Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 76.176.105.210, No. 3:2023cv01380 - Document 5 (S.D. Cal. 2023)

Court Description: ORDER Granting 4 Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 23(f) Conference. Signed by Magistrate Judge Allison H. Goddard on 8/11/23. (All non-registered users served via U.S. Mail Service)(aas)

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Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 76.176.105.210 Doc. 5 Case 3:23-cv-01380-LL-AHG Document 5 Filed 08/11/23 PageID.72 Page 1 of 10 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.: 3:23-cv-01380-LL-AHG Plaintiff, 12 13 v. 14 JOHN DOE subscriber assigned IP address 76.176.105.210, 15 16 ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE Defendant. [ECF No. 4] 17 18 19 20 21 22 23 24 25 26 27 28 1 3:23-cv-01380-LL-AHG Dockets.Justia.com Case 3:23-cv-01380-LL-AHG Document 5 Filed 08/11/23 PageID.73 Page 2 of 10 1 Before the Court is Plaintiff Strike 3 Holdings, LLC’s (“Plaintiff”) Ex Parte 2 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. 3 ECF No. 4. No defendant has been named or served, and so no opposition or reply briefs 4 have been filed. For the reasons discussed below, the Court GRANTS Plaintiff’s ex parte 5 application. 6 I. BACKGROUND 7 On July 28, 2023, Plaintiff filed a Complaint against Defendant “John Doe,” who is 8 a subscriber of the Internet Service Provider (“ISP”) Spectrum, 1 with assigned Internet 9 Protocol (“IP”) address 76.176.105.210. ECF No. 1 ¶ 5. Plaintiff Strike 3 Holdings, LLC, 10 is the owner of numerous adult motion pictures, which Plaintiff distributes through adult 11 websites and DVDs. Id. ¶¶ 2–3. Plaintiff asserts that Defendant is committing “rampant 12 and wholesale copyright infringement” by downloading, recording, and distributing copies 13 of Plaintiff’s copyrighted motion pictures without authorization through the use of the 14 BitTorrent file distribution network. Id. at ¶¶ 4, 18–44. 15 In the instant motion, Plaintiff seeks leave to conduct early discovery prior to the 16 mandated Rule 26(f) conference to learn Defendant’s identity. ECF No. 4. Specifically, 17 Plaintiff seeks an order permitting it to serve a third-party subpoena under Federal Rule of 18 Civil Procedure 45 on Defendant’s ISP, Spectrum, which would require Spectrum to 19 supply the name and address of Defendant John Doe to Plaintiff. ECF No. 4-1 at 7–8; see 20 also 47 U.S.C. § 551(c)(2)(B) (Cable Communications Policy Act provision prohibiting 21 cable operators from disclosing “personally identifiable information concerning any 22 23 24 25 26 27 28 1 As Plaintiff has explained in other filings before this Court, Spectrum “is a trade name of Charter Communications, used to market consumer and commercial cable television, internet, telephone, and wireless services provided by the company” and “Spectrum is owned by Charter Communications, Inc.” Although Plaintiff refers to the company merely as “Spectrum” in the filings before the Court, its subpoenas “are addressed to Spectrum and its parent company, Charter.” Strike 3 Holdings, LLC v. Doe, Case No. 22cv1823RSH-AHG, ECF No. 6-1 at 7 n.1 (S.D. Cal. Dec. 13, 2022) (internal citations omitted). 2 3:23-cv-01380-LL-AHG Case 3:23-cv-01380-LL-AHG Document 5 Filed 08/11/23 PageID.74 Page 3 of 10 1 subscriber” without the subscriber’s prior written consent, except, as pertinent here, “if the 2 disclosure is . . . made pursuant to a court order authorizing such disclosure”). Through 3 service of the third-party subpoena, Plaintiff seeks only “the true name and address of 4 Defendant.” ECF No. 4-1 at 8. Additionally, Plaintiff represents to the Court that it will 5 only use this information to prosecute the claims made in its Complaint. Id. 6 II. 7 A party is generally not permitted to obtain discovery without a court order before 8 the parties have conferred pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. 9 P. 26(d)(1). However, courts make exceptions to allow limited discovery after a complaint 10 is filed to permit the plaintiff to learn the identifying information necessary to serve the 11 defendant. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999); 12 see, e.g., UMG Recordings, Inc. v. Doe, No. C-08-3999-RMW, 2008 WL 4104207, at *2 13 (N.D. Cal. Aug. 29, 2008) (noting, in an infringement case, that “a plaintiff cannot have a 14 discovery planning conference with an anonymous defendant[,]” and limited expedited 15 discovery would thus “permit the [plaintiff] to identify John Doe and serve the defendant, 16 permitting this case to go forward.”). LEGAL STANDARD 17 Consistent with this generally recognized exception to Rule 26(f), the Ninth Circuit 18 has held that “‘where the identity of the alleged defendant[] [is] not [] known prior to the 19 filing of a complaint[,] the plaintiff should be given an opportunity through discovery to 20 identify the unknown defendants, unless it is clear that discovery would not uncover the 21 identities, or that the complaint would be dismissed on other grounds.’” Wakefield v. 22 Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d 23 637, 642 (9th Cir. 1980)). 