Strike 3 Holdings, LLC v. Doe

Filing 5

ORDER Granting 4 Ex Parte Application for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Signed by Magistrate Judge Karen S. Crawford on 8/20/2018. (mpl)

FILED
AUG 2 0 2018

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CLERK US DloHRICl COURT
SOUTHERN Dl&-TRICT OF CALIFORNIA

BY

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DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 18cv1355-JLS(KSC)

STRIKE 3 HOLDINGS, LLC,

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Plaintiff,

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v.

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JOHN DOE subscriber assigned IP
address 76.196.236.234,

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ORDER GRANTING EXPARTE
APPLICATION FOR LEAVE TO
SERVE A THIRD PARTY
SUBPOENA PRIOR TO A RULE
26(f) CONFERENCE

Defendant.

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[Doc. No. 4]

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Before the Court is plaintiffs Ex Parte Application for Leave to Serve a Third Party

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Subpoena Prior to a Rule 26(t) Conference. [Doc. No. 4.] No opposition or reply briefs

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have been filed or considered by the Court, because defendant has not been fully identified

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and has not been served with a summons or the Complaint. Thus far, defendant has only

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been identified as the "subscriber assigned IP address 76.196.236.234." [Doc. No. l.] For

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the reasons discussed below, the Court finds that plaintiffs Ex Parte Application must be

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GRANTED.

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Background

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Plaintiff filed a Complaint against defendant alleging a single cause of action for

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direct copyright infringement. [Doc. No. 1, at pp. 6-8]. In the Complaint, plaintiff asserts

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ownership of copyrights for adult motion pictures that are distributed through adult
18cvl355-JLS(KSC)

1 websites and DVDs. [Doc. No. 1, at p. 1-2, 6.] The Complaint alleges that the defendant
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is using BitTorrent protocol to download and distribute plaintiffs motion pictures to others

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"on a grand scale." [Doc. No. 1, at p. 2.] The Complaint further alleges that defendant

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"downloaded, copied, and distributed a complete copy" of plaintiffs copyrighted movies

5 "without authorization." [Doc. No. 1, at p. 5.] According to the Complaint, defendant's
6 "infringement is continuous and ongoing" and the lawsuit is the only way to effectively
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prevent defendant from infringing the copyrights. [Doc. No. 1, at p. 6.]

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The Complaint explains that "BitTorrent is a system designed to quickly distribute

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large files over the Internet. Instead of downloading a file, such as a movie, from a single

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source, BitTorrent users are able to connect to the computers of other BitTorrent users in

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order to simultaneously download and upload pieces of the film from and to other users."

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[Doc. No. 1, at p. 4.] "To use BitTorrent to download a movie, the user has to obtain a

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'torrent' file for that movie, from a torrent website. The torrent file contains instructions

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for identifying the Internet addresses of other BitTorrent users who have the movie, and

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for downloading the movie from those users. Once a user downloads all of the pieces of

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that movie from the other BitTorrent users, the movie is automatically reassembled into its

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original form, ready for playing." [Doc. No. 1, at p. 4.]

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Discussion

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In the Ex Parte Application, plaintiff seeks leave to serve limited, immediate

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discovery on defendant's Internet Service Provider ("ISP"), AT&T Inc. and/or AT&T U-

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verse, so that plaintiff may learn defendant's identity.

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Specifically, plaintiff seeks an order permitting it to serve a Rule 45 subpoena on AT&T

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Inc. (AT&T U-verse) to obtain the name and address of the account holder assigned to

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Internet Protocol ("IP") address 76.196.236.234. [Doc. No. 4-1, at pp. 6-7.]

[Doc. No. 4-1, at pp. 6-7].

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Generally, discovery is not permitted without a court order before the parties have

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conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26( d)(l ). In

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the Ninth Circuit, exceptions to requests for early discovery have generally been

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disfavored. Gillespie v. Civiletti, 629 F.2d 637, 642 (91h Cir. 1980). However, "situations
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arise, such as the present, where the identity of alleged defendants will not be known prior

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to the filing of a complaint. . In such circumstances, the plaintiff should be given an

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opportunity through discovery to identify the unknown defendants, unless it is clear that

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discovery would not uncover the identities, or that the complaint would be dismissed on

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other grounds." Id.

