Strike 3 Holdings, LLC v. Doe

Filing 5

ORDER Granting 4 Ex Parte Motion to Expedite Discovery. Signed by Magistrate Judge Barbara Lynn Major on 7/2/2018. (jdt)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

Case No.: 18cv991-LAB (BLM)

STRIKE 3 HOLDINGS, LLC,

ORDER GRANTING EX PARTE MOTION
TO EXPEDITE DISCOVERY

Plaintiff,

12
13

v.

14

JOHN DOE subscriber assigned IP address
75.80.183.104,

15

[ECF No. 4]

Defendant.

16
17
18

Currently before the Court is Plaintiff’s June 28, 2018 “Ex Parte Application for Leave to

19

Serve a Third Party Subpoena Prior to a Rule 26(f) Conference.” ECF No. 4. Because the

20

Defendant has not been identified, no opposition or reply briefs have been filed.

21

reviewed Plaintiff’s motion and all supporting documents, the Court GRANTS the motion for the

22

reasons set forth below.

23

I.

Having

BACKGROUND

24

Plaintiff alleges that it “is the owner of original, award winning motion pictures featured

25

on its subscription-based adult website.” ECF No. 4-1 at 6; see also ECF No. 4-2, Declaration of

26

Greg Lansky in Support of Plaintiff’s Application (“Lansky Decl.”), ¶¶ 3, 32. On May 17, 2018,

27

Plaintiff filed a complaint against John Doe 75.80.183.104 alleging copyright infringement.

28

ECF No. 1 (“Compl.”). Plaintiff alleges that Defendant has illegally infringed by downloading and
1

18cv231-BEN (BLM)

1

distributing forty-two of its copyrighted movies over the BitTorrent File Distribution Network for

2

an extended period of time. Id. at 2, 4. Plaintiff describes the BitTorrent network as a “system

3

designed to quickly distribute large files over the Internet.” Id. at 4. Plaintiff further alleges

4

that Defendant, who “attempted to hide this theft by infringing Plaintiff’s content anonymously”

5

can be identified by his or her Internet Service Provider (“ISP”), Spectrum (“Time Warner

6

Cable”), through his or her IP address 75.80.183.104. Id. at 2.

7

On June 28, 2018, Plaintiff filed the instant motion. ECF No. 4. Plaintiff seeks an order

8

from the Court allowing it to serve a subpoena to Defendant’s ISP seeking Defendant’s true

9

name and address pursuant to Federal Rule of Civil Procedure 45. ECF No. 4-1 at 7.

10

II.

DISCUSSION

11

A. The Cable Privacy Act

12

The Cable Privacy Act generally prohibits cable operators from disclosing personally

13

identifiable information regarding subscribers without the prior written or electronic consent of

14

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

15

if the disclosure is made pursuant to a court order and the cable operator provides the subscriber

16

with notice of the order. 47 U.S.C. § 551(c)(2)(B). A cable operator is defined as “any person

17

or group of persons (A) who provides cable service over a cable system and directly or through

18

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

19

controls or is responsible for, through any arrangement, the management and operation of such

20

a cable system.” 47 U.S.C. § 522(5). Accordingly, Plaintiff seeks an order instructing Time

21

Warner Cable to produce documents and information sufficient to identify the user of the

22

specified IP address. See ECF No. 4-1 at 17.

23

B. Early Discovery

24

A party may not seek discovery from any source before the Rule 26(f) conference unless

25

that

party

first

obtains

a

stipulation

or

court

order

permitting

early

discovery.

26

Fed. R. Civ. P. 26(d)(1). Courts in the Ninth Circuit apply the “good cause” standard in deciding

27

whether to permit early discovery.

28

208 F.R.D. 273, 276 (N.D. Cal. 2002) (adopting the conventional standard of “good cause” in

Semitool, Inc. v. Tokyo Electron America, Inc.,

2

18cv231-BEN (BLM)

1

evaluating a request for expedited discovery). Good cause exists “where the need for expedited

2

discovery, in consideration of the administration of justice, outweighs the prejudice to the

3

responding party.” Id. Good cause for expedited discovery has been found in cases involving

4

claims of infringement and unfair competition. Id. In infringement cases, expedited discovery

5

is frequently limited to allowing plaintiffs to identify Doe defendants. See UMG Recordings, Inc.

