Malibu Media, LLC v. John Doe subscriber assigned IP address 76.167.92.151

Filing 6

ORDER Granting Plaintiff's 4 Ex Parte Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Jill L. Burkhardt on 11/8/2016. (knb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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MALIBU MEDIA, LLC,

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Case No.: 16-cv-1913 BEN (JLB)
ORDER GRANTING PLAINTIFF’S
EX PARTE MOTION FOR LEAVE
TO SERVE A THIRD PARTY
SUBPOENA PRIOR TO A RULE
26(f) CONFERENCE

Plaintiff,
v.
JOHN DOE subscriber assigned IP
address 76.167.92.151,

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Defendant.

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[ECF No. 4]

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Presently before the Court is Plaintiff’s Ex Parte Motion for Leave to Serve a Third

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Party Subpoena Prior to a Rule 26(f) Conference. (ECF No. 4.) No opposition was filed,

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as no defendant has been named or served. For the reasons set forth below, Plaintiff’s

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Motion is GRANTED.

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I. BACKGROUND

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Plaintiff operates a subscription-based website, X-art.com, where it displays its

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copyrighted materials. (ECF No. 4-1 at 7.) Plaintiff asserts that the person or entity

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assigned Internet Protocol (“IP”) address 76.167.92.151 has “habitually” infringed

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Plaintiff’s copyrighted works on the X-art.com website through his, her, or its use of the

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online BitTorrent file distribution network. (Id.)
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On July 28, 2016, Plaintiff filed a Complaint against Defendant “JOHN DOE

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subscriber assigned IP address 76.167.92.151.” (ECF No. 1.) The Complaint alleges

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copyright infringement against Defendant and asserts that Plaintiff is the registered

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copyright holder of 27 works allegedly infringed by Defendant. (Id. at 5–7; ECF No. 1-3.)

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Plaintiff asserts Defendant used the BitTorrent file distribution network to copy and

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distribute Plaintiff’s copyrighted works without Plaintiff’s consent. (ECF No. 1 at 5.)

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Because Defendant used the Internet to commit the alleged copyright infringement,

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Plaintiff knows Defendant only by his, her, or its IP address, which was assigned to

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Defendant by his, her, or its Internet Service Provider (“ISP”), Time Warner Cable. (ECF

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No. 4-1 at 7.) Plaintiff asserts ISPs “maintain internal logs that record the date, time, and

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customer identity for each IP address assignment made by that ISP” and thus Time Warner

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Cable can use the above-stated IP address to identify Defendant. (Id.) Accordingly,

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Plaintiff seeks leave of Court to serve on Time Warner Cable a Rule 45 subpoena to obtain

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Defendant’s “true name and address” so that Plaintiff may serve Defendant and prosecute

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the claims raised in its Complaint. (Id.)

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II. LEGAL STANDARDS
A.

Early Discovery

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Discovery is generally not permitted before the parties have conferred pursuant to

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Federal Rule of Civil Procedure 26(f) unless authorized by court order. Fed R. Civ. P.

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26(d)(1). “[H]owever, in rare cases, courts have made exceptions, permitting limited

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discovery to ensue after filing of the complaint to permit the plaintiff to learn the

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identifying facts necessary to permit service on the defendant.” Columbia Ins. Co. v.

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Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999). Requests to conduct discovery

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prior to a Rule 26(f) conference are granted upon a showing of good cause by the moving

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party, which may be found “where the need for expedited discovery, in consideration of

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the administration of justice, outweighs the prejudice to the responding party.” Semitool,

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Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “A district

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court’s decision to grant discovery to determine jurisdictional facts is a matter of
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discretion.” Columbia Ins. Co., 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells

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Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)).

