Strike 3 Holdings, LLC v. Doe, No. 3:2023cv00942 - Document 5 (S.D. Cal. 2023)

Court Description: Order Granting 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 Jill L. Burkhardt on 7/7/23. (jmo)

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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.: 23-cv-00942-RSH-JLB Plaintiff, 12 13 v. 14 JOHN DOE, Subscriber Assigned IP Address 72.199.88.168, 15 ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE Defendant. 16 [ECF No. 4] 17 18 Before the Court is an Ex Parte Application for Leave to Serve a Third-Party 19 Subpoena Prior to a Rule 26(f) Conference (“Motion”) filed by Plaintiff Strike 3 Holdings, 20 LLC (“Plaintiff”). (ECF No. 4.) No opposition has been filed, as no defendant has been 21 named or served in this case. For the reasons set forth below, Plaintiff’s ex parte Motion 22 is GRANTED. 23 I. BACKGROUND 24 This is one of the numerous cases filed by Plaintiff alleging copyright infringement 25 claims against a John Doe defendant using the BitTorrent file-sharing system.1 Plaintiff 26 27 1 28 From January 2020 to date, Strike 3 Holdings, LLC, has filed over one hundred cases, including this one, in this District. 1 23-cv-00942-RSH-JLB Dockets.Justia.com 1 alleges that it is the copyright owner of motion pictures distributed through adult content 2 websites Blacked, Tushy, Tushy Raw, Vixen, Blacked Raw, and Slayed. (ECF No. 1 ¶¶ 2– 3 3.) Plaintiff alleges that between October 29, 2022, and May 8, 2023,2 the person or entity 4 assigned Internet Protocol (“IP”) address 72.199.88.168 illegally downloaded and 5 distributed twenty-four of Plaintiff’s motion pictures through his, her, or its use of the 6 online BitTorrent file distribution network. (Id. ¶¶ 4–5, 18–42; ECF No. 1-2.) Plaintiff 7 commenced this action against Defendant “John Doe, subscriber assigned IP address 8 72.199.88.168” on May 22, 2023, alleging a single cause of action of direct copyright 9 infringement. (ECF No. 1 ¶¶ 48–53.) 10 Because Defendant used the Internet to commit the alleged infringement, Plaintiff 11 alleges that it knows Defendant only by his, her, or its IP address, which was assigned to 12 Defendant by the Internet Service Provider (“ISP”), Cox Communications. (Id. ¶¶ 5, 13.) 13 In the instant Motion, Plaintiff asserts that Cox Communications is the owner of 14 Defendant’s IP address, and thus, “is the only party with the information necessary to 15 identify Defendant by correlating the IP address with John Doe’s identity.” (ECF No. 4-1 16 at 7.) Plaintiff therefore seeks leave to serve a Rule 45 subpoena on Cox Communications 17 requesting the true name and address associated with IP address 72.199.88.168. (Id. at 7– 18 8.) Without Defendant’s identity, Plaintiff cannot serve Defendant and prosecute this case. 19 (Id. at 8.) 20 II. LEGAL STANDARD 21 Discovery is not permitted before the parties have conferred pursuant to Federal Rule 22 of Civil Procedure 26(f) unless authorized by court order. Fed. R. Civ. P. 26(d)(1). 23 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 24 25 26 27 28 2 Plaintiff does not specifically allege this infringement period in the Complaint. However, attached as an exhibit to the Complaint is a table reflecting that the subscriber assigned IP address 72.199.88.168 engaged in allegedly infringing activity between June 25, 2022, and May 8, 2023. (ECF No. 1-2.) 2 23-cv-00942-RSH-JLB 1 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 2 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 3 F.R.D. 573, 577 (N.D. Cal. 1999). Requests to conduct discovery prior to a Rule 26(f) 4 conference are granted upon a showing of good cause by the moving party, which may be 5 found “where the need for expedited discovery, in consideration of the administration of 6 justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron 7 Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “A district court’s decision to grant 8 discovery to determine jurisdictional facts is a matter of discretion.” Columbia Ins. Co., 9 185 F.R.D. at 578. 