6

v. Doe, 2008 WL 4104207, at *3 (N.D. Cal. Sept. 4, 2008) (granting leave to take expedited

7

discovery for documents that would reveal the identity and contact information for Doe

8

defendant).

9

District courts in the Ninth Circuit apply a three-factor test when considering motions for

10

expedited discovery to identify certain defendants.

11

185 F.R.D. 573, 578-80 (N.D. Cal. 1999). First, the plaintiff should “identify the missing party

12

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

13

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

14

“all previous steps taken to locate the elusive defendant” to ensure that plaintiff has made a

15

good faith effort to identify the defendant. Id. at 579. Third, plaintiff should establish that its

16

lawsuit could withstand a motion to dismiss. Id.

17

Columbia Ins. Co. v. seescandy.com,

1. Identification of Missing Party with Sufficient Specificity

18

First, Plaintiff must identify the Doe defendant with sufficient specificity to enable the

19

Court to determine that the Doe defendant is a real person subject to the Court’s jurisdiction.

20

Id. at 578. “Some district courts in the Ninth Circuit have determined that a plaintiff identifies

21

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

22

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

23

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

24

Collective of Dec. 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29C D63C23C91,

25

No. 12cv00186 MMA(RBB), 2012 WL 12884688, at *4 (S.D. Cal. May 8, 2012); see e.g.,

26

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

27

Oct. 7, 2011) (finding plaintiff met its burden to identify the Doe defendants with sufficient

28

specificity by identifying the unique IP addresses of individuals engaged in BitTorrent protocol
3

18cv231-BEN (BLM)

1

and using geolocation technology to trace the IP addresses to a point of origin within the state

2

of California); Pink Lotus Entm't, LLC v. Does 1-46, No. C-11-02263 HRL, 2011 WL 2470986, at

3

*3 (N.D. Cal. June 21, 2011) (same).

4

addresses assigned to the defendants on the day of the purported infringement is sufficient to

5

satisfy the first factor.” 808 Holdings, LLC, 2012 WL 12884688, at *4; see e.g., First Time

6

Videos, LLC v. Does, No. C 11-01675 LB, 2011 WL 1431619, at *2 (N.D. Cal. Apr. 14, 2011)

7

(“First, First Time Videos has identified the Doe defendants with sufficient specificity by

8

submitting a chart listing each of the defendants by the IP address assigned to them on the day

9

it alleges the particular defendant engaged in the infringing conduct.”).

“Others have found that merely identifying the IP

10

Here, Plaintiff has provided a declaration from Tobias Fieser, an employee of IPP

11

International UG (“IPP”), a company it hired that “monitors the BitTorrent file distribution

12

network for the presence of copyrighted works” and uses software that “identifies Internet

13

Protocol (‘IP’) addresses that are being used by infringers to distribute copyrighted works within

14

the BitTorrent File Distribution Network” to compile data relating to the IP address at issue.

15

ECF No. 4-2, Declaration of Tobias Fieser (“Fieser Decl.”), ¶¶ 3-7. Mr. Fieser states that IPP

16

determined that John Doe’s IP address (75.80.183.104) distributed multiple pieces of Plaintiff’s

17

copyrighted movies (listed in Exhibit A to the complaint) and that the address “is associated with

18

significant long term BitTorrent use.” Id. ¶¶ 7, 12. He also states that the movie pieces were

19

recorded in a packet capture (“PCAP”), a “forensically sound interface for recording network

20

traffic” that records the time which correlates to assignment logs maintained by ISPs in the

21

United States to track which IP address is assigned to which customer at any given time.

22

Id. ¶ 8. Mr. Fieser explains that digital files can be identified by their Cryptographic Hash Values

23

and that IPP was able to determine that the files being distributed by Defendant’s IP address

24

“have a unique identifier of the Cryptographic Hash outlined on Exhibit A [to Plaintiff’s

25

complaint].” Id. ¶ 10.