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District courts in the Ninth Circuit apply a three-factor test for determining whether

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good cause exists to allow for expedited discovery to identify Doe defendants. See

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Columbia Ins. Co., 185 F.R.D. at 578–80. “First, the plaintiff should identify the missing

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party with sufficient specificity such that the Court can determine that defendant is a real

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person or entity who could be sued in federal court.” Id. at 578. Second, the plaintiff

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“should identify all previous steps taken to locate the elusive defendant” to ensure that the

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plaintiff has made a good faith effort to identify and serve process on the defendant. Id. at

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579. Third, the plaintiff “should establish to the Court’s satisfaction that plaintiff’s suit

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against defendant could withstand a motion to dismiss.” Id. (citing Gillespie, 629 F.2d at

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642). Further, the plaintiff “should file a request for discovery with the Court, along with

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a statement of reasons justifying the specific discovery requested as well as identification

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of a limited number of persons or entities on whom discovery process might be served and

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for which there is a reasonable likelihood that the discovery process will lead to identifying

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information about defendant that would make service of process possible.” Id. at 580

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(citing Gillespie, 629 F.2d at 642).

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B.

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 about subscribers without the prior written or electronic

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

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a subscriber’s personally identifiable information if the disclosure is made pursuant to a

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court order and the cable operator provides the subscriber with notice of the order.

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47 U.S.C. § 551(c)(2)(B). A cable operator is defined as “any person or group of persons

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(A) who provides cable service over a cable system and directly or through one or more

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affiliates owns a significant interest in such cable system, or (B) who otherwise controls or

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is responsible for, through any arrangement, the management and operation of such a cable

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system.” 47 U.S.C. § 522(5).
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III. DISCUSSION
A.

Early Discovery

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Plaintiff seeks an order allowing it to serve a Rule 45 subpoena on Time Warner

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Cable before the parties conduct a Rule 26(f) conference in this case so that Plaintiff may

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obtain the true name and address of Defendant. (ECF No. 4-1 at 7.) For the reasons set

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forth below, Plaintiff’s Motion is GRANTED.

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1.

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For the Court to grant Plaintiff’s motion, Plaintiff must first identify Defendant with

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enough specificity to enable the Court to determine Defendant is a real person or entity

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who would be subject to the jurisdiction of this Court. See Columbia Ins. Co., 185 F.R.D.

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at 578. This court has previously determined that “a plaintiff identifies Doe defendants

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with sufficient specificity by providing the unique IP addresses assigned to an individual

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defendant on the day of the allegedly infringing conduct, and by using ‘geolocation

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technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC v.

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Collective of December 29, 2011 Sharing Hash, No. 12cv00186 MMA (RBB), 2012 WL

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12884688, at *4 (S.D. Cal. May 8, 2012) (citing Openmind Solutions, Inc. v. Does 1–39,

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No. C-11-3311 MEJ, 2011 WL 4715200, at *5–6 (N.D. Cal. Oct. 7, 2011); Pink Lotus

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Entm’t, LLC v. Does 1–46, No. C-11-02263 HRL, 2011 WL 2470986, at *6–7 (N.D. Cal.

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June 21, 2011)).

Identification of Missing Party with Sufficient Specificity

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In cases where it is unclear whether the subject IP address is “dynamic” or “static,”

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such as here, it matters when Plaintiff’s geolocation efforts were performed.1 In the context

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of dynamic IP addresses, “a person using [a particular IP] address one month may not have

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been the same person using it the next.” State v. Shields, No. CR06352303, 2007 WL

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1828875, at *6 (Conn. Sup. Ct. June 7, 2007). It is most likely that the user of IP address

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Static IP addresses are addresses which remain set for a specific user. Dynamic IP addresses are
randomly assigned to internet users and change frequently. Consequently, for dynamic IP addresses, a
single IP address may be re-assigned to many different computers in a short period of time.” Call of the
Wild Movie, LLC v. Does, 770 F. Supp. 2d 332, 356 (D.D.C. 2011) (citing London-Sire Records, Inc. v.
Doe 1, 542 F. Supp. 2d 153, 160 (D. Mass. 2008)).
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76.167.92.151 is a residential user and that the IP address assigned by Cox

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Communications is dynamic.2 Thus, if Plaintiff’s geolocation efforts were performed in

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the temporal proximity to the offending downloads, they may be probative of the physical

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location of the subject IP subscriber. If not, the geolocation of the subject IP address may

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potentially be irrelevant.

