Elf-Man LLC v. Does 1-36
Filing
4
ORDER granting 3 Motion for Leave to Take Discovery Prior to Rule 26(f) Conference. Signed by Magistrate Judge Terence P Kemp on 5/8/2013. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Elf-Man, LLC,
:
Plaintiff,
:
v.
:
Case No. 2:13-cv-308
:
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
Does 1-36,
Defendants.
:
ORDER
This matter is before the Court on the motion for leave to
take discovery prior to the Rule 26(f) conference filed by
plaintiff Elf-Man, LLC.
For the following reasons, the motion
for leave (#3) will be granted.
I.
This is a copyright infringement and contributory copyright
infringement case involving the file transfer technology known as
BitTorrent.
The use of this technology, which allows peer-to-
peer file sharing, has resulted in much litigation as of late.
See, e.g., Third Degree Films, Inc. v. John Does 1-72, 2013 WL
1164024 (E.D. Michigan March 18, 2013)(provides detailed
explanation of BitTorrent file-sharing protocol).
The focus of
the litigation has been the alleged use of this technology to
unlawfully reproduce and distribute via the internet copyrighted
motion pictures.
The particular motion picture at issue in this
case is “Elf-Man.”
In this case, Elf-Man has identified thirty-six Doe
defendants by the internet protocol (IP) address assigned to them
by their internet service providers (ISPs).
Elf-Man has attached
to its complaint the ISP for each defendant, the torrent file
copied and distributed by them, and their location at the time of
the allegedly infringing download.
Through its current motion,
Elf-Man seeks to serve a Rule 45 subpoena on the ISPs that issued
the IP addresses to uncover the identity of the account holders
of these IP addresses, including their names, current and
permanent addresses, telephone numbers and email addresses.
The
identified ISPs include Armstrong Cable Services, Com Net,
EarthLink, Embarq Corporation, Frontier Communications, Fuse
Internet Access, Hughes Network Systems, WideOpenWest, and Zayo
Bandwidth NorthEast LLC .
Elf-Man states that any information
disclosed in response to the subpoena will be used only for the
purpose of protecting its rights under the Copyright Act.
II.
Fed.R.Civ.P. 26(d) provides generally that discovery may not
begin prior to the Rule 26(f) conference.
However, Rule 26(d)
also provides that expedited discovery may be conducted prior to
that conference when authorized by court order.
Consequently, a
district court has the discretion to permit discovery prior to a
Rule 26(f) conference.
See, e.g., Qwest Communs. Int'l Inc. v.
Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003).
Courts within the Sixth Circuit require a showing of good cause
in order to authorize expedited discovery.
Tesuco Holdings Ltd.
v. Does 1-12, 2012 WL 6607894 (E.D. Tenn. December 18, 2012).
Good cause may be found based upon “(1) allegations of
copyright infringement, (2) the danger that the ISP will not
preserve the information sought, (3) the narrow scope of the
information sought, and (4) the conclusion that expedited
discovery would substantially contribute to moving the case
forward.”
Best v. Mobile Streams, Inc., 2012 WL 5996222, *1
(S.D. Ohio November 30, 2012), citing Arista Records, LLC v. Does
1-9, 2008 WL 2982265 (S.D. Ohio July 29, 2008).
Courts also look
to whether evidence would be lost or destroyed with time and
whether the proposed discovery is narrowly tailored.
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Id.; see
also Arista Records, LLC v. Does 1-15, 2007 WL 5254326 (S.D. Ohio
May 17, 2007).
Elf-Man contends that it has demonstrated good cause under
the standards described above.
On this issue, Elf-Man asserts
that it can show irreparable harm from the infringement of the
copyrighted motion picture.
According to Elf-Man, it has a valid
copyright in the motion picture, defendants had access to the
film, and substantial similarity exists between its copyrighted
work and the alleged infringing work.
Further, Elf-Man argues
that defendants will not be prejudiced by the proposed expedited
discovery because it is narrowly tailored and sought for a very
limited purpose.
Finally, it contends that it has no other means
for obtaining the identities of the Doe defendants.
