Malibu Media, LLC v. John Does 1-29
Filing
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ORDER granting 3 Plaintiff's Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference. SEE ORDER FOR DETAILS AND INSTRUCTIONS. Signed by Magistrate Judge Sheri Polster Chappell on 10/29/2012. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MALIBU MEDIA, LLC,
Plaintiff,
v.
Case No: 2:12-cv-558-FtM-99SPC
JOHN DOES 1-29,
Defendant.
___________________________________/
ORDER
This matter comes before the Court on Plaintiff's Motion for Leave to Serve Third Party
Subpoenas Prior to a Rule 26(f) Conference (Doc. #3) filed on October 25, 2012. In support of
its Motion, Plaintiff attached its Memorandum of Law (Doc. #3-1), a Declaration of Tobias
Fieser (Doc. #3-2), a Functional Description (Doc. #3-3) of IPP International IPTRACKER
v1.2.1, and a chart (Doc. #3-4) that lists of each Defendant’s IP address and the day Plaintiff
alleges each Defendant engaged in the infringing conduct.
On October 10, 2012, Plaintiff Malibu Media, LLC 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 “Transcedence.” 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 4 of its Motion (Doc. #3-4) 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. Patrick 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,
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(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.
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 Malibu Media, LCC holds the copyright for the motion
picture “Transcedence.” (Doc. #1-2). Additionally, Plaintiff’s research has indicated that the
movie has been infringed upon and as 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, #3-2).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
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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. #3-2, ¶ 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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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.
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. #3-2, ¶ 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. #3-4) in Exhibit 4 of its Motion.
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:
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(1) Plaintiff's Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f)
Conference (Doc. #3) is GRANTED.
(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 to the Motion. 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 or 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
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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 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 29th day of October, 2012.
Copies: All Parties of Record
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