MALIBU MEDIA LLC v. DOE subscriber assigned IP address 98.254.161.72
Filing
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ORDER granting 4 Plaintiff's Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 4/4/2014. (ssk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-60259-CIV-ROSENBAUM
MALIBU MEDIA, LLC,
Plaintiff,
v.
JOHN DOE subscriber assigned IP
address 98.254.161.72,
Defendant.
____________________________/
ORDER
This cause is before the Court upon Plaintiff’s Motion for Leave to Serve a Third Party
Subpoena Prior to a Rule 26(f) Conference [ECF No. 4]. On January 31, 2014, Plaintiff filed this
action for copyright infringement against a John Doe Defendant, alleging that Defendant
downloaded, copied, and distributed complete copies of Plaintiff’s movie files without Plaintiff’s
authorization. ECF No. 1 at 4, ¶ 20. The Complaint alleges that Defendant, identified only by his
Internet Protocol (“IP”) address, is a persistent online infringer of Plaintiff’s copyrighted materials.
Id. at 1, ¶ 2.
Plaintiff moves the Court to serve a third-party subpoena on Comcast Cable, the John Doe
Defendant’s Internet Service Provider, (“ISP”), so Plaintiff may discover the true name, address,
telephone number, and e-mail address of Defendant for the purpose of serving Defendant and
prosecuting the claims in the Complaint. ECF No. 4-1 at 4. Plaintiff asserts that it has no other
means of learning Defendant’s true identity. Id. at 7.
Ordinarily, a party may not seek discovery from any source before the parties have conducted
a discovery-planning conference pursuant to Rule 26(f), Fed. R. Civ. P. See Fed. R. Civ. P. 26(d)(1).
However, discovery prior to this conference is possible “when authorized by the rules, stipulation,
or court order.” Id. Plaintiff thus moves for a court order authorizing limited, pre-conference
discovery.
“For good cause, the court may order discovery of any matter relevant to the subject matter
involved in the action.” Fed. R. Civ. P. 26(b)(1). A case against a single defendant cannot proceed
if that defendant is unidentified. Therefore, courts routinely find good cause to serve a third-party
subpoena on an Internet Service Provider so that a plaintiff may discover the identity of a John Doe
defendant that allegedly infringed on the plaintiff’s copyright through activity on the Internet. See
Aerosoft GmbH v. John Does 1-50, 104 U.S.P.Q.2d 1697, at *3 (S.D. Fla. 2012); see also Arista
Records, LLC v. Doe 3, 604 F.3d 110, 113 (2d Cir. 2010); Arista Records LLC v. Does 1-19, 551
F. Supp. 2d 1, 4 (D.D.C. 2008) (noting that “expedited discovery was appropriate and necessary
because ‘Defendants must be identified before this suit can progress further.’”); LaFace Records,
LLC v. Does 1-5, No. 07-187, 2007 WL 2867351, at *1-2 (W.D. Mich. Sept. 27, 2007) (collecting
cases).
Some courts, however, grant expedited discovery while bemoaning their “growing concern
about unscrupulous tactics used by certain plaintiffs, particularly in the adult films industry, to shake
down the owners of specific IP addresses from which copyrighted adult films were allegedly
downloaded.” Malibu Media, LLC v. Does 1-5, No. 12-2950, 2012 WL 2001968, at *1 (S.D.N.Y.
June 1, 2012); see also Malibu Media, LLC v. John Does 1 through 12, No. 12-1261, 2012 WL
2872835, at *3 n.2 (E.D. Cal. July 11, 2012). These courts explain that “the assumption that the
person who pays for Internet access at a given location is the same individual who allegedly
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downloaded a single sexually explicit film is tenuous” because many electronic devices—and many
users—can be associated with a single IP address. Malibu Media, LLC v. Does 1-11 (In re
BitTorrent Adult Film Copyright Infringement Cases), No. 11-3995, 2012 WL 1570765, at *3-5
(E.D.N.Y. July 24, 2012), report and recommendation adopted sub nom. Patrick Collins, Inc. v. Doe
1, 288 F.R.D. 233 (E.D.N.Y. 2012). Thus, the “risk of false positives gives rise to ‘the potential for
coercing unjust settlements from innocent defendants’ such as individuals who want to avoid the
embarrassment of having their names publicly associated with allegations of illegally downloading
[adult material].” Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (quoting
SBO Pictures, Inc. v. Does 1–3036, No. 11-4220, 2011 WL 6002620, at *4 (N.D. Cal. Nov. 30,
2011)).