10 District courts in the Ninth Circuit apply a three-factor test to determine whether 11 good cause exists to allow for expedited discovery to identify a Doe defendant. Id. at 578– 12 80. “First, the plaintiff should identify the missing party with sufficient specificity such 13 that the Court can determine that [the] defendant is a real person or entity who could be 14 sued in federal court.” Id. at 578. Second, the plaintiff “should identify all previous steps 15 taken to locate the elusive defendant” to ensure that the plaintiff has made a good faith 16 effort to identify and serve process on the defendant. Id. at 579. Third, the plaintiff “should 17 establish to the Court’s satisfaction that [the] plaintiff’s suit against [the] defendant could 18 withstand a motion to dismiss.” Id. “Lastly, the plaintiff should file a request for discovery 19 with the Court, along with a statement of reasons justifying the specific discovery requested 20 as well as identification of a limited number of persons or entities on whom discovery 21 process might be served and for which there is a reasonable likelihood that the discovery 22 process will lead to identifying information about [the] defendant that would make service 23 of process possible.” Id. at 580. 24 III. DISCUSSION 25 A. 26 For the Court to grant Plaintiff’s Motion, Plaintiff must first identify Defendant with 27 enough specificity to enable the Court to determine that Defendant is a real person or entity Identification of Missing Party with Sufficient Specificity 28 3 23-cv-00942-RSH-JLB 1 who is subject to the Court’s jurisdiction. See Columbia Ins. Co., 185 F.R.D. at 578. The 2 Court finds that Plaintiff has met this burden. 3 Courts in the Ninth Circuit have determined that “a plaintiff identifies Doe 4 defendants with sufficient specificity” in cases like the instant case “by providing the 5 unique IP addresses assigned to an individual defendant on the day of the allegedly 6 infringing conduct, and by using ‘geolocation technology’ to trace the IP addresses to a 7 physical point of origin.” 808 Holdings, LLC v. Collective of December 29, 2011 Sharing 8 Hash E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12-cv-00186-MMA- 9 RBB, 2012 WL 12884688, at *4 (S.D. Cal. May 8, 2012); see also Pink Lotus Entm’t, LLC 10 v. Does 1–46, No. C-11-02263, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) (finding 11 that the plaintiff met its burden to identify the Doe defendants with sufficient specificity 12 by identifying the Doe defendants’ IP addresses and then using geolocation technology to 13 trace the IP addresses to a point of origin). 14 Here, Plaintiff has sufficiently demonstrated that Defendant is a real person or entity 15 likely subject to the Court’s jurisdiction. Plaintiff attached to its Complaint a table 16 reflecting that the subscriber assigned IP address 72.199.88.168 engaged in allegedly 17 infringing activity between October 29, 2022, and May 8, 2023, in San Diego, California. 18 (ECF No. 1-2.) To substantiate these claims, Plaintiff attached four declarations to the 19 instant Motion. 20 Plaintiff first attached the Declaration of David Williamson, an independent 21 contractor hired by Plaintiff as an Information Systems and Management Consultant. 22 (ECF No. 4-2 at 1–15 (“Ex. A”).) Mr. Williamson states that he “oversaw the design, 23 development, and overall creation of the infringement detection system called VXN Scan[,] 24 which [Plaintiff] both owns and uses to identify the IP addresses used by individuals 25 infringing Plaintiff’s movies via the BitTorrent protocol.” (Ex. A ¶ 40.) Mr. Williamson’s 26 declaration explains in detail how VXN Scan operates and its six components. One 27 component of VXN Scan is a proprietary BitTorrent client that emulates the behavior of a 28 standard BitTorrent client by repeatedly downloading data pieces from peers within the 4 23-cv-00942-RSH-JLB 1 BitTorrent network that are distributing Plaintiff’s movies. (Id. ¶¶ 52–56.) Another 2 component of VXN Scan is the PCAP Recorder, which records infringing BitTorrent 3 computer transactions in the form of PCAPs, or packet captures. (Id. ¶¶ 57–70.) The 4 PCAPs contain the IP addresses that connect to the Proprietary Client and send pieces of 5 the computer file containing an infringing copy of one of Plaintiff’s movies to the 6 Proprietary Client through the BitTorrent network. (Id. ¶¶ 57–59.) Not only do PCAPs 7 record the IP addresses used in the network transaction, but they also record the date and 8 time of the transaction, the port number used, and the BitTorrent client used to accomplish 9 each transaction. (Id. ¶ 61.) PCAPs also identify the “Info Hash value that was used to 10 obtain the transacted piece.” (Id. ¶ 62.) This information identifies the data that was shared 11 in the recorded transaction as part of a file containing an infringing copy of one of 12 Plaintiff’s movies. (Id.) This Order touches on only two of the components of VXN Scan, 13 but Mr. Williamson’s eighty-one-paragraph declaration sets forth additional, in-depth 14 details of all six components of the system, providing the Court with a thorough 15 understanding of how the system reliably identifies the IP addresses assigned to individuals 16 infringing Plaintiff’s movies and verifies the infringement. (See id. ¶¶ 43–51, 63–81.) 