Elf-Man also argues that “courts throughout the country”
have “consistently” granted motions for expedited discovery in
actions against BitTorrent defendants.
The Court’s review of the
authority cited by Elf-Man indicates that this is generally true.
Courts within the Sixth Circuit have found good cause and granted
motions for expedited discovery in such actions as well.
See,
e.g., Vision Films, Inc. v. Does 1-16, 2013 WL 1385206 (E.D.
Tenn. April 3, 2013); Malibu Media, LLC v. John Does 1-9, 2013 WL
142083 (E.D. Mich. January 11, 2013)(granting motion in part).
In granting expedited discovery in BitTorrent cases, courts
have found several factors significant.
One such factor is the
specificity with which the defendants have been identified,
including the assigned IP addresses, the date and time of the
alleged illegal download, the hash identifier of the downloaded
file, the ISP, and the location of the IP address.
Also
significant are the steps taken by the plaintiff to locate and
identify the Doe defendants.
Further, courts have looked to
whether the elements of a copyright infringement claim have been
pled.
Courts also have considered whether the proposed discovery
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seeks information likely to lead to information which would allow
a plaintiff to effectuate service on the defendants.
Finally,
courts have considered the likelihood of prejudice to any alleged
infringers.
See, e.g., Vision Films, 2013 WL 1385203, at *2.
As noted above, in Exhibit 2 to its complaint, Elf-Man
provides the IP address assigned to each Doe defendant, the date
and time of the download at issue, the hash identifier, the ISP,
and the location of the IP address.
The Court concludes that,
based on this information, Elf-Man has identified the Doe
defendants with sufficient specificity.
Further, based on the
affidavit of Darren M. Griffin, a software consultant, Elf-Man
has described in detail its efforts to identify the Doe
defendants.
Additionally, Elf-Man has pled a copyright
infringement claim.
Finally, Elf-Man has demonstrated that the
information it seeks is likely to lead to information which will
allow it to identify and perfect service on the Doe defendants.
Given Elf-Man’s stated purpose in seeking this information,
there is no suggestion that the Doe defendants would be
prejudiced by allowing such limited expedited discovery.
Rather,
as the Court explained in Malibu Media, LLC v. John Does 1-23,
2012 WL 1144822, *2 (D. Colo. April 4, 2012),
Much like the Arista Records defendants,
Defendants here have engaged in anonymous online
behavior, which will likely remain anonymous unless
Plaintiff is able to ascertain their identities. Thus,
Plaintiff reasonably believes that there are no
practical methods to discover Defendants' identities
without court-ordered discovery. Accordingly, because
it appears likely that Plaintiff will be thwarted in
its attempts to identify Defendants without the benefit
of formal discovery mechanisms, the court finds that
Plaintiff should be permitted to conduct expedited
discovery, pursuant to Fed.R.Civ.P. 45, for the limited
purpose of discovery (sic) the identities of
Defendants.
Taking all of the above into account, the Court concludes
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that Elf-Man has demonstrated good cause for the expedited
discovery.
Consequently, the motion for leave to take discovery
will be granted.
In reaching this conclusion, the Court notes
that Elf-Man also has raised the issue of joinder in its motion.
The Court, however, finds any discussion of that issue at this
stage of the case to be premature.
III.
For the reasons stated above, the motion for leave to take
discovery (#4) is granted.
The plaintiff may serve immediate
discovery on Armstrong Cable Services, Com Net, EarthLink, Embarq
Corporation, Frontier Communications, Fuse Internet Access,
Hughes Network Systems, WideOpenWest, and Zayo Bandwidth
NorthEast LLC to obtain the identity of each Doe defendant by
serving a Rule 45 subpoena seeking documents including the name,
current (and permanent) addresses and telephone numbers, and email addresses for each defendant.
The disclosure of this
information is ordered pursuant to 47 U.S.C. §551(c)(2)(B).
Any
such information disclosed may be used by plaintiff solely for
the purpose of protecting plaintiff’s rights under the Copyright
Act.
/s/ Terence P. Kemp
United States Magistrate Judge
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