Strike 3 Holdings, LLC v. Doe, No. 3:2023cv00704 - Document 5 (S.D. Cal. 2023)
Court Description: ORDER granting Plaintiff's Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference (ECF No. 4 ). Signed by Magistrate Judge Michael S. Berg on 05/30/2023. (cxl1)
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Strike 3 Holdings, LLC v. Doe Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 23cv704-TWR (MSB) Plaintiff, 12 13 v. 14 JOHN DOE subscriber assigned IP address 70.95.22.30, 15 ORDER GRANTING PLAINTIFF’S EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE [ECF NO. 4] Defendant. 16 17 On May 2, 2023, Plaintiff Strike 3 Holdings, LLC (“Strike 3”) filed an “Ex-Parte 18 19 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference” 20 (“Ex Parte Application”). (ECF No. 4.) Plaintiff seeks to subpoena Defendant John Doe’s 21 Internet Service Provider (“ISP”) Spectrum for “limited, immediate discovery . . . so that 22 Plaintiff may learn Defendant’s identity, further investigate Defendant’s role in the 23 infringement, and effectuate service.” (ECF No. 4-1 at 7.) Because Defendant has not 24 been identified, no opposition or reply briefs have been filed. For the following reasons, 25 the Ex Parte Application is GRANTED. 26 /// 27 /// 28 /// 1 23cv704-TWR (MSB) Dockets.Justia.com 1 2 I. BACKGROUND Plaintiff owns the copyright to certain motion pictures. (ECF No. 1 at 7; ECF 4-2 at 3 4.) On April 18, 2023, Plaintiff filed a Complaint alleging that Defendant John Doe, an 4 internet subscriber assigned Internet protocol (“IP”) address 70.95.22.30, has been 5 using the BitTorrent protocol to commit “rampant and wholesale copyright 6 infringement” by downloading and distributing twenty-four of Plaintiff’s copyrighted 7 works over an extended period. (ECF No. 1 at 2.) Plaintiff alleges it used its proprietary 8 forensic software, VXN Scan, to discover that Defendant’s IP address was illegally 9 distributing Plaintiff’s copyrighted motion pictures. (ECF No. 4-1 at 7; ECF No. 4-2 at 8, 10 19-22.) 11 On May 2, 2023, Plaintiff filed the instant Ex Parte Application to seek leave to 12 serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Defendant’s ISP, 13 Spectrum. (ECF No. 4-1 at 7-8.) Plaintiff maintains that the Rule 45 subpoena “will only 14 demand the true name and address of Defendant,” and Plaintiff “will only use this 15 information to prosecute the claims made in its Complaint.” (Id. at 8.) Plaintiff further 16 claims that “[w]ithout this information, Plaintiff cannot serve Defendant nor pursue this 17 lawsuit and protect its copyrights.” (Id.) 18 19 II. LEGAL STANDARD Generally, formal discovery is not permitted before the parties have conferred 20 pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Courts, 21 however, have made exceptions “in rare cases . . . permitting limited discovery to ensue 22 after filing of the complaint to permit the plaintiff to learn the identifying facts 23 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 24 F.R.D. 573, 577 (N.D. Cal. 1999). Courts in the Ninth Circuit apply a “good cause” 25 standard to decide whether to permit early discovery. Semitool, Inc. v. Tokyo Electron 26 Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “Good cause” is established “where 27 the need for expedited discovery, in consideration of the administration of justice, 28 outweighs the prejudice to the responding party.” Id. 2 23cv704-TWR (MSB) 1 “[W]hen the defendants’ identities are unknown at the time the complaint is 2 filed, courts may grant plaintiffs leave to take early discovery to determine the 3 defendants’ identities ‘unless it is clear that discovery would not uncover the identities, 4 or that the complaint would be dismissed on other grounds.’” 808 Holdings, LLC v. 5 Collective of Dec. 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29C 6 D63C23C91, Civil No. 12cv00186 MMA(RBB), 2012 WL 12884688, at *3 (S.D. Cal. May 8, 7 2012) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). “A district court’s 8 decision to grant discovery to determine jurisdictional facts is a matter of discretion.” 9 Columbia Ins. Co., 185 F.R.D. at 578. 