POW Nevada, LLC v. Doe 1 et al

Filing 8

ORDER granting in part and denying in part Plaintiff's 5 Motion to Expedite Discovery, signed by Judge Ricardo S Martinez. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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POW NEVADA, LLC,
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Plaintiff,

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v.
DOE 1, et al.,
Defendants.

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CASE NO. C17-1213RSM
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO EXPEDITE DISCOVERY

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I.

INTRODUCTION

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Plaintiff POW Nevada, LLC, alleges copyright infringement claims against twelve

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unknown Doe Defendants who allegedly used “peer to peer” or BitTorrent file “swapping”

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networks to illegally obtain and distribute the motion picture Revolt. Dkt. #1 at ¶¶ 1, 10–35. It

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now seeks permission to take limited, expedited discovery from various internet service providers

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(“ISP”) in order to identify and name the Doe Defendants so it can complete service of process
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and proceed with litigation. Dkt. #5. Plaintiff also asks the Court, in the event Plaintiff

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determines that an individual associated with a particular Internet Protocol (“IP”) address is not

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the correct defendant, to allow it to seek evidence from the individuals identified by ISPs so it

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can “timely identify and serve the correct party.” Id. at 2–3.

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXPEDITE DISCOVERY - 1

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

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

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identify the Doe Defendants prior to filing this motion; (3) its claims against the Doe Defendants

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

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the proposed subpoenas upon ISPs will lead to information identifying the Doe Defendants. As
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a result, the Court finds good cause exists to allow Plaintiff to engage in expedited, preliminary
discovery from the Doe Defendants’ ISPs.

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However, the Court does not condone informal, unregulated discovery and, at this

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juncture, it will not allow Plaintiff to seek evidence from, or engage in discovery with, individuals

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identified by ISPs. If Plaintiff is not confident that the individuals identified by ISPs are the
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actual defendants in this matter, it must turn to the Court for recourse. Plaintiff’s Ex Parte Motion

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for Expedited Discovery (Dkt. #5) is thus GRANTED in part and DENIED in part.

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II.

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BACKGROUND1

Plaintiff is a limited liability company that produced and developed the motion picture

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“Revolt” for theatrical exhibition, home entertainment, and other forms of distribution. Dkt. #1

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at ¶ 5. Plaintiff claims its motion picture is protected by the Copyright Act; Plaintiff filed a

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copyright application on May 9, 2017. Id. ¶ 6.

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Plaintiff alleges each Doe Defendant copied and distributed Plaintiff’s motion picture
Revolt. Dkt. #1 ¶¶1, 10–14. The true names of Defendants are unknown to Plaintiff at this time.

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However, each Defendant is known to Plaintiff by the IP address assigned by an ISP and the date

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and time at which the infringing activity of each Defendant was allegedly observed. Dkt. #1 at

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¶¶ 10–17. Through geolocation, the IP address used by each Defendant has been traced to the

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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 Ex Parte Motion for Expedited Discovery. Dkts. ## 1 and 6.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
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Western District of Washington. Id. ¶ 16; Dkts. #6 ¶ 20 and #1, Ex. B at 5. Each IP address has

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also been observed and associated with significant infringing activity and associated with the

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exchange of other titles on peer-to-peer networks. Dkt. #1 ¶ 11. The volume, titles and persistent

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observed activity associated with each Defendant’s IP address also indicate 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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someone who resides with the subscriber and/or is an authorized user of the IP address. Id. The

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

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

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

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each Defendant is not a child, but an adult. Id.
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Plaintiff alleges Defendants are each participants in a peer-to-peer (“P2P”) network using

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the BitTorrent protocol. Id. ¶ 12. The BitTorrent protocol makes even small computers with low

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bandwidth capable of participating in large data transfers across a P2P network. Id. To begin an

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exchange, the initial file-provider intentionally elects to share a file with a torrent network. Id.

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The initial file is called a “seed.” Id. Other users (“peers”) connect to the network and connect

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to the seed file to download. Id. As additional peers request the same file each additional user

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becomes a part of the network from where the file can be downloaded. Id. However, unlike a

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traditional peer-to-peer network, each new file downloader is receiving a different piece of the

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data from users who have already downloaded the file that together comprises the whole. Id.

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This piecemeal system with multiple pieces of data coming from peer members is usually referred

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to as a “swarm.” Id. The effect of this technology makes every downloader also an uploader of

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the illegally transferred file(s). Id. This means that every “node” or peer user who has a copy of

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXPEDITE DISCOVERY - 3

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the infringing copyrighted material on a torrent network can 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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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 ¶ 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. Id.
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Plaintiff has identified each Defendant by the IP address assigned by the ISP used by each

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

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

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addresses in use by those people that employ the BitTorrent protocol to share, copy, reproduce

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and distribute copyrighted works. Id. The end result are evidence logs of infringing transactions

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and the IP addresses of the users allegedly responsible for copying and distributing the

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audiovisual work, here Revolt. Dkt. #1 ¶ 17. The IP addresses, hash value, dates and times, ISP

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and geolocation contained in Exhibit B to the Complaint correctly reflect the subscribers using

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the IP addresses and that they were all part of a “swarm” of users that were reproducing,

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distributing, displaying or performing the copyrighted work. Id.