17 Second, Plaintiff attached the Declaration of Patrick Paige, a computer forensics 18 expert Plaintiff retained to analyze and retain evidence captured by VXN Scan. 19 (ECF No. 4-2 at 16–22 (“Ex. B”).) Mr. Paige explains that VXN Scan “recorded numerous 20 BitTorrent computer transactions between the system and IP address 72.199.88.168 in the 21 form of PCAPs.” (Ex. B ¶ 13.) Mr. Paige states that, using a program called Wireshark, 22 he viewed and analyzed a PCAP he received from Plaintiff and was able to confirm that on 23 May 08, 2023, “IP address 72.199.88.168 uploaded a piece or pieces of a file corresponding 24 to hash value F6D6E795148593F639DC8362628B2C02D1F474CA to VXN Scan.” 25 (Id. ¶¶ 16–19.) The hash value, or Info Hash, is the data used by BitTorrent to identify and 26 locate other pieces of a desired file; in this case, the desired file contained an infringing 27 copy of one of Plaintiff’s movies. (Id. ¶ 22; see also ECF No. 1-2 at 1.) Based on his 28 experience in similar cases, Mr. Paige opines that Cox Communications, Defendant’s ISP, 5 23-cv-00942-RSH-JLB 1 “is the only entity that can correlate the IP address [72.199.88.168] to its subscriber and 2 identify Defendant as the person assigned [this] IP address . . . during the time of the alleged 3 infringement.” (Id. ¶ 28.) 4 Third, Plaintiff attached the Declaration of Susan B. Stalzer, an employee of 5 Plaintiff’s who verified that each digital file VXN Scan received through its transactions 6 with IP address 72.199.88.168 was identical, strikingly similar, or substantially similar to 7 one of Plaintiff’s original copyrighted works. (ECF No. 4-2 at 23–26 (“Ex. C”).) To do 8 so, Ms. Stalzer viewed each of the digital media files side-by-side with Plaintiff’s original 9 films. (Ex. C ¶¶ 8–10.) 10 Last, Plaintiff attached the Declaration of Emilie Kennedy, Plaintiff’s in-house 11 General Counsel. (ECF No. 4-2 at 27–30 (“Ex. D”).) Ms. Kennedy explains that after 12 Plaintiff received data from VXN Scan identifying IP address 72.199.88.168 as infringing 13 its movies, “the IP address was automatically inputted into Maxmind’s Geolocation 14 Database” on May 18, 2023.3 (Ex. D ¶ 4.) “Maxmind [then] determined that the IP address 15 traced to a location in San Diego, California, which is within this Court’s jurisdiction.” 16 (Id. ¶ 5.) Ms. Kennedy states that Plaintiff inputted IP address 72.199.88.168 again into 17 the Maxmind Database “[p]rior to filing its Complaint” and “before filing [her] 18 19 3 20 21 22 23 24 25 26 27 28 Mr. Williamson provides in his declaration that: Maxmind is “an industry-leading provider of IP intelligence and online fraud detection tools.” “Over 5,000 companies use GeoIP data to locate their Internet visitors and show them relevant content and ads, perform analytics, enforce digital rights, and efficiently route Internet traffic.” Maxmind is not “software” or technology, but . . . a database. Maxmind compiles information it receives from Internet Service Providers (ISPs) containing the city and state locations of the users of the ISPs and their respective IP addresses. Maxmind maintains and updates this list weekly and sells access to it. (Ex. A ¶ 77 (footnotes omitted).) 6 23-cv-00942-RSH-JLB 1 [D]eclaration,” and both times the IP address “continued to trace to this District.” (Id. ¶ 6– 2 7.) In its Motion, Plaintiff argues that this Court has previously “accepted Maxmind’s 3 findings for purposes of allowing expedited discovery.” (ECF No. 4-1 at 13 (citing Strike 4 3 Holdings, LLC v. Doe, No. CV 17-2317-JAH (BLM), 2017 WL 6389848, at *2 (S.D. 5 Cal. Dec. 14, 2017)).) 6 Based on Plaintiff’s IP address tracing efforts, the timing of its efforts, and Plaintiff’s 7 continued tracing of IP address 72.199.88.168 to a location within San Diego, California, 8 the Court concludes that Plaintiff has met its evidentiary burden of identifying Defendant 9 with sufficient specificity and has shown that Defendant’s IP address likely relates to a 10 physical address within the Court’s jurisdiction. 