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Here, the Court concludes that Plaintiff’s Motion sufficiently demonstrates that

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Defendant is likely subject to the Court’s jurisdiction. First, the declaration of Attorney

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Henrik Mosesi filed in support of Plaintiff’s Motion states that Plaintiff’s forensic

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investigator, IPP International UG, “utilizes technology which ensures that Defendant’s IP

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address is correctly recorded at the exact time of infringement and is always accurate.”

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(ECF No. 4-6 at ¶ 6.)

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“referenced Defendant’s IP Address against Maxmind Premium’s IP geolocation

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database,” which “is about 95% accurate in the U.S.,” to determine “both the ISP of the

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Defendant and that . . . Defendant was using an IP Address assigned to a location city

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inside this District.” (Id. at ¶¶ 7–10.) Third, Attorney Mosesi’s declaration states that

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Plaintiff traced Defendant’s IP address to a physical location in this District

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“approximately three weeks before filing this action.” (Id. at ¶ 12.) As the last infringing

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act is alleged to have occurred on June 4, 2016 (ECF No. 4-1 at 10), and Plaintiff’s

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Complaint was filed on July 28, 2016 (ECF No. 1), Plaintiff’s effort to geolocate IP address

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76.167.92.151 occurred within weeks of the last allegedly infringing act. Thus, even if

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Defendant’s IP address is dynamic, the Court finds that based on the timing of Plaintiff’s

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IP tracing efforts and the documented success of Plaintiff’s investigator and the Maxmind

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geolocation service, Plaintiff has met its evidentiary burden of showing that Defendant’s

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IP address likely resolves to a physical address located in this District.

Second, Attorney Mosesi’s declaration states that Plaintiff

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“Most consumer IP addresses are ‘dynamic’ as opposed to ‘static.’” Call of the Wild Movie,
770 F. Supp. 2d at 356.
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2.

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For the Court to grant Plaintiff’s Motion, Plaintiff must next identify all of the steps

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it took to locate Defendant to ensure the Court it made a good faith effort to identify and

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serve process on Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. The Court

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concludes that Plaintiff has met this burden. First, Plaintiff retained a private Internet

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forensic investigator, IPP International UG, to monitor the BitTorrent file distribution

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network for the presence of Plaintiff’s copyrighted works and to identify the IP addresses

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of devices that are found distributing Plaintiff’s copyrighted works. (ECF No. 4-4.)

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Second, Plaintiff “diligently attempted,” albeit unsuccessfully, “to correlate Defendant’s

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

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tools” and “has further conducted its own diligent research on its ability to identify

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Defendant by other means by reviewing numerous sources of authority . . . (e.g., legislative

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reports, agency websites, informational technology guides, governing case law, etc.).”

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(ECF No. 4-1 at 21.) Third, the declaration of Patrick Paige, a former detective in the

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Computer Crimes Unit of the Palm Beach County, Florida, Sherriff’s Office and founder

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of Computer Forensics, LLC, states that “during the initial phase of Internet based

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investigations, the offender is only known . . . by an IP address” and “[t]he only entity able

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to correlate an IP address to a specific individual at a given date and time is the Internet

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Service Provider.” (ECF No. 4-3 at ¶¶ 13–14.) Based on the above, the Court is satisfied

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that Plaintiff has made a good faith effort to locate Defendant and that Plaintiff cannot, on

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its own, locate Defendant with any greater specificity than it already has. Accordingly, the

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Court finds Plaintiff has sufficiently satisfied the second prong of the Ninth Circuit’s “good

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cause” test.

Previous Attempts To Locate Defendant

Whether Plaintiff’s Suit Can Withstand a Motion to Dismiss

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3.

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For the Court to grant Plaintiff’s Motion, Plaintiff must next show that its suit against

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Defendant could withstand a motion to dismiss. Columbia Ins. Co., 185 F.R.D. at 579

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(citing Gillespie, 629 F.2d at 642). The Court finds Plaintiff has met this burden.

