Criminal Productions, Inc. v. Doe-72.197.111.62
Filing
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ORDER Granting Plaintiff's Second Ex Parte Motion To Expedite Discovery (Dkt # 6 ). Signed by Magistrate Judge Jill L. Burkhardt on 11/18/2016. (mdc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
CRIMINAL PRODUCTIONS, INC.,
Plaintiff,
v.
DOE-72.197.111.62,
Defendant.
Case No. 16-cv-2352 WQH (JLB)
ORDER GRANTING PLAINTIFF’S
SECOND EX PARTE MOTION TO
EXPEDITE DISCOVERY
[ECF No. 6]
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Presently before the Court is Plaintiff’s second Ex Parte Motion to Expedite
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Discovery. (ECF No. 6.) No opposition was filed, as no defendant has been named or
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served. For the reasons set forth below, Plaintiff’s Motion is GRANTED.
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I. BACKGROUND
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Plaintiff is the registered copyright owner of the motion picture Criminal. (ECF No.
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6-1 at 1.) Plaintiff asserts the person or entity assigned Internet Protocol (“IP”) address
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72.197.111.62 has illegally copied and distributed Criminal through his, her, or its use of
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the online BitTorrent file distribution network. (Id.)
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Plaintiff commenced the instant action by filing a Complaint against Defendant
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“Doe–72.197.111.62” on September 19, 2016. (ECF No. 1.) The Complaint alleges a
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single claim of copyright infringement against Defendant. (Id. at 8–9.)
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Because Defendant used the Internet to commit the alleged infringement, Plaintiff
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knows Defendant only by his, her, or its IP address, which Plaintiff believes was assigned
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to Defendant by the Internet Service Provider (“ISP”) Cox Communications. (ECF No. 6-
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1 at 2.) In the present Motion, Plaintiff asserts that Cox Communications has “the records
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which tie the IP address used to infringe Plaintiff’s rights to a specific party who contracted
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with Cox Communications for service” and that “[w]ithout this information, plaintiff
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cannot ascertain the identity of the defendant nor pursue this lawsuit to protect its valuable
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copyrights.” (Id.) Accordingly, Plaintiff seeks leave to serve a Rule 45 subpoena on Cox
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Communications to obtain the name and address associated with IP address 72.197.111.62.
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(Id.)
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Plaintiff filed its initial Motion for Early Discovery on September 23, 2016. (ECF
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No. 4.) The motion was denied without prejudice on the basis that Plaintiff failed to state
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the date(s) on which its counsel performed the geolocation of IP address 72.197.111.62
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and to provide support regarding the probative value of its geolocation efforts in
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determining whether the subscriber of IP address 72.197.111.62 is likely subject to the
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personal jurisdiction of this Court. (ECF No. 5 at 4–5.) Plaintiff filed the instant Motion
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for Early Discovery on November 8, 2016. (ECF No. 6.)
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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., 185 F.R.D. at 578 (citing Wells Fargo & Co. v. Wells Fargo
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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 Cox
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Communications before the parties conduct a Rule 26(f) Conference in this case so that
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Plaintiff may obtain the true name and address of Defendant. (ECF No. 6-1 at 2.) For the
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reasons set 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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“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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1828875, at *6 (Conn. Sup. Ct. June 7, 2007). It is most likely that the user of IP address
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72.197.111.62 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 the instant Motion sufficiently demonstrates that
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Defendant is likely subject to the Court’s jurisdiction. Plaintiff attaches to its Motion a
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table reflecting that the user of IP address 72.197.111.62 engaged in allegedly infringing
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activity from May 9, 2016, through May 15, 2016. (ECF No. 6-2 at 1–2.) In addition,
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Plaintiff attaches to its Motion the declaration of its counsel, James Davis, asserting that IP
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address 72.197.111.62 belongs to Cox Communications and that Plaintiff employed certain
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geolocation technology to locate that IP address within the Southern District of California.
