Microsoft Corporation v. John Does 1-10
Filing
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ORDER granting Plaintiff's 6 Motion to Expedite Discovery signed by Judge Ricardo S Martinez.(PM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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MICROSOFT CORPORATION, a
Washington Corporation,
Plaintiff,
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v.
JOHN DOES 1-10 using IP address
73.21.204.220,
Defendants.
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)
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) CASE NO. C17-1911RSM
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) ORDER GRANTING PLAINTIFF’S
) MOTION TO EXPEDITE DISCOVERY
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I.
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INTRODUCTION
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Plaintiff alleges copyright and trademark infringement claims against several unknown
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John Doe Defendants that appear to be using IP address 73.21.204.220 to illegally activate
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Plaintiff’s software. Dkt. #1 at ¶ ¶ 37-52. It now seeks permission to take limited, expedited
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discovery from Comcast IP Services, LLP (“Comcast”), an internet service provider (“ISP”), to
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identify and name the John Doe Defendants in this case so that it can complete service of process
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and proceed with litigation.
Dkt. #6 at 5-7.
As further discussed below, Plaintiff has
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demonstrated that: (1) the John Doe Defendants are real people and/or entities that may be sued
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in federal court; (2) it has unsuccessfully attempted to identify the John Doe Defendants prior to
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filing this motion; (3) its claims against the John Doe Defendants would likely survive a motion
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to dismiss; and (4) there is a reasonable likelihood that service of the proposed subpoena on
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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.
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BACKGROUND1
Plaintiff develops, distributes, and licenses various types of computer software, including
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operating system software (such as Microsoft Windows) and productivity software (such as
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Microsoft Office). Dkt. #1 at ¶ ¶ 8-16. Microsoft holds registered copyrights in the various
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different versions of these products, and has registered trademarks and service marks associated
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with the products. Id. at ¶ 16.
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Microsoft has implemented a wide-range of initiatives to protect its customers and
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combat theft of its intellectual property, including its product activation system, which involves
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the activation of software through product keys. Id. at ¶ 24. A Microsoft product key is a 25-
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character alphanumeric string generated by Microsoft and provided either directly to Microsoft’s
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customers or to Microsoft’s original equipment manufacturer (“OEM”) partners. Id. at ¶ 25.
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Generally, when customers or OEMs install Microsoft software on a device, they must enter the
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product key. Id. Then, as part of the activation process, customers and/or OEMs voluntarily
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contact Microsoft’s activation servers over the Internet and transmit the product keys and other
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technical information about their device to the servers. Id. Because Microsoft software is
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capable of being installed on an unlimited number of devices, Microsoft uses the product
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activation process to detect piracy and protect consumers from the risk of non-genuine software.
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Id. at ¶ 26.
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Microsoft has created the Microsoft Cybercrime Center where they utilize, inter alia,
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certain technology to detect software piracy, which it refers to as “cyberforensics.” Id. at ¶ 29.
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The following background is taken from Plaintiff’s Complaint and the Declaration of Brittany
Carmichael filed in support of Plaintiff’s Motion for Expedited Discovery. Dkts. #1 and #7.
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Microsoft uses its cyberforensics to analyze product key activation data voluntarily provided by
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users when they activate Microsoft software, including the IP address from which a given product
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key is activated. Dkt. #1 at ¶ 30. Cyberforensics allows Microsoft to analyze the activations of
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Microsoft software and identify activation patterns and characteristics that make it more likely
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than not that the IP address associated with certain product key activations is one through which
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unauthorized copies of Microsoft software are being activated. Dkt. #7 at ¶ ¶ 2-5. Microsoft’s
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cyberforensics have identified more than 2,000 product key activation attempts originating from
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IP address 73.21.204.220. Id. at ¶ 6. According to publicly available data, that IP address is
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presently under the control of Comcast. Id.
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Microsoft alleges that for at least the past three years, the aforementioned IP address has
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been used to activate thousands of Microsoft product keys. Id. at ¶ 7. These activations have
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characteristics that demonstrate that the John Doe Defendants are using the IP address to activate
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unauthorized copies of Microsoft’s software. Id. Microsoft believes these activations constitute
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the unauthorized copying, distribution, and use of Microsoft software, in violation of Microsoft’s
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software licenses and intellectual property rights. Id. at ¶ 8. Despite its best efforts, Microsoft
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has been unable to positively identify the John Doe Defendants. Id. at ¶ 9. Microsoft believes
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Comcast has access to the subscriber information associated with the subject IP address from
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records kept in the regular course of its business. Id. at ¶ 11.
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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 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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ORDER
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discovery. See, e.g., Yokohama Tire Crop. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14
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(D. Ariz. 2001) (collecting cases and standards). When the identities of defendants are not known
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before a Complaint is filed, a plaintiff “should be given an opportunity through discovery to
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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 John Doe defendants through early discovery, courts examine whether the plaintiff
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(1) identifies the John Doe defendant with sufficient specificity that the Court can determine that
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the defendant is a real person who can be sued in federal court, (2) recounts the steps taken to
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locate and identify the defendant, (3) demonstrates that the action can withstand a motion to
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dismiss, and (4) proves that the discovery is likely to lead to identifying information that will
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permit service of process. Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D.
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Cal. 1999).
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B. Plaintiff Has Shown Good Cause to Take Early Discovery
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Here, Plaintiff has established good cause to engage in early discovery to identify the
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John Doe Defendants. First, Plaintiff has associated the John Doe Defendants with specific acts
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of activating unauthorized software using product keys that are known to have been stolen from
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Microsoft, and have been used more times than are authorized for the particular software. Dkt.
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#7 at ¶ ¶ 6-8. Plaintiff has been able to trace the product key activations as originating from one
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IP address, and nearly all of the activations have involved voluntary communication between the
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John Doe Defendants and Microsoft activation servers in this judicial District. Id. at ¶ 7. Second,
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Plaintiff has adequately described the steps it took in an effort to locate and identify the John Doe
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Defendants. Dkt. #7. Specifically, it utilized its “cyberforensics” technology to analyze product
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ORDER
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key activation data and identified certain patterns and characteristics which indicate software
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piracy. Dkt. #7 at ¶ ¶ 2-4 and Dkt. #1 at ¶ ¶ 29-32. Third, Plaintiff has pleaded the essential
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elements to state a claim for Copyright Infringement under 17 U.S.C. § 501, et seq., and
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Trademark Infringement under 15 U.S.C. § 1114. Dkt. #1 at ¶ ¶ 37-52 and Exs. 1-36. Fourth,
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the information proposed to be sought through a Rule 45 subpoena appears likely to lead to
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identifying information that will allow Plaintiff to effect service of process on the John Doe
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Defendants. Dkt. #7 at ¶ ¶ 10-12. Specifically, Plaintiff states it will seek subscriber information
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associated with the alleged infringing IP address. Dkt. #5 at ¶ 12.
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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. See Semitool, 208 F.R.D. at
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276. Therefore, the Court will grant discovery limited to documents and/or information that will
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allow Plaintiff to determine the identities of the John Doe Defendants in order to effect service
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of process.
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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 Comcast IP Services, LLP (or its associated
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downstream ISPs) a Rule 45 subpoena to obtain documents and/or information to
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identify John Does 1-10.
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2. At this time, any documents 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 IP address 73.21.204.220.
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ORDER
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DATED this 2 day of January, 2018.
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A
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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE
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ORDER
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