10 District Courts in the Ninth Circuit typically apply a three-factor test when 11 considering motions for early discovery to identify Doe defendants. Id. at 578–80. First, 12 the moving party should be able to “identify the missing party with sufficient specificity 13 [] that the Court can determine that [the] defendant is a real person or entity who could 14 be sued in federal court.” Id. at 578. Second, the movant “should identify all previous 15 steps taken to locate the elusive defendant” to ensure “that [the movant has made] a 16 good faith effort to comply with the requirements of the service of process and 17 specifically identifying defendants.” Id. at 579. Third, the plaintiff “should establish to 18 the Court’s satisfaction that plaintiff’s suit against defendant could withstand a motion 19 to dismiss.” Id.; see also Gillespie, 629 F.2d at 642 (stating early discovery to identify 20 unknown defendants should be permitted unless the complaint would be dismissed on 21 other grounds). 22 In addition to satisfying all three factors, plaintiff should provide “reasons 23 justifying the specific discovery requested [and] identification of a limited number of 24 persons or entities on whom discovery process might be served and for which there is a 25 reasonable likelihood that the discovery process will lead to identifying information 26 about defendant that would make service of process possible.” Columbia Ins. Co., 185 27 F.R.D. at 580; see also Gillespie, 629 F.2d at 642 (explaining that early discovery is 28 precluded if it is not likely to provide the identity of the defendant). These safeguards 3 23cv704-TWR (MSB) 1 are intended to ensure that early discovery “will only be employed in cases where the 2 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 3 pre-service, and will prevent the use of this method to harass or intimidate.” Columbia 4 Ins. Co., 185 F.R.D. at 578. 5 III. ANALYSIS 6 Plaintiff seeks leave to serve a subpoena pursuant to Federal Rule of Civil 7 Procedure 45 on Defendant’s ISP Spectrum. (ECF No. 4-1 at 7.) The Cable Privacy Act 8 generally prohibits a cable operator from disclosing “personally identifiable information 9 concerning any subscriber without the prior written or electronic consent of the 10 subscriber concerned.” 47 U.S.C. § 551(c)(1). A cable operator, however, may disclose 11 the information if the disclosure is made pursuant to a court order and the cable 12 operator notifies the subscriber of the order. 47 U.S.C. § 551(c)(2)(B). A cable operator 13 is “any person or group of persons” who “provides cable service over a cable system and 14 directly or through one or more affiliates owns a significant interest in such cable 15 system,” or “otherwise controls or is responsible for, through any arrangement, the 16 management and operation of such a cable system.” 47 U.S.C. § 522(5). 17 Spectrum is a cable operator, and the information Plaintiff seeks falls within the 18 exception to the Cable Privacy Act’s disclosure prohibition. See 47 U.S.C. §551(c)(2)(B). 19 Accordingly, if Plaintiff satisfies the multi-factor test used by district courts to determine 20 whether early discovery is warranted, Doe defendants’ ISP may disclose the requested 21 information pursuant to this Court’s order. 22 A. Plaintiff Has Identified Defendant with Sufficient Specificity 23 Plaintiff must identify Defendant with enough specificity to allow the Court to 24 determine that Defendant is a real person or entity, subject to the jurisdiction of this 25 Court. See Columbia Ins. Co., 185 F.R.D. at 578. “[A] plaintiff identifies Doe defendants 26 with sufficient specificity by providing the unique IP addresses assigned to an individual 27 defendant on the day of the allegedly infringing conduct, and by using ‘geolocation 28 4 23cv704-TWR (MSB) 1 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC, 2 2012 WL 12884688, at *4. 