11 B. 12 Plaintiff must next identify all steps it took to locate Defendant to ensure the Court 13 that it has made a good-faith effort to identify and serve process on Defendant. 14 See Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this 15 burden. Previous Attempts to Locate Defendant 16 In its Motion, Plaintiff states that it has diligently attempted to locate Defendant by 17 searching for Defendant’s IP address using online search engines and “various web search 18 tools.” (ECF No. 4-1 at 14.) Plaintiff has also “review[ed] numerous sources of authority,” 19 such as “legislative reports, agency websites, informational technology guides, [and] 20 governing case law” regarding whether it is possible to identify such a defendant by other 21 means and has “discussed the issue at length with computer investigators and cyber security 22 consultants.” (Id.) Plaintiff argues that it cannot determine any other means of obtaining 23 Defendant’s identity other than through subpoenaing the information from Defendant’s 24 ISP, as it has “exhausted all other alternatives for identifying Defendant.” (Id.) 25 Further, as discussed above, Plaintiff retained Mr. Paige, a computer forensics 26 expert, who analyzed the data captured by VXN Scan and was able to determine that IP 27 address 72.199.88.168 was engaged in the allegedly infringing activity on May 8, 2023. 28 (See Ex. B ¶¶ 13–26.) Mr. Paige also opined that Defendant’s ISP is the only entity that 7 23-cv-00942-RSH-JLB 1 can correlate IP address 72.199.88.168 to its subscriber and identify Defendant as the 2 person assigned this IP address during the time of the alleged infringement. (Id. ¶ 28.) 3 Based on the foregoing, the Court is satisfied that Plaintiff has attempted in good 4 faith to locate Defendant and that Plaintiff cannot, on its own, identify Defendant with any 5 greater specificity than as the subscriber assigned by Cox Communications to IP address 6 72.199.88.168. Accordingly, the Court finds that Plaintiff has made a good-faith effort to 7 identify and locate Defendant before filing the instant Motion. Whether Plaintiff’s Complaint Could Withstand a Motion to Dismiss 8 C. 9 Lastly, Plaintiff must establish that its Complaint could survive a motion to dismiss. 10 Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this burden. 11 Plaintiff’s Complaint alleges a single cause of action against Defendant: direct 12 copyright infringement. (ECF No. 1 ¶¶ 48–53.) To survive a motion to dismiss for failure 13 to state a claim upon which relief can be granted, “a complaint must contain sufficient 14 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 15 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 16 544, 570 (2007)). To state a claim of direct copyright infringement, a plaintiff “must 17 show: (1) ownership of a valid copyright; and (2) that the defendant violated the copyright 18 owner’s exclusive rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 19 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a) (2003)). “In addition, direct infringement 20 requires the plaintiff to show causation (also referred to as ‘volitional conduct’) by the 21 defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017). 22 In the Complaint, Plaintiff alleges to be the owner of the copyrighted movies or 23 “[w]orks” at issue and asserts that each work was registered with the United States 24 Copyright Office. (ECF No. 1 ¶¶ 2, 46.) Exhibit A to the Complaint shows the hash values 25 of the purportedly infringed works and the copyright registration number for each of the 26 works that correspond with those hash values. (ECF No. 1-2.) Plaintiff further alleges that 27 Defendant is the user behind IP address 72.199.88.168 who used the BitTorrent file 28 network to “illegally download and distribute Plaintiff’s copyrighted motion pictures” and 8 23-cv-00942-RSH-JLB 1 that the infringement was “continuous and ongoing.” (ECF No. 1 ¶¶ 13, 29, 45.) Lastly, 2 Plaintiff alleges that “[a]t no point in time did [it] authorize, permit or consent to 3 Defendant’s copying, distribution, performance and/or display of its Works, expressly or 4 otherwise.” (Id. ¶ 51.) 5 The Court finds that Plaintiff has alleged a prima facie case of direct copyright 6 infringement and therefore, its Complaint would likely withstand a motion to dismiss by 7 Defendant. 