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Plaintiff’s Complaint alleges a single cause of action against Defendant: direct

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copyright infringement. (ECF No. 1 at 5–7.) To prove a claim of direct copyright

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infringement, a plaintiff “must show: (1) ownership of a valid copyright; and (2) that the

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defendant violated the copyright owner’s exclusive rights under the Copyright Act.”

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Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a)

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(2003)). Here, Plaintiff purports to be the exclusive owner of the 27 copyrighted works at

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issue. (Id. at ¶ 31; ECF No. 1-3.) In addition, Plaintiff alleges that “[b]y using BitTorrent,

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Defendant copied and distributed the constituent elements of each of the original works

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covered by” Plaintiff’s copyrights and “Plaintiff did not authorize, permit or consent to

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Defendant’s distribution of its works.” (ECF No. 1 at ¶¶ 32–33.) Accordingly, the Court

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finds Plaintiff has alleged the prima facie elements of direct copyright infringement and its

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suit against Defendant would likely withstand a motion to dismiss.

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4.

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Finally, for the Court to grant Plaintiff’s Motion, Plaintiff “should file a request for

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discovery with the Court.” Columbia Ins. Co., 185 F.R.D. at 580 (citing Gillespie, 629

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F.2d at 642). Although Plaintiff did not provide the Court with a proposed subpoena,

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Plaintiff has provided the Court with sufficient information regarding its requested

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discovery by stating in its Motion that it will seek from Time Warner Cable only the name

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and address of the subscriber of IP address 76.167.92.151.

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B.

Specific Discovery Request

The Cable Privacy Act

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Time Warner Cable is a “cable operator” within the meaning of the Cable Privacy

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Act, and therefore the Court must consider the requirements of the Act in granting

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Plaintiff’s Motion. The Cable Privacy Act generally prohibits cable operators from

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disclosing personally identifiable information regarding subscribers without the prior

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written or electronic consent of the subscriber, but cable operators may disclose personally

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identifiable information if the disclosure is made pursuant to a court order and the cable

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operator provides the subscriber with notice of the order. 47 U.S.C. § 551(c)(1)–(2).

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IV. CONCLUSION

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For the reasons set forth above, the Court finds good cause exists to allow Plaintiff

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to serve a Rule 45 subpoena upon Time Warner Cable at this time. Accordingly, Plaintiff’s

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Motion is GRANTED as follows:

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1.

Plaintiff may serve on Time Warner Cable a subpoena, pursuant to and

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compliant with the procedures of Federal Rule of Civil Procedure 45, seeking only the

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name and address of the subscriber assigned IP address 76.167.92.151 for the relevant

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time period. Plaintiff shall not seek from Time Warner Cable any other personally

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identifiable information about the subscriber;

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2.

Plaintiff’s subpoena to Time Warner Cable must provide a minimum of 45

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calendar days’ notice before any production responsive to the subpoena shall be made to

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Plaintiff;

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3.

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At the time Plaintiff serves its subpoena on Time Warner Cable, Plaintiff shall

also serve on Time Warner Cable a copy of this Order;

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4.

Within 14 calendar days after service of the subpoena, Time Warner Cable

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shall notify the subscriber assigned IP address 76.167.92.151 that his, her, or its identity

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has been subpoenaed by Plaintiff and shall provide the subscriber a copy of this Order with

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the required notice;

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5.

The subscriber whose identity has been subpoenaed shall have 30 calendar

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days from the date of such notice to challenge Time Warner Cable’s disclosure of his, her,

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or its name and address by filing an appropriate pleading with this Court contesting the

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subpoena;

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6.

If Time Warner Cable seeks to modify or quash the subpoena, it shall do so

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as provided by Federal Rule of Civil Procedure 45(d)(3); and

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///

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///

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///

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///
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7.

In the event a motion to quash, modify, or otherwise challenge the subpoena

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is properly brought before the Court, Time Warner Cable shall preserve the information

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sought by the subpoena pending the resolution of any such motion.

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IT IS SO ORDERED.
Dated: November 8, 2016

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