Digital Sin, Inc. v. Does 1-5698
Filing
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Ex Parte Application for Enlargement of Time to Serve Defendants filed by Digital Sin, Inc. (cjl, COURT STAFF) (Filed on 9/2/2011) (cjl, COURT STAFF).
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Ira M. Siegel, Cal. State Bar No. 78142
email address: irasiegel@earthlink.net
LAW OFFICES OF IRA M. SIEGEL
433 N. Camden Drive, Suite 970
Beverly Hills, California 90210-4426
Tel: 310-435-7656
Fax: 310-657-2187
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Attorney for Plaintiff Digital Sin, Inc.
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Digital Sin, Inc., a California corporation,
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Plaintiff,
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DOES 1-,5698
Defendants.
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Plaintiff applies to the Court for an Order enlarging the time for Plaintiff to serve
defendants with summonses in view of the fact that no defendant will have been served with a
summons and complaint in this case within 120 days of the date the case was filed as set forth in
Rule 4(m) of the Federal Rules of Civil Procedure.
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CV 11-4397 LB
PLAINTIFF’S APPLICATION FOR
ENLARGEMENT OF TIME TO
SERVE DEFENDANTS
v.
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CASE NO.
The Court will be familiar with the particulars of this case from the concurrently-filed
Plaintiff's Ex Parte Application for Leave to Take Limited Discovery Prior to a Rule 26
Conference and Declaration of Jon Nicolini, and the Complaint filed in this case.
I.
General Background
This case is a copyright infringement case. It arises out of the mass piracy of motion
pictures that has been plaguing the country as advances in technology have made infringements
almost effortless to accomplish at the same time that identifying the infringers has become more
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Plaintiff's Application for Enlargement of Time to Serve
Defendants -CV 11-4397 LB
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difficult. This mass piracy is conducted by numerous people participating in a "swarm" of
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infringers who use the Internet to illegally copy and distribute motion pictures.1
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Former United States Senator Chis Dodd, in his inaugural speech as the new president of
the Motion Picture Association of America, on March 29, 2011, stated,
"Let's begin with perhaps the single biggest threat we face as an industry:
movie theft. At the outset, I want you to know that I recognize and appreciate that
NATO [National Association of Theatre Owners] members are on the front lines
every day when it comes to preventing camcording. Further, I want you to know
that the member studios of the MPAA deeply appreciate the efforts you make
every day to stop the hemorrhaging of movie theft in your theaters.
"I am deeply concerned that too many people see movie theft as a
victimless crime. After all, how much economic damage could there be to some
rich studio executive or Hollywood star if a movie is stolen or someone watches a
film that was stolen? It is critical that we aggressively educate people to
understand that movie theft is not just a Hollywood problem. It is an American
problem.
"Nearly 2.5 million people work in our film industry. The success of the
movie and TV business doesn't just benefit the names on theater marquees. It also
affects all the names in the closing credits and so many more - middle class folks,
working hard behind the scenes to provide for their families, saving for college
and retirement. And since movies and TV shows are now being made in all 50
states, Puerto Rico and the District of Columbia, movie theft harms middle class
families and small businesses all across the country.
"Those who steal movies and TV shows, or who knowingly support those
who do, don't see the faces of the camera assistant, seamstresses, electricians,
construction workers, drivers, and small business owners and their employees
who are among the thousands essential to movie making."
See, e.g., the web page at,
http://www.boxofficemagazine.com/news/2011-03-29-new-mpaa-chief-senator-chris-dodd-delivers-inaugural-state-of-the-industry-speech
a copy of which is attached to the aforementioned Ex Parte Application as Exhibit 5.
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1 "Swarm" thievery enabled by the Internet is, unfortunately, not limited to copyright
downloading. Cases of "swarm" or "flash mob" shoplifting are now arising. See the reports at
the following web pages about swarm shoplifting events in Washington, D.C., Las Vegas, NV,
and St. Paul, MN:
http://www.myfoxdc.com/dpp/news/dc/video-mob-of-teens-rob-dupont-circle-store-042711?utm_medium=twitter&utm_source=twitterfeed
http://www.cbsnews.com/8301-504083_162-20060576-504083.html
http://www.myfoxtwincities.com/dpp/news/minnesota/st.-paul-stores-suffer-‘mob-thefts’-feb-22-2011
The Court is asked to take notice that the theory of at least some participants in swarm thievery,
by shoplifting or by copyright infringement, is that an aggrieved party may be so overwhelmed
by the number of people involved and the time, effort and expense required to catch any
offender, that few, if any, will be caught, and if any are, it may be a long time before that occurs.