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"[S]ome limiting principals should apply to the determination of whether discovery

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to uncover the identity of a defendant is warranted." Columbia Ins. Co. v. seescandy.com,

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185 F.R.D. 573, 578 (N.D. Cal. 1999). Such early discovery should be limited "to ensure

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that this unusual procedure will only be employed in cases where the plaintiff has in good

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faith exhausted traditional avenues for identifying a civil defendant pre-service" and to

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"prevent use of this method to harass or intimidate." Id. "First, the plaintiff should identify

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the missing party with sufficient specificity such that the Court can determine that

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defendant is a real person or entity who could be sued in federal court." Id. Second, the

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plaintiff"should identify all previous steps taken to locate the elusive defendant" to ensure

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

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Id. at 579. Third, the "plaintiff should establish to the Court's satisfaction that plaintiffs

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suit against defendant could withstand a motion to dismiss." Id. "Thus, plaintiff must

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

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

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committed that act." Id. at 580.

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"Lastly, the plaintiff should file a request for discovery with the Court, along with a

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

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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.

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III

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III

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A.

Identification o(the Defendant with Sufficient Specificity.
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In support of the Ex Parte Application, plaintiff submitted three relevant

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declarations. First, a Declaration by Tobias Fieser states that he is employed by IPP

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International UG (IPP), which provides forensic investigation services to copyright owners

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by tracking, monitoring, and detecting copyright infringement over the internet. [Doc. No.

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4-2, at p. 11.] According to Mr. Fieser, IPP monitors the BitTorrent file distribution

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network for the presence of plaintiffs copyrighted works. [Doc. No. 4-2, at p. 11.] Based

7 on his review of forensic activity records and other forensic evidence, Mr. Fieser states that
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he was able to determine that IP address 76.196.236.234 was used to distribute "multiple

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pieces" of plaintiffs copyrighted movies. [Doc. No. 4-2, at pp. 11.] Each of these pieces

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was recorded in digital files that are identified by a "Crypotographic Hash Value." [Doc.

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No. 4-2, at p. 12.] Software was then used to re-assemble and analyze the digital files to

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confirm that the files being distributed by defendant's IP address were pieces of plaintiffs

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copyrighted movies. [Doc. No. 4-2, at p. 12.] According to Mr. Fieser's Declaration,

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Exhibit A to the Complaint [Doc. No. 1-2, at pp. 1-2] lists digital files of plaintiffs

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copyrighted works that were distributed using the defendant's IP address. [Doc. No. 4-2,

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at p. 12.] It appears that Exhibit A also lists the dates these digital files were distributed

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using the defendant's IP address and indicates that the defendant's IP address is located in

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San Diego, California. [Doc. No. 1-2, at pp. 1-2.]

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Second, a Declaration by Susan B. Stalzer states that she is plaintiffs employee and

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is familiar with plaintiffs copyrighted movies. She was charged with reviewing the digital

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files enumerated on Exhibit A that were collected by IPP during its forensic investigation

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to verify that the files did indeed contain plaintiffs copyrighted movies. Following this

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verification process, she used the American Registry for Internet Numbers (ARIN) to

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confirm that defendant's IP address is associated with AT&T U-verse. [Doc. No. 4-2, at

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pp. 19-20.]

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Third, a Declaration by Philip Pasquale states that he is a tech advisor for a firm that

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specializes in network security, data breaches, and the protection of secured information

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transmitted across networks. [Doc. No. 4-2, at p. 15.] Mr. Pasquale was retained by
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plaintiff"to individually analyze and retain forensic evidence captured by IPP .... " [Doc.