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

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

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reproduce and distribute to the public, including by making available for distribution to others,

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXPEDITE DISCOVERY - 4

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Revolt. Dkt. #1 ¶ 28. Plaintiff further believes that each Defendant participated in a swarm

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and/or reproduced and/or distributed the same seed file of Revolt in digital form either directly

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or with each other. Id. In addition, or in the alternative, Plaintiff believes that Defendants

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obtained Internet access through an ISP and permitted, facilitated and materially contributed to

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the extensive use of the Internet through the ISP for infringing Plaintiff’s exclusive rights under
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The Copyright Act by others. Id. ¶ 29. Defendants, with knowledge of the infringing conduct,

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allegedly failed to reasonably secure, police and protect the use of their Internet service against

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use for improper purposes such as piracy, including the downloading and sharing of Plaintiff’s

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motion picture by others. Id. Defendants allegedly had the right and ability to supervise and

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control the activity constituting the infringement. Id.
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Plaintiff now seeks expedited discovery to identify the Defendants.
III.

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DISCUSSION

A. Legal Standard
This Court may authorize early discovery before the Rule 26(f) conference for the parties’

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

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the Ninth Circuit generally consider whether a plaintiff has shown “good cause” for such early

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discovery. See, e.g., Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613–

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14 (D. Ariz. 2001) (collecting cases and standards). When the identities of defendants are not

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known before a Complaint is filed, a plaintiff “should be given an opportunity through discovery

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to identify the unknown defendants, unless it is clear that discovery would not uncover the

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identities, or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629

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F.2d 637, 642 (9th Cir. 1980). In evaluating whether a plaintiff establishes good cause to learn

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the identity of Doe defendants through early discovery, courts examine whether the plaintiff (1)

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXPEDITE DISCOVERY - 5

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identifies the Doe defendant with sufficient specificity that the Court can determine that the

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defendant is a real person who can be sued in federal court, (2) recounts the steps taken to locate

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and identify the defendant, (3) demonstrates that the action can withstand a motion to dismiss,

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and (4) proves that the discovery is likely to lead to identifying information that will permit

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service of process. Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal.
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1999).
B. Plaintiff Has Shown Good Cause to Take Early Discovery from Defendants’ ISPs

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Here, Plaintiff establishes good cause to engage in early discovery to identify the Doe

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Defendants through their ISPs. First, Plaintiff has associated the Doe Defendants with specific

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acts of employing the BitTorrent protocol to share, copy, reproduce and distribute copyrighted
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works. Dkts. #1 ¶ 17 and #6 ¶ 20. Plaintiff has also been able to trace the alleged infringing

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activity to individual IP addresses in this judicial District. Dkt. #6 at ¶¶ 11–21, Dkt. #1, Ex. B at

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5. Second, Plaintiff has adequately described the steps it took in an effort to locate and identify

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the Doe Defendants. See Dkt. #6. Specifically, Plaintiff used geolocation technology to locate

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the IP addresses in this District. Id. ¶¶ 11–21. Third, Plaintiff has pleaded the essential elements

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to state a claim for Copyright Infringement under 17 U.S.C. § 501, et seq. Dkt. #1 ¶¶ 10–35.

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Fourth, the information sought through a Rule 45 subpoena appears likely to lead to identifying

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information that will allow Plaintiff to effect service of process on the Doe Defendants.

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Specifically, Plaintiff seeks subscriber information associated with the alleged infringing IP

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address. Dkt. #6 ¶ 21.

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Taken together, the Court finds that the foregoing factors demonstrate good cause to grant

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Plaintiff’s motion for leave to conduct limited expedited discovery from the Doe Defendants’

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ISPs. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). The

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
EXPEDITE DISCOVERY - 6

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Court thus GRANTS Plaintiff’s request to engage in limited discovery to obtain documents

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and/or information, from ISPs, which will allow Plaintiff to determine the identities of the Doe

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Defendants in order to effect service of process.

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C. Plaintiff May Not Seek Evidence From Individuals Identified by ISPs

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Although Plaintiff has shown good cause to allow for limited, expedited discovery from
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ISPs, the Court will not allow Plaintiff to seek evidence from individuals identified by ISPs.

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Receipt of subscriber identities is not an opportunity for Plaintiff to notify those subscribers of

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the lawsuit; that purpose is accomplished by the service of a complaint. Receipt of subscriber

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identities is also not an opportunity for Plaintiff to engage in unsanctioned, informal discovery.

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If Plaintiff is not confident that it can name an identified subscriber as a defendant, it must turn
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to the Court for recourse. LHF Prods., Inc. v. Doe 1, et al., Case No. C17-254RSM, Dkt. #14 at

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3; also D3 Prods., LLC v. Does, Case No. C13-0228-RSM-RSL, Dkt. #10 at 7–8. Plaintiff’s

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request to seek evidence from, or to engage in discovery efforts with, identified subscribers is

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accordingly DENIED.

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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 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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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
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is or has been associated with the alleged infringing IP addresses contained in Exhibit

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B to the Complaint, Dkt. #1, Ex. B at 5.

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3. Plaintiff may not seek evidence or discovery from the individuals identified by the

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Internet Service Providers served with a Rule 45 subpoena.

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DATED this 15 day of August, 2017.

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A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
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