Malibu Media, LLC v. Doe

Filing 7

ORDER granting in part and denying in part 6 Motion to Proceed Anonymously. Defendant may proceed anonymously until at least the preliminary pretrial conference, which will be scheduled forthwith. Signed by Magistrate Judge Norah McCann King on 8/26/2015. (pes)

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

MALIBU MEDIA, LLC,
Plaintiff,
vs.

Case No. 2:15-cv-2519
Judge Frost
Magistrate Judge King

JOHN DOE, subscriber assigned
IP address 76.181.56.223,
Defendant.

OPINION AND ORDER
I.

Background
This is a copyright action in which plaintiff alleges that by

using the BitTorrent file distribution network, defendant “downloaded,
copied, and distributed” 127 of plaintiff’s copyrighted motion
pictures.
Complaint.

Complaint, ECF 1, ¶¶ 1-3, 11-26; Exhibit B, attached to
Defendant is currently identified only by an IP address.

Complaint, ¶¶ 9-10; Exhibit A, attached to Complaint.

On the same day

that the Complaint was filed, plaintiff also filed an ex parte motion
seeking to conduct limited, expedited discovery of a non-party
internet service provider in order to determine defendant’s identity.
ECF 2.

This Court granted plaintiff’s ex parte motion, concluding

that plaintiff had established good cause because it could not meet
its service obligation under Fed. R. Civ. P. 4 without the requested
discovery.

Order, ECF 5, pp. 1-2.

This matter is now before the Court on defendant John Doe’s
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Unopposed Motion to Proceed Anonymously, ECF 6 (“Defendant’s Motion”).
Defendant “moves the Court for an order allowing Mr. Doe to proceed
anonymously and to preclude Plaintiff Malibu Media, LLC from naming
Mr. Doe in this lawsuit until the Court has ruled on all dispositive
motions.”

Defendant’s Motion, p. 1.

Defendant argues that he should

be permitted to proceed anonymously because while defendant’s Internet
Service Provider (“ISP”) “may reveal that Mr. Doe was the subscriber
of the IP address 76.181.56.223 on May 23, 2015, only discovery will
prove that Mr. Doe is not the actual copyright infringer.”

Id. at 2.

Defendant notes that plaintiff’s alleged copyrighted works are
pornographic, and defendant argues that he “cannot afford to have his
name associated with such scandalous allegations[,]” particularly
where he “is not the infringer and prematurely naming him in this
lawsuit will cause great embarrassment and irreparable harm to his
career and reputation.”

Id.

Defendant represents that plaintiff does

not object to the request to proceed anonymously.

Defendant’s Motion,

pp. 3, 5, 10.
“The privilege of proceeding anonymously is not granted
automatically even if, as here, none of the Parties involved
object[s].”

Malibu Media, LLC v. Doe, No. 3:14-CV-378, 2015 WL

1120063, at *2 (S.D. Ohio Mar. 12, 2015) (citing Doe v. Blue Cross &
Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997)).

This

Court has the discretion to allow a party to proceed anonymously under
a pseudonym.

Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004).

However, “[p]roceeding anonymously is disfavored, and the Court has an
independent duty to determine whether to permit a party to proceed
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anonymously.”

Malibu Media, LLC v. Doe, 2015 WL 1120063, at *2.

In

exercising its discretion, a court must balance the public’s common
law right of access to court proceedings against the interests of
litigants in nondisclosure.

In re Polemar Constr. Ltd. P'ship, No.

00-2466, 23 F. App’x 423, at *425 (6th Cir. Nov. 6, 2001).

“There is

a strong public policy in favor of public access to judicial
proceedings . . . .”

Id.

Consistent with that policy, parties “are

permitted to proceed under pseudonyms only under certain circumstances
that justify an exception to [the general rule].”

Citizens for a

Strong Ohio v. Marsh, No. 04-3112, 123 F. App’x 630, at *636 (6th Cir.
Jan. 3, 2005) (citing Porter, 370 F.3d at 560).

In determining

whether such an exception applies, courts may consider the following
factors:
(1) whether the [party] seeking anonymity [is] suing to
challenge governmental activity; (2) whether prosecution of
the suit will compel the [party] to disclose information of
the utmost intimacy; (3) whether the litigation compels [a
party] to disclose an intention to violate the law, thereby
risking criminal prosecution; and (4) whether the [party is
a child].
Id. (quoting Porter, 370 F.3d at 560).