26

Plaintiff also provided a declaration from Emilie Kennedy, Plaintiff’s in-house counsel, in

27

which Ms. Kennedy states that she is tasked with working with Plaintiff’s investigators to monitor

28

infringement of its motion pictures, “and in coordination with [its] outside counsel,” identifying
4

18cv231-BEN (BLM)

1

IP addresses “that are extensively infringing [its] content.” ECF No. 4-2, Declaration of Emilie

2

Kennedy (“Kennedy Decl.”), ¶¶ 2-4. Ms. Kennedy states that she referenced Defendant’s IP

3

address against an IP geolocation database maintained and updated by Maxmind, “an industry-

4

leading provider of IP address intelligence and online fraud detection tools,” to determine both

5

the ISP of the Defendant and that Defendant’s IP address traced to a city inside this District.

6

Id. ¶¶ 6-8. Ms. Kennedy also states that Maxmind’s geolocation tracing service is “99.8%

7

accurate on a country level, 90% accurate on a state level, [and] 87% accurate on a city level

8

for the U.S. within a 50 kilometer radius.” Id. ¶ 10. Ms. Kennedy attests that Plaintiff “first

9

inserted Defendant’s IP address into Maxmind’s Geolocation Database in early September 2017”

10

and learned that it traced to a location in San Diego, California. Id. ¶11. Ms. Kennedy further

11

states that each time Plaintiff received additional data from IPP, it used Maxmind’s database to

12

confirm that Defendant’s IP address traced to San Diego, including additional checks on

13

May 17, 2018 and June 28, 2018. Id. ¶¶ 12, 13, 15.

14

Furthermore, Plaintiff provided the declaration of Susan B. Stalzer, an employee of

15

Plaintiff who reviews the content of its motion pictures and was tasked with reviewing contents

16

of the infringing files identified in Exhibit A to the complaint and comparing them to Plaintiff’s

17

original work. ECF No. 4-2, Declaration of Susan B. Stalzer (“Stalzer Decl.”), ¶¶ 3, 7-10. Ms.

18

Stalzer states that she also “used American Registry for Internet Numbers (‘ARIN’) to confirm

19

that the ISP Time Warner Cable did own Defendant’s IP address at the time of the infringements

20

[as listed in Exhibit A], and hence has the relevant information to identify Doe Defendant.”

21

Id. ¶ 11. The dates of the alleged infringing activity in Exhibit A range from April 30, 2017

22

through March 31, 2018. ECF No. 1-2 at 2-4.

23

Because Plaintiff has provided the Court with the unique IP address and the dates and

24

times of connection, the name of the ISP and/or cable operator that provided Internet access

25

for the user of the identified IP address, and used Maxmind geolocation technology, the Court

26

finds that Plaintiff has made a sufficient showing that Doe 75.80.183.104 likely resolves to a real

27

person or entity with a physical address in this District. See 808 Holdings, LLC, 2012 WL

28

12884688, at *4.
5

18cv231-BEN (BLM)

2. Previous Attempts to Locate Defendant

1
2

Second, Plaintiff must describe all prior attempts it has made to identify the Doe

3

defendant in a good faith effort to locate and serve them. See Columbia Ins. Co., 185 F.R.D. at

4

579.

5

Defendant by searching for Defendant’s IP address” on various internet search tools; by

6

researching sources of authority such as legislative reports and informational technology guides

7

for other means of identification; and by consulting with computer investigators and cyber

8

security experts. ECF No. 4-1 at 13-14. Plaintiff states that despite these efforts, it is unable to

9

obtain the identity of the alleged infringer because Defendant’s IP address is “assigned to

10

Defendant by his or her [ISP], which is the only party with the information necessary to identify

11

Defendant by correlating the IP address with John Doe’s identity.” See id. at 6, 14. Plaintiff

12

also provides a declaration from Philip Pasquale, a tech advisor with a cyber security firm, in

13

which Mr. Pasquale states that “[b]ased on [his] experience in similar cases, Defendant’s ISP

14

Time Warner Cable is the only entity that can correlate the IP address to its subscriber and

15

identify Defendant as the person assigned the IP address 75.80.183.104 during the time of the

16

alleged infringement.” ECF No. 4-2, Declaration of Philip Pasquale (“Pasquale Decl.”), ¶¶ 3, 10.

