Malibu Media, LLC v. Doe

Filing 19

MEMORANDUM OPINION AND ORDER. The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the foregoing reasons, the defendant's motion to quash is DENIED. The Clerk is directed to close Docket No. 15. re: 15 MOTION to Quash SUBPOENA of Time Warner Cable. filed by John Doe. (Signed by Judge John G. Koeltl on 7/20/2015) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
MALIBU MEDIA, LLC.,
Plaintiff,

15 Civ. 1834

- against -

(JGK)

MEMORANDUM OPINION AND
ORDER

JOHN DOE assigned to IP address
67.250.36.145,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

The plaintiff, Malibu Media, LLC, (“Malibu”) brought this
action against a single John Doe Defendant (“Doe”), alleging
copyright infringement.

Doe seeks an order to quash the Rule 45

subpoena served on his internet service provider (“ISP”), Time
Warner Cable, to prevent Malibu from obtaining Doe’s true name
and address from Time Warner Cable.

For the reasons provided

below, Doe’s motion is denied.
I.
Malibu operates a subscription-based website that provides
subscribers with X-rated adult movies.

Malibu alleges that Doe

infringed its copyrights by using BitTorrent, a peer-to-peer
file sharing system, to download and distribute thirteen
copyrighted movies between September 5, 2014, and January 15,
2015.

On March 12, 2015, Malibu commenced a copyright

infringement action against Doe.

Because Malibu was only able

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to identify Doe by his Internet Protocol (“IP”) address, this
Court entered an order on April 2, 2015, allowing Malibu to
serve a Rule 45 subpoena on Doe’s ISP, Time Warner Cable, to
identify Doe.

Doe moved to quash the subpoena on May 26, 2015,

and Malibu responded to the motion on June 6, 2015.
II.
The Court, where compliance with a subpoena is otherwise
required, must quash a subpoena when the subpoena “requires
disclosure of privileged or other protected matter, if no
exception or waiver applies.” Fed. R. Civ. P. 45(d)(3)(A)(iii).
An internet subscriber’s anonymity is protected by the First
Amendment to the extent that the anonymity is not used to “mask
copyright infringement or to facilitate such infringement by
other persons.”

Arista Records, LLC v. Doe 3, 604 F.3d 110, 118

(2d Cir. 2010).

In Sony Music Entertainment Inc. v. Does 1–40,

326 F. Supp. 2d 556 (S.D.N.Y. 2004), Judge Chin articulated five
factors to be considered in determining whether a defendant’s
First Amendment rights protect the defendant’s identity from
disclosure: (1) whether the plaintiff had made a “concrete
showing of a prima facie claim of actionable harm”; (2) the
“specificity of the discovery request”; (3) “the absence of
alternative means to obtain the subpoenaed information”; (4) “a
central need for the subpoenaed information to advance the
claim”; and (5) “the party's expectation of privacy.”
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Id. at

564-65.

Here, each of these factors supports disclosure of

Doe’s identity.
Malibu has made a concrete showing of a prima facie claim
of copyright infringement.

A prima facie claim of copyright

infringement consists of two elements: “(1) ownership of a valid
copyright, and (2) copying of constituent elements of the work
that are original.”

Arden v. Columbia Pictures Indus., Inc.,

908 F. Supp. 1248, 1257 (S.D.N.Y. 1995) (quoting Feist Publ'ns,
Inc. v. Rural Tel. Service Co., 499 U.S. 340, 361 (1991)).
Malibu alleges that it owns copyrights for the allegedly
infringed movies, which Doe does not dispute.

Compl. ¶ 29.

Using a peer-to-peer file sharing system to download and
distribute copyrighted materials without authorization is an
infringement of the owner’s copyrights.

See Arista Records LLC

v. Lime Grp. LLC, No. 06cv5936, 2010 WL 6230927, at *3 (S.D.N.Y.
Dec. 28, 2010), adopted by Arista Records LLC v. Lime Grp. LLC,
No. 06cv5936, 2011 WL 1226277, at *1 (S.D.N.Y. Mar. 29, 2011).
In its Complaint, Malibu provides detailed allegations
that Doe’s IP address was used to download and distribute the
thirteen copyrighted movies through BitTorrent, a peer-to-peer
file sharing system, which is sufficient to establish a prima
facie claim of copyright infringement.

Compl. ¶¶ 11, 30, 31,

Ex. A; see Malibu Media, LLC v. Doe No. 4, No. 12cv2950, 2012 WL
5987854, at *3 (S.D.N.Y. Nov. 30, 2012).
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Malibu’s discovery request is sufficiently specific.

The

discovery request must be sufficiently specific to enable the
plaintiff to identify and serve process on a particular
defendant.

See Sony Music, 326 F. Supp. 2d at 566.

Here,

Malibu seeks the true name and address of Doe, a particular Time
Warner Cable subscriber, based on the specific times and dates
when Doe allegedly downloaded Malibu’s copyrighted movies.
Compl. Ex. A.

Such identifying information is sufficiently

specific and will enable Malibu to serve process on Doe.

See

Malibu Media, 2012 WL 5987854, at *3.
Malibu has established that it lacks other means to obtain
the subpoenaed information.

Because the use of BitTorrent is

wholly anonymous with the mere exception that the user must
reveal the user’s IP address, subpoenaing the ISP, which can use
its subscriber logs to connect the identity of one subscriber
and a particular IP address, is the only means to obtain
identifying information under these circumstances.