Because these plaintiffs define “Doe Defendants as ISP subscribers who were assigned
certain IP addresses, instead of [as] the actual Internet users who allegedly engaged in infringing
activity, [the] sought-after discovery has the potential to draw numerous innocent internet users into
the litigation, placing a burden upon them that weighs against allowing the discovery as designed.”
Malibu Media, LLC v. Doe, No. 13-857-35, 2013 WL 1620366, at *1 (M.D. Fla. Apr. 15, 2013)
(quoting SBO Pictures, 2011 WL 6002620, at *3). Courts thus take measures when granting
expedited discovery to protect possibly innocent defendants, such as allowing expedited discovery
of the identity of only one John Doe defendant in a multiple-defendant case or issuing protective
orders so that any information about the John Doe defendants released to the plaintiff is kept
confidential. Malibu Media, 2012 WL 2872835, at *3-4 (limiting expedited discovery to one
defendant); Digital Sin, 279 F.R.D. at 242-43 (granting protective order keeping identity
confidential).
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Because the instant matter is brought against only one defendant, measures taken in multipledefendant cases do not apply. But the Court finds good cause to institute procedural safeguards to
protect the identity of the John Doe Defendant in the event that he or she is not the person who
committed the infringing acts that are associated with the IP address.
Accordingly, it is ORDERED and ADJUDGED as follows:
1.
Plaintiff’s Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f)
Conference [ECF No. 4] is GRANTED;
2.
Plaintiff may serve Comcast Cable with a Rule 45 subpoena commanding Comcast Cable
to provide Plaintiff with a true name, address, telephone number, and e-mail address of the
Defendant to whom Comcast Cable assigned an IP address as set forth in Exhibit A to the
Complaint. Plaintiff shall attach to any such subpoena a copy of 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
Defendant;
4.
If the Internet service provider qualifies 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 service over a cable system and
directly or through on 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.
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it shall comply with 47 U.S.C. § 551(c)(2)(B). That statutes provides,
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.
47 U.S.C. § 551(c)(2)(B). Compliance requires Plaintiff to send a copy of this Order to such
a Defendant;
5.
The subpoenaed service provider shall not require Plaintiff to pay a fee in advance of
providing the subpoenaed information; nor shall the subpoenaed service provider require
Plaintiff to pay a fee for an IP address not controlled by the service provider. If necessary,
the Court shall resolve any disputes between the service provider and Plaintiff regarding the
reasonableness of the amount proposed to be charged by the service provider after the
subpoenaed information is provided to Plaintiff;
6.
Plaintiff may use the information disclosed in response to a Rule 45 subpoena served on the
service provider for the purpose of protecting and enforcing Plaintiff’s rights as set forth in
its Complaint;
7.
To address potential issues relating to the identity of the John Doe Defendant, the parties
shall adhere to the following procedures:
a. If Plaintiff contacts John Doe or John Doe contacts Plaintiff, Plaintiff shall
immediately inform John Doe that he or she has the right to obtain legal counsel to
represent him or her in this matter and that anything said or provided by John Doe
can and likely will be used against him or her in this proceeding;
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b. If John Doe does not wish to be contacted by Plaintiff, he or she may at any time
inform Plaintiff by phone or send Plaintiff’s counsel a letter or e-mail addressed to
klipscomb@lebfirm.com that states, “Please do not contact me (again) prior to
serving me in this matter;”
c. Plaintiff must notify John Doe, or his or her counsel if represented, of Plaintiff’s
intent to name and serve John Doe at least 14 calendar days prior to seeking issuance
of a summons from the Clerk;
d. Plaintiff shall inform John Doe of the potential for sanctions under Rule 11, Fed.
R. Civ. P., if John Doe is incorrectly identified;
e. Plaintiff shall provide a copy of this Order to John Doe;
f. Plaintiff must notify John Doe that he or she may submit a written or electronic
objection to Plaintiff’s counsel. If John Doe asserts that he or she did not personally
commit the infringing act, John Doe must identify the individual responsible for the
infringement, or, if the identity of the infringing individual is unknown, provide
exculpatory evidence regarding his or her innocence. Plaintiff’s counsel shall file,
or attempt to file, that objection under seal with this Court, along with any response
the Plaintiff has to the objection. See Local Rule 5.4. Thereafter, the Court will
consider John Doe’s objection and the response and determine if the case shall
proceed against John Doe. Until the Court makes such a determination, Plaintiff may
not identify John Doe by name in this lawsuit. If, however, John Doe does not object
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in writing or electronically, Plaintiff may proceed by naming John Doe in this case.
DONE and ORDERED in Fort Lauderdale, Florida, this 4th day of April 2014.
ROBIN S. ROSENBAUM
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Counsel of record
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