Venice PI, LLC v. Does
Filing
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ORDER granting 4 MOTION for Leave to Take Discovery Prior to Rule 26(f) Conference Expedited. Pltf may issue subpoena to Internet Service Provider(s) of the Doe Defts to seek information stated in this Order. Pltf to file Status Report within 60 day, due by 10/17/2017. (See Order for further details.) Signed by District Judge Martin Reidinger on 8/18/2017. (ejb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:17-CV-00219-MR
VENICE PI, LLC,
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Plaintiff,
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vs.
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DOES 1-9,
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Defendants.
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_______________________________ )
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on the Plaintiff’s Motion for Leave
to Take Discovery Prior to Rule 26(f) Conference. [Doc. 4].
I.
PROCEDURAL BACKGROUND
Plaintiff Venice PI, LLC, (“Plaintiff”) filed a Complaint for copyright
infringement on August 14, 2017, alleging that unknown individuals named
as Defendants Does 1-9 (“Does 1-9”) committed violations of the Copyright
Act of 1976, 17 U.S.C. §§ 101 et seq. (the “Copyright Act”) and seeking
injunctive relief, statutory damages, and attorney’s fees and costs.1 On the
This Complaint appears to be related and is nearly identical to a Complaint filed by
Plaintiff on June 29, 2017, Case No. 1:17-cv-00170, in which Plaintiff makes the same
claims against Defendants Does 1-10.
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same day, the Plaintiff filed the instant motion for leave to issue third-party
subpoenas prior to a Rule 26(f) conference on one or more Internet Service
Providers (“ISPs”) of Does 1-9 in order to obtain information sufficient to
identify each Doe Defendant so that Plaintiff can serve Does 1-9 with
Plaintiff’s Complaint.
Specifically, the Plaintiff seeks by way of these
subpoenas “the name and address of the account holders; current and
permanent addresses; telephone numbers; email addresses; and, the Media
Access Control (“MAC”) address.” [Doc. 5 at 2].
II.
FACTUAL BACKGROUND
Taking the factual allegations of the Plaintiff’s Complaint as true, the
following is a recitation of the relevant facts. Plaintiff is the claimant and
holder of a copyright in the motion picture Once Upon a Time in Venice (the
“motion picture”), [Complaint, Doc. 1 at 1; Doc. 1-1], which is protected by
the Copyright Act and registrations, including PA 2-039-391, dated January
27, 2017. [Id. at ¶¶ 6, 7; Doc. 1-1]. BitTorrent is a peer-to-peer file sharing
system and “has become one of the most common systems for users to
illegally dispense and share huge amounts of data in digital format, including
motion pictures.” [Id. at ¶ 16]. The Plaintiff has traced to North Carolina
“many confirmed instances” of illegal downloading and distributing of the
motion picture in the BitTorrent network, [Id. at ¶ 10], and “has brought this
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action as a result of the unauthorized copying and transferring of this motion
picture by unknown defendants who are believed to reside in this District.”
[Doc. 5 at 1].
The Plaintiff has employed an investigator, Maverickeye, who
observed the Doe Defendants as having distributed the motion picture. [Doc.
1 at ¶ 11]. Due to the nature of the infringement, however, Maverickeye is
only able to identify the Doe Defendants in relation to each defendant’s
Internet Protocol (“IP”) address, the ISP who provided service to each
defendant, and the city and county in which the alleged infringement
occurred. [Ex. 2 to Complaint, Doc. 1-2; Doc. 5 at 2]. As such, the only way
the Plaintiff may identify Does 1-9 is to subpoena the ISP pursuant to Federal
Rule of Civil Procedure 45.
III.
ANALYSIS
A plaintiff’s right to issue Rule 45 subpoenas on third parties in order
to identify unknown defendants under these circumstances is wellestablished. The five-factor test set forth in Sony Music Entertainment v.
Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004), a copyright infringement
case with substantially similar facts, determines whether an anonymous
defendant’s identity is shielded from disclosure by the First Amendment.
These factors include: “(1) a concrete showing of a prima facie claim of
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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.” 326 F.Supp.2d at 564-65 (internal citations omitted);
Arista Records, LLC v. Doe 3, 604 F.3d 110 (2nd Cir. 2010) (upholding
application of the Sony factors as “an appropriate general standard for
determining whether a motion to quash, to preserve the objecting party’s
anonymity, should be granted” in anonymous defendant’s appeal in
copyright infringement case). Here, all five factors weigh in favor of allowing
the Plaintiff to issue Rule 45 subpoenas prior to the Rule 26(f) conference.
