Patrick Collins, Inc. v. Does 1-43
Filing
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ORDER granting 5 The Plaintiff, Patrick Collins, Inc.'s Motion for Leave to Serve Third Party Subpoenas Prior to Rule 26(f) Conference. SEE ORDER FOR DETAILS. Signed by Magistrate Judge Sheri Polster Chappell on 10/1/2012. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICK COLLINS, INC.,
Plaintiff,
v.
Case No: 2:12-cv-521-FtM-29SPC
JOHN DOES 1-43,
Defendant.
___________________________________/
ORDER
This matter comes before the Court on the Plaintiff, Patrick Collins, Inc.'s Motion for
Leave to Serve Third Party Subpoenas Prior to Rule 26(f) Conference (Doc. #5) filed on
September 25, 2012. In support of its Motion, Plaintiff attached its Memorandum of Law (Doc.
#5-1) and a Declaration of Tobias Fieser (Doc. #5-2).
On September 19, 2012, Plaintiff Patrick Collins, Inc. filed the instant copyright
infringement action (Doc. #1) alleging that each John Doe Defendant is liable for direct
copyright infringement in violation of 17 U.S.C. § § 106 and 501 and contributory copyright
infringement. Plaintiff has now filed the instant motion to take early discovery. Plaintiff alleges
that each of the Defendants’ acts of copyright infringement occurred using an Internet Protocol
(“IP”) address traced to a physical address located within the Middle District of Florida. Plaintiff
requests that the Court allow it to serve Federal Rule 45 subpoenas on certain Internet Service
Providers (“ISPs”) to obtain identify information for the John Doe Defendants so that Plaintiff
may complete service of process on them.
Plaintiff states that it owns a copyright to the motion picture entitled “Performers of the
Year 2012.” Pl. Compl. at ¶ 11, pg. 3. Plaintiff alleges that the John Doe Defendants, without
Plaintiff’s consent or permission, used a BitTorrent protocol and a BitTorrent client to reproduce
and distribute the film or portions of the film. As a result, Plaintiff alleges that it has incurred
monetary damages, including lost sales, price erosion and a diminution of the value of its
copyright. Plaintiff seeks monetary and injunctive relief, and costs and attorneys’ fees.
With regard to the instant Motion, Plaintiff alleges that it does not know Defendants’
names and addresses and therefore is unable to locate them to effect service of process. Plaintiff
has been able to obtain only the IP addresses for each of the Defendants and the ISP for each IP
address. Plaintiff requests that the Court allow Plaintiff to serve Rule 45 third-party subpoenas
on each ISP listed in Exhibit A of its Complaint (Doc. #1-1) so that Plaintiff may obtain the
names and contact information of the John Doe Defendants.
A court may authorize early discovery before the Rule 26(f) conference for the parties’
and witnesses’ convenience and in the interests of justice. Fed. R. Civ. Proc. 26(d). Pursuant to
Federal Rule 26(b), courts may order discovery of any relevant matter for good cause. Courts
who have dealt with these sorts of cases generally consider whether a plaintiff has shown “good
cause” for the early discovery. Partick Collins. V. Does 1-1219, No. C10-04468LB, 2010 WL
5422569, *2 (N.D. Cal. Dec. 28, 2010) (collecting cases and standards). “A plaintiff who is
unaware of the identity of the person who has wronged her can . . . proceed against a ‘John Doe’
. . . when discovery is likely to reveal the identity of the correct defendant.” Penalbert-Rosa v.
Fortuno-Burset, 631 F.3d 592 (1st Cir. 2011). “In Internet infringement cases, courts routinely
find good cause exists to issue a Rule 45 subpoena to discover a Doe defendant’s identity, prior
to a Rule 26(f) conference, where a plaintiff makes: (1) a prima facie showing of infringement,
(2) there is no other way to identify the Doe Defendant, and (3) there is a risk an ISP will destroy
its logs prior to the conference.” UMG Recording, Inc. v. Doe, 2008 WL 4104214, *4 (N.D. Cal.
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2008). In addition, some courts also analyze a defendant’s First Amendment right to privacy in
determining whether to allow the discovery. In these cases, courts require Plaintiff to (4) specify
the discovery requested, (5) demonstrate a central need for the subpoenaed information to
advance the asserted claims, and (6) establish that the party’s expectation of privacy does not
outweigh the need for the requested discovery. Sony Music Entertainment v. Does 1-40, 326 F.
Supp. 2d 556, 564-65 (S.D.N.Y. 2004).
In this case, Plaintiff has satisfied the above-listed factors. First, Plaintiff has made a
concrete showing of a prima facie claim of copyright infringement. Plaintiff attached a screen
shot of a copyright database showing that Patrick Collins, Inc. holds the copyright for the motion
picture “Performers of the Year 2012.” (Doc. #1-2). Additionally, Plaintiff’s research has
indicated that the movie has been infringed upon and was able to isolate the transactions and the
IP addresses being used on the BitTorrent protocol and a BitTorrent Client to reproduce,
distribute, display, or perform Plaintiff’s copyrighted work.