Plaintiff's Application for Enlargement of Time to Serve
Defendants -CV 11-4397 LB
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In written responses to a series of questions submitted by Variety magazine that were
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published on April 13, 2011, Vice President Joe Biden stated,
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"Look, piracy is outright theft. People are out there blatantly stealing
from Americans -- stealing their ideas and robbing us of America's creative
energies. There's no reason why we should treat intellectual property any
different than tangible property.
***
"The fact is, media companies have already taken significant steps to
adapt their business models to keep up with changes in how we watch movies
and listen to music. Content is being offered to consumers in a variety of different
ways that make it easy and cost-effective for people to access legal material.
Anyone who does not understand this should simply talk with one of my
grandkids."
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The Variety article can be seen here,
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http://www.variety.com/article/VR1118035369
a copy of which is attached to the aforementioned Ex Parte Application as Exhibit 6.
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Of course, what we do have the Copyright Act, and aggrieved parties must, for the most
part, enforce their copyrights themselves.
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But, because there are obstacles slowing down identification of the people using the
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Internet for their infringing activities, serving actual defendants with summons and complaint is
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delayed. This is described in the Declaration of Jon Nicolini that is of record in this case, and
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see Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999),
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II.
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OBTAINING INFORMATION FROM ISPs
IS, UNFORTUNATELY, A SLOW PROCESS
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Attached to the aforementioned Ex Parte Application as Exhibit 2 is an analogous case
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decided by Judge Beryl A. Howell of the District Court of the District of Columbia. That case is
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Call of the Wild Movie, LLC v. Does 1-1,062, (D. DC 2011) decided March 22, 2011 (U.S.
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District Court for the District of Columbia, Case No. CV 10-00455-BAH). The main reason
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that case is mentioned here is to confirm that, in these cases, obtaining the identities of the
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Doe defendants is a very time consuming effort. The Court is asked to take notice that that
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case had been pending for a year by the time that opinion was rendered, without any defendant's
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being served. (A review of the PACER record for that case will confirm that fact.)
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Plaintiff's Application for Enlargement of Time to Serve
Defendants -CV 11-4397 LB
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In connection with similar cases filed late last year by the undersigned counsel, Plaintiff's
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counsel has counsel has negotiated with, and continues to negotiate with, various ISPs regarding
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costs and rate of throughput. Some ISPs have represented that, between their obligations to
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provide similar information to law enforcement organizations and to counsel for plaintiffs in
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other mass infringement cases, they can only provide a fraction of the requested Doe identities
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per month, and they have various cost demands. See, Call of the Wild Movie, LLC v. Does 1-
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1,062, pages 2, 27-39, for a description of the type of negotiations that must be conducted
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separately with each of many different ISPs. Of course, one would hope that ISPs would soon
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acquire the facility to meet the throughput requested of them in view of the fact that many ISPs
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advertise their premium (i.e., higher cost) services as the ones subscribers should purchase in
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order to download music and movies (i.e., infringers' desire to enhance their downloading
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experience helps drive up demand for ISPs' premium services). See, for example, the
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promotional material by Time Warner Cable with respect to its Internet services. A copy is
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attached hereto as Exhibit 3, with an oval and circle added by the undersigned to draw attention
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to an ISP's promotion of its premium service.
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Counsel has set up systems that are intended to expedite the process of issuing subpoenas
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to the many ISPs. Upon the Court's granting of the aforementioned Ex Parte Application,
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subpoenas will be served on the ISPs within 10 days. The expedited service of subpoenas and
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the understandings reached with ISPs' compliance departments should help accelerate obtaining
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Doe identities.
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However, mass infringement cases enduring for a year without a Doe being served is not
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unusual, as exemplified by the Call of the Wild case above. In other mass copyright
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infringement cases pending in this district since before the instant case was filed, such as the
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following:
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IO Group, Inc. dba Titan Media v. Does 1-244, Case No. CV 10-03647 WHA;
IO Group, Inc. v. Does 1-65, Case No. CV 10-04377 SC;
IO Group, Inc. v. Does 1-34, Case No. CV 10-04380 EMC
no defendant had been served for at least 9 months after the case was filed.
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Plaintiff's Application for Enlargement of Time to Serve
Defendants -CV 11-4397 LB
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Even in cases not involving mass infringements, Plaintiff believes that dismissal at this
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stage of the litigation under Rule 4(m) of the Federal Rules of Civil Procedure is not the norm.
In Carmona v. Ross, 376 F.3d 829, 830 (8th Cir. 2004), dismissal was not resorted to
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until after plaintiff in that case was warned that dismissal would result if service were not
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completed, and plaintiff was given an extension after the warning:
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"With respect to those defendants, the court gave Carmona an extension to file
completed summons forms and warned him that his failure to do so would result
in dismissal, and yet Carmona did not request additional summons forms until
more than five months after the extended deadline."