First, the Plaintiff’s Complaint states a prima facie claim of copyright
infringement. “Copyright infringement occurs when a person ‘violates any of
the exclusive rights of the copyright owner.’ 17 U.S.C. § 501(a). Therefore,
the two elements of an infringement claim are (1) ownership of a valid
copyright and (2) encroachment upon one of the exclusive rights afforded by
the copyright.” Elektra Entertainment Group, Inc. v. Doe, No. 5:08-cv-1159FL, 2008 WL 5111886 (E.D.N.C. Dec. 4, 2008) (Flanagan, J.) (citing Avtec
Systems, Inc. v. Peiffer, 21 F.3d 568, 571 (4th Cir. 1994)). The Plaintiff has
sufficiently alleged both ownership of the copyrights at issue and
encroachment. The Plaintiff has specifically identified the motion picture the
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rights to which Does 1-9 have allegedly infringed. [Doc. 1 at 1]. Plaintiff is
the holder of a validly registered copyright in that motion picture. [Doc. 1 at
¶¶ 6, 7; Ex. 1 to Complaint, Doc. 1-1]. The “motion picture contains wholly
original material that is copyrightable subject matter under the laws of the
United States,” and “Defendants had notice of Plaintiff’s rights through
general publication and advertising and more specifically identified in the
content of the motion picture, advertising associated with the motion picture,
and copies, each of which bore a proper copyright notice.” [Doc. 1 at ¶¶ 8,
9]. “Defendants, without the permission or consent of Plaintiff, copied and
distributed Plaintiff’s motion picture through a public bittorrent network,”
which “infringed Plaintiff’s exclusive rights under the Copyright Act.” [Id. at
¶¶ 34, 35]. The Plaintiff has also specified the date and time at which Does
1-9’s allegedly infringing activity occurred and the IP address assigned to
each unknown defendant at that time. [Ex. 2 to Complaint, Doc. 1-2]. As
such, the Plaintiff has made a concrete showing of a prima facie claim of
copyright infringement, satisfying the first Sony factor.
Second, the discovery request is sufficiently specific to establish a
reasonable likelihood that the identities of Does 1-9 can be ascertained so
that they can be properly served. See Rotten Records, Inc. v. Doe, 108
F.Supp.3d 132, 134 (W.D.N.Y. 2015) (“Plaintiff has also met the specificity
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requirement, insofar as Plaintiff seeks the name and address of the individual
assigned IP address [ ] for the limited purpose of enabling Plaintiff to serve
process on Defendant.”).
Third, the Plaintiff has shown that there are no alternative means to
obtain the information as to the identities of Does 1-9. Plaintiff provides,
“only ISPs maintain the records that show the individual contact information
for the subscribers with the IP address.” [Doc. 5 at 4-5]. Further, ISPs are
prohibited from disclosing this identifying information without a court order.
47 U.S.C. § 551(c).
Fourth, the Plaintiff has shown that the information it seeks to
subpoena is centrally needed to advance the Plaintiff’s copyright
infringement claim. The Plaintiff simply cannot identify the Doe Defendants
and serve process on them without the information sought.
Finally, consideration of the fifth factor in the Sony analysis, the Doe
Defendants’ expectation of privacy, also supports disclosure. Courts having
examined this issue have universally held an unknown defendant’s
“expectation of privacy for sharing copyrighted [materials] through an online
file-sharing network are simply insufficient to permit him to avoid having to
defend against a claim of copyright infringement.” Arista Records, 604 F.3d
at 124; see also, Virgin Records America, Inc. v. Doe, No. 5:08-cv-389-D;
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2009 WL 700207, at *3 (E.D.N.C. March 16, 2009) (Daniel, J.) (“A defendant
has little expectation of privacy in allegedly distributing music over the
internet without the permission of the copyright holder”).
As such, any
minimal expectation of privacy of Does 1-9 is insufficient under the
circumstances to shield their identities from discovery. Therefore, all five
Sony factors weigh in favor of allowing the Plaintiff to conduct pre-Rule 26(f)
conference discovery by service of subpoenas on the ISP(s) of Does 1-9.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Leave to
Take Discovery Prior to Rule 26(f) Conference [Doc. 4] is hereby GRANTED.
IT IS, THEREFORE, FURTHER ORDERED as follows:
1.
Plaintiff may issue a subpoena to the Internet Service Provider(s)
of the Doe Defendants pursuant to which Plaintiff may seek the following
information: the true names, current and permanent addresses, telephone
numbers, e-mail addresses, and Media Access Control (“MAC”) addresses
of Does 1-9 to whom the ISP assigned an IP address as set forth on Exhibit
2 [Doc. 1-2] to Complaint [Doc. 1]. Plaintiff shall attach to any subpoena a
copy of this Memorandum of Decision and Order.
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2.
Any information disclosed to Plaintiff in response to a Rule 45
subpoena may be used by Plaintiff solely for the purpose of protecting
Plaintiff’s rights as set forth in the Complaint.
3.
The Internet Service Provider(s) of the Doe Defendants shall
preserve any subpoenaed information pending the resolution of any timely
filed motion to quash.
4.
On or before 60 days from the date of entry of this Memorandum
of Decision and Order, Plaintiff shall file a Status Report with the Court briefly
outlining its progress, including the expected completion date of the
discovery allowed by this Memorandum and Order.
IT IS SO ORDERED.
Signed: August 18, 2017
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