Malibu Media LLC v. Doe

Filing 10

DECISION AND ORDER signed by Judge Lynn Adelman on 5/21/15 denying John Doe's 8 Motion to Dismiss; Motion to Modify; Motion for Protective Order. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
_____________________________________________________________________
MALIBU MEDIA, LLC,
Plaintiff,
v.

Case No. 14-cv-0932

JOHN DOE subscriber assigned
IP address 67.52.243.131,
Defendant.
_____________________________________________________________________
DECISION AND ORDER
Plaintiff Malibu Media, an adult film producer, filed this copyright infringement suit
alleging that defendant violated 17 U.S.C. §§ 106 and 501 by copying and distributing
copies of plaintiff’s copyrighted movies using file-sharing software called BitTorrent.1
According to the complaint, plaintiff’s investigator downloaded one or more pieces of
plaintiff’s copyrighted movies from a computer using defendant’s IP address. Plaintiff used
geolocation technology to trace defendant’s IP address to a physical address located in
the Eastern District of Wisconsin; however, an IP address does not reveal the name of the
people who use it, so plaintiff named defendant as “John Doe subscriber assigned IP
address 67.52.243.131” and moved for permission to take discovery before the Rule 26(f)
conference, see Fed. R. Civ. P. 26(d)(1), so that it could serve a subpoena on Time
Warner Cable, the internet service provider that assigned the IP address at issue, and

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BitTorrent allows a “swarm” of computers to download and upload files from
each other. Instead of downloading an entire file, such as a movie, from one other
computer, a BitTorrent user downloads pieces of the movie from multiple computers in
the swarm. Once the user has obtained all of the pieces, the BitTorrent software
assembles the pieces into the completed file, and the user is able to view the movie.
The user’s computer also becomes a source for the pieces it downloads, meaning other
BitTorrent users in the swarm can download them directly from the user’s computer.

obtain information about the identity of the subscriber to whom the IP address was
assigned. I granted this motion, and defendant filed a motion to dismiss or alternatively
quash the subpoena or enter a protective order, which I address now.2
I. Motion to Dismiss
Defendant asks me to dismiss this case pursuant to Fed. R. Civ. P. 11(b)(1), which
states that “[b]y presenting to the court a pleading, written motion, or other paper . . . an
attorney or unrepresented party certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances, it is
not being presented for any improper purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation.” Defendant argues that plaintiff “may be
misusing the Court to intimidate defendants who may or may not be guilty into quickly
settling due to the nature of the material.” Def.’s Mot. Dismiss at 3 (ECF No. 8). As
evidence, defendant cites several articles which describe plaintiff as a copyright troll and
detail litigation tactics aimed at “scar[ing] people into settling early to avoid having their
names attached to a federal lawsuit” involving pornography. Mike Masnick, Malibu Media
Sanctioned Again For Bogus Copyright Abuse & Intimidation, TechDirt (Dec. 13, 2013,
5:29PM),

https://www.techdirt.com/articles/20131213/15210325563/malibu-media-

sanctioned-again-bogus-copyright-abuse-intimidation.shtml. Defendant also point to the
fact that plaintiff has never taken measures to protect its copyrighted material from
infringement aside from the mass filing of lawsuits.
2

This motion was filed anonymously and signed by “John Doe Subscriber
Assigned IP Address 67.52.234.131,” and there is no indication that it was filed by an
attorney. Thus, I will treat it as a motion filed by a pro se party and liberally construe
defendant’s filings. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001).
2

Rule 11(c) authorizes me to sanction a party for a violation of Rule 11(b), but
defendant specifically states that he is not seeking sanctions under Rule 11(c). Def.’s Mot.
Dismiss at 4 n.8 (ECF No. 8). Further, defendant has presented no evidence that the
complaint in this case was filed for an improper purpose. While the articles defendant cites
about plaintiff’s litigation strategies in other cases is concerning, he has presented no
evidence that plaintiff has used any coercive tactics in this litigation,3 and I cannot sanction
plaintiff for something it has not yet done. See, e.g., Malibu Media, LLC v. John Does 1-5,
285 F.R.D. 273, 278 (S.D.N.Y. 2012) (“We are reluctant to prevent plaintiff from proceeding
with its case based only on a ‘guilt-by-association’ rationale.”). Therefore, I will not dismiss
plaintiff’s claims on this basis.
Defendant also argues that I should dismiss this case because defendant is the IP
address subscriber but not necessarily the infringer, thus someone other than defendant
could have used his IP address to distribute the movies. I construe this as a motion to
dismiss for failure to state a claim upon which relief may be granted under Fed. R. Civ. P.
12(b)(6). To survive a motion to dismiss at the pleadings stage, plaintiff is not required to
provide evidence to support its allegations; it must merely allege a claim that is plausible
on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Here, plaintiff has done
that. The complaint alleges that defendant is the IP address subscriber and the infringer,
and while it is possible that someone other than the subscriber used the subscriber’s
internet connection to illegally download plaintiff’s copyrighted materials, it is also plausible