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(ECF No. 6-4 at ¶¶ 11–24.) Specifically, Mr. Davis declares that Plaintiff’s investigators,
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MaverikEye UG, checks the location of infringing IP addresses against the Maxmind
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geolocation database at “the specific time of the observed instance” of the infringing
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activity. (Id. at ¶ 15.) Plaintiff’s counsel declares further that the Maxmind geolocation
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service “is about 95% accurate in the U.S.” and “is used by local and federal law
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enforcement agencies as best practice for IP Address Geolocation in order to determine
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which locality/agency has proper jurisdiction.” (Id. at ¶¶ 18–19.) In addition, Plaintiff’s
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counsel asserts that after he receives geolocation information from MaverikEye UG, he
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verifies the location of an IP address by entering the address into three websites that contain
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a function for locating IP addresses. (Id. at ¶ 22.) With respect to IP address 72.197.111.62,
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MaverikEye UG and the three geolocation websites employed by Plaintiff’s counsel all
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traced the IP address to San Diego County. (Id. at ¶ 23.)
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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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The Court concludes that based on the timing of the IP address tracing efforts
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employed by Plaintiff’s investigator, the documented success of the Maxmind geolocation
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service, and Plaintiff’s counsel’s efforts to independently verify the location information
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provided by Plaintiff’s investigator, Plaintiff has met its evidentiary burden of showing that
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IP address 72.197.111.62 likely resolves to a physical address located in this District.
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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. Plaintiff retained a private Internet forensic
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investigator, MaverikEye UG, to monitor the BitTorrent file distribution network for the
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presence of Plaintiff’s copyrighted works and to identify the IP addresses of devices that
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are found distributing Plaintiff’s copyrighted works. (ECF No. 6-4 at ¶ 12.) Through
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MaverikEye UG, Plaintiff has been able to identify much about the subscriber of IP address
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72.197.111.62, such as his, her, or its ISP, general location, and software used to commit
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the allegedly infringing acts. (Id. at ¶¶ 12–15.) 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: copyright
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infringement. (ECF No. 1 at 8–9.) To prove a claim of direct copyright infringement, a
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plaintiff “must show: (1) ownership of a valid copyright; and (2) that the defendant violated
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the copyright owner’s exclusive rights under the Copyright Act.” Ellison v. Robertson,
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357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a) (2003)). Here, Plaintiff
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purports to be the exclusive owner of the copyrighted work at issue. (Id. at ¶¶ 7–8; ECF
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No. 1-4.) In addition, Plaintiff alleges that “Defendant, without the permission or consent
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of [Plaintiff], copied and distributed plaintiff’s motion picture through a public BitTorrent
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network.” (ECF No. 1 at ¶ 36.) Accordingly, the Court finds Plaintiff has alleged the
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prima facie elements of direct copyright infringement and its suit against Defendant would
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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 Cox Communications only the
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name and address of the subscriber of IP address 72.197.111.62.
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B.
Specific Discovery Request
The Cable Privacy Act
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Cox Communications 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 Cox Communications at this time. Accordingly,
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Plaintiff’s Motion is GRANTED as follows:
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///
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1.
Plaintiff may serve on Cox Communications 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 72.197.111.62 for the relevant
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time period. Plaintiff shall not seek from Cox Communications any other personally
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identifiable information about the subscriber;
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2.
Plaintiff’s subpoena to Cox Communications 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 Cox Communications, Plaintiff
shall also serve on Cox Communications a copy of this Order;
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Within 14 calendar days after service of the subpoena, Cox Communications
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shall notify the subscriber assigned IP address 72.197.111.62 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 Cox Communications’ 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 Cox Communications seeks to modify or quash the subpoena, it shall do so
as provided by Federal Rule of Civil Procedure 45(d)(3); and
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In the event a motion to quash, modify, or otherwise challenge the subpoena
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is brought properly before the Court, Cox Communications 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 18, 2016
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