral argument at which counsel for Malibu 3 Media did not appear.1 ANALYSIS 4 Rule 45(d)(3) provides the conditions for quashing a subpoena: 5 (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: 6 7 (i) (ii) 8 9 (iii) 10 11 For the Northern District of California United States District Court (iv) fails to allow a reasonable time to comply; requires a person to comply beyond the geographical limits specified in Rule 45(c); requires disclosure of privileged or other protected matter, if no exception or waiver applies; or subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: 12 13 (i) 14 (ii) 15 16 disclosing a trade secret or other confidential research, development, or commercial information; or disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party. 17 Defendant contends that Comcast’s compliance with this subpoena imposes an undue 18 burden on his privacy interest in his personal identifying information, that the subpoenaed 19 information will not identify the proper defendant, and that Malibu Media has not adequately 20 established that defendant is subject to jurisdiction or venue in this district. Each argument is 21 addressed in turn. 22 1. DEFENDANT’S ALLEGED BURDEN. 23 Rule 45(3)(iv) provides that a subpoena must be quashed if it “subjects a person to 24 undue burden.” Defendant cites two decisions that held that an Internet subscriber had standing 25 to move to quash a third-party subpoena for his identifying information in light of the burden 26 compliance with the subpoena would have on his privacy interests in that information. See 27 28 1 This matter was called at the start of the Court’s calendar, but held over until the end of the calendar in case Malibu Media’s counsel arrived late. 3 1 Malibu Media, LLC v. Does 1–25, No. 12-362, 2012 WL 2367555, at *2 (S.D. Cal. June 21, 2 2012) (Judge David H. Bartick); Third Degree Films, Inc. v. Does 1-108, No. 11-3007, at *2 3 (D. Md. Feb. 28, 2012) (Judge Deborah K. Chasanow). Both decisions, however, denied the 4 subscriber’s motion to quash because the plaintiff’s interest in identifying the defendant 5 outweighed any privacy interest, which was “minimal at best.” So too here. 6 The instant subpoena is the only way Malibu Media can ascertain defendant’s identity. 7 (Even if some third party, not the above-named subscriber, is the proper defendant, the 8 subpoena will reveal the identity of the subscriber, who will likely have information helpful in 9 identifying the true infringer.) Malibu Media’s interest in identifying the defendant, who allegedly copied and distributed 131 of its copyrighted videos, plainly outweighs defendant’s 11 For the Northern District of California United States District Court 10 privacy interests here. Any such “burden” is not “undue.” 12 Moreover, the protective order herein mitigates the alleged burden that defendant’s 13 identity might be linked to a copyright infringement action involving pornography. If defendant 14 feels further safeguards are necessary to protect his privacy or to protect against harassment 15 from Malibu Media, he is free to request further protections. He has not done so. 16 2. 17 Defendant contends that the subpoena will not identify the actual infringer but rather the DENIAL OF LIABILITY. 18 subscriber assigned to the IP address in question, who may not have committed the infringing 19 acts. True, the actual infringer could be a third party, however, particularly in light of the 20 frequency and the time frame of the alleged infringement (over one hundred videos downloaded 21 over a period of more than a year), Malibu Media has alleged facts that plausibly show that the 22 subscriber, and not a guest or a stranger, committed the infringing acts. Defendant does not 23 assert that in fact some third party committed the infringement, he merely asserts that, in theory, 24 a third party could have used the above-named IP address to copy and distribute Malibu 25 Media’s videos. In any case, defendant’s denials of liability are a basis for a motion for 26 summary judgment, not for quashing a subpoena for his identifying information at the very 27 threshold. 28 4 1 3. GEOLOCATION. 2 Defendant’s objection that Malibu Media failed to submit sworn evidence backing up 3 the reliability of its “proven IP address geolocation technology” to trace defendant’s IP address 4 to a location in this district, however, has merit. 5 Defendant cites more than a dozen decisions in the Southern District of California that 6 denied Malibu Media’s request to serve a third-party subpoena due to concerns over the lack of 7 a sworn record regarding the accuracy of its geolocation technology. See, e.g., Malibu Media, 8 LLC v. John Doe, No. 3:16-447, slip op. at 6–7 (ECF No. 5) (S.D. Cal. May 26, 2016) (Judge 9 Mitchell D. Dembin); Malibu Media, LLC v. John Doe, No. 3:16-442, slip op. at 5 (ECF No. 5) (S.D. Cal. May 26, 2016) (Judge Karen S. Crawford); Malibu Media, LLC v. John Doe, No. 11 For the Northern District of California United States District Court 10 3:15-2931, slip op. at 5 (ECF No. 6) (S.D. Cal. Mar. 17, 2016) (Judge Ruben B. Brooks). 12 Defendant also notes that Judge Steven Locke in the Eastern District of New York has 13 stayed all Malibu Media cases in that district pending an evidentiary hearing concerning Malibu 14 Media’s geolocation techniques. See In re Malibu Media Adult Film Copyright Infringement 15 Cases, No. 15-3504 (ECF No. 12) (E.D.N.Y. Oct. 6, 2015). The evidentiary hearing occurred 16 in April, and briefing following the hearing is underway. 17 Malibu Media does not address its failure to provide a sworn record of its geolocation 18 process, but rather submits only attorney argument asserting that its geolocation services are 19 accurate. 20 Although Malibu Media’s allegations may have been adequate for the purposes of its 21 complaint, it then sought affirmative relief (i.e., leave to file a third-party subpoena before the 22 initial case management conference). As such, its motion should have been supported by sworn 23 evidence of such a critical fact as the means for determining the location of the accused 24 infringer. This serves not only to protect the subscriber from the threat of litigation in an 25 improper venue, but also to ensure that the relief sought does not require the Court to exercise 26 authority outside of its jurisdiction. These protections would come at negligible burden to 27 Malibu Media, which is presumably knowledgeable of its own methodology for identifying the 28 location of the IP address identified in its complaint. 5 1 This order holds that Malibu Media’s failure to include a sworn record on the reliability 2 of its IP address geolocation methodology is fatal and constitutes cause to quash the instant 3 subpoena on Comcast. Accordingly, compliance with the subpoena will be STAYED, pending 4 further proceedings. 5 At this point, it is not necessary to conduct an evidentiary investigation into the 6 reliability of Malibu Media’s geolocation technology. A sworn first-hand declaration 7 describing the process used in this case and its reliability will first be considered, subject 8 possibly to proof later. The undersigned may revisit this decision in future cases if 9 circumstances cast doubt on the reliability of Malibu Media’s methodology. 11 For the Northern District of California United States District Court 10 12 Malibu Media should take this ruling to heart in any future or pending requests to serve third-party subpoenas. At oral argument, defense counsel noted that the extended duration of the alleged pattern 13 of infringement indicates that the above-named IP address is likely a static address (generally 14 reserved for business customers), rather than a dynamic address, which changes over shorter 15 periods of time. Nothing in the record currently addresses the differences between static and 16 dynamic IP addresses, or the frequency at which dynamic IP addresses change, but to the extent 17 that bears on Malibu Media’s geolocation methodology, any sworn declaration should address 18 that issue as well. CONCLUSION 19 20 21 22 For the reasons stated above, the subpoena served on Comcast in this action is hereby STAYED. Comcast shall not comply with the subpoena until further ordered by this Court. Malibu Media shall promptly SERVE this order on Comcast. 23 24 IT IS SO ORDERED. 25 26 Dated: June 20, 2016. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 27 28 6

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