See Sony

Music, 326 F. Supp. 2d at 566.
Malibu has demonstrated that the subpoenaed information is
centrally needed for Malibu to advance its copyright
infringement claims.

The ability to serve process is “central”

to advancing a copyright infringement claim.

See John Wiley &

Sons, Inc. v. Doe Nos. 1-30, 284 F.R.D. 185, 190-91 (S.D.N.Y.

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2012).

Here, Malibu is only able to serve process on Doe after

it ascertains Doe’s identity.
Finally, Malibu’s interest in discovery outweighs Doe’s
expectation of privacy.

An internet user has a privacy interest

that provides protection against the disclosure of the types of
movies the user views.

See Next Phase Distribution, Inc. v.

Does 1-138, No. 11cv9706, 2012 WL 691830, at *2 (S.D.N.Y. Mar.
1, 2012).

It is also true that Doe, whose identity information

is being sought, might not, in fact, have committed the conduct
alleged.

See Digital Sin, Inc. v. John Does 1–176, 279 F.R.D.

239, 242 (S.D.N.Y. 2012) (recognizing the possibility that the
conduct was actually committed by the subscriber’s teenage son,
boyfriend, or neighbor in an apartment building that uses shared
IP addresses).
However, “[the] defendant’s First Amendment right to remain
anonymous [sometimes] must give way to plaintiffs’ right to use
the judicial process to pursue what appear to be meritorious
copyright infringement claims.”
567.

Sony Music, 326 F. Supp. 2d at

Here, granting the motion to quash would effectively end

the litigation Malibu has been pursuing against Doe, because
Malibu would not be able to serve Doe.

Malibu alleges that Doe

has downloaded and distributed thirteen copyrighted movies in
the course of more than four months, which reduces the
possibility that the infringement was conducted by a transient
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visitor.

Compl. Ex. A.

Moreover, Malibu has consented to

allowing Doe to proceed anonymously, which minimizes the
possible embarrassment and reputational damage.

Because “ISP

subscribers have a minimal expectation of privacy in the
transmission or distribution of copyrighted material,”

John

Wiley, 284 F.R.D. at 191, Doe’s privacy interest is outweighed
by Malibu’s interest in discovering Doe’s identity.
III.
The Court, where compliance with a subpoena is otherwise
required, must also quash a subpoena that “subjects a person to
undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv).

The Court,

where the action is pending, also has the power to issue
protective orders to protect a “party or any person from whom
discovery is sought” from “annoyance, embarrassment, oppression,
or undue burden or expense”.

Fed. R. Civ. P. 26(c)(1).

Nevertheless, “a motion to quash, or for a protective order,
should generally be made by the person from whom the documents
or things are requested.”

Washington v. Thurgood Marshall

Academy, 230 F.R.D. 18, 21 (D.D.C. 2005); accord 9A Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 2459
(2d ed. 1995).

“[A] party usually does not have standing to

object to a subpoena directed to a non-party,” Langford v.
Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975),
unless there is “a claim of privilege,” id., or the party shows
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“a sufficient privacy interest in the confidentiality of [the]
records.”

Olympic Chartering, S.A. v. Ministry of Indus. &

Trade of Jordan, 134 F. Supp. 2d 528, 535 (S.D.N.Y. 2001).
Here, the subpoena is undisputedly directed at the ISP,
Time Warner Cable, rather than Doe himself.
not privileged information.

Doe’s identity is

Moreover, as explained above, Doe

has not shown that Doe has a sufficient privacy interest that
prevents disclosure.

Moreover, there is no plausible claim that

the production of Doe’s identity by Time Warner Cable would be
unduly burdensome and any possible embarrassment of Doe is
alleviated by the parties’ agreement that Doe proceeds
anonymously.

IV.
Doe claims that the subpoena should be quashed because
Malibu is going to use the acquired identifying information to
threaten Doe to settle the case.

Doe relies heavily on

Magistrate Judge Brown’s reasoning in In re BitTorrent Adult
Film Copyright Infringement Cases, 296 F.R.D. 80 (E.D.N.Y.
2012), where Magistrate Judge Brown found that various
plaintiffs had engaged in or probably would engage in efforts to
coerce settlements despite evidence that the defendants had not
personally engaged in copyright infringement.

Id. at 90.

Here,

Doe provides no evidence that Malibu has engaged in any similar
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coercive settlement negotiation or would probably engage in such
coercion once Malibu acquires Doe’s identity information.
Indeed, Malibu’s offer to allow Doe to proceed anonymously in
this case would protect Doe from embarrassment.

It would be

unfair to assume that Malibu would employ abusive litigation
tactics without any evidence.
V.
Doe also claims that the subpoena should be quashed because
he is not the real infringer.

This argument, however, is not a

reason to quash the subpoena.

Neither Malibu nor the Court is

required to accept the unsupported allegation that Doe is not an
infringer.

Obtaining Doe’s contact information “is the logical

first step in identifying the correct party.”

Malibu Media, LLC

v. Doe, No. 13cv8484, 2014 WL 1228383, at *3 (N.D. Ill. Mar. 24,
2014).

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CONCLUSION
The Court has considered all of the arguments of the
parties.

To the extent not specifically addressed above, the

remaining arguments are either moot or without merit.

For the

foregoing reasons, the defendant’s motion to quash is DENIED.
The Clerk is directed to close Docket No. 15.

SO ORDERED.
Dated:

New York, New York
July 20, 2015

/s/__
John G. Koeltl
United States District Judge

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