Malibu Media, LLC v. John Doe subscriber assigned IP address 162.202.57.78

Filing 9

ORDER Granting Ex Parte 4 Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Bernard G. Skomal on 11/23/2016. (rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MALIBU MEDIA, LLC,

Case No.: 16cv1906 BTM (BGS)
Plaintiff,

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v.

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ORDER GRANTING EX PARTE
MOTION FOR LEAVE TO SERVE A
THIRD PARTY SUBPOENA PRIOR
TO A RULE 26(f) CONFERENCE

JOHN DOE subscriber assigned IP
address 162.202.57.78,

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Defendant.

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Plaintiff Malibu Media, LLC’s Ex Parte Motion for Leave to Serve a Third Party

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Subpoena Prior to a Rule 26(f) Conference is GRANTED.

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I. BACKGROUND

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On July 28, 2016, Plaintiff, Malibu Media, LLC, filed its Complaint against the

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John Doe subscriber assigned Internet Protocol (“IP”) address 162.202.57.78 for

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copyright infringement. (ECF No. 1.) On October 11, 2016, Plaintiff filed an Ex Parte

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Motion for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference in

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order to ascertain the identity of this John Doe Defendant. (ECF No. 4.)

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In its Complaint, Plaintiff asserts Defendant is liable for direct copyright

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infringement. (Compl. ¶¶ 30-35.) Plaintiff alleges it owns the copyrights for movies that

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Defendant copied and distributed without Plaintiff’s consent using BitTorrent, a peer-to1
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peer file sharing system. (Id. at ¶¶ 11-27.) To identify the IP address of Defendant using

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BitTorrent, Plaintiff hired a forensic investigator, IPP International UG (“IPP”). (Decl. of

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Tobias Fieser (“Fieser Decl.”) ¶¶ 7, 9-14 [ECF No. 4-4].)

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Since it can only identify Defendant by the IP address used, Plaintiff requests

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permission to serve a Rule 45 subpoena on the Internet Service Provider (“ISP”) that

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issued the IP address to Defendant, AT&T Internet Services. (Pl.’s Mot. at 1.) The

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proposed subpoena will demand only the name and address of Defendant and Plaintiff

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asserts it will only use this information to prosecute the claims made in its Complaint. Id.

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Plaintiff claims good cause exists to grant the motion because: (1) it has

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sufficiently pled a prima facie claim for copyright infringement, (2) it cannot identify

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Defendant without the discovery requested, (3) there is a risk the ISP will not retain

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records correlating Defendant’s identity, (4) Defendant has been identified with

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specificity through geolocation technology and forensic investigation, (5) the information

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sought for the subpoena will enable Plaintiff to serve the defendant and proceed with the

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suit, and (6) Plaintiff’s interest in the narrowly-tailored request for information to enforce

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its copyrights outweighs any prejudice to Defendant. (Id. at 4-18.)

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II. STANDARD OF REVIEW

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A. The Cable Privacy Act

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The Cable Privacy Act generally prohibits cable operators from disclosing

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personally identifiable information regarding subscribers without the prior written or

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electronic consent of the subscriber. 47 U.S.C. § 551(c)(1). However, a cable operator

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may disclose such information if the disclosure is made pursuant to a court order and the

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cable operator provides the subscriber with notice of the order. 47 U.S.C. § 551(c)(2)(B).

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A cable operator is defined as “any person or group of persons (A) who provides cable

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service over a cable system and directly or through one or more affiliates owns a

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significant interest in such cable system, or (B) who otherwise controls or is responsible

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for, through any arrangement, the management and operation of such a cable system.” 47

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U.S.C. § 522(5). Plaintiff seeks an Order instructing the ISP to produce documents and

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information sufficient to identify the user of the specified IP address.

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B. Requests for Discovery Before the Rule 26(f) Conference

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Unless a court order permits discovery, it is not allowed until parties meet and

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confer pursuant to Federal Rule of Civil Procedure 26(f). See Fed. R. Civ. P. 26(d)(1). To

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determine if early discovery is warranted in a particular case, the court applies a “good

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cause” test by weighing the need for discovery to further justice with the prejudice it may

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cause the opposing party. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276

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(N.D. Cal. 2002).

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District courts in the Ninth Circuit apply the following test to determine whether

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early discovery may be permitted to locate defendants: first, the court may require the

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plaintiff to sufficiently identify the unknown party so it is clear there exists a real person

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or entity; second, the court may ask the plaintiff to show it has made a good faith effort to

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identify and serve the defendant; third, the court may require the plaintiff to prove its

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claim could withstand a motion to dismiss; finally, the court may also ask the plaintiff to

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show that the requested discovery will lead to identifying information about the

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defendant that would make service of process possible. Columbia Ins. Co. v.

