Malibu Media LLC v. Doe

Filing 18

ORDER signed by Judge Rudolph T. Randa on 9/17/2013. 9 DENIED as to Motion to Quash, GRANTED as to Motion for Leave to Proceed Anonymously, GRANTED as to Motion to Seal Exhibit C to the Complaint. Clerk of Court directed to SEAL Exhibit C (ECF No. 1-3). Within 10 days of the date of this Order, plaintiff ordered to show cause as to why attaching Exhibit C to complaint does not violate FRCP 11(b). (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MALIBU MEDIA, LLC,
Plaintiff,
-vs-

Case No. 13-C-536

JOHN DOE, subscriber assigned
IP address 184.58.186.212,
Defendant.

MALIBU MEDIA, LLC,
Plaintiff,
-vs-

Case No. 13-C-544

JOHN DOE, subscriber assigned
IP address 97.83.171.176
Defendant.

MALIBU MEDIA, LLC,
Plaintiff,
-vs-

Case No. 13-C-779

JOHN DOE, subscriber assigned
IP address 174.103.170.157
Defendant.

DECISION AND ORDER

These cases are part of a wave of cases brought against anonymous defendants
for illegally downloading copyrighted adult films using the BitTorrent Protocol, a
“peer-to-peer file sharing system used to transfer files over the Internet.” Malibu
Media LLC v. Reynolds, No. 12 C 6672, 2013 WL 870618, at *1 (N.D. Ill. March 7,
2013); see also Malibu Media LLC v. John Does 1-6, No. 12 C 08903, --- F.R.D. ---,
2013 WL 2150679, at *1 (N.D. Ill. May 17, 2013). So far in 2013, Malibu Media has
filed 28 of these cases in this judicial district. Three of them, captioned above, are
pending in this Court.
One of the recurring issues in these cases is how to discover the identity of the
alleged infringer. In each of the above-captioned cases, the Court granted Malibu
Media’s ex parte motion to serve a third-party subpoena on the defendant’s internet
service provider (ISP). In Case No. 13-C-536, the anonymous defendant appeared by
counsel and moved to quash the subpoena.
There is a division of authority among district courts regarding whether a party
has standing to quash a subpoena issued to a non-party ISP. See, e.g., reFX Audio
Software, Inc. v. Does 1-11, No. 13 C 975, 2013 WL 3867656, at *1 (N.D. Ill. July 23,
2013). As in reFX Audio, the Court need not wade into this dispute, because the
motion to quash is without merit. “Identifying customers associated with the IP
addresses of which plaintiff is aware is relevant to its claims. Even if the customer
associated with the IP address is not necessarily the person who illegally download[ed]
plaintiff’s software, the customer’s name is the first step in identifying the proper
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defendant.” Id. at *2; see also Malibu Media LLC v. John Does 1-7, No. 12-1189,
2013 WL 501445, at *1-2 (C.D. Ill. Feb. 11, 2013) (“The Court knows of no other
method for a copyright holder to begin to protect its copyright when the BitTorrent
protocol is the alleged method of infringement”); but see, In re BitTorrent Adult Film
Copyright Infringement Cases, No. 11-3995(DRH)(GRB), 2012 WL 1570765
(E.D.N.Y. May 2, 2012) (expressing concerns about whether an IP address can be
traced to an individual owner).
The 536 defendant also moves for leave to proceed anonymously. Malibu
Media does not oppose this motion. In fact, Malibu Media represents that it never
opposes a defendant’s motion to proceed anonymously. However, in Case No. 13-C544, Malibu Media filed a summons and complaint publicly identifying the initiallyanonymous defendant; the same type of amendment may be forthcoming in Case No.
13-C-779.

The Court sees no reason why the dispensation of anonymity should

depend upon whether the defendant has appeared by counsel. There is good cause to
allow all of these defendants to proceed anonymously. Sunlust Pictures, LLC v. Does
1-75, No. 12 C 1546, 2012 WL 3717768, at *5 (N.D. Ill. Aug. 27, 2012) (“because
Doe (as a defendant) has not purposefully availed himself of the courts, the public’s
interest in knowing his identity is weaker”). The Court will direct the Clerk of Court
to seal all of the relevant pleadings in Case No. 13-C-544 and amend the caption of
that case to its original form. The Court expects that the 779 defendant will remain
anonymous going forward.
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Finally, the 536 defendant moves to seal an exhibit attached to the complaint
— Exhibit C. This exhibit lists over 850 titles downloaded to the targeted IP address.
The problem with this exhibit is that it contains numerous titles — some of them crude
and obscene — that do not correspond to the copyrights-in-suit (Exhibit B). The same
pattern is repeated in all of the other cases that have been filed in this judicial district.
This issue was flagged by the Court’s neighbors in the Western District of
Wisconsin. Judge Crocker issued an order to show cause as to why Malibu Media’s
counsel should not be sanctioned for filing Exhibit C. Judge Conley then found that
the exhibit’s intent “was to harass and intimidate defendants into early settlement by
use of the salacious nature of others’ materials, rather than the merit of its own
copyright claims.” Malibu Media LLC v. John Doe, No. 13-cv-205-wmc, 2013 WL
4821911, at *1 (W.D. Wis. Sept. 10, 2013). Accordingly, Judge Conley sanctioned
counsel $200 for each of the eleven cases pending before him. The Court is persuaded
by Judge Conley’s reasoning. Therefore, Malibu Media will be ordered to show cause
as to why attaching Exhibit C to the complaints in Case Nos. 13-C-536, 13-C-544, and
13-C-779 does not violate Federal Rule of Civil Procedure 11(b).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
1.

In Case No. 13-C-536, Doe’s motion to quash the subpoena [ECF No.

9] is DENIED, but his motion to proceed anonymously and to seal Exhibit C to the
complaint is GRANTED. In addition, the Court sua sponte finds that the defendants
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in Case Nos. 13-C-544 and 13-C-779 will be allowed to proceed anonymously.
Accordingly, in Case No. 13-C-544, the Clerk of Court is directed to seal ECF Nos. 7
and 8 and to further remove any trace of the defendant’s identity from the docket.
Finally, the Clerk of Court is directed to place Exhibit C [ECF No. 1-3] under seal in
all of these cases; and
2.

Within ten (10) days of the date of this Order, the plaintiff is ordered to

show cause as to why attaching Exhibit C to the complaints in the above-captioned
cases does not violate Rule 11(b). Fed. R. Civ. P. 11(c)(3).
Dated at Milwaukee, Wisconsin, this 17th day of September, 2013.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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