Malibu Media, LLC v. John Doe subscriber assigned IP address 71.238.55.56

Filing 9

ORDER Denying 6 Motion to Quash Third-Party Subpoena. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MALIBU MEDIA, LLC,
Plaintiff,
v.

Case No. 15-10307
HON. AVERN COHN

JOHN DOE, subscriber assigned IP
address 71.238.55.56,
Defendant.
______________________________________/
ORDER DENYING DEFENDANT’S MOTION
TO QUASH THIRD-PARTY SUBPOENA (Doc. 6)
I. INTRODUCTION
This is a copyright infringement case. Malibu Media, LLC (Plaintiff) is suing John
Doe, subscriber assigned IP address 71.238.55.56 (Defendant). Plaintiff, the copyright
owner to several adult motion pictures, claims that Defendant has violated the Copyright
Act, 17 U.S.C. § 101, by illegally downloading and sharing the motion pictures, or a
portion of the motion pictures, though an online file distribution network.
In January, the Court granted Plaintiff’s Motion for Leave to Serve Third-Party
Subpoena (Doc. 5). Now before the Court is Defendant’s Motion to Quash Plaintiff’s
Third-Party Subpoena (Doc. 6). For the reasons that follow, Defendant’s motion is
DENIED.
II. BACKGROUND
At an unspecified date, Plaintiff, the owner of several adult motion pictures, hired

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IPP International UG (IPP), to investigate copyright infringements over online file
distributions networks.
Plaintiff says that Defendant used an online file distribution network called
BitTorrent to illegally download, copy, and distribute Plaintiff’s copyrighted motion
pictures.1

To identify Defendant as a potential infringer, IPP scanned the public

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BitTorrent is one of the most common file sharing systems for distributing large
amounts of data. To distribute a large file, BitTorrent protocol breaks the file into many
smaller pieces, which are exchanged between BitTorrent users and reassembled to
complete the entire file. In Third Degree Films v. Does 1–36, No. 11–15200, 2012 WL
2522151 (E.D. Mich. May 29, 2012), under a similar set of facts to the present case, a
court in this District described the function and process of BitTorrent as follows:
Although it may be used for improper purposes, the BitTorrent
communication protocol itself is not without ingenuity. File sharing, as
relevant here, involves the challenge of quickly distributing copies of a
large digital file, e.g., a digital movie file like those found on a DVD, to a
large number of people. Under more traditional file-sharing approaches, a
digital file might reside on a few computers, e.g., servers, and those
interested in the file would download a copy of the file from those limited
sources. But, because these files tend to be large, and, perhaps, in high
demand, a high load is placed on these limited source computers and their
associated internet bandwidth. Thus, distribution to this socalled “flash
crowd” may be slow.
BitTorrent is one of several peer-to-peer file sharing protocols that
address the inefficiencies in the client-server model by making those who
download a file another source for the file. That is, sharing is among
“peers.” Users of the BitTorrent communication protocol also do not have
to download an entire file before uploading parts of the file to others. This
is because BitTorrent downloads a file in pieces, and by default, begins
sharing pieces with other peers almost immediately.

More specifically, the file distribution process using the BitTorrent
protocol works as follows. Initially, an individual with BitTorrent software
obtains a copy (perhaps legally) of the large digital file he wishes to share
(in this case, a digital version of the Work). This individual, known in
BitTorrent parlance as the “initial seeder,” uses his BitTorrent software to
divide the large file into thousands of smaller digital files known as
“pieces.” The software also creates a unique “digital fingerprint,” a 40
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BitTorrent file distribution network for the presence of illegal transactions of Plaintiff’s
copyrighted motion pictures. IPP established a connection with Defendant’s Internet
Protocol (IP) address2 and determined that Defendant had downloaded, copied, and
distributed complete copies of Plaintiff’s motion pictures without authorization. Although
IPP had used Defendant’s IP address to discover the identity and general location of the

character alpha-numeric code, for each piece. The initial seeder's
BitTorrent software also creates an associated “.torrent” file which
includes information about the original digital file, the pieces, and each
piece's digital fingerprint. The initial seeder then posts this .torrent file—but
not the large digital file to which it corresponds—to one of various
websites on the internet that host .torrent files.
When a BitTorrent user is interested in obtaining a copy of a
particular digital file, e.g., the digital movie file at issue in this case, he can
search the internet, perhaps using one of several torrent search engines,
to find a . torrent file associated with the digital file of interest. Once a user
downloads this .torrent file, the BitTorrent software, with the help of
another internet-connected computer running BitTorrent software known
as a “tracker,” uses the information in the .torrent file to locate a “swarm”
of peers sharing pieces of the particular digital file described by the
.torrent file. Downloads may be from any peer that has already
downloaded a piece of the particular digital file. This is possible because
the BitTorrent software, by default, offers for download any piece of a
digital file that it has previously downloaded. When a peer has copied a
piece from another peer, the BitTorrent software verifies the authenticity of
the piece by checking its digital fingerprint; once this is done, the peer
becomes another source for that piece. Although a particular BitTorrent
swarm may, over its lifetime, consist of thousands of peers, at any given
moment each peer is only directly sharing with a small fraction of the
swarm. Once a peer has downloaded all the pieces of the digital file of
interest (possibly receiving pieces from dozens of different peers), the
BitTorrent software re-assembles the pieces to a single digital (movie) file.
The file is then usable, or in this case, viewable, by the BitTorrent user.
Id. at *1–2 (citations and footnotes omitted).
An IP address is a unique numerical label assigned to each device (e.g.,
computer, printer) participating in a computer network, which can be used to identify a
particular location and device. IP addresses are assigned by a user’s Internet Service
Provider (ISP).