3 In support of its Ex Parte Application, Plaintiff submitted the Declaration of David 4 Williamson, an Information Systems and Management Consultant. (See ECF No. 4-2 at 5 2-13.) Mr. Williamson uses Plaintiff’s infringement detection system, VXN Scan, to 6 identify the IP addresses used by individuals infringing Plaintiff’s movies through the 7 BitTorrent protocol. (Id. at 8.) Further, although the BitTorrent protocol contains some 8 default and automatic functions, the functions that Plaintiff accuses Defendant of using 9 require human operation. See Christopher Civil, Mass Copyright Infringement Litigation: 10 Of Trolls, Pornography, Settlement and Joinder, 30 Syracuse J. Sci. & Tech. L. 2, 12 11 (2014) (“BitTorrent transfers do not involve a centralized server that hosts or transfers 12 the data files in question. Instead, BitTorrent involves users interacting directly with 13 other users to upload and download the content.”). Accordingly, Plaintiff has 14 established that an actual human was involved in the downloading and sharing of 15 Plaintiff’s allegedly infringed works. 16 Plaintiff also submitted the Declaration of Patrick Paige, a Managing Member at 17 Computer Forensics, LLC, where Mr. Paige contends that he utilized Packet Capture 18 (“PCAP”), “a computer file containing captured or recorded data transmitted between 19 network devices[,]” and VXN Scan to connect Defendant’s IP address to the alleged 20 “piece of an infringing copy of Plaintiff’s works.” (ECF No. 4-2 at 20.) According to Mr. 21 Paige, “[t]he PCAP contains a record data concerning that transaction, including, but not 22 limited to, the [IP] Addresses used in the network transaction, the date and time of the 23 network transaction, the port number used to accomplish each network transaction, 24 and the Info Hash value that the VXN Scan used as the subject of its request for data.” 25 (Id.) Mr. Paige contends that the contents of the PCAP confirm that the infringing 26 activity connected to the IP address 70.95.22.30 was initiated on March 27, 2023, at 27 13:24:17 UTC. (Id.) Mr. Paige concludes that “the PCAP evidence shows that within that 28 transaction, IP address 70.95.22.30 uploaded a piece or pieces of a file corresponding to 5 23cv704-TWR (MSB) 1 hash value [representing Plaintiff’s works] to VXN Scan.” (Id.) This date and time 2 correspond with the date and time when one of Plaintiff’s works were allegedly illegally 3 downloaded according to Exhibit A of Plaintiff’s Complaint. (ECF No. 1-2 at 1.) 4 Also included by Plaintiff is the Declaration of Susan Stalzer, an employee of Strike 5 3 who reviews and compares original, copyrighted content and infringing content 6 collected from the torrent websites. (ECF No. 4-2 at 25.) Ms. Stalzer viewed the 7 original, copyrighted content and the allegedly infringing, downloaded content side-by- 8 side and concluded that the two were “identical, strikingly similar, or substantially 9 similar.” (Id. at 25-26.) 10 In addition, Plaintiff submitted the Declaration of Emilie Kennedy, Plaintiff’s in- 11 house General Counsel, in which Ms. Kennedy asserts geolocation was done on three 12 separate occasions to identify the location of Defendant. (ECF No. 4-2 at 29.) First, 13 “[a]fter [Plaintiff] received infringement data from VXN Scan identifying IP address 14 70.95.22.30 as infringing its works, the IP address was automatically inputted into 15 Maxmind’s Geolocation Database” on December 29, 2020. (Id.) Based on this search, 16 Ms. Kennedy contends that “Maxmind determined that the IP address traced to a 17 location in San Diego, California, which is within this Court’s jurisdiction.” (Id.) Plaintiff 18 subsequently input Defendant’s IP address into Maxmind’s Database before filing the 19 Complaint, and again before filing the instant Ex Parte Application. (Id.) On both 20 occasions the IP address linked to Defendant, 70.95.22.30, traced to this district.1 21 Plaintiff has provided sufficient information about infringing activity tied to 22 Defendant’s unique IP address, the specific date and time associated with the activity, 23 and the location of the activity. Therefore, Plaintiff has demonstrated with sufficient 24 specificity that Defendant is a real person or entity, likely subject to the jurisdiction of 25 this Court. See Crim. Prods., Inc. v. Doe-72.192.163.220, Case No. 16-cv-2589 WQH 26 27 28 Attached as Exhibit 1 to Ms. Kennedy’s Declaration is a chart reflecting the results of the third and final MaxMind Database search, showing the IP address alleged to be involved in the illegal downloads and confirming that the location traces to San Diego, CA. (ECF No. 4-2 at 32.) 