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In Carmona it appears that dismissal did not occur until after at least 15 months after a second
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amended complaint was filed, and 31 months after the first amended complaint was filed. See
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the docket for Carmona v. Ross, District of Minnesota Case No. 00-cv-02447-MJD-RLE.
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III.
RULE 4(m) DOES NOT REQUIRE DISMISSAL
With respect to Rule 4(m), it states in pertinent part,
"If a defendant is not served within 120 days after the complaint is filed, the
court — on motion or on its own after notice to the plaintiff — must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period."
Plaintiff first notes that Rule 4(m) does not require that the Court dismiss the action even
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if a plaintiff does not show good cause for a failure to make service. See, Henderson v. United
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States, 517 U.S. 654, 661, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996)(dicta); Mann v. American
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Airlines, 324 F.3d 1088, 1098 (9th Cir., 2003). The Advisory Committee's Notes on Rule 4
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states the following (emphasis added):
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"The new subdivision [4(m)] explicitly provides that the court shall allow
additional time if there is good cause for the plaintiff's failure to effect service in
the prescribed 120 days, and authorizes the court to relieve a plaintiff of the
consequences of an application of this subdivision even if there is no good
cause shown."
Second, Plaintiff believes that it has shown good cause for the delay. That is, Plaintiff's
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counsel has use the time since the filing of the Complaint to make arrangements with ISPs to
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expedite disclosure of the requested information taking into account the ISPs representations
Plaintiff's Application for Enlargement of Time to Serve
Defendants -CV 11-4397 LB
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regarding throughput capabilities and to improve systems to expedite issuance of subpoenas once
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early discovery orders are issued.
Further in this regard, the Advisory Committee's Notes on Rule 4 also states,
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"Relief may be justified, for example, . . . if the defendant is evading service . . . ."
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See, Horenkamp v. Van Winkle And Co., Inc., 402 F.3d 1129, 1132-33 (11th Cir., 2005). This
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applies by analogy to the present case as the semi-anonymity of the Internet has made discovery
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of Defendants' identities, and thus service upon them, difficult and time consuming. The Court
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is asked to take notice of the fact that the semi-anonymity available from the Internet allows
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copyright "pirates" to enjoy the fruits of their piracy while forestalling litigation against them for
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their infringements. It would be ironic if Rule 4(m) were to provide a safe haven for such
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pirates.
Also, Plaintiff notes that no Defendant would be prejudiced by Plaintiff's being allowed
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time to discover his or her identity and then make service. (If any prejudice would exist, it
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certainly would be exacerbated by additional delay caused by Plaintiff's having to re-file its case
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and ex parte application.)
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IV.
CONCLUSION
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In view of the foregoing, including the fact that the subpoena process that has been set up
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allows 30 days to elapse after an ISP gives notice to a subscriber so that such a subscriber has an
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opportunity to try to prove special circumstances relating to a motion to quash, and including the
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fact that some ISPs are not able to process all requests as quickly as desired, Plaintiff requests
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that the Court enlarge the time for Plaintiff to serve defendants at least until 180 days after the
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granting of the Ex Parte Application.
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In addition, Plaintiff requests that if the Court sets a Case Management Conference
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("CMC"), that such CMC be set for a date about 210 days from the Court's ruling on the pending
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Ex Parte Application.
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That period of time will allow for (i) continued negotiations with ISPs regarding
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throughput and costs, (ii) ISPs to have at least 30 days to make their initial searches for
Plaintiff's Application for Enlargement of Time to Serve
Defendants -CV 11-4397 LB
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subscriber identities and to notify each such subscriber of his or her opportunity to file motions
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to quash the subpoena with respect to him or her, (iii) notified subscribers to consider filing
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motions to quash, and (iv) ISPs to provide to Plaintiff's counsel the identities of those subscribers
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that have not filed motions to quash.
Respectfully submitted,
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Date: August 26, 2011
Ira M. Siegel, Cal. State Bar No. 78142
email address: irasiegel@earthlink.net
LAW OFFICES OF IRA M. SIEGEL
433 N. Camden Drive, Suite 970
Beverly Hills, California 90210-4426
Tel: 310-435-7656
Fax: 310-657-2187
Attorney for Plaintiff Digital Sin, Inc.
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Plaintiff's Application for Enlargement of Time to Serve
Defendants -CV 11-4397 LB
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Exhibit 3
to
PLAINTIFF’S APPLICATION FOR ENLARGEMENT OF TIME TO SERVE DEFENDANTS
-CV 11-4397 LB
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-CV 11-4397 LB
Page 1 of 1
Exhibit 3, Page 1 of 1
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