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infringing device, it could not identify the name or address of the person involved in the
infringement.
In January 2015, Plaintiff filed a Motion for Leave to Serve a Third-Party
Supoena prior to a Rule 26(f) Conference. Specifically, Plaintiff sought to serve limited
discovery on Defendant’s Internet Service Provider (ISP) so that Plaintiff might learn
Defendant’s true identity. As noted above, the Court granted the motion.
III. STANDARD OF REVIEW
A motion to quash or modify a subpoena is governed by Fed. R. Civ. P. 45(d)(3).
First, a court “must quash or modify a subpoena that: (i) fails to allow a reasonable time
to comply; (ii) requires a person to comply beyond the geographical limits specified in
Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P.
45(d)(3)(A).

Further, a court “may, on motion, quash or modify the subpoena if it

requires: (i) disclosing a trade secret or other confidential research, development, or
commercial information; or (ii) disclosing an unretained expert’s opinion or information
that does not describe specific occurrences in dispute and results from the expert’s
study that was not requested by a party.” Fed. R. Civ. P. 45(d)(3)(B).
The party seeking to quash the subpoena bears the burden of demonstrating that
the requirements of Rule 45 are satisfied. Hendricks v. Total Quality Logistics, LLC,
275 F.R.D. 251, 253 (S.D. Ohio 2011). Further, “a party does not have standing to
quash a subpoena directed to a nonparty unless the party claims a privilege, proprietary
interest, or personal interest in the information sought by the subpoena. The party

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seeking to quash a subpoena bears a heavy burden of proof.” Lyons v. Leach, 2014
WL 823411, at *1 (E.D. Mich. 2014) (citation omitted).
IV. DISCUSSION
A.
Defendant makes several arguments in support of the motion to quash. First,
Defendant says that the Complaint provides no factual basis of copyright infringement
by John Doe; “[t]herefore, it is reasonable to conclude that Plaintiff’s Complaint and the
third-party subpoena are intended solely to harass John Doe.” (Doc. 6 at 5) Defendant
says that even if there was a copyright infringement, the subpoena will identify the
person who pays the Internet bill but not necessarily the proper defendant. Defendant
says that Plaintiff’s allegations are nothing more than “speculation that [Defendant’s]
IP’s [sic] address was causing copyright infringement.” (Id. at 7).
Next, Defendant argues that the object of the subpoena is to “cause undue
burden by lowering [Defendant’s] reputation in the community.” (Id. at 6) Specifically,
Defendant argues that by allowing Plaintiff to make public its allegations that Defendant
“distributed material of questionable moral chastity,” this would be damaging to
Defendant’s reputation and cause him extreme anguish and undue hardship. Plaintiff
further says that any such public statement made by Plaintiff would be defamatory as
libel per se under Michigan law.
Finally, Defendant argues that the subpoena should be quashed because
Plaintiff violated Michigan privacy laws, M.C.L. 750.539d. This provision makes it illegal
to “(a) [i]nstall, place, or use in any private place, without the consent of the person or

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persons entitled to privacy in that place, any device for observing, recording,
transmitting, photographing, or eavesdropping upon the sounds or events in that place;”
or “(b) [d]istribute, disseminate, or transmit for access by any other person a recording,
photograph, or visual image the person knows or has reason to know was obtained in
violation of this section.” M.C.L. 750.539d(a)-(b). Specifically, Defendant says that
Plaintiff, without consent, “hacked into [Plaintiff’s] computer and invaded into his
privacy,” and that “the investigator IPP retained by the Plaintiff accessed [Defendant’s]
computer and caused information . . . to be released.” (Doc. 6 at 8).
B.
1.
Defendant’s arguments are without merit. To begin, Plaintiff has proffered a
sufficient factual basis to conclude that Defendant is the copyright infringer.

The

Complaint states that IPP established a connection with Defendant’s IP address, and
determined that a user at Defendant’s IP address downloaded, copied, and distributed
complete copies of Plaintiff’s motion pictures without authorization. Other courts have
explained that an infringing defendant’s general denials of liability are not a sufficient
basis for quashing a subpoena served on an ISP:

A general denial of engaging in copyright infringement is not a basis for
quashing the plaintiff’s subpoena. It may be true that the putative
defendants who filed motions and letters denying that they engaged in the
alleged conduct did not illegally infringe the plaintiff’s copyrighted movie,
and the plaintiff may, based on its evaluation of their assertions, decide
not to name these individuals as parties in this lawsuit. On the other hand,
the plaintiff may decide to name them as defendants in order to have an
opportunity to contest the merits and veracity of their defenses in this
case. In other words, if these putative defendants are named as
defendants in this case, they may deny allegations that they used
BitTorrent to download and distribute illegally the plaintiff’s movie, present
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evidence to corroborate that defense, and move to dismiss the claims
against them. A general denial of liability, however, is not a basis for
quashing the plaintiff’s subpoenas and preventing the plaintiff from
obtaining the putative defendants’ identifying information.
Malibu Media LLC v. John Does 1-28, No. 12-CV-12598, 2012 WL 7748917, at *12-13
(E.D. Mich. Oct. 31, 2012) (citing Voltage Pictures, LLC v. Does 1–5,000, 818
F.Supp.2d 28, 35 (D.D.C.2011)). In addition, other courts have recognized that even if
the subscriber is not the copyright infringer, the subscriber’s identity is both relevant and
discoverable. TCYK, LLC v. Does 1–47, No. 2:13–cv–539, 2013 WL 4805022, at *5
(S.D. Ohio Sept.9, 2013) (“[E]ven if discovery later reveals that a person other than the
subscriber violated plaintiff’s copyright, the subpoenaed information (the subscriber’s
contact information) is nevertheless reasonably calculated to lead to the discovery of
admissible information, i.e., the identity of the actual infringer.”).
Here, there is sufficient factual basis to conclude that Defendant is the copyright
infringer.

Nor does any alleged lack of a factual basis lead to the conclusion that

Plaintiff’s Complaint and third-party subpoena were issued “solely to harass John Doe.”
(Doc. 6 at 5)
Finally, Defendant’s objections do not fall into the limited category of rights or
privileges that permit a party to seek to quash a subpoena issued to a nonparty. Here,
Plaintiff had the subpoena served on the non-party ISP. There is no indication that the
ISP has objected to the subpoena, appeared through counsel, or otherwise moved to
quash the subpoena. Defendant does not claim a privilege, proprietary interest, or
personal interest in the information sought by the subpoena.

Here, Plaintiff seeks

information related to Defendant’s identity—information that Defendant has already

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shared with his or her ISP. Such information does not provide a basis to quash the
subpoena based on privilege or privacy interests. See, e.g., Breaking Glass Pictures v.
John Does 1–32, No. 2:13–cv–849, 2014 WL 467137, at *4 (S.D. Ohio Feb. 5, 2014).
2.
The allegations in Plaintiff’s Complaint are not defamatory under Michigan law.
Under the litigation privilege, Plaintiff’s allegations are immune from a defamation claim
by Defendant.

“Statements made during the course of judicial proceedings are

absolutely privileged, provided they are relevant, material, or pertinent to the issue
being tried. . . . The privilege should be liberally construed so that the participants in
judicial proceedings are free to express themselves without fear of retaliation.” Sawyer
v. Michigan State Police, 310 F. Supp. 2d 876, 878 (E.D. Mich. 2004) (quoting Maiden
v. Rozwood, 461 Mich. 109, 134 (1999)). Here, any such allegation related to copyright
infringement of Plaintiff’s motion pictures cannot be construed as defamatory.
In addition, to prevent any undue embarrassment to Defendant, Plaintiff does not
object to allowing Defendant to remain anonymous and litigate this case as “John Doe.”
Any such embarrassment on the part of Defendant is not a sufficient reason to quash
the subpoena.
3.
Finally, Defendant cannot establish a violation of Michigan’s privacy laws. There
is no evidence that Plaintiff or IPP “[i]nstall[ed], place[d], or use[d] . . . any device for
observing, recording, transmitting, photographing, or eavesdropping upon the sounds or
events in that place.” Plaintiff or IPP did not “[d]istribute, disseminate, or transmit . . . a

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recording, photograph, or visual image . . . obtained in violation of this section.” M.C.L.
750.539d(a)-(b).
Here, Plaintiff’s Complaint states that IPP used software to scan the public
BitTorrent file distribution network, in order to isolate infringing transactions and the IP
addresses used to download, copy, and distribute digital files containing Plaintiff’s
copyrighted motion pictures. Using the scanning protocol, IPP determined that a device
located at Defendant’s IP address was being used for an unlawful purpose. Neither
Plaintiff nor IPP “hacked” into Plaintiff’s computer.

Rather, IPP joined the public

BitTorrent file distribution network, recorded the IP addresses of infringers unlawfully
sharing digital files containing Plaintiff’s copyrighted motion pictures, and identified
Defendant as one such user.

IPP connected with Defendant’s IP address, and

downloaded from Defendant one or more pieces of the digital files.

Defendant

voluntarily shared the digital file pieces through the BitTorrent file distribution network.
Defendant has no expectation of privacy in digital files transmitted over a public peer-topeer file sharing network.
V. CONCLUSION
For the foregoing reasons, Defendant’s motion to quash has been denied.
SO ORDERED.
s/Avern Cohn
UNITED STATES DISTRICT JUDGE
DATED: April 24, 2015

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15-10307 Malibu Media, LLC v. John Doe

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, April 24, 2015, by electronic and/or ordinary mail.

s/Sakne Chami
Case Manager, [phone]

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