Malibu Media, LLC v. Doe

Filing 8

MEMORANDUM AND ORDER granting 6 Letter Motion for Leave to File Document. For the reasons set forth above, the plaintiffs request for permission to file a motion seeking leave to serve limited, immediate discovery on the defendant's ISP, that is, Time Warner Cable, Docket Entry No. 6, is granted. SO ORDERED. (Signed by Magistrate Judge Kevin Nathaniel Fox on 7/11/2018) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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MALIBU MEDIA, LLC,
Plaintiff,
-against-

MEMORANDUM AND ORDER

JOHN pOE subscriber assigned IP
address 66.65.42.47,

18 CV 3228 (ALC) (KNF)

Defendant.

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KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE

Plaintiff Malibu Media, LLC ("Malibu"), which operates an adult film website,
X-art.com, brings this copyright infringement action as the owner of copyrights in original
works, pursuant to 28 U.S.C. § 1338. Defendant John Doe is an alleged infringer whose Internet
Protocol ("IP") address has been associated with infringement on a large scale of Malibu's
copyrighted works. According to the plaintiff, it is suing the defendant for using the Internet,
specifically, the BitTorrent file distribution network, to commit direct copyright infringement.
Defendant's IP address was assigned to the defendant by his or her Internet Service Provider
("ISP"), Time Warner Cable. The plaintiff contends that "ISPs maintain internal logs, which
record the date, time and customer identity for each IP address assignment made by that ISP."
As a result, "the ISP can use the relevant IP address to identify the [d]efendant."
Before the Court is the plaintiffs application for permission to file a motion seeking
leave to serve limited, immediate discovery on the defendant's ISP, that is, Time Warner Cable,
so that the plaintiff may learn the defendant's true identity. By obtaining the defendant's name

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and address, the plaintiff asserts, it will be able to identify him or her and thereby prosecute its
copyright infringement claim. Accordingly, the plaintiff seeks permission to file a motion
pursuant to Rule 26(d)(l) of the Federal Rules of Civil Procedure, for leave to serve a third-party
subpoena prior to a Rule 26(£) conference in order to learn the defendant's identity. The plaintiff
also requests an adjournment of any scheduled Federal Rule of Civil Procedure 16 conference
and that the Court not schedule any Rule 16 conference until the defendant is named and served.

Legal Standard
"A party may not seek discovery from any source before the parties have conferred as
required by Rule 26(£), except in a proceeding exempted from initial disclosure under Rule
26(a)(l)(B), or when authorized by these rules, by stipulation, or by court order." Fed. R. Civ. P.
26(d)(l ). "When considering whether to grant a motion for expedited discovery prior to a Rule
26(£) conference, courts apply a flexible standard of reasonableness and good cause." Malibu
Media, LLC v. John Doe Subscriber Assigned IP Address 173.68.5.86, No. 16-CV-2462, 2016
WL 2894919, at *2 (S.D.N.Y. May 16, 2016) (citation omitted). See also Digital Sin, Inc. v.
John Does 1-176, 279 F.R.D. 239, 241-42 (S.D.N.Y. 2012) (finding that good cause existed for
expedited discovery to ascertain the defendants' identities and issuing a protective order that
would make the information obtained confidential).
In evaluating subpoenas seeking identifying information from ISPs regarding subscribers
who are parties to copyright infringement litigation, courts have examined the following factors:
(1) [the] concrete[ness of the plaintiffs] 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) [the]
need for the subpoenaed information to advance the claim, ... and (5) the
[objecting] party's expectation of privacy.

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need for the subpoenaed information to advance the claim, ... and (5) the
[objecting] party's expectation of privacy.
Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010) (quoting Sony Music
Entm't, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004)).
Application of Legal Standard
In this case, the plaintiff has made a preliminary showing that good cause exists for the
Court to grant it permission to file a motion for leave to serve a third-party subpoena on Time
Warner Cable, the ISP, for the purpose of determining the identity of the alleged infringer, John
Doe. Specifically, the plaintiff has: (1) alleged ownership of a valid copyright in the relevant
works and the unlawful downloading, copying and distribution of the works and has specified
the type of technology used and the IP address from which the file was accessed; (2) indicated
that its request for information through a subpoena will be narrowly tailored and specific; (3)
shown that no alternative means to obtain the information it seeks exists, insofar as the only
information it has regarding the defendant is his IP address; and (4) alleged that the information
it seeks through a subpoena is necessary to advance its claim. In addition, the plaintiff has
shown that, without learning the address of the defendant, the plaintiff will not be able to pursue
the instant copyright infringement action. Furthermore, it appears that any expectation of
privacy on the part of the defendant is outweighed by his alleged activity: downloading and
distributing copyrighted material without permission. See Sony Music Entm't Inc., 326 F. Supp.
2d at 566, holding that "defendants have little expectation of privacy in downloading and
distributing copyrighted songs without permission."
Conclusion
For the reasons set forth above, the plaintiffs request for permission to file a motion
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seeking leave to serve limited, immediate discovery on the defendant's ISP, that is, Time Warner
Cable, Docket Entry No. 6, is granted.
Dated: New York, New York
July 11, 2018

SO ORDERED:

KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE

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