1 6 23cv704-TWR (MSB) 1 (JLB), 2016 WL 6822186, at *3 (S.D. Cal. Nov. 18, 2016) (holding that the sufficient 2 specificity threshold is satisfied when the IP address identified by Maxmind geolocation 3 services identifies a physical location within the court’s jurisdiction). 4 B. 5 Plaintiff Made a Good Faith Effort to Identify Defendant Plaintiff must also demonstrate that it has taken previous steps to locate and 6 serve the Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. Although Plaintiff 7 maintains it diligently attempted to identify Defendant by searching for Defendant’s IP 8 address “on various web search tools, including basic search engines like 9 www.google.com,” Plaintiff does not submit evidence supporting this claim. (ECF No. 4- 10 1 at 14.) However, Ms. Kennedy’s Declaration and the MaxMind results attached as 11 Exhibit 1 indicate that Plaintiff took substantial steps to locate Defendant’s IP address 12 and identify Defendant’s ISP. (ECF No. 4-2 at 29–32.) Despite these efforts, Plaintiff was 13 unable to correlate the IP address to Defendant’s identity. Plaintiff maintains that it has 14 been “unable to identify any other way to go about obtaining the identities of its 15 infringers and does not know how else it could possibly enforce its copyrights from 16 illegal piracy over the Internet.” (ECF No. 4-1 at 14.) The Court therefore finds that 17 Plaintiff has made a good faith effort to identify, locate, and serve the Defendant. See 18 Malibu Media, LLC v. John Does 1 through 6, Civil No. 12–cv–1355–LAB (DHB), 2012 WL 19 4471538, at *3 (S.D. Cal. Sept. 26, 2012) (finding plaintiff’s efforts to identify Doe 20 defendant were sufficient because “there is no other way for [p]laintiff to obtain 21 [d]efendants’ identities, except by serving a subpoena on [d]efendants’ ISPs demanding 22 it[]”); see also Digital Sin, Inc. v. Does 1-5698, No. C 11-04397 LB, 2011 WL 5362068, at 23 *2 (N.D. Cal. Nov. 4, 2011) (finding plaintiff’s attempts to identify and locate defendant 24 sufficient, where the plaintiff “investigated and collected data on unauthorized 25 distribution of copies of the [alleged infringed work] on BitTorrent-based peer-to-peer 26 networks.”). 27 /// 28 /// 7 23cv704-TWR (MSB) 1 2 C. Plaintiff’s Suit Could Withstand a Motion to Dismiss Plaintiff must further show that the Complaint in this case could withstand a 3 motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 579. A suit may be dismissed 4 pursuant to Rule 12(b) on several bases. Of all the bases that bear dismissal, those 5 relevant here are lack of subject matter jurisdiction, lack of personal jurisdiction, and 6 failure to state a claim. Fed. R. Civ. P. 12(b)(1), (2), (6). As to both subject matter and 7 personal jurisdiction, Plaintiff has alleged facts sufficient to survive a motion to dismiss. 8 For subject matter jurisdiction, Plaintiff’s Complaint alleges that “[t]his Court has subject 9 matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question); and 10 28 U.S.C. § 1338 (jurisdiction over copyright actions).” (ECF No. 1 at 2.) On the issue of 11 personal jurisdiction, Plaintiff maintains it used geolocation technology to determine 12 that Defendant’s IP address correlates to a physical address in the Southern District of 13 California. (Id. at 2–3.) 14 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure 15 tests the sufficiency of the allegations in the Complaint. Navarro v. Block, 250 F.3d 729, 16 732 (9th Cir. 2001). Plaintiff’s Complaint alleges a single cause of action against 17 Defendant for direct copyright infringement. (Id. at 7–8.) To allege a claim for direct 18 copyright infringement, a plaintiff must show: “(1) ownership of a valid copyright; and 19 (2) that the defendant violated the copyright owner’s exclusive rights under the 20 Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). “In addition, 21 direct infringement requires the plaintiff to show causation (also referred to as 22 ‘volitional conduct’) by the defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 23 666 (9th Cir. 2017). 