3

For example, one article defendant cites discusses the practice of attaching a
long list of movies downloaded using defendant’s IP address that are unrelated to the
copyrights-in-suit. Masnick, supra. Such a list was not filed with this complaint.
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that the subscriber himself did so. At this stage in the litigation, this is enough.
Defendant also cites several cases in which district court judges dismissed similar
suits brought by plaintiff for improper venue because “[t]here is nothing that links the IP
address location to the identity of the person actually downloading and viewing Plaintiff’s
videos, and establishing whether that person lives in this district.” Malibu Media, LLC v.
Doe, No. 14-cv-20213, slip op. at 1 (S.D. Fla. Mar. 19, 2014). I construe this as a separate
argument that I should dismiss this case for improper venue.
Proper venue in copyright cases rests “in the district in which the defendant or his
agent resides or may be found, ” 28 U.S.C. § 1400(a). At this stage in the litigation, the
facts alleged in plaintiff’s complaint adequately establish that it is at least plausible that
defendant resides or may be found in this district. The complaint alleges that plaintiff used
geolocation technology to link the IP address with a physical address in this district and
that the subscriber of that IP address allegedly infringed plaintiff’s copyright. Defendant
does not dispute that he resides in this district and provides no evidence to the contrary.
Although it is possible that the actual infringer does not reside in this district, the complaint
adequately pleads facts supporting a possibility that he does. Thus, the complaint has
established “at least a good faith belief” that venue is proper and that early discovery will
allow plaintiff to prove this. AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 995 (D.C. Cir.
2014) (internal quotations and citation omitted). Because defendant has not shown any
evidence of an improper motive for filing this complaint and because the complaint
adequately pleads facts sufficient to support a claim as well as venue, I will deny
defendant’s motion to dismiss.

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II. Motion to Quash Subpoena or Enter Protective Order
Next, I address defendant’s motion to quash the third party subpoena issued to
Time Warner Cable seeking the name and address associated with the IP address at
issue. Generally, the scope of civil discovery is broad, extending to any information that is
relevant to any party’s claims or defense. Fed. R. Civ. P. 26(b)(1). However, I must quash
a subpoena when it “subjects a person to undue burden.” Fed. R. Civ. P. 45(c)(3)(A)(iv).
I may also issue a protective order “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden.” Fed. R. Civ. P. 26(c).
Defendant first asserts that plaintiff is not entitled to the name and address of the
IP address subscriber because it is not relevant, arguing that “IP subscribers are not
necessarily copyright infringers” and thus identifying information about the IP subscriber
is not necessarily relevant to plaintiff’s infringement claims. VPR Internationale v. Does 11017, No. 11-2068, 2011 WL 8179128, at *1–2 (C.D. Ill. Apr. 29, 2011). While it is possible
that someone other than the IP subscriber distributed the films using defendant’s IP
address, it is also possible that the IP subscriber is the infringer, as alleged in the
complaint. Further, the complaint specifically alleges that the IP subscriber is the infringer.
Thus, at this point, the IP subscriber’s identifying information is relevant to plaintiff’s claim
and plaintiff is entitled to at least proceed to discovery to determine whether it can prove
that it was defendant who used the IP address to distribute the movies.
Defendant also argues that I should quash the subpoena or issue a protective order
because the subpoena imposes an undue burden by requiring Time Warner Cable to
respond to a subpoena which may or may not lead to the identity of the infringer and by
annoying and burdening defendant with attorney’s fees even though he may not be the
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infringer. First, I note that defendant does not have standing to argue the subpoena should
be quashed because it places a burden on Time Warner Cable; only Time Warner Cable
may raise that issue. Breaking Glass Pictures v. Does 1-32, No, 2:13-cv-849, 2014 WL
467137, at *6 (S.D. Ohio Feb. 5, 2014). Further, the “undue burden” standard refers to the
“burden of compliance.” See, e.g., Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 927 (7th
Cir. 2004). The subpoena in this case was not issued to defendant and requires no action
of him, thus the subpoena does not create an undue burden on him. See Malibu Media,
LLC v. Reynolds, No. 12 C 6672, 2013 WL 870618, at *6 (N.D. Ill. Mar. 7, 2013).
Defendant also asks me to quash the subpoena or enter a protective order because
he is concerned that disclosure of his identity will lead to improper demand letters and
other tactics by plaintiff aimed at coercing defendant into settling to avoid further litigation
and embarrassment. Defendant’s concern, which it claims is based on plaintiff’s practices
in other lawsuits, is serious but can be mitigated by defendant moving to proceed
anonymously, which I have allowed in past similar litigation and which plaintiff states it will
not object to. See Malibu Media, LLC v. Doe, No. 13-C-0213, 2013 WL 5876192, at *3
(E.D. Wis. Oct. 31, 2013) (By permitting defendant to proceed anonymously, “there will be
no risk of public embarrassment and no possibility of plaintiff’s using such a risk as
leverage in settlement negotiations.”). Thus, because plaintiff’s subpoena seeks relevant
information and does not burden defendant and because any risk of public embarrassment
or coercion can be mitigated, I will not quash the subpoena or enter a protective order.

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III. Conclusion
THEREFORE, IT IS ORDERED that defendant’s motion to dismiss, motion to
modify subpoena, and motion for protective order (ECF No. 8) are DENIED.
Dated at Milwaukee, Wisconsin, this 21st day of May, 2015.

s/ Lynn Adelman
__________________________
LYNN ADELMAN
District Judge

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