“It is also relevant to

consider whether the defendants are being forced to proceed with
insufficient information to present their arguments against the
plaintiff’s case.”

Id. (citing Porter, 370 F.3d at 561).

In the case presently before the Court, defendant argues that
although the ISP has the ability to reveal the identity of the
subscriber of the above-identified IP address, that revelation does
not establish the identity of the alleged infringer.
Motion, pp. 5, 7-8.

Defendant’s

Defendant also argues that denial of his motion
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means that he “will be prematurely named in the lawsuit and his
identity will be forever associated with a lawsuit accusing him of
illegally downloading and distributing thirty-two (32) pornographic
movies.

Unfairly, Mr. Doe would suffer public embarrassment and

irreparable harm to his future career and reputation.”
Defendant’s arguments are not well taken.

Id. at 8.

Although there is a

potential for embarrassment for an individual who becomes associated
with an IP address used to violate copyrights of pornographic
material, “this potential for embarrassment does not outweigh the
statutory right of the copyright holder to protect his or her property
interest in the copyright,” and defendant does not argue that there is
a risk of extraordinary retaliation.
1120063 at *2 (citations omitted).

See Malibu Media, 2015 WL
Moreover, defendant’s argument

that he was not the person who infringed plaintiff’s copyrighted works
is more appropriately addressed in the context of a motion to dismiss
or a motion for summary judgment, rather than on a motion to proceed
anonymously.
Defendant also seeks a protective order to protect his identity
until the Court has ruled on any dispositive motions.

Federal Rule of

Civil Procedure 26(c)(1) authorizes a court to issue a protective
order “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.”

Fed. R. Civ. P. 26(c)(1).

The Court previously concluded that plaintiff’s request for expedited
discovery was supported by good cause and the Court therefore
permitted plaintiff to serve discovery on defendant’s internet service
provider to obtain the identity of the Doe defendant.
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Order, ECF 5

(citing Arista Records, LLC v. Does 1-15, No. 2:07-cv-450, 2007 WL
5254326, at *2 (S.D. Ohio May 17, 2007)).

Defendant acknowledges that

his ISP may reveal that he was the subscriber of the above-identified
IP address on May 23, 2015.

Defendant’s Motion, p. 2.

However, as

noted supra, defendant denies the allegations in the Complaint and
argues that the risk of being falsely identified as the copyright
infringer, combined with the risk of embarrassment and reputational
harm, justifies a protective order in this case.
Courts in this Circuit have recognized that “ʽthe risk of false
positives gives rise to the potential for coercing unjust settlements
from innocent defendants’” in cases involving the discovery of IP
address owners.

Malibu Media, 2015 WL 1120063 at *3 (quoting Patrick

Collins, Inc. v. John Does 1–28, No. 12–13670, 2013 WL 359759 at *11
(E.D. Mich. Jan. 29, 2013)).

Although there has been no suggestion in

this case that plaintiff has done anything improper or engaged in
coercive tactics, the risk of coercing an unjust settlement
nevertheless exists.

See id.

The Court also notes that protective

orders very similar to that proposed by defendant have been entered in
numerous cases in this district in order to protect the identity of
John Doe defendants through at least the preliminary pretrial
conference where, as here, the plaintiff alleges copyright
infringement of pornographic materials by use of a BitTorrent network.
See Malibu Media, LLC v. John Doe, No. 2:14-CV-804 (S.D. Ohio); Malibu
Media, LLC v. John Doe, No. 2:14-CV-456 (S.D. Ohio); Malibu Media, LLC
v. John Doe, No. 2:14-CV-420 (S.D. Ohio).
Here, plaintiff has not opposed defendant’s motion for a
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protective order, plaintiff will be notified of defendant’s identity
and address and therefore will not be prejudiced if defendant proceeds
anonymously at this stage of the litigation.

Although the Court is

not entirely persuaded by defendant’s arguments, the Court is
satisfied that the risk of a false positive, a coerced settlement, and
embarrassment justify a protective order at this stage of the
litigation.
Accordingly, defendant’s Unopposed Motion to Proceed Anonymously,
ECF 6, is GRANTED in part and DENIED in part.

Defendant may proceed

anonymously until at least the preliminary pretrial conference, which
will be scheduled forthwith.

August 26, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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