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No. 4-2, at p. 15.] He used a program called Wireshark to review the contents of the digital

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files collected by IPP and was able to confirm a "transaction with 76.196.236.234 at

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05/16/201817:05:39UTC." [Doc.No.4-2,atp.15.] Basedonhisexperienceinother

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cases, Mr. Pasquale also represents that AT&T U-verse is the "only entity that can correlate

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the IP address to its subscriber and identify defendant as the person assigned the IP address

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76.196.236.234 during the time of the alleged infringement." [Doc. No. 4-2, at pp. 15-16.]

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The Complaint also alleges that geolocation technology by Maxmind Inc., "an

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industry-leading provider of IP address intelligence and online fraud detection tools," was

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used to determine that "defendant's IP address traced to a physical address in this District."

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[Doc. No. 1, at p. 2-3. See also Doc. No. 4-1, at pp. 12-13.] "Some district courts in the

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Ninth Circuit have determined that a plaintiff identifies Doe defendants with sufficient

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

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day of the alleged infringing conduct, and by using 'geolocation technology' to trace the

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IP address to a physical point of origin." See, e.g., Malibu Media, LLC v. Does 1-19, 2012

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WL 2152061, at *3 (S.D. Cal. June 12, 2012), and cases cited therein.

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Based on the allegations in the Complaint and the information provided in the

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supporting Declarations summarized above, the Court finds that plaintiff identified the

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defendant with enough specificity so that the Court may determine that defendant is a

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person who could be sued in Federal Court. Plaintiff provided the Court with information

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about infringing activity tied to defendant's IP address and specific dates and times for

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such activity.

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B.

Previous Steps Taken to Identifv Defendant.

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In its Ex Parte Application, defendant has represented that it has consulted with

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computer investigators and cyber security consultants and has searched sources available

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to the public but is unable to obtain the name and address of the subscriber of IP address

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76.196.236.234 for the time period in question. [Doc. No. 4-1, at p. 13-14.] Through

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publicly available data, plaintiff is only able to connect a particular IP address to infringing
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activity on specified dates; identify the city and state associated with that IP address; and

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discover the ISP who is associated with that IP address. [Doc. No. 4-1, at pp. 13-14.)

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Without a subpoena for the name and address of the subscriber to the IP address in question, ·

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plaintiff will be unable to identify and serve defendant. [Doc. No. 4-1, at p. 17.]

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The Court is also aware that the requirements of the Cable Privacy Act, 47 U.S.C.

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§ 551, generally prohibit cable operators from disclosing personally identifiable

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

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subscriber.

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

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provides the subscriber with notice of the order. 47 U.S.C. § 55l(c)(2)(B). Therefore, the

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information plaintiff seeks pursuant to a subpoena falls within an exception to the

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prohibition on disclosure within the Act.

47 U.S.C. § 55l(c)(l).

A cable operator, however, may disclose such

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Accordingly, based on the information provided in the Ex Parte Application and

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supporting Declarations, the Court finds that plaintiff made a good faith effort to identify

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and serve the defendant. However, plaintiff is unable to do so without an Order from the

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Court allowing it to serve a subpoena on the ISP associated with the IP address in question.

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C.

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Under Federal Rule of Civil Procedure 12(b), a case can be dismissed for lack of

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subject matter jurisdiction or for failure to state a claim upon which relief can be granted.

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Fed.R.Civ.P. 12(b)(l), 12(b)(6). "Under the Copyright Act of 1976 ('the Act') a plaintiff

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may not 'institute []'an action in federal district court 'until registration of the copyright

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claim has been made in accordance with this title.' 17 U.S.C. § 41 l(a)." Berry v. Penguin

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Group (USA), Inc., 448 F.Supp.2d 1202, 1202 (W.D. Wash. 2006). In order to state a

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viable claim for copyright infringement, a plaintiff must allege: (1) ownership of a valid

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copyright, and (2) a violation by the defendant of the copyright owner's exclusive rights

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under the Copyright Act. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004); 17

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U.S.C. § 50l(a).

Abilitv to Withstand a Motion to Dismiss.

