Rotten Records, Inc. v. Doe, subscriber assigned IP address 188.8.131.52
DECISION AND ORDER: Plaintiff's motion to serve a third party subpoena 3 is GRANTED. Plaintiff's Motion for an extension of time under Fed. R. Civ. P. 4(m) 4 is also GRANTED, and Plaintiff may have until December 23, 2016 to serve Doe with the Summons and Complaint. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/27/16. (SCE)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROTTEN RECORDS, INC.,
Case # 15-CV-6650-FPG
DECISION AND ORDER
JOHN DOE subscribed assigned
IP address 184.108.40.206,
Plaintiff Rotten Records, Inc. (“Plaintiff”) has filed a Complaint against Defendant John
Doe (“Doe”), alleging that Doe illegally distributed copyrighted work that Plaintiff owned. ECF
No. 1. Plaintiff filed an ex parte motion for leave to serve a third party subpoena before the Fed.
R. Civ. P. 26(f) Conference. ECF No. 3. More specifically, Plaintiff seeks to subpoena Time
Warner Cable, an internet service provider (“ISP”) that maintains Doe’s IP address, in order to
properly identify and serve Doe with the Summons and Complaint. Plaintiff also seeks an
extension under Fed. R. Civ. P. 4(m) of the time period to serve Doe with the Summons and
Complaint. ECF No. 4. For the following reasons, Plaintiff’s motions are both GRANTED.
Fed. R. Civ. P. 26(d)(1) provides that a “party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f).” However, the rule also allows
district courts to permit discovery before the Rule 26(f) conference upon a showing of good
cause. Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 327 (S.D.N.Y. 2005) (Lynch, J.). In
determining whether good cause exists to direct an ISP to disclose identifying information
regarding a subscriber, the Court considers five factors: “(1) a concrete showing of a prima facie
claim of actionable harm; (2) 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.” Sony Music Entm’t Inc. v.
Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004) (Chin, J.) (internal citations omitted).
The Court finds that all of these factors are satisfied. For purposes of this application, the
Court accepts Plaintiff’s allegations in the Complaint as true.
The Complaint alleges that
Plaintiff owns the copyright to the Dog Fashion Disco albums “Experiments in Alchemy,” “The
Embryo’s in Bloom,” and “Adultery” (“Albums”). ECF No. 1 at 3, Ex. A. Plaintiff hired
Rightscorp, a company that specializes in detecting infringement, to detect potential copyright
infringement. Id. at 4. Utilizing the popular file sharing software BitTorrent, Rightscorp most
recently downloaded copies of the Albums from Doe’s IP address of 220.127.116.11 on October
2, 2015. ECF No. 1 at 3, Ex. A. The downloaded and copyrighted Albums are identical, and
Plaintiff did not consent to Doe’s distribution of the Albums. Id., at 5-6. The facts concretely
demonstrate a prima facie case of copyright infringement.
Plaintiff’s subpoena request is also sufficiently specific. Plaintiff is only seeking Doe’s
identity as the individual assigned to IP address 18.104.22.168 and for the limited purpose of
allowing Plaintiff to serve the Summons and Complaint upon Doe.
Under the circumstances, there does not appear to be a reasonable alternative means to
obtain Doe’s identity. Plaintiff alleges that Rightscorp sent Doe 481 notices through Doe’s ISP
from September 6, 2015 to October 2, 2015 demanding that Doe stop distributing Plaintiff’s
copyrighted work, but Doe ignored each notice. Id. As other courts have noted, “absent a Courtordered subpoena, many of the ISPs who qualify as ‘cable operators’ for purposes of 47 U.S.C. §
522(5) are effectively prohibited by 47 U.S.C. § 551(c) from disclosing the identities of
[Defendant] to Plaintiff.” Digital Sin, Inc. v. Does 1-179, No. 11 Civ. 8172(PAE), 2012 WL
8282825, at *3 (S.D.N.Y. Feb. 1, 2012). In other words, without issuing the requested subpoena,
the Plaintiff is prohibited from learning Doe’s identity, and without Doe’s identity, this case
Finally, Plaintiff’s interest in determining Doe’s identity outweighs Does’ interest in
protecting his privacy. Plaintiff’s allegations establish that Doe is an online user of file sharing
software to distribute copyrighted music.
Doe’s potential desire to avoid this litigation is
insufficient to create a privacy interest that would outweigh Plaintiff’s in this circumstance. See
Artisa Records LLC v. Doe, 604 F.3d 110, 124 (2d Cir. 2010).
For all of these reasons, good cause exists for limited discovery before the Rule 26
conference, and Plaintiff may serve a subpoena on Doe’s ISP to ascertain Doe’s name and
address for the purpose of identifying Doe in this litigation, and to then serve the Summons and
Complaint upon Doe.
Plaintiff also seeks an extension of time under Fed. R. Civ. P. 4(m) to effect service on
Doe. Plaintiff’s inability to identify Doe constitutes “good cause” under Rule 4(m) for the
requested extension, and Plaintiff shall have until December 23, 2016 to serve the Summons and
Complaint upon Doe.
Plaintiff’s motion to serve a third party subpoena (ECF No. 3) is GRANTED. Plaintiff
may serve Doe’s ISP with a Rule 45 subpoena that commands the ISP to provide the name and
address of Doe as the individual assigned IP address 22.214.171.124. A copy of this Order shall
be provided to the ISP along with the subpoena. Further, if the ISP is a “cable operator” under
47 U.S.C. § 522(5), the ISP shall comply with 47 U.S.C. § 551(c)(2)(B) by sending a copy of
this Order and the subpoena to Doe. Plaintiff may use any information obtained from the ISP
through the subpoena only for the purpose of identifying and serving Doe in this action, and to
litigate Plaintiff’s claims in this action against Doe.
Plaintiff’s Motion for an extension of time under Fed. R. Civ. P. 4(m) (ECF No. 4) is also
GRANTED, and Plaintiff may have until December 23, 2016 to serve Doe with the Summons
IT IS SO ORDERED.
September 27, 2016
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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