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Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999); see also Openmind Solutions,

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Inc. v. Does 1-39, No. C 11-3311 MEJ, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7,

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2011); 808 Holdings, LLC v. Collective of Dec. 29, 2011 Sharing Hash, No. 12cv186

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MMA (RBB), 2012 WL 12884688, at *3 (S.D. Cal. May 8, 2012); UGM Recordings, Inc.

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v. Doe., No. C 08-1193 SBA, 2008 WL 4104214, at *4 (N.D. Cal. Sept. 3, 2008)

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(collecting cases).

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For example, in UGM Recordings, Inc. v. Doe. the court found good cause to grant

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the plaintiff early discovery to identify an unknown defendant who had downloaded the

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plaintiff’s copyrighted music recordings via an online peer-to-peer system. 2008 WL

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4104214, at *2. The plaintiff only had access to the IP address associated with

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downloading the recordings and intended to serve a subpoena on the ISP to determine the
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identity of the defendant. Id. First, the court found the plaintiff satisfied the requirement

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for sufficiently alleging copyright infringement by showing it owned a valid copyright

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and that the copyrighted works were distributed without its consent over the internet. Id.

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at *5. Second, the court found Plaintiff was only able to identify the defendant by its IP

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address and, therefore, could not proceed with a suit absent the requested discovery. Id.

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Third, the court found Plaintiff alleged the ISP could have potentially disposed of the

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logs without the discovery request. Id. In addition, the court found the plaintiff showed

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that, without the discovery, it could not truly identify the defendant and would suffer

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ongoing harm if not given the opportunity to file a suit. Id. The plaintiff further alleged

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there would be no prejudice towards the defendant since it asked only for the contact

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information required to serve process. Id. The court granted the plaintiff’s motion for

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early discovery allowing it to request the defendant’s name, address, telephone number,

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e-mail address, and MAC address. Id. at *6.

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III. DISCUSSION

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After careful consideration of the ex parte motion, the Court finds Plaintiff has

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satisfied the test articulated by the court in Columbia Insurance and shown good cause to

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conduct early discovery. The Court will address the factors in turn below.

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A. Plaintiff Has Identified the Missing Party with Sufficient Specificity for

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the Court to Determine that Defendant is Real and Could Be Sued

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The sufficient specificity requirement “is necessary to ensure that federal

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requirements of jurisdiction and justiciability can be satisfied.” Columbia Ins., 185

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F.R.D. at 578. Specifically, “a plaintiff identifies Doe defendants with sufficient

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specificity by providing the unique IP addresses assigned to an individual defendant on

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the day of the allegedly infringing conduct, and by using ‘geolocation technology’ to

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trace the IP addresses to a physical point of origin.” 808 Holdings, 2012 WL 12884688,

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at *4 (quoting OpenMind Solutions, Inc. v. Does 1-39, 2011 WL 4715200, at *5-6).

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In his declaration, Mr. Fieser, the forensic investigator for IPP, explains “that IPP’s
forensic servers connected to an electronic device using IP Address 162.202.57.78” and
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documented it “distributing to IPP’s servers multiple pieces of Malibu Media’s

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copyrighted movie” at a particular time and date. (Fieser Decl. ¶ 9.) IPP’s software

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determined the file being distributed by IP Address 162.202.57.78 had a unique

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Cryptographic Hash Value. (Id. ¶ 10.) A full copy of the file identified by this Hash was

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downloaded and confirmed to be substantially similar to a work Plaintiff alleges

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Defendant infringed. (Id. ¶ 11.) Additionally, Patrick Paige, the founder of Computer

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Forensic, LLC, tested IPP’s infringement detection system, Observer, and concluded the

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system worked to accurately identify IP addresses, BitTorrent clients, and BitTorrent

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client’s port numbers. (Decl. of Patrick Paige ¶¶ 28-42.) He also explains in his

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declaration, that “during the initial phase of Internet based investigations, the offender is

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only known to law enforcement by an IP address” and that “the process used by law

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enforcement mirrors the process used by Malibu Media to correlate an IP address to an

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individual.” (Id. ¶¶ 9-11, 26.) In addition to identifying the specific IP address and

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verifying the copying and distribution of one of Plaintiff’s works by it, Plaintiff has also

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utilized the Maxmind database to determine that the IP address at issue is assigned to a

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location inside this District. (Decl. of Henrik Mosesi ¶¶ 7-13.)

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Based on the information provided to the Court from Plaintiff, including: (1) the

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specific subscriber IP address at issue, (2) the dates and times of connection, and (3) the

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name of internet service provider for the IP address located, the Court finds the

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subscriber/doe defendant has been identified with sufficient specificity.

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B. Plaintiff Has Identified Previous Steps Taken To Locate Defendant

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The Court in Columbia Insurance explained that “this element is aimed at ensuring

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that plaintiffs make a good faith effort to comply with the requirements of service of

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process and specifically identifying defendants.” 185 F.R.D. at 579-80. In its ex parte

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motion, Plaintiff states that it has “attempted to correlated Defendant’s IP address to

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Defendant by searching for Defendant’s IP address on various web search tools,

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including basic search engines … [and] by reviewing numerous sources of authority….”