17

Based on the above, the Court finds that Plaintiff has made a good faith effort to identify and

18

locate the Doe defendant.

Plaintiff states that it “diligently attempted to correlate Defendant’s IP address to

3. Whether Plaintiff Can Withstand a Motion to Dismiss

19
20

“[A] plaintiff who claims copyright infringement must show: (1) ownership of a valid

21

copyright; and (2) that the defendant violated the copyright owner’s exclusive rights under the

22

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

23

“To prove a claim of direct copyright infringement, a plaintiff must show that he owns the

24

copyright and that the defendant himself violated one or more of the plaintiff’s exclusive rights

25

under the Copyright Act.” Id. (citation omitted).

26

///

27

///

28

///
6

18cv231-BEN (BLM)

1

Plaintiff provides evidence that it is the exclusive rights holder of the copyrighted works

2

at issue. See ECF No. 1-2 at 2-4 (“Exhibit A”)1; Lansky Decl. ¶ 3; Stalzer Decl. ¶¶ 7-10. Plaintiff

3

alleges that between April 30, 2017 and March 31, 2018, Defendant infringed Plaintiff’s

4

copyrighted work by copying and distributing “the constituent elements of Plaintiff’s [w]orks” by

5

using the BitTorrent file distribution network. See Compl. at 6; ECF No. 1-2 at 2-4. Plaintiff

6

further alleges that it did not authorize, permit or consent to Defendant’s copying or distributing

7

this work. Compl. at 6-7. Accordingly, Plaintiff has alleged the prima facie elements of direct

8

copyright infringement and could withstand a motion to dismiss. See Ellison, 357 F.3d at 1076;

9

Columbia Ins. Co., 185 F.R.D. at 379-80.

10 III.

CONCLUSION

11

Having found good cause, the Court GRANTS Plaintiff’s motion for expedited discovery.

12

For the foregoing reasons, it is hereby ordered that:
1.

13

Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 45, on

14

Time Warner Cable (Spectrum) that seeks only the true name and address of the subscriber

15

assigned IP address 75.80.183.104. Plaintiff shall not subpoena additional information;
2.

16
17

Plaintiff may only use the disclosed information for the purpose of protecting its

rights in pursuing this litigation;
3.

18

Within fourteen (14) calendar days after service of the subpoena, Time Warner

19

Cable (Spectrum) shall notify the subscriber that his or her identity has been subpoenaed by

20

Plaintiff. The subscriber whose identity has been subpoenaed shall have thirty (30) calendar

21

days from the date of such notice to challenge the disclosure by filing an appropriate pleading

22

with this Court contesting the subpoena;

23

4.

If Time Warner Cable (Spectrum) wishes to move to quash the subpoena, it shall

24

do so before the return date of the subpoena. The return date of the subpoena must allow for

25

26
27
28

Plaintiff states in its complaint that Exhibit A consists of a table containing United States
Copyright Office registration information, including registration numbers or application numbers
for those works where registration is still pending before the Copyright Office in compliance with
the Copyright Act, 17 U.S.C. §§ 101, et seq. Compl. at 6.

1

7

18cv231-BEN (BLM)

1

at least forty-five (45) days from service to production. If a motion to quash or other customer

2

challenge is brought, Time Warner Cable (Spectrum) shall preserve the information sought by

3

Plaintiff in the subpoena pending resolution of such motion or challenge; and

4

5.

Plaintiff shall serve a copy of this Order with any subpoena obtained and served

5

pursuant to this Order to Time Warner Cable (Spectrum). Time Warner Cable (Spectrum), in

6

turn, must provide a copy of this Order along with the required notice to the subscriber whose

7

identity is sought pursuant to this Order.

8
9

IT IS SO ORDERED.
Dated: 7/2/2018

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8

18cv231-BEN (BLM)