Microsoft Corporation v. John Does 1-10 using IP address

Filing 13

ORDER granting Plaintiff's 11 Motion to Expedite Discovery. Plaintiff may immediately serve on Comcast IP Services, LLP (or its associated downstream ISPs) a Rule 45 subpoena to obtain documents and/or information toidentify John Does 1-10. At this time, any documents requests shall be limited to documents sufficient to identify all names, physical addresses, PO boxes, electronic addresses (including email addresses), telephone numbers, or other customer identifying information that are or have been associated with the IP address Signed by Judge Ricardo S Martinez. (TH)

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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 8 MICROSOFT CORPORATION, a Washington Corporation, 9 Plaintiff, 10 v. 11 12 JOHN DOES 1-10 using IP address and, 13 Defendants. 14 I. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. C17-1587RSM ORDER GRANTING PLAINTIFF’S SECOND MOTION TO EXPEDITE DISCOVERY INTRODUCTION Plaintiff alleges copyright and trademark infringement claims against several unknown 17 John Doe Defendants that appear to be using IP address to illegally activate 18 19 Plaintiff’s software. Dkt. #10 at ¶ ¶ 37-52. It now seeks permission to take limited, expedited 20 discovery from Comcast IP Services, LLP (“Comcast”), an internet service provider (“ISP”), to 21 identify and name the John Doe Defendants in this case so that it can complete service of process 22 and proceed with litigation. Dkt. #11 at 4-7. As further discussed below, Plaintiff has 23 24 demonstrated that: (1) the John Doe Defendants are real people and/or entities that may be sued 25 in federal court; (2) it has unsuccessfully attempted to identify the John Doe Defendants prior to 26 filing this motion; (3) its claims against the John Doe Defendants would likely survive a motion 27 to dismiss; and (4) there is a reasonable likelihood that service of the proposed subpoena on 28 ORDER PAGE - 1 1 2 Comcast will lead to information identifying the John Doe Defendants. As a result, the Court finds that good cause exists to allow Microsoft to engage in expedited, preliminary discovery. II. 3 4 BACKGROUND1 Plaintiff develops, distributes, and licenses various types of computer software, including 5 operating system software (such as Microsoft Windows) and productivity software (such as 6 7 Microsoft Office). Dkt. #10 at ¶ ¶ 8-16. Microsoft holds registered copyrights in the various 8 different versions of these products, and has registered trademarks and service marks associated 9 with the products. Id. at ¶ 16. 10 Microsoft has implemented a wide-range of initiatives to protect its customers and 11 combat theft of its intellectual property, including its product activation system, which involves 12 13 the activation of software through product keys. Id. at ¶ 24. A Microsoft product key is a 25- 14 character alphanumeric string generated by Microsoft and provided either directly to Microsoft’s 15 customers or to Microsoft’s original equipment manufacturer (“OEM”) partners. Id. at ¶ 25. 16 Generally, when customers or OEMs install Microsoft software on a device, they must enter the 17 18 product key. Id. Then, as part of the activation process, customers and/or OEMs voluntarily 19 contact Microsoft’s activation servers over the Internet and transmit the product keys and other 20 technical information about their device to the servers. Id. Because Microsoft software is 21 capable of being installed on an unlimited number of devices, Microsoft uses the product 22 activation process to detect piracy and protect consumers from the risk of non-genuine software. 23 24 Id. at ¶ 26. 25 26 27 28 1 The following background is taken from Plaintiff’s Amended Complaint and the Declaration of Brittany Carmichael filed in support of Plaintiff’s Motion for Expedited Discovery. Dkts. #10 and #12. ORDER PAGE - 2 Microsoft has created the Microsoft Cybercrime Center where they utilize, inter alia, 1 2 certain technology to detect software piracy, which it refers to as “cyberforensics.” Dkt. #10 at 3 ¶ 29. Microsoft uses its cyberforensics to analyze product key activation data voluntarily 4 provided by users when they activate Microsoft software, including the IP address from which a 5 given product key is activated. Id. at ¶ 30. Cyberforensics allows Microsoft to analyze the 6 7 activations of Microsoft software and identify activation patterns and characteristics that make it 8 more likely than not that the IP address associated with certain product key activations is one 9 through which unauthorized copies of Microsoft software are being activated. Dkt. #12 at ¶ ¶ 2- 10 5. Microsoft’s cyberforensics have identified a number of product key activations originating 11 from IP address Id. at ¶ 6. According to publicly available data, that IP address is 12 13 presently under the control of Comcast. Id. 14 Microsoft alleges that for at least the past three years, the aforementioned IP address has 15 been used to activate thousands of Microsoft product keys. Id. at ¶ 7. These activations have 16 characteristics that demonstrate that the John Doe Defendants are using the IP address to activate 17 18 unauthorized copies of Microsoft’s software. Id. Microsoft believes these activations constitute 19 the unauthorized copying, distribution, and use of Microsoft software, in violation of Microsoft’s 20 software licenses and intellectual property rights. Id. at ¶ 8. Despite its best efforts, Microsoft 21 has been unable to positively identify the John Doe Defendants. Id. at ¶ 9. Microsoft believes 22 Comcast has access to the subscriber information associated with the subject IP address from 23 24 records kept in the regular course of its business. Id. at ¶ 11. 