(Doc. #1, ¶36-42, #5-2).1
Moreover, the use of such programs to download copyrighted music infringes copyright. In re
Aimster Copyright Litig., 334 F.3d 643, 645 (7th Cir. 2003), cert. denied, 124 S. Ct. 1069
(2004).
Second, Plaintiff has established that it lacks any means of obtaining the subpoenaed
information. Plaintiff only has the IP addresses and cannot locate any further information.
Rather, once the IP addresses, plus the date and time of the detected and documented infringing
activity are provided to the ISP, the ISPs can access the identifying information of the subscriber.
It appears that Plaintiff has taken all of the steps it can to identify the John Doe Defendants.
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Plaintiff hired IPP, Limited, a company that provides among other things, forensic investigation services to
copyright owners. Mr. Fieser is employed by IPP. Fieser, in the Declaration of Tobias Fieser in Support of
Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference (Doc. #5-2, ¶ 6),
stated that he “routinely identif[ies] the Internet Protocol (IP”) addresses that are being used by those people that are
suing the BitTorrent protocol to reproduce, distribute, display or perform copyright works.”
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Third, Plaintiff through the Declaration of Tobias Fieser, informs the Court that “[m]any
ISPs only retain the information sufficient to correlate an IP address to a person at a given time
for a very limited amount of time.” (Doc. #5-2, ¶ 11). Thus, there is a chance that the ISPs will
destroy the logs needed by Plaintiff.
Fourth, Plaintiff has sufficiently described the John Doe Defendants by listing the IP
address assigned to them on the day Plaintiff alleges each Defendant engaged in the infringing
conduct in a chart (Doc. #1-1) in Exhibit 1 of its Complaint.
Fifth, Plaintiff has demonstrated the need for the subpoenaed information in order to
advance its claims as there appears no other means of obtaining this information and the
information is needed in order to prosecute Plaintiff’s viable claim for copyright infringement.
Sixth, and finally, Plaintiff’s interest in knowing Defendants’ true identities outweighs
Defendants’ interests in remaining anonymous. Plaintiff has a strong legitimate interest in
protecting its copyrights and it has been held that copyright infringers have no legitimate
expectation of privacy in the subscriber information they provide to ISPs. “[A] number of other
jurisdictions who have deemed that a file sharer’s First Amendment right to anonymity is
“exceedingly small.” Call of the Wild Movie, LLC v. Does 1-1062 et al., — F. Supp. 2d —,
2011 WL 996786, *12 (D.D.C. Mar. 22, 2011). Based on the above discussion of the factors, the
Court finds that the Plaintiff has demonstrated good cause to grant Plaintiff leave to conduct
early discovery to identify the John Doe Defendants.
Accordingly, it is now
ORDERED:
The Plaintiff, Patrick Collins, Inc.'s Motion for Leave to Serve Third Party Subpoenas
Prior to Rule 26(f) Conference (Doc. #5) is GRANTED.
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(2) Plaintiff may serve each of the ISPs with a Rule 45 subpoena commanding each ISP
to provide Plaintiff with the true name, address, telephone number, e-mail address, and Media
Access Control (“MAC”) address of the Defendant to whom the ISP assigned an IP address as
set forth in Exhibit A of the Complaint. Plaintiff shall attach to any such subpoena a copy of the
Complaint, Motion, and this Order.
(3) Plaintiff may also serve a Rule 45 subpoena in the same manner as above on any
service provider that is identified in response to a subpoena as a provider of internet services to
one of the Defendants.
(4) Each of the ISPs that qualify as a “cable operator,” as defined by 47 U.S.C. § 522(5),
which states:
the term “cable operator” means any person or group of persons
(A) who provides cable services over a cable system and directly or through one
or more affiliates owns a significant interest in such cable system, or
(B) who otherwise controls or is responsible for, through any arrangement, the
management and operation of such a cable system
shall comply with 47 U.S.C. § 551(c)(2)(B), which states:
A cable operator may disclose such [personal identifying] information if the
disclosure is . . . made pursuant to a court order authorizing such disclosure, if the
subscriber is notified of such order by the person to whom the order is directed by
sending a copy of the Complaint, the Motion and this Order to the Defendant.
(5) The subpoenaed ISPs shall not require Plaintiff to pay a fee in advance of providing
the subpoenaed information; nor shall the subpoenaed ISPs require Plaintiff to pay a fee for an IP
address that is not controlled by such ISP, or for duplicate IP addresses that resolve to the same
individual, or for an IP address that does not provide the name of a unique individual, or for the
ISP’s internal costs to notify its consumers. If necessary, the Court shall resolve any disputes
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between the ISPs and Plaintiff regarding the reasonableness of the amount proposed to be
charged by the ISP after the subpoenaed information is provided to Plaintiff.
(6) Plaintiff may only use the information disclosed in response to a Rule 45 subpoena
served on an ISP for the purpose of protecting and enforcing Plaintiff’s rights as set forth in its
Complaint.
DONE and ORDERED in Fort Myers, Florida this 1st day of October, 2012.
Copies: All Parties of Record
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