8 D. 9 Finally, before the Court grants Plaintiff’s Motion, Plaintiff “should file a request 10 for discovery with the Court.” Columbia Ins. Co., 185 F.R.D. at 580. Plaintiff has not 11 provided the Court with a proposed subpoena, but the Court has sufficient information to 12 determine that “there is a reasonable likelihood that [a subpoena] will lead to identifying 13 information about [D]efendant that would make service of process possible.” Id. Plaintiff 14 states that it plans to issue a subpoena upon Cox Communications, Defendant’s ISP, 15 requesting “only the true name and address” of Defendant, the subscriber of IP address 16 72.199.88.168. 17 Communications is the only entity that can identify Defendant by his, her, or its IP address. 18 (Ex. B ¶ 28.) Accordingly, the Court finds that Plaintiff need not file the proposed 19 subpoena with the Court. 20 IV. Specific Discovery Request (ECF No. 4-1 at 7–8.) Further, Plaintiff provides that Cox CONCLUSION 21 For the reasons set forth above, the Court finds good cause to grant Plaintiff leave to 22 serve a Rule 45 subpoena upon Cox Communications in advance of the Rule 26(f) 23 conference. However, despite Plaintiff’s representations of good faith (ECF No. 4-1 at 9– 24 10), the Court shares the concern noted by other courts in this District of “‘unscrupulous 25 tactics [being] used by certain plaintiffs, especially in the adult film industry, to shake down 26 the owners of IP addresses’ to exact quick and quiet settlements from possibly innocent 27 defendants who pay out only to avoid potential embarrassment.” Malibu Media, LLC v. 28 Doe, No. 16-cv-00786-JLS-NLS, 2016 WL 9488778, at *4 (S.D. Cal. May 6, 2016) 9 23-cv-00942-RSH-JLB 1 (quoting Malibu Media, LLC v. Does 1–5, No. 12 Civ. 2950(JPO), 2012 WL 2001968, at 2 *1 (S.D.N.Y. June 1, 2012)). The Court therefore finds that a limited protective order is 3 necessary to protect Defendant’s privacy. Further, Plaintiff has invited the Court to issue 4 a protective order establishing procedural safeguards, “should the Court find such 5 procedures to be appropriate.” (ECF No. 4-1 at 18.) Accordingly, the Court GRANTS 6 Plaintiff’s ex parte Motion (ECF No. 4) and ORDERS as follows: 7 1. Plaintiff may serve on Cox Communications a subpoena, pursuant to and 8 compliant with the procedures of Federal Rule of Civil Procedure 45, seeking only the 9 name and address of the subscriber assigned IP address 72.199.88.168 for the relevant time 10 period of the alleged infringement. Plaintiff shall not seek from Cox Communications any 11 other personally identifiable information about the subscriber. 12 2. Plaintiff’s subpoena to Cox Communications must provide a minimum of 13 forty-five (45) calendar days’ notice before any production responsive to the subpoena 14 shall be made to Plaintiff. 15 16 3. At the time Plaintiff serves its subpoena on Cox Communications, Plaintiff shall also serve on Cox Communications a copy of this Order. 17 4. Within fourteen (14) calendar days after service of the subpoena, Cox 18 Communications shall notify the subscriber assigned IP address 72.199.88.168 that his, 19 her, or its identity has been subpoenaed by Plaintiff and shall provide the subscriber a copy 20 of this Order with the required notice. 21 5. The subscriber whose identity has been subpoenaed shall have thirty (30) 22 calendar days from the date of such notice to challenge Cox Communications’s disclosure 23 of his, her, or its name and address by filing an appropriate pleading with this Court 24 contesting the subpoena. 25 6. If Cox Communications seeks to modify or quash the subpoena, it shall do so 26 as provided by Federal Rule of Civil Procedure 45(d)(3). 27 /// 28 /// 10 23-cv-00942-RSH-JLB 1 7. In the event a motion to quash, modify, or otherwise challenge the subpoena 2 is brought properly before the Court, Cox Communications shall preserve the information 3 sought by the subpoena pending the resolution of any such motion. 4 8. Plaintiff may only use the information disclosed in response to a Rule 45 5 subpoena served on Cox Communications for the purpose of protecting and enforcing 6 Plaintiff’s rights as set forth in the Complaint (ECF No. 1). If Defendant wishes to proceed 7 anonymously, Plaintiff may not release any identifying information without a court order 8 allowing the release of the information. 9 10 IT IS SO ORDERED. Dated: July 7, 2023 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 23-cv-00942-RSH-JLB

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