25 /// 26 /// 27 /// 28 ORDER PAGE - 3 III. 1 2 DISCUSSION A. Legal Standard 3 This Court may authorize early discovery before the Rule 26(f) conference for the parties’ 4 and witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within 5 the Ninth Circuit generally consider whether a plaintiff has shown “good cause” for such early 6 7 discovery. See, e.g., Yokohama Tire Crop. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 8 (D. Ariz. 2001) (collecting cases and standards). When the identities of defendants are not known 9 before a Complaint is filed, a plaintiff “should be given an opportunity through discovery to 10 identify the unknown defendants, unless it is clear that discovery would not uncover the 11 identities, or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 12 13 F.2d 637, 642 (9th Cir. 1980). In evaluating whether a plaintiff establishes good cause to learn 14 the identity of John Doe defendants through early discovery, courts examine whether the plaintiff 15 (1) identifies the John Doe defendant with sufficient specificity that the Court can determine that 16 the defendant is a real person who can be sued in federal court, (2) recounts the steps taken to 17 18 locate and identify the defendant, (3) demonstrates that the action can withstand a motion to 19 dismiss, and (4) proves that the discovery is likely to lead to identifying information that will 20 permit service of process. Columbia Ins. Co. v., 185 F.R.D. 573, 578-80 (N.D. 21 Cal. 1999). 22 B. Plaintiff Has Shown Good Cause to Take Early Discovery 23 24 Here, Plaintiff has established good cause to engage in early discovery to identify the 25 John Doe Defendants. First, Plaintiff has associated the John Doe Defendants with specific acts 26 of activating unauthorized software using product keys that are known to have been stolen from 27 Microsoft, and have been used more times than are authorized for the particular software. Dkt. 28 ORDER PAGE - 4 1 #12 at ¶ ¶ 6-8. Plaintiff has been able to trace the product key activations as originating from 2 one IP address, and nearly all of the activations have involved voluntary communication between 3 the John Doe Defendants and Microsoft activation servers in this judicial District. Id. at ¶ 7. 4 Second, Plaintiff has adequately described the steps it took in an effort to locate and identify the 5 John Doe Defendants. Dkt. #12. Specifically, it utilized its “cyberforensics” technology to 6 7 analyze product key activation data and identified certain patterns and characteristics which 8 indicate software piracy. Dkt. #12 at ¶ ¶ 2-4 and Dkt. #10 at ¶ ¶ 29-32. Third, Plaintiff has 9 pleaded the essential elements to state a claim for Copyright Infringement under 17 U.S.C. § 501, 10 et seq., and Trademark Infringement under 15 U.S.C. § 1114. Dkt. #10 at ¶ ¶ 37-52 and Exs. 1- 11 37. Fourth, the information proposed to be sought through a Rule 45 subpoena appears likely to 12 13 lead to identifying information that will allow Plaintiff to effect service of process on the John 14 Doe Defendants. Dkt. #12 at ¶ ¶ 10-12. 15 information associated with the alleged infringing IP address. Id. at ¶ 12. 16 Specifically, Plaintiff states it will seek subscriber Taken together, the Court finds that the foregoing factors demonstrate good cause to grant 17 18 Plaintiff’s motion for leave to conduct limited expedited discovery. See Semitool, 208 F.R.D. at 19 276. Therefore, the Court will grant discovery limited to documents and/or information that will 20 allow Plaintiff to determine the identities of the John Doe Defendants in order to effect service 21 of process. 22 IV. CONCLUSION 23 24 For the reasons set forth above, the Court hereby ORDERS: 25 1. Plaintiff may immediately serve on Comcast IP Services, LLP (or its associated 26 downstream ISPs) a Rule 45 subpoena to obtain documents and/or information to 27 identify John Does 1-10. 28 ORDER PAGE - 5 1 2. At this time, any documents requests shall be limited to documents sufficient to 2 identify all names, physical addresses, PO boxes, electronic addresses (including 3 email addresses), telephone numbers, or other customer identifying information that 4 are or have been associated with the IP address 5 DATED this 17th day of November 2017. 6 7 A 8 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER PAGE - 6

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