LHF Productions Inc v. Doe 1 et al

Filing 8

ORDER granting plaintiff's 5 Motion to Expedite Discovery by Judge Ricardo S Martinez.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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) CASE NO. C17-254RSM
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) ORDER GRANTING PLAINTIFF’S
) MOTION TO EXPEDITE DISCOVERY
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LHF PRODUCTIONS, INC.,
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Plaintiff,

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v.
DOES 1-10,

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Defendants.
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I.

INTRODUCTION

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Plaintiff alleges copyright infringement claims against several unknown John Doe

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Defendants that appear to be using “peer to peer” or BitTorrent file “swapping” networks to

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illegally obtain and distribute the copyrighted motion picture “London Has Fallen.” Dkt. #1 at

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¶ ¶ 10-35. It now seeks permission to take limited, expedited discovery from various internet

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service providers (“ISP”) in order to identify and name the John Doe Defendants in this case so
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that it can complete service of process and proceed with litigation. Dkt. #5. As further

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discussed below, Plaintiff has demonstrated that: (1) the John Doe Defendants are real people

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and/or entities that may be sued in federal court; (2) it has unsuccessfully attempted to identify

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the John Doe Defendants prior to filing this motion; (3) its claims against the John Doe
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ORDER GRANTING PLAINTIFF’S MOTION TO EXPEDITE DISCOVERY - 1

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Defendants would likely survive a motion to dismiss; and (4) there is a reasonable likelihood

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that service of the proposed subpoenas will lead to information identifying the John Doe

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Defendants. As a result, the Court finds that good cause exists to allow Plaintiff to engage in

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expedited, preliminary discovery.

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II.

BACKGROUND1

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Plaintiff is a corporation engaged in the production of the motion picture known as and

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entitled “London Has Fallen” for theatrical exhibition, home entertainment and other forms of

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distribution. Dkt. #1 at ¶ 5. Plaintiff is the owner of the exclusive rights under copyright in the

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United States in London Has Fallen. London Has Fallen has been registered with the United

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States Copyright Office, effective March 14, 2016, and assigned Registration No. PA 1-98212
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831. Id. at ¶ 6 and Ex. A.

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Plaintiff alleges that each John Doe Defendant copied and distributed Plaintiff’s

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copyrighted motion picture London Has Fallen. The true names of Defendants are unknown to

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Plaintiff at this time. However, each Defendant is known to Plaintiff by the Internet Protocol
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(“IP”) address assigned by an Internet Service Provider (“ISP”) and the date and at the time at

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which the infringing activity of each Defendant was observed. Dkt. #1 at ¶ 10. Through

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geolocation, the IP address used by each Defendant has been traced to the Western District of

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Washington. Dkt. #6 at ¶ 20; Dkt. #1-1 at 5. In addition, each IP address has also been

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observed and associated with significant infringing activity and associated with the exchange of
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other titles on peer-to-peer networks. Dkt. #1 at ¶ 11. The volume, titles and persistent

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observed activity associated with each Defendant’s IP address indicates that each Defendant is

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not a transitory or occasional guest, but is either the primary subscriber of the IP address or

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The following background is taken from Plaintiff’s Complaint and the Declaration of Daniel Arheidt filed in
support of Plaintiff’s Motion for Expedited Discovery. Dkt. ## 1 and 6.

ORDER GRANTING PLAINTIFF’S MOTION TO EXPEDITE DISCOVERY - 2

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someone who resides with the subscriber and/or is an authorized user of the IP address. Id.

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The volume of the activity associated with each Defendant’s IP address further indicates that

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anyone using or observing activity on the IP address would likely be aware of the conduct of

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Defendant. Also, the volume and titles of the activity associated with each Defendant’s IP

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address indicates that each Defendant is not a child, but an adult, often with mature distinct
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tastes. Dkt. #1 at ¶ 11.
Plaintiff alleges that Defendants are each participants in a peer-to-peer (“P2P”) network
using the BitTorrent protocol.

Id. at ¶ 12.

The BitTorrent protocol makes even small

computers with low bandwidth capable of participating in large data transfers across a P2P

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network. To begin an exchange, the initial file-provider intentionally elects to share a file with
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a torrent network. This initial file is called a seed. Other users (“peers”) connect to the

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network and connect to the seed file to download. As additional peers request the same file

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each additional user becomes a part of the network from where the file can be downloaded.

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However, unlike a traditional peer-to-peer network, each new file downloader is receiving a
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different piece of the data from users who have already downloaded the file that together

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comprises the whole. This piecemeal system with multiple pieces of data coming from peer

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members is usually referred to as a “swarm.” The effect of this technology makes every

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downloader also an uploader of the illegally transferred file(s). This means that every “node”

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or peer user who has a copy of the infringing copyrighted material on a torrent network can
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also be a source of download, and thus distributor for that infringing file. Id.

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Plaintiff further alleges that Defendants’ actions are part of a common design, intention

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and purpose to hide behind the apparent anonymity provided by the Internet and the BitTorrent

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technology to download pieces of the copyrighted motion picture in a manner that, but for the

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ORDER GRANTING PLAINTIFF’S MOTION TO EXPEDITE DISCOVERY - 3

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investigative technology used by Plaintiff, would be untraceable, leaving the Plaintiff without

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the ability to enforce its copyright rights. Dkt. #1 at ¶ 14. By participating in the “swarm” to

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download Plaintiff’s copyrighted motion picture, the Defendants agreed with one another to use

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the Internet and BitTorrent technology to engage in violation of federal statute to accomplish an

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unlawful objective. Dkt. #1 at ¶ 14.
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Plaintiff has identified each Defendant by the IP address assigned by the ISP used by

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each Defendant and the date and time at which the infringing activity of each Defendant was

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observed. Id. at ¶ 15. This is accomplished using forensic software to collect, identify and

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record the IP addresses in use by those people that employ the BitTorrent protocol to share,

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copy, reproduce and distribute copyrighted works.