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As applied herein, the Complaint adequately alleges subject matter jurisdiction

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pursuant to Title 28, United Code, Sections 1331 (federal question) and 1338 (copyrights).

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The Complaint further alleges that plaintiff is either the registered owner or has pending

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registration applications for the adult motion pictures that defendant's IP address copied

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and distributed using the BitTorrent file distribution network without plaintiffs

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authorization. [Doc. No. 1 at pp. 1, 6]. Thus, plaintiff has alleged facts that could withstand

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a Rule l 2(b )(6) motion to dismiss for failure to state a claim.

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Under Federal Rule of Civil Procedure 12(b), a case can also be dismissed for lack
of personal jurisdiction over a defendant or for improper venue.

Fed.R.Civ.P.

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12(b)(2)&(3). To overcome a defendant's motion to dismiss under Federal Rule 12(b)(2)

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for lack of personal jurisdiction, a plaintiff need only make a prima facie showing of

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over the defendant. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). Personal

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Purcell LLP v. Recordon & Recordon, 361 F.Supp.2d 1135, 1138 (N.D. Cal. 2005). In

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copyright infringement actions, venue is proper "in the district in which the defendant ...

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resides or may be found." 28 U.S.C. § 1400(a).

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Based on the record before the Court, it also appears that the Complaint is likely to

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survive a motion to dismiss for lack of personal jurisdiction or improper venue. First, the

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Complaint alleges that geolocation technology was used to trace the IP address to a location

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in the State of California and in this District. Second, the Complaint alleges that the

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defendant resides here based on the results of geolocation technology.

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Complaint asserts that a substantial part of the alleged copyright infringement occurred in

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this District. Assuming it can support these assertions with geolocation evidence, plaintiff

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has shown to the Court's satisfaction that it is likely to withstand a motion to dismiss for

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lack of personal jurisdiction or improper venue and is therefore entitled to serve a third

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party subpoena to discover the name and address of the subscriber to the subject IP address

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for the time period in question.

Third, the

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CONCLUSION

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For the reasons set forth above, plaintiffs Ex Parte Motion for Leave to Serve a
Third Party Subpoena is GRANTED with the following limitations:

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1.

Plaintiff may serve a subpoena on defendant's ISP, AT&T and/or AT&T U-

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verse, seeking the name and address only of the subscriber assigned to the IP address

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identified in the Complaint for the time periods of the alleged infringing activity outlined

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in Exhibit A to plaintiffs Complaint.
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The subpoena must provide a minimum of forty-five (45) days' notice before

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any production and shall be limited to one category of documents identifying the particular

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subscriber identified in Exhibit A to plaintiff's Complaint. [Doc. No. 1-2, at pp. 1-2.] The

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requested information shall be limited to the name and address of the subscriber during the

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time period of the alleged infringing activity referenced in Exhibit A to the Complaint.

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AT&T may seek a protective order ifit determines there is a legitimate basis for doing so.

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3.

AT&T shall have fourteen (14) calendar days after service of the subpoena

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to notify the subscriber that his or her identity has been subpoenaed by plaintiff. The

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subscriber whose identity has been subpoenaed shall then have thirty (30) calendar days

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from the date of the notice to seek a protective order or file any other responsive pleading.

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4.

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

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served pursuant to this Order to AT&T and/or AT&T U-verse. AT&T and/or AT&T U-

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verse, in tum, must provide a copy of this Order along with the required notice to the

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subscriber whose identity is sought pursuant to this Order. No other discovery is authorized

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at this time.

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5.

Until the Court orders otherwise, plaintiff shall not disclose the name, address,

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telephone number, or any other identifying information, other than the defendant's IP

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address, in the public record. All documents including any of defendant's identifying

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III

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III
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information, other than defendant's IP address, shall be filed under seal until defendant has

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had an opportunity to challenge the disclosure of any identifying information.

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IT IS SO ORDERED.
Dated: August

20, 2018

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Hon. aren S. Crawford
United States Magistrate Judge

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