Malibu Media, LLC v. DOE
Filing
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MEMORANDUM AND ORDER granting 4 Motion to Expedite. Signed by Judge James K. Bredar on 12/13/13. (Attachments: # 1 Attachment)(apls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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MALIBU MEDIA, LLC,
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Plaintiff
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v.
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JOHN DOE subscriber assigned IP address *
108.40.7.60,
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Defendant
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CIVIL NO. JKB-13-3659
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MEMORANDUM AND ORDER
The Court has pending before it this lawsuit brought by Plaintiff Malibu Media
(“Malibu” or “Plaintiff”) alleging copyright infringement and other claims against a single “John
Doe” defendant (“Doe Defendant”), who is alleged to have utilized the BitTorrent file
distribution network to download adult pornographic films subject to copyrights held by Malibu.
The Doe Defendant has been identified in the lawsuit only by an Internet Protocol address1 (“IP
Address”) assigned to a customer on a specific date by an Internet Service Provider (“ISP” or
“Provider”) and through which the copyrighted work was allegedly downloaded. Malibu has
filed a motion for leave to serve a third-party subpoena prior to a Federal Rule of Civil Procedure
26(f) discovery conference (ECF No. 4), requesting permission to initiate discovery to identify
the account subscriber (“Doe Subscriber”) associated with the IP Address used to download its
copyrighted films, notwithstanding the provisions of Rule 26(d)(1), which preclude a party from
1
An IP address is not really an “address” or physical “place” in the usual sense of the words, and
therefore the term can be quite misleading. In fact, it is only an electronic “route” to the Internet
assigned by a Provider to a customer on a given date and hour to provide access to the Internet.
The route can be assigned to different customers on given dates or given hours. If a customer
accesses the Internet briefly and signs off, the IP address is assigned to another customer.
seeking discovery from any source before the parties have conferred as required by Rule 26(f).
Malibu contends that it must be permitted to issue a Rule 45 subpoena to Providers to identify
the customer assigned the IP Address on the date or dates in question in order to learn the
identity of the person responsible for downloading the copyrighted works, and that there is no
other way for it to obtain this information.
The Court is aware that in similar cases filed by plaintiffs in other jurisdictions against
Doe Defendants, concerns have been raised as to the sufficiency of the allegations of complaints
because association of an IP address with a customer may be insufficient to state a claim.2 There
also have been reports of plaintiffs undertaking abusive settlement negotiations with Doe
Defendants due to the pornographic content in the copyrighted works, the potential for
embarrassment, and the possibility of defendants paying settlements even though they did not
download the plaintiff’s copyrighted material.3
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See, e.g., Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233, 237-39 (E.D.N.Y. 2012) (noting many
courts’ “skepticism of the use of IP addresses to identify file sharing defendants in cases
involving pornographic films,” adopting a magistrate judge’s finding that “an IP address alone is
insufficient to establish ‘a reasonable likelihood [that] it will lead to the identity of defendants
who could be sued,’” and observing that “[d]ue to the prevalence of wireless routers, the actual
device that performed the allegedly infringing activity could have been owned by a relative or
guest of the account owner, or even an interloper without the knowledge of the owner.”).
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See, e.g., Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (“The Court is
concerned about the possibility that many of the names and addresses produced in response to
Plaintiff’s discovery request will not in fact be those of the individuals who downloaded [the
copyrighted material]. The risk is not purely speculative; Plaintiff’s counsel estimated that 30%
of the names turned over by ISPs are not those of individuals who actually downloaded or shared
copyrighted material. Counsel stated that the true offender is often the ‘teenaged son . . . or the
boyfriend if it’s a lady.’”); K-Beech, Inc. v. Does 1-85, No. 3:11cv469-JAG, at 4 (E.D. Va.
Oct. 5, 2011), ECF No. 9 (“Some defendants have indicated that the plaintiff has contacted them
directly with harassing telephone calls, demanding $2,900 in compensation to end the litigation. .
. . This course of conduct indicates that the plaintiffs have used the offices of the Court as an
inexpensive means to gain the Doe defendants’ personal information and coerce payment from
them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply
have used the Court and its subpoena powers to obtain sufficient information to shake down the
John Does.”).
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Having considered the concerns raised by other courts that have addressed similar cases,
and Malibu’s motion requesting permission to initiate discovery to identify the John Doe
Subscriber, the Court GRANTS the motion, subject to the following conditions and limitations:
1. Malibu may obtain from the clerk a Subpoena to be served on the ISP through
which the Doe Subscriber allegedly downloaded the copyrighted work, and it may
serve the ISP in accordance with Federal Rule of Civil Procedure 45. The
Subpoena may command production of documents and or electronically stored
information (collectively, “Information”) identifying the Doe Subscriber. The
Subpoena shall have as attachments a copy of the complaint filed in this lawsuit
and a copy of this Order.