The end results are evidence logs of

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infringing transactions and the IP addresses of the users responsible for copying and

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distributing the audiovisual work, here London Has Fallen. Dkt. #1 at ¶ 17. The IP addresses,

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hash value, dates and times, ISP and geolocation contained in Exhibit B to the Complaint

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correctly reflect the subscribers using the IP addresses and that they were all part of a “swarm”
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of users that were reproducing, distributing, displaying or performing the copyrighted work.
Id.

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Plaintiff believes that each Defendant, without the permission or consent of Plaintiff,

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has used, and continues to use, an online media distribution system to wrongfully

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misappropriate, reproduce and distribute to the public, including by making available for
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distribution to others, London Has Fallen. Dkt. #1 at ¶28. Plaintiff further believes that each

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Defendant participated in a swarm and/or reproduced and/or distributed the same seed file of

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London Has Fallen in digital form either directly or with each other. Plaintiff has identified

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each Defendant by the IP address assigned to that Defendant by his or her ISP and the date and

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ORDER GRANTING PLAINTIFF’S MOTION TO EXPEDITE DISCOVERY - 4

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time at which the infringing activity of each Defendant was observed. Id. In addition, or in the

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alternative, Plaintiff believes that Defendants obtained Internet access through an ISP and

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permitted, facilitated and materially contributed to the extensive use of the Internet through his

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ISP for infringing Plaintiff’s exclusive rights under The Copyright Act by others. Id. at ¶ 29.

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Defendants, with knowledge of the infringing conduct, failed to reasonably secure, police and
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protect the use of his Internet service against use for improper purposes such as piracy,

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including the downloading and sharing of Plaintiff’s motion picture by others. Id. Defendants

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had the right and ability to supervise and control the activity constituting the infringement. Id.

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Plaintiff now seeks expedited discovery to identify the Defendants.

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III.

DISCUSSION

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A. Legal Standard

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This Court may authorize early discovery before the Rule 26(f) conference for the

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parties’ and witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d).

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Courts within the Ninth Circuit generally consider whether a plaintiff has shown “good cause”
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for such early discovery. See, e.g., Yokohama Tire Crop. v. Dealers Tire Supply, Inc., 202

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F.R.D. 612, 613-14 (D. Ariz. 2001) (collecting cases and standards). When the identities of

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defendants are not known before a Complaint is filed, a plaintiff “should be given an

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opportunity through discovery to identify the unknown defendants, unless it is clear that

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discovery would not uncover the identities, or that the complaint would be dismissed on other
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grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In evaluating whether a

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plaintiff establishes good cause to learn the identity of John Doe defendants through early

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discovery, courts examine whether the plaintiff (1) identifies the John Doe defendant with

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sufficient specificity that the Court can determine that the defendant is a real person who can be

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ORDER GRANTING PLAINTIFF’S MOTION TO EXPEDITE DISCOVERY - 5

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sued in federal court, (2) recounts the steps taken to locate and identify the defendant, (3)

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demonstrates that the action can withstand a motion to dismiss, and (4) proves that the

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discovery is likely to lead to identifying information that will permit service of process.

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Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

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B. Plaintiff Has Shown Good Cause to Take Early Discovery
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Here, Plaintiff established good cause to engage in early discovery to identify the John

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Doe Defendants. First, Plaintiff has associated the John Doe Defendants with specific acts of

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employing the BitTorrent protocol to share, copy, reproduce and distribute copyrighted works.

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Dkt. #1 at ¶ 17 and Dkt. #6 at ¶ 20. Plaintiff has been able to trace the alleged infringing

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activity to individual IP addresses in this judicial District. Dkt. #6 at ¶¶ 20-21, Dkt. #1-1 at 5.
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Second, Plaintiff has adequately described the steps it took in an effort to locate and identify

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the John Doe Defendants. See Dkt. #6. Specifically, Plaintiff utilized geolocation technology

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to locate the IP addresses in this District. Dkt. #6 at ¶¶ 20-21. Third, Plaintiff has pleaded the

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essential elements to state a claim for Copyright Infringement under 17 U.S.C. § 501, et seq.
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Dkts. #1 at ¶¶ 25-35. Fourth, the information proposed to be sought through a Rule 45

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subpoena appears likely to lead to identifying information that will allow Plaintiff to effect

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service of process on the John Doe Defendants. Specifically, Plaintiff states it will seek

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subscriber information associated with the alleged infringing IP address. Dkt. #6 at ¶ 21.

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Taken together, the Court finds that the foregoing factors demonstrate good cause to
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grant Plaintiff’s motion for leave to conduct limited expedited discovery. See Semitool, Inc. v.

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Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). Therefore, the Court will

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grant discovery limited to documents and/or information that will allow Plaintiff to determine

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the identities of the John Doe Defendants in order to effect service of process.

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ORDER GRANTING PLAINTIFF’S MOTION TO EXPEDITE DISCOVERY - 6

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IV.

CONCLUSION

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For the reasons set forth above, the Court hereby ORDERS:

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1. Plaintiff may immediately serve on its identified Internet Service Providers (or their

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associated downstream ISPs) a Rule 45 subpoena to obtain documents and/or

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information to identify the John Does Defendants.
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2. At this time, any document requests shall be limited to documents sufficient to

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identify all names, physical addresses, PO boxes, electronic addresses (including

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email addresses), telephone numbers, or other customer identifying information that

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are or have been associated with the alleged infringing IP addresses contained in

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Exhibit B to the Complaint, Dkt. #1-1 at 5.
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DATED this 22 day of March, 2017.

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A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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