Malibu Media, LLC v. Doe

Filing 10

ORDER granting 4 the Plaintiff Malibu Media, LLC's Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. SEE ORDER FOR DETAILS. Signed by Magistrate Judge Sheri Polster Chappell on 5/17/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MALIBU MEDIA, LLC,
Plaintiff,
v.

Case No: 2:13-cv-259-Ftm-99SPC

JOHN DOE,
Defendant.
___________________________________/
ORDER
This matter comes before the Court on the Plaintiff Malibu Media, LLC’s Motion for
Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference (Doc. #4) filed on April
9, 2013.
On April 4, 2013, Plaintiff, Malibu Media, LLC., filed the instant copyright infringement
action (Doc. #1) alleging that John Doe is liable for direct copyright infringement in violation of
28 U.S.C. § 1400(a) (venue for copyright cases) and direct copyright infringement in violation of
17 U.S.C. §§ 106, and 501. Plaintiff has now filed the instant motion to take early discovery.
Plaintiff alleges that John Doe’s acts of copyright infringement occurred using an Internet
Protocol (“IP”) address traced to an IP address 98.208.225.207 which is located within the
Middle District of Florida. (Doc. # 1-1). Plaintiff requests that the Court allow it to serve Federal
Rule 45 subpoenas on certain Internet Service Provider (“ISP”) to obtain identifying information
for John Doe so that Plaintiff may complete service of process on the Defendant. Plaintiff states
that it owns a copyright to the motion pictures listed in Exhibit B. Plaintiff alleges that John Doe,
without Plaintiff’s consent or permission, used a BitTorrent protocol and a BitTorrent client to
reproduce and distribute thirty-three (33) separate films or portions of the films. 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 Defendant John
Doe’s name and address and therefore is unable to locate John Doe to effect service of process.
Plaintiff has been able to obtain only the IP address for John Doe. Plaintiff requests that the
Court allow Plaintiff to serve a Rule 45 third-party subpoena on John Doe’s ISP address (Doc. #
1-1) so that Plaintiff may obtain the name and contact information of John Doe.
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, 2010 WL 5422569, * 2 (N.D.
Cal. December 28, 2011). “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. 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)

2

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 listing of
the various films and the hash tags showing that they were downloaded. (Doc. # 1-1).
Additionally, Plaintiff’s research has indicated that the movies were infringed upon and is able to
isolate the transactions and the IP address being used on the BitTorrent protocol and a BitTorrent
Client to reproduce, distribute, display, or perform Plaintiff’s copyrighted works. 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).
Plaintiff hired IPP Limited (IPP) a company that provides among other things, forensic
investigation services to copyright owners. Tobias 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. #4-2) stated that he “routinely identif[ies] the
Internet Protocol (IP”) addresses that are being used by those people that are using the BitTorrent
protocol to reproduce, distribute, display or perform copyright works.” (Doc. #4-2, at ¶ 6).
Second, Plaintiff has established that it lacks any means of obtaining the subpoenaed
information. Plaintiff only has the IP address and cannot locate any further information. Rather,
once the IP address, plus the date and time of the detected and documented infringing activity are
provided to the ISP, the ISP can access the identifying information of the subscriber. It appears
that Plaintiff has taken all of the steps it can to identify John Doe.

3

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. #4-2). Thus, there is a chance that the ISP will destroy
the logs needed by Plaintiff.
Fourth, Plaintiff has sufficiently described John Doe by listing the IP address assigned to
John Doe, on the days Plaintiff alleges Defendant John Doe engaged in the infringing conduct in
a chart (Doc. #1-1) 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 Defendant John Doe’s true identity
outweighs Defendant John Doe’s interest 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 leave to
conduct early discovery to identify John Doe.
Accordingly, it is now
ORDERED:
The Plaintiff Malibu Media, LLC’s Motion for Leave to Serve a Third Party Subpoena
Prior to a Rule 26(f) Conference (Doc. #4) is GRANTED.

4

(1) Plaintiff may serve the ISP with a Rule 45 subpoena commanding the 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 IP address 98.208.225.207
set forth in Exhibit B of the Complaint. Plaintiff shall attach to any such subpoena a copy of the
Complaint, Motion, and this Order.
(2) 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
the Defendant.
(3) 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.
(4) The subpoenaed ISP shall not require Plaintiff to pay a fee in advance of providing
the subpoenaed information; nor shall the subpoenaed ISP 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 consumer. If necessary, the Court shall resolve any disputes

5

between the ISP and Plaintiff regarding the reasonableness of the amount proposed to be charged
by the ISP after the subpoenaed information is provided to Plaintiff.
(5) 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 17th day of May, 2013.

Copies: All Parties of Record

6