24 A party who requests early or expedited discovery must make a showing of good 25 cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 26 2002) (applying “the conventional standard of good cause in evaluating Plaintiff’s request 27 for expedited discovery”). Good cause is established through a balancing test “where the 28 need for expedited discovery, in consideration of the administration of justice, outweighs 3 3:23-cv-01380-LL-AHG Case 3:23-cv-01380-LL-AHG Document 5 Filed 08/11/23 PageID.75 Page 4 of 10 1 the prejudice to the responding party.” Id. at 276. To determine whether “good cause” 2 exists to permit expedited discovery to identify John Doe defendants, district courts in the 3 Ninth Circuit consider whether the plaintiff (1) “identif[ies] the missing party with 4 sufficient specificity such that the Court can determine that the defendant is a real person 5 or entity who could be sued in federal court”; (2) “identif[ies] all previous steps taken to 6 locate the elusive defendant” to ensure that plaintiff has made a good faith effort to identify 7 the defendant; and (3) “establish[es] to the Court’s satisfaction that plaintiff’s suit against 8 defendant could withstand a motion to dismiss.” Columbia Ins., 185 F.R.D. at 578–80. 9 Additionally, the plaintiff should demonstrate the discovery will likely lead to identifying 10 information that will permit service of process. Id. at 580. These factors are considered to 11 ensure the expedited discovery procedure “will only be employed in cases where the 12 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 13 pre-service, and will prevent use of this method to harass or intimidate.” Id. 14 III. 15 Plaintiff contends that there is good cause for this Court to allow expedited 16 DISCUSSION discovery. ECF No. 4-1 at 11–18. For the reasons stated below, the Court agrees. 17 a. Identification of Missing Party with Sufficient Specificity 18 To satisfy the first prong, Plaintiff must identify Defendant with enough specificity 19 to enable the Court to determine that Defendant is a real person or entity who would be 20 subject to the jurisdiction of this Court. Columbia Ins., 185 F.R.D. at 578. District courts 21 in this circuit have determined “a plaintiff identifies Doe defendants with sufficient 22 specificity by providing the unique IP addresses assigned to an individual defendant on the 23 day of the allegedly infringing conduct, and by using ‘geolocation technology’ to trace the 24 IP addresses to a physical point of origin.” 808 Holdings, LLC v. Collective of December 25 29, 2011 Sharing Hash, No. 12cv186 MMA-RBB, 2012 WL 12884688, at *4 (S.D. Cal. 26 May 4, 2012); see Openmind Solutions, Inc. v. Does 1-39, No. C-11-3311-MEJ, 2011 WL 27 4715200, at *2 (N.D. Cal. Oct. 7, 2011) (concluding that plaintiff satisfied the first factor 28 by identifying the defendants’ IP addresses and by tracing the IP addresses to a point of 4 3:23-cv-01380-LL-AHG Case 3:23-cv-01380-LL-AHG Document 5 Filed 08/11/23 PageID.76 Page 5 of 10 1 origin within the State of California); Pink Lotus Entm’t, LLC v. Does 1-46, No. C-11- 2 02263, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) (same). Other courts have 3 concluded that merely identifying the IP addresses on the day of the alleged infringement 4 satisfies this factor. 808 Holdings, 2012 WL 12884688, at *4 (collecting cases). 5 Here, Plaintiff has identified the Doe Defendant with sufficient specificity. First, in 6 support of the present motion, Plaintiff provided an 81-paragraph Declaration of David 7 Williamson, an independent contractor hired by Plaintiff as an Information Systems and 8 Management Consultant. ECF No. 4-2 at 2–15 (“Ex. A”). In that role, Mr. Williamson 9 testifies he “oversaw the design, development, and overall creation of the infringement 10 detection system called VXN Scan[,] which [Plaintiff] both owns and uses to identify the 11 IP addresses used by individuals infringing Plaintiff’s movies via the BitTorrent protocol.” 12 Ex. A, ¶ 40. Mr. Williamson’s Declaration explains the VXN Scan system in detail, which 13 involves, in part, the development of a proprietary BitTorrent client that emulates the 14 behavior of a standard BitTorrent client by repeatedly downloading data pieces from peers 15 within the BitTorrent network that are distributing Plaintiff’s movies. Id. ¶¶ 52–55. 