TCYK, LLC v. Doe 1-37

Filing 4

ORDER granting 3 the Motion for leave to take discovery. Signed by Magistrate Judge Terence P Kemp on 7/23/2013. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TCYK, LLC,

:
Plaintiff,

:

v.

:

Case No. 2:13-cv-688

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Does 1-37,
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 TCYK, 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 “The Company You Keep.”
In this case, TCYK has identified thirty-seven Doe
defendants by the internet protocol (IP) address assigned to them
by their internet service providers (ISPs).

TCYK 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, TCYK

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, addresses, telephone
numbers, email addresses, and Media Access Control addresses.
The identified ISPs include Armstrong Cable Services, Clear
Wireless, Com Net, Comcast Cable, Embarq Corporation, Fairpoint
Communications, Frontier Communications, LUMOS Networks, OARNet,
Suddenlink Communications, Verizon Wireless, WideOpenWest, and
Wildblue Communications.

TCYK 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
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whether the proposed discovery is narrowly tailored.

Id.; see

also Arista Records, LLC v. Does 1-15, 2007 WL 5254326 (S.D. Ohio
May 17, 2007).
TCYK contends that it has demonstrated good cause under the
standards described above.

On this issue, TCYK asserts that it

has sufficiently identified the Doe defendants through their IP
addresses.

Further, it contends that it has asserted a prima

facie case for direct copyright infringement.

It also contends

that it has only a limited time for obtaining the identities of
the Doe defendants becaue ISPs may erase the data.

Additionally,

TCYK asserts that a claim for copyright infringement presumes
irreparable harm to the copyright owner.

Further, TCYK argues

that defendants have no expectation of privacy in this
information and will not be prejudiced by its disclosure.
Finally, it contends that its requests are narrowly tailored and
the information it seeks will be used only for the purposes of
protecting their rights under copyright laws.
TCYK 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 TCYK 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.
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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

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 1 to its motion, TCYK 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, TCYK has identified the Doe defendants with
sufficient specificity.

Further, based on the declaration of

Darren M. Griffin, a software consultant, TCYK has described in
detail its efforts to identify the Doe defendants.
TCYK has pled a copyright infringement claim.

Additionally,

Finally, TCYK 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 TCYK’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
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Plaintiff should be permitted to conduct expedited
discovery, pursuant to Fed.R.Civ.P. 45, for the limited
purpose of discovery the identities of Defendants.
Taking all of the above into account, the Court concludes
that TCYK has demonstrated good cause for the expedited
discovery.

Consequently, the motion for leave to take discovery

will be granted.
III.
For the reasons stated above, the motion for leave to take
discovery (#3) is granted.

The plaintiff may serve immediate

discovery on Armstrong Cable Services, Clear Wireless, Com Net,
Comcast Cable, Embarq Corporation, Fairpoint Communications,
Frontier Communications, LUMOS Networks, OARNet, Suddenlink
Communications, Verizon Wireless, WideOpenWest, and Wildblue
Communications and on any later-discovered unknown or
intermediary ISPs to obtain the identity of each Doe defendant by
serving a Rule 45 subpoena seeking documents including the name,
addresses and telephone numbers, e-mail addresses and Media
Access Control addresses for each defendant.

The disclosure of

this information is ordered pursuant to 20 U.S.C. §1232g(b)(2)(B)
where applicable to educational institutions.

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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