24 Plaintiff alleges it owns the copyrights to the works that are the subject of this suit 25 and claims that the works “have been registered with the United States Copyright 26 Office.” (Id. at 1, 7.) Plaintiff also alleges that Defendant “used the BitTorrent file 27 network to illegally download and distribute Plaintiff’s copyrighted motion pictures[,]” 28 and did so “without authorization.” (Id. at 5, 7.) Assuming Plaintiff’s allegations are 8 23cv704-TWR (MSB) 1 true, they state a claim on which relief can be granted. See A&M Recs., Inc. v. Napster, 2 Inc., 239 F.3d 1004, 1013–14 (9th Cir. 2001) (finding plaintiffs sufficiently demonstrated 3 ownership and infringement by showing Napster allowed its users to download 4 copyrighted music, up to seventy percent of which was owned or administered by the 5 plaintiffs); see also Malibu Media, LLC v. Doe, Case No. 16CV1916-GPC(JMA), 2016 WL 6 6216183, at *2 (S.D. Cal. Oct. 25, 2016) (holding that plaintiff alleged a prima facie case 7 of copyright infringement against defendant by alleging that plaintiff owned twelve 8 copyrighted movies at issue, and that defendant infringed plaintiff’s copyrights by 9 copying and distributing plaintiff’s movies through the BitTorrent network without 10 plaintiff’s permission). Therefore, Plaintiff has sufficiently alleged a prima facie case of 11 copyright infringement, and the Complaint will likely withstand a motion to dismiss. 12 D. Whether Requested Discovery Will Lead to Identifying Information Finally, Plaintiff is required to demonstrate that “there is a reasonable likelihood 13 14 that the discovery process will lead to identifying information about defendant that 15 would make service of process possible.” Columbia Ins. Co., 185 F.R.D. at 580. As 16 discussed above, Plaintiff’s forensic investigation uncovered the unique IP address 17 70.95.22.30. (ECF No. 4-2 at 20.) Further, Exhibit 1 to Emilie Kennedy’s declaration 18 indicates that her MaxMind search revealed that the ISP Spectrum owned Defendant’s 19 IP address at the time of the infringement. (Id. at 32.) Based on his experience in 20 similar cases, Mr. Paige explains that “Spectrum is the only entity that can correlate” 21 Defendant’s IP address to the IP address owner’s identity. (Id. at 22.) Accordingly, if 22 Spectrum provides Plaintiff with Defendant’s name and address, this will likely lead to 23 information making it possible for Plaintiff to effectuate service on Defendant. 24 IV. 25 CONCLUSION For the foregoing reasons, the Court GRANTS the Ex Parte Application for Leave 26 to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [ECF No. 4] as follows: 27 /// 28 /// 9 23cv704-TWR (MSB) 1 1. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 2 45 on Spectrum, seeking only the name and address of the subscriber assigned to the IP 3 address 70.95.22.30. Plaintiff may not subpoena additional information about the 4 subscriber; 5 6 7 2. Plaintiff may only use the disclosed information to protect its copyrights in the instant litigation; 3. Within fourteen calendar days after service of the subpoena, Spectrum 8 shall notify the subscriber assigned the IP address 70.95.22.30 that his, her, or its 9 identity has been subpoenaed by Plaintiff; 10 4. The subscriber whose identity has been subpoenaed shall have thirty 11 calendar days from the date of the notice to challenge the disclosure of his, her, or its 12 name and address by filing an appropriate pleading with this Court contesting the 13 subpoena; 14 5. If Spectrum wishes to move to quash the subpoena, it shall do so before 15 the return date of the subpoena. The return date of the subpoena must allow for at 16 least forty-five days from service to production. If a motion to quash or other customer 17 challenge is brought, Spectrum shall preserve the information sought by Plaintiff in the 18 subpoena pending resolution of the motion or challenge; 19 20 21 22 6. Plaintiff shall serve a copy of this Order with any subpoena obtained and served to Spectrum pursuant to this Order; 7. Spectrum must provide a copy of this Order along with the required notice to the subscriber whose identity is sought pursuant to this Order. 23 8. 24 IT IS SO ORDERED. 25 No other discovery is authorized at this time. Dated: May 30, 2023 26 27 28 10 23cv704-TWR (MSB)
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