2. After having been served with the Subpoena, the ISP will delay producing to
Malibu the subpoenaed Information until after it has provided the Doe Subscriber
with
a. Notice that this suit has been filed naming the Doe Subscriber as the
one that allegedly downloaded copyright protected work;
b. A copy of the Subpoena, the complaint filed in this lawsuit, and this
Order;
c. Notice that the ISP will comply with the Subpoena and produce to
Malibu the Information sought in the Subpoena unless, within 30 days
of service of the Subpoena, the Doe Subscriber files a motion to quash
the Subpoena or for other appropriate relief in this Court. If a timely
motion to quash is filed, the ISP shall not produce the subpoenaed
Information until the Court acts on the motion.
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3. The Doe Subscriber may move to quash the Subpoena anonymously, but MUST
PROVIDE his or her name and current address to the Clerk of the Court so that
the court may provide notice of the filings to the Subscriber. This may be
accomplished by completing and mailing to the Clerk of the Court the attached
form. This contact information will not be disclosed to the Plaintiff and will be
used solely for the purposes stated above. The Court will not decide any motions
until the Doe Subscriber has provided all required information. If the Doe
Subscriber fails to file a motion to quash the Subpoena or for other appropriate
relief within 30 days, the ISP shall provide to Malibu the Information requested in
the Subpoena within 14 days. Malibu’s use of this Information shall be restricted
as further provided in this Order. Pursuant to Rule 45(c), Malibu shall reimburse
the ISP for its reasonable costs and expenses, including attorney’s fees, associated
with complying with the Subpoena and this Order.
4. On receipt of the Information from the ISP, Malibu must mark it as “Highly
Confidential,” and, in the absence of further order of the Court, may only use it to
determine whether, pursuant to Rule 11(b), it has sufficient information to amend
the complaint to name as an individual defendant the Subscriber. Unless
otherwise ordered by the Court, Malibu, its agents, representatives, and attorneys
may not disclose the Information received from the ISP to any person not directly
involved as an attorney in representing Malibu in this copyright infringement
action relating to the Information received, except as provided below. Any person
to whom the Information or its contents is disclosed shall be required to sign an
agreement to be bound by the provisions of this Order, enforceable by an action
for contempt, prior to being informed of the Information or its contents. Any
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amended complaint filed by Malibu naming an individual defendant shall be filed
so that the name and any specifically identifying information is redacted from the
publicly available court docket, to be replaced by first and last initials only, with
an unredacted copy of the amended complaint filed under seal. If Malibu
determines that the Information received pursuant to the Subpoena is insufficient
to support the filing of an amended complaint, it may
a. Serve a subpoena pursuant to Rule 45(a)(1)(B) commanding the
Subscriber to appear and attend a deposition to answer questions
regarding whether the Subscriber was responsible for downloading the
copyrighted work alleged in the original complaint.
b. Pursuant to Rule 26(b)(2)(C), the deposition permitted pursuant to
paragraph 4.a of this order shall not last more than one hour in
duration. Pursuant to Rule 37(a)(4), the Subscriber shall answer
questions fully and unevasively, but may refuse to answer questions
that would require the disclosure of privileged (including the 5th
Amendment privilege against self-incrimination) or work product
protected information, as described in Rule 26(b)(1), (3), and (5).
c. No further discovery will be permitted unless authorized by the Court.
5. Malibu is prohibited from initiating, directly or indirectly, any settlement
communications with any unrepresented Doe Defendant whose identity has been
revealed pursuant to the Subpoena or deposition described in paragraph 4 above.
Any settlement communications with an unrepresented Doe Defendant shall be
initiated only as approved by the Court. On request submitted to the Court at any
time by Malibu or the Doe Subscriber, whether represented or unrepresented,
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settlement shall be conducted under supervision of one or more Magistrate Judges
designated by the Court for this purpose. Unless otherwise ordered by the Court,
any settlement negotiations shall be subject to the confidentiality provisions of
Local Rule 607.4. This paragraph shall not prevent Malibu from initiating or
responding to a request for settlement communications with a Doe Defendant who
is represented by counsel.
DATED this 13th day of December, 2013.
BY THE COURT:
/s/
James K. Bredar
United States District Judge
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