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(Pl.’s Mot. at 15.) However, despite the investigative efforts of IPP to accurately identify
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the IP Address and verify the IP Address was copying and distributing Plaintiff’s work,

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“the only entity able to correlate an IP address to a specific individual at a given date and

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time is the Internet Service Provider.” (Paige Decl. ¶ 14.) The Court, therefore, finds

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Plaintiff has made a good faith effort to identify the subscriber/doe defendant.

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C. Plaintiff's Suit Against Defendant Could Withstand A Motion To Dismiss

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In order to meet the third factor set forth in the Columbia Insurance test, the plaintiff

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“must make some showing that an act giving rise to civil liability actually occurred and

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that the discovery is aimed at revealing specific identifying features of the person or entity

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who committed that act.” 185 F.R.D. at 580.

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To prevail in a copyright infringement action, a plaintiff “must show: (1) ownership

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of a valid copyright; and (2) that the defendant violated the copyright owner’s exclusive

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rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004)

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(citing 17 U.S.C. § 501(a) (2003) and Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1073

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(9th Cir. 2000)).

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Plaintiff’s Complaint lists the copyrighted movie titles which it owns and has

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registered, with a listing of the copyright registration numbers of the allegedly infringed

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works at issue. (Pl.’s Compl., Ex. B.) Plaintiff also alleges the subscriber/doe defendant

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used the BitTorrent file sharing system to copy and distribute the movies without consent.

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(Pl.’s Compl. ¶¶ 18-27, 30-35.) Plaintiff has alleged a prima facie case of copyright

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infringement which may withstand a motion to dismiss. Accordingly, Plaintiff has made a

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prima facie showing of copyright ownership and a violation of the copyright that could

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survive a motion to dismiss. Thus, the third factor for granting early discovery has been

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met.

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D. Plaintiff Has Shown Requested Discovery Will Lead to Identifying
Information

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Plaintiff has satisfied the last inquiry required in Columbia Insurance by

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demonstrating the requested discovery will lead to identifying information about

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Defendant that would make service of process possible. 185 F.R.D. at 580. As explained
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above, Plaintiff’s investigation has revealed a unique IP address.

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demonstrated through the declarations of its forensic computer experts that an ISP

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maintains the subscriber records that contain the name and address information they seek.

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(Paige Decl. ¶¶ 14-15.) Because the only entity able to correlate an IP address to a specific

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individual is the ISP, the requested Rule 45 subpoena requiring the ISP to provide Plaintiff

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with the true name and address of the Defendant to whom the IP address belongs would

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lead to information making physical service of process possible.

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IV. CONCLUSION AND ORDER THEREON

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Plaintiff has also

Plaintiff has met its burden of showing good cause and the ex parte motion is
GRANTED. IT IS HEREBY ORDERED that:
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Plaintiff may serve the ISP, AT&T Internet Services, with a Rule 45 subpoena

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commanding the ISP to provide Plaintiff with the true name and address of the Defendant

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to whom the ISP assigned the IP address as set forth in Exhibit A to the Complaint. Plaintiff

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may not subpoena additional information.

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2.

Plaintiff shall attach a copy of this Order to any Rule 45 subpoena issued

pursuant to this Order.
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Within 14 calendar days after service of the subpoena, the ISP shall notify the

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subscriber that its identity has been subpoenaed by Plaintiff. The subscriber whose identity

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has been subpoenaed shall have thirty (30) calendar days from the date of such notice to

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challenge the disclosure by filing an appropriate pleading with this Court contesting the

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subpoena.

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If the ISP wishes to move to quash the subpoena, it shall do so before the

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return date of the subpoena. The return date of the subpoena must allow for at least forty-

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five (45) days from service to production. If a motion to quash or other customer challenge

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is brought, the ISP shall preserve the information sought by Plaintiff in the subpoena

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pending resolution of such motion or challenge.

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5.

If the ISP qualifies as a “cable operator,” as defined by 47 U.S.C. § 522(5),1

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that ISP shall comply with 47 U.S.C. § 551(c)(2)(B),2 by sending a copy of this Order to

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the Defendant.

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Plaintiff may only use the information disclosed in response to a Rule 45

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subpoena served on the ISP for the sole purpose of enforcing Plaintiff’s rights as set forth

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in its Complaint.

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Dated: November 23, 2016

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Under 47 U.S.C. § 522(5), the term “cable operator” means any person or
group of persons:
(A) who provides cable service over a cable system and directly or through
one or more affiliates owns a significant interest in such cable system, or
(B) who otherwise controls or is responsible for, through any arrangement,
the management and operation of such a cable system.
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“A cable operator may disclose such [personal identifying] information if
the disclosure is . . . made pursuant to a court order authorizing such
disclosure, if the subscriber is notified of such order by the person to whom
the order is directed.”
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