Malibu Media, LLC v. John Does 1-12

Filing 7

ORDER finding as moot 6 Motion for Hearing; granting 2 Motion for discovery. See written order. Entered by Magistrate Judge John A. Gorman on 11/26/12. (WW, ilcd)

E-FILED

Monday, 26 November, 2012 03:23:40 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS

Malibu Media LLC,

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Plaintiff
v.
John Does 1-12
Defendant

Case No. 12-1342

ORDER
Plaintiff Malibu Media LLC has a motion ( #2) seeking an Order granting it limited
discovery before a Rule 26(f) Conference. Also filed is a motion for expedited hearing (#6). As
stated herein, the Motion (#2) for discovery is GRANTED and Motion (#6) for hearing is MOOT.
I. INTRODUCTION
The complaint in this matter sets out a copyright infringement based on the John Does’ use
of the Internet and the BitTorrent protocol to commit that infringement. Each of the John Does has
an Internet Protocol (IP) number, assigned by his or her respective Internet Service Provider (ISP).
The ISP maintains internal logs recording the date, time and customer identify for each IP address
assignment made by the ISP. Using special software, Plaintiff alleges that it was able to identity the
IP number of the alleged infringers. The details of the technology involved and its use in this case
are stated in an affidavit attached to the motion.
The only way Plaintiff has to actually identify these John Does - so that service of process
may be had and the case may truly commence - is to obtain that information from the Internet
Service Providers (ISP). Plaintiff asks for leave to serve Rule 45 subpoenas on the John Does’ ISPs
and any related intermediary ISPs, demanding the true name, address, telephone number, email

address, and Media Access Control (MAC) address 1of each of the John Does to whom the ISP
issued the pertinent IP address.
II. DISCUSSION
The Federal Rules of Civil Procedure permit a party to obtain discovery “regarding any
nonprivileged matter that is relevant to any party's claim or defense,” which matter expressly
includes “the identity and location of persons who know of any discoverable matter.” FRCP
26(b)(1). The scope of discovery under Rule 26 permits a party to obtain “discoverable matter”
relevant to its claims, irrespective of the location of such evidence. See discussion in AF Holdings
LLC v Does 1-1, 058, 2012 WL 3204917 (DDC 2012).
This Rule also gives the district courts broad discretion in matters relating to discovery.
Semien v Life Insurance Company of North America, 436 F3d 805, 813 (7th Cir 2006); Nieman v
Grange Mutual Insurance Co, 2012 WL 5029875 (CD Ill), citing Brown–Bey v United States, 720
F2d 467, 470–471 (7th Cir 1983); Eggleston v Chicago Journeymen Plumbers' Local Union 130,
657 F2d 890, 902 (7th Cir1981); Indianapolis Colts v Mayor and City Council of Baltimore, 775
F2d 177, 183 (7th Cir1985).
Federal Rule of Civil Procedure 26(d) explains that parties may generally serve discovery
only after a Rule 26(f) conference, “except ... when authorized by ... court order.” FRCP26(d)(1).
To determine whether to authorize expedited discovery in a particular case, courts generally apply
a “good cause” standard. FRCP 26(b) (“for good cause, the court may order discovery of any matter
relevant to the subject matter involved in the action.”) See also, for example, Malibu Media, LLC
v John Does 1-23, 2012 WL 1144822 (D Colo 2012); Arista Records LLC v Does 1-19, 551

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This address identifies the hardware connected to a network.
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FSupp2d 1 (DDC 2008); Interscope Records v Does 1–14, 2007 WL 2900210, *1 (D Kan); Warner
Bros. Records, Inc. v Does 1–14, 2007 WL 1960602, *1 (D Utah ); LaFace Records LLC v Does 15, 2007 WL 2867351, *1 (WD Mich); OpenMind Solutions, Inc. v Does 1-39, 2011 WL 4715200
(ND Cal 2011).
I find that good cause exists to permit Plaintiff to conduct pre-conference discovery to
ascertain the identities of the Doe Defendants. Because of the very nature of internet infringement,
it is often the case that a plaintiff cannot identify an infringer in any way other than by IP number.
Given the substantial federal policy underlying copyright law, it would be a travesty to let
technology overtake the legal protection of that policy.
Efforts to learn the identity of potential infringers would meet that “good cause” standard,
at least if the complaint appears to state a prima facie claim of copyright infringement. Basic
copyright principles are clear. The owner of a copyright has the exclusive right to reproduce and
distribute copies of a copyrighted work. See 17 USC § 106. To establish infringement of copyright,
“two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original.” Feist Publications, Inc v Rural Telephone Service Co, 499
US 340, 361 (1991). It is also well established that “one who, with knowledge of the infringing
activity, induces, causes or materially contributes to the infringing conduct of another, may be held
liable as a ‘contributory’ infringer,” Gershwin Publishing Corp v Columbia Artists Management,
Inc, 443 F2d 1159, 1162 (2d Cir 1971) (“Gershwin ”). See, for example, Metro–Goldwyn–Mayer
Studios Inc v Grokster, Ltd, 545 US 913, 930 (2005)
The complaint in this case alleges that Plaintiff is the exclusive holder of the copyright to the
motion picture in question; that the John Does used the BitTorrent protocol to infringe on that

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copyright by intentionally participating in a swarm the purpose of which was to reproduce and
distribute the video to third parties without the permission of the Plaintiff; and that by that using
forensic software it was able to identify John Does’ IP addresses as 99.46.242.157. The complaint
satisfies the requirement that it state a prima facie claim of copyright infringement.
Moreover, as noted under nearly identical circumstances by the Court in Arista Records,
good cause for expedited discovery exists because the “[d]efendants must be identified before this
suit can progress further.” 551 F Supp 2d at 6. Each John Doe is alleged to have engaged in
anonymous online behavior, which will remain anonymous unless Plaintiff is able to ascertain
his/her identity. Thus, Plaintiff’s belief that there are no practical methods to discover the John
Does’ identity without court-ordered discovery is reasonable.
Finally, the discovery sought by Plaintiff is narrow and focused. Plaintiff has specifically
identified the ISPs from which this focused discovery is sought, and has explained the likelihood
that the ISPs will be able to identify each John Doe with specificity, which will allow him/her to be
served with process and participate in this litigation.
III. CONCLUSION
Plaintiff’s motion [#2] is therefore GRANTED, and Plaintiff is permitted to conduct
expedited discovery, pursuant to Fed.R.Civ.P. 45, for the limited purpose of discovering the
identities of the John Doe Defendants, as follows:

1.

2.

Plaintiff has established that “good cause” exists for it to service third party
subpoenas on the Internet Service Providers listed on Exhibit B to the Declaration
of Tobias Fieser, attached as an exhibit to Plaintiff’s Memorandum in support of this
Motion
Plaintiff may serve each such ISP with a Rule 45 subpoena, commanding it 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 IPS assigned
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3.

4.

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an identified IP address as set forth in Exhibit A to the complaint. Plaintiff shall
attached to any such subpoena a copy of this Order.
Plaintiff may also serve a Rule 45 subpoena in the same manner as above on any ISP
identified in response to any such subpoena as a provider of internet services to one
of the Defendants.
Any ISP that qualifies as a “cable operator” as defined by 47 USC §522(f) shall
comply with 57 U.S.C. § 551(c)(2)(B) by notifying the subscriber identified of this
Order.
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.

ENTER this 26th day of November, 2012.
s/ John A. Gorman
JOHN A. GORMAN
UNITED STATES MAGISTRATE JUDGE

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