NU IMAGE, INC. v. DOES

Filing 5

MOTION for Order FOR LEAVE TO TAKE DISCOVERY PRIOR TO RULE 26(f) CONFERENCE by NU IMAGE, INC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Kurtz, Nicholas)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
NU IMAGE, INC.

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Plaintiff,
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v.
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DOES 1 – 6,500
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Defendants.
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_______________________________________)

CA. 1:11-cv-00301-RLW

DECLARATION OF BENJAMIN PERINO IN SUPPORT OF PLAINTIFF’S MOTION
FOR LEAVE TO TAKE DISCOVERY PRIOR TO RULE 26(f) CONFERENCE
I, Benjamin Perino, declare:
1. I am one of four Managers of the US Copyright Group (USCG) which is a private
company dedicated to anti-piracy efforts in the motion picture industry involving unlawful P2P
downloading. I submit this declaration in support of Plaintiff’s Motion for Leave to Take
Discovery Prior to Rule 26(f) Conference.
2. The Plaintiff in this action is producer and distributor of motion pictures. The Plaintiff
has engaged the USCG to, among other tasks, document evidence of the unauthorized
reproduction and distribution of the Plaintiff’s copyrighted motion picture “The Expendables”
(the “Motion Picture”) within the United States of America, including the District of Columbia.
As a Manager of the USCG, I am responsible for coordinating the USCG’s worldwide
enforcement effort against internet piracy, which necessarily includes enforcement within the
District of Columbia. My duties include supervision of our online copyright infringement
campaign, identification and development of Internet anti-piracy technologies, identification of
online copyright infringers, and I also assist with coordination of Internet anti-piracy efforts
around the globe.
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3. This declaration is based on my personal knowledge, and if called upon to do so, I would
be prepared to testify as to its truth and accuracy.
Background
4. The Internet is a vast collection of interconnected computers and computer networks that
communicate with each other. It allows hundreds of millions of people around the world to
freely and easily exchange ideas and information, including academic research, literary works,
financial data, music, audiovisual works, graphics, and an unending and ever-changing array of
other data. Unfortunately, the Internet also has afforded opportunities for the wide-scale
infringement of copyrighted motion pictures. Once a motion picture has been transformed into
an unsecured digital format, it can be copied further and distributed an unlimited number of
times over the Internet, without significant degradation in picture or sound quality.
5. To copy and distribute copyrighted motion pictures over the Internet, many individuals
use online media distribution systems or so-called “peer-to-peer” (“P2P”) networks. P2P
networks, at least in their most common form, are computer systems that enable Internet users to
(1) make files (including motion pictures) stored on each user’s computer available for copying
by other users; (2) search for files stored on other users’ computers; and (3) transfer exact copies
of files from one computer to another via the Internet.
6. At any given moment and depending on the particular P2P network involved, anywhere
from thousands to millions of people, either across the country or around the world, unlawfully
use the P2P network to upload (distribute) or download (copy) copyrighted material. The P2P
systems represent a “viral” distribution of digital files: each user of the system who copies a
digital file from another user can then distribute the file to still other users and so on, so that
almost-perfect copies of an infringing file can be distributed to millions of people worldwide

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with breathtaking speed. Significantly, a person who uses a P2P network is free to use any alias
(or “network name”) whatsoever, without revealing his or her true identity to other users. Thus,
while Plaintiff has observed the infringement occurring on the Internet, it does not know the true
names or addresses of those individuals who are committing the infringement.
7. We observed that the manner of the transfer of the Motion Picture for which Plaintiff
holds the exclusive rights among the P2P network. The P2P methodologies make even small
computers with low bandwidth capable of participating in large data transfers across a P2P
network. The initial file-provider intentionally elects to share a file using a P2P network. This is
called “seeding.” Other users (“peers”) on the network connect to the seeder to download. As
yet additional peers request the same file, each additional user becomes a part of the network
from where the file can be downloaded. However, unlike a traditional peer-to-peer network,
each new file downloader is receiving a different piece of the data from each user who has
already downloaded the file that together comprises the whole. This means that every “node” or
peer user who has a copy of the infringing copyrighted material on a P2P network can also be a
source of download for that infringing file.
8. This distributed nature of P2P leads to a rapid viral spreading of a file throughout peer
users. As more peers join the swarm, the likelihood of a successful download increases. Because
of the nature of a P2P protocol, any seed peer who has downloaded a file prior to the time a
subsequent peer downloads the same file is automatically a possible source for the subsequent
peer so long as that first seed peer is online at the time the subsequent peer downloads a file.
Essentially, because of the nature of the swarm downloads as described above, every infringer is
simultaneously stealing copyrighted material from many ISPs in numerous jurisdictions around
the country. (See Decl. of Daniel Arheidt.)

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9. Because the Plaintiff has not authorized this copyrighted Motion Picture to be copied or
distributed in unsecured P2P networks, I believe that the copying and distribution of the Motion
Picture on P2P networks violates the copyright laws.
Plaintiff’s Identification of the Doe Defendants
10. In order to assist Plaintiff in combating copyright infringement on P2P networks, the
USCG retained Guardaley Limited (“Guardaley”), a company incorporated in England and
Wales under company number 06576149. Guardaley provides anti-piracy and copyright
protection services through sophisticated technology and proprietary technology and software
programs. (See Decl. of Daniel Arheidt.) Guardaley caused searches of several P2P networks to
be conducted for infringing copies of the Plaintiff’s Motion Picture. The search function of the
P2P network was used to look for network users who were offering for distribution audiovisual
files that were labeled with the names of Plaintiff’s copyrighted Motion Picture. Guardaley then
conducted a download of the respective content and careful and thorough review of that data.
Unique hash values of these files were created as soon as the content has been verified as a valid
copy of Plaintiff’s copyrighted Motion Picture. Guardaley started searching for individuals
making the content identified by these hash values available to the public. When a network user
was located who was making that content available for distribution, Guardaley downloaded a
part of that file(s) and stored other specific information in order to confirm that infringement was
occurring and to identify the infringer by the unique Internet Protocol (“IP”) address assigned to
that Defendant by his/her ISP on the date and at the time of the Defendant’s infringing activity.

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The Need For Expedited Discovery
11. Obtaining the identity of copyright infringers on an expedited basis is critical to
prosecution of this action and stopping the continued infringement of this copyrighted Motion
Picture. Without expedited discovery in the instant case, Plaintiff has no way of serving
Defendants with the complaint and summons in this case. Plaintiff does not have Defendants’
names, addresses, e-mail addresses, or any other way to identify or locate Defendants, other than
the unique IP address assigned to each Defendant by his/her ISP on the date and at the time of
the Defendant’s infringing activity.
12. Further, Internet service providers have different policies pertaining to the length of time
they preserve session data which identify their subscribers. Despite requests to preserve the
information, some ISPs keep the session data of their subscribers’ activities for only limited
periods of time -- sometimes as little as weeks or even days -- before erasing the data they
contain. If an ISP does not have to respond expeditiously to a discovery request, the
identification information in that ISP’s logs may be erased.
13. The Motion Picture for which Plaintiff holds the exclusive licensing and distribution
rights continue to be made available for unlawful transfer and distribution using P2P protocols,
in violation of Plaintiff’s rights. USCG and Guardaley continue to monitor such unlawful
distribution and transfer of Plaintiff’s Motion Picture and to identify infringers. (See Decl. of
Daniel Arheidt.)

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