Malibu Media, LLC v. Does 1-13
ORDER granting 3 Motion for Discovery: Plaintiff's application for leave to serve third-party subpoenas prior to the Rule 26(f) conference is granted. So Ordered by Magistrate Judge E. Thomas Boyle on 3/26/2012. (Minerva, Deanna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MALIBU MEDIA, LLC,
CV 12-1156 (JFB)(ETB)
JOHN DOES 1-13,
Before the Court is plaintiff’s motion for leave to serve third-party subpoenas prior to the
Rule 26(f) discovery conference. For the following reasons, plaintiff’s motion is granted.
This is a copyright infringement action in which the plaintiff, Malibu Media, LLC, has
sued a number of anonymous alleged infringers for downloading a film called “Girls Night Out”
(the “Work”), using a peer-to-peer file-sharing protocol known as a BitTorrent. (Compl. ¶¶ 1142.) The Work was registered with the United States Copyright Office on November 23, 2011
under Copyright Registration Number PA0001762409. (Id. ¶¶ 11-12 and Ex. B, annexed
Plaintiff has identified the defendants only through their Internet Protocol (“IP”)
addresses. (Fieser Decl. ¶ 20 and Ex. B, annexed thereto.) Plaintiff now seeks an order from the
Court, pursuant to Federal Rule of Civil Procedure 26(d)(1), permitting the service of third-party
subpoenas on the Internet Service Providers (“ISPs”) who have been identified as providing
internet service to the Doe defendants so that plaintiff may discover the defendants’ true
Generally, Federal Rule of Civil Procedure 26(d)(1) forbids a party from seeking
discovery “from any source before the parties have conferred as required by Rule 26(f).” Fed. R.
Civ. P. 26(d)(1). However, the Rule carves out an exception for such discovery when it is
“authorized . . . by court order.” Id. In this Circuit, courts will allow a party in an infringement
action to issue a subpoena under Federal Rule of Civil Procedure 45 to discover a Doe
defendant’s identity when there is: (1) a concrete showing of a prima facie claim; (2) a specific
discovery request; (3) an absence of alternative means to obtain the subpoenaed information; (4)
a central need for the subpoenaed information; and (5) a minimal expectation of privacy by the
defendants in the subpoenaed information. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 119
(2d Cir. 2010) (citing Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564-65
(S.D.N.Y. 2004)). Plaintiff’s application satisfies all of the foregoing factors.
Prima Facie Copyright Infringement Claim
To state a claim for copyright infringement, a plaintiff must allege (1) ownership
of a valid copyright in a work, and (2) the copying of elements of the work that are original. See
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Section 411(a) of the
Copyright Act “requires copyright holders to register their works before suing for copyright
infringement.” Reed Elsevier, Inc. v. Muchnick, __ U.S. __, 130 S. Ct. 1237, 1241 (2010)
(citing 17 U.S.C. § 411(a)).
Here, plaintiff has properly pled the elements of a copyright infringement action. As set
forth in plaintiff’s Complaint, the Work at issue herein is owned by plaintiff and registered with
the United States Copyright Office. (Compl. ¶¶ 11, 46.) Plaintiff’s Complaint further pleads that
“[b]y using the BitTorrent protocol and a BitTorrent Client . . ., each Defendant copied the
constituent elements of the registered Work that are original.” (Id. ¶ 47.) “Plaintiff did not
authorize, permit or consent to Defendants’ copying of its Work.” (Id. ¶ 48.) Accordingly,
plaintiff has satisfied the first prong of the above test.
Specific Discovery Request
Plaintiff’s motion seeks leave to serve third-party subpoenas on defendants’ ISPs
in order to discover defendants’ names, addresses, telephone numbers, email addresses and
Media Access Control (“MAC”) addresses. All such information is in the possession of
defendants’ ISPs. (Feiser Decl. ¶ 23.) The requested discovery is both limited and specific and
therefore satisfies the second factor outlined above. See Sony Music Entm’t, 326 F. Supp. 2d at
566 (“Plaintiffs’ discovery request is also sufficiently specific to establish a reasonable likelihood
that the discovery request would lead to identifying information that would make possible service
upon particular defendants who could be sued in federal court.”).
Absence of Alternative Means
Plaintiff has also satisfied the third prong of the applicable test. Since “[o]nly the
ISP to whom a particular IP address has been assigned for use by its subscriber can correlate the
IP address to a real person, the subscriber of the internet service,” there is no other way for
plaintiff to discover the information it seeks. (Feiser Decl. ¶ 9.) “Once provided with the IP
address, plus the date and time of the detected and documented infringing activity, ISPs can use
their subscriber logs to identify the name, address, email address, phone number and Media
Access Control number of the subscriber.” (Id. ¶ 23.) Accordingly, service of the requested
subpoenas appears to be the only avenue available to plaintiff to discover the identities of the
Plaintiff has also demonstrated that the information it seeks is “centrally needed
for plaintiff to advance [its] copyright claim.” Sony Music Entm’t, 326 F. Supp. 2d at 566
(citations omitted). “Ascertaining the identities and residences of the Doe defendants is critical
to plaintiff[’s] ability to pursue litigation, for without this information, plaintiff will be unable
to serve process.” Id.
Minimal Expectation of Privacy
Finally, plaintiff has also satisfied the fifth factor set forth above. The Doe
defendants are all alleged copyright infringers. “Accordingly, defendants have little expectation
of privacy in downloading . . . copyrighted [works] without permission.” Sony Music Entm’t,
326 F. Supp. 2d at 566 (citation omitted).
For the foregoing reasons, the Court finds that plaintiff has satisfied all five factors
necessary for an order permitting plaintiff to serve third-party subpoenas to discover the identities
of the Doe defendants. Accordingly, plaintiff’s application to serve third-party subpoenas prior
to the Rule 26(f) conference is granted.
Dated: Central Islip, New York
March 26, 2012
/s/ E. Thomas Boyle
E. THOMAS BOYLE
United States Magistrate Judge
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