16 Mr. Williamson testifies that another component of the VXN Scan system is the PCAP2 17 Recorder / Capture Card, which is able to record the IP addresses connecting to the 18 Proprietary Client and sending the infringed copies of Plaintiff’s movies to the Proprietary 19 Client through the BitTorrent network. Id. ¶¶ 57–59. Not only does a PCAP contain the IP 20 addresses used in the network transaction, but it also records the port number and 21 BitTorrent client used to accomplish each transaction, and the “Info Hash” associated with 22 the infringing computer file, which reflects the metadata of the particular underlying 23 .torrent file being shared without authorization. Id. ¶¶ 61–62. The PCAP Capture Card 24 records PCAPs in real time and is able to record perfect copies of every network packet 25 received by the Proprietary Client. Id. ¶ 65. Although this Order touches only on two of 26 27 28 2 PCAP stands for “Packet Capture.” Ex. A ¶ 58. 5 3:23-cv-01380-LL-AHG Case 3:23-cv-01380-LL-AHG Document 5 Filed 08/11/23 PageID.77 Page 6 of 10 1 the components of the VXN Scan system, Mr. Williamson’s 81-paragraph Declaration sets 2 forth additional in-depth details of all five components of the system, providing the Court 3 a thorough understanding of how the system reliably pinpoints the IP addresses used by 4 individuals infringing Plaintiff’s movies and verifies the infringement. 5 Second, Plaintiff also provided a declaration by Patrick Paige, a computer forensics 6 expert retained by Plaintiff to analyze and retain forensic evidence captured by the VXN 7 Scan system. ECF No. 4-2 at 17–22 (“Ex. B”). Mr. Paige explains that VXN Scan recorded 8 numerous BitTorrent computer transactions with IP address 76.176.105.210 in the form of 9 PCAPs, and that he reviewed the PCAP to confirm that it evidences a recorded transaction 10 with that IP address on July 8, 2023 at 23:45:35 UTC involving the IP address uploading 11 a piece or pieces of a file corresponding to the hash value that is unique to one of Plaintiff’s 12 movies. Ex. B, ¶¶ 13–26. 13 Third, Plaintiff provided a declaration by Susan B. Stalzer, one of Plaintiff’s 14 employees who verified that each digital file that the Proprietary Client received through 15 its transactions with IP address 76.176.105.210 is a copy of one of Plaintiff’s copyrighted 16 works, by viewing the unauthorized motion pictures corresponding with the file hashes 17 side-by-side with Plaintiff’s original movies. ECF No. 4-2 at 24–26 (“Ex. C”); see also 18 ECF No. 1-2 (Exhibit A to the Complaint, listing the hash values of the 43 torrent files 19 received by the Proprietary Client from the IP address 76.176.105.210 between June 12 20 and July 8, 2023). 21 Finally, Plaintiff provides a declaration by Emilie Kennedy, Plaintiff’s in-house 22 General Counsel. ECF No. 4-2 at 28–30 (“Ex. D”). Ms. Kennedy explains that after 23 Plaintiff received infringement data from VXN Scan identifying IP address 76.176.105.210 24 as infringing its works, the IP address was automatically input into Maxmind’s Geolocation 25 Database on June 13, 2023 at 13:04:37 UTC, which traced the IP address location to San 26 Diego, California, within this Court’s jurisdiction. Ex. D, ¶¶ 4–5. Plaintiff has since 27 repeated the trace through the Geolocation Database twice more, prior to filing the 28 Complaint and prior to filing the Kennedy Declaration attached to the instant motion, 6 3:23-cv-01380-LL-AHG Case 3:23-cv-01380-LL-AHG Document 5 Filed 08/11/23 PageID.78 Page 7 of 10 1 confirming the IP address continues to trace to San Diego and this District. Id. ¶¶ 6–7. The 2 Court is satisfied that these multiple geolocation traces over the course of two months 3 indicating that the Defendant is located in this District are reliably accurate. 4 Based on all of the information above, the Court concludes that Plaintiff has 5 provided a sufficient showing that it seeks to sue a real person subject to the Court’s 6 jurisdiction. Likewise, if Plaintiff obtains the identifying information from the ISP for the 7 subscriber assigned the IP address at issue, the information sought in the subpoena would 8 likely enable Plaintiff to serve Defendant. Therefore, the Court finds Plaintiff satisfied the 9 “sufficient specificity” threshold. 10 b. Previous Attempts to Locate Defendant 11 Next, Plaintiff is required to describe all steps taken to identify the Doe defendant in 12 a good-faith effort to locate and serve them. Plaintiff states that it attempted to locate 13 Defendant by searching for Defendant’s IP address using online search engines and other 14 web search tools. ECF No. 4-1 at 14. Plaintiff also reviewed numerous sources of authority 15 such as legislative reports, agency websites, and informational technology guides, 16 regarding whether it is possible to identify such a defendant by other means, and 17 extensively discussed this issue with its computer investigators and cyber security 18 consultants. Id. Despite these diligent efforts, Plaintiff was unable to identify any means of 19 obtaining the identity of Defendant other than through subpoenaing the information from 20 Defendant’s ISP. Id. In his Declaration, Mr. Paige testified that based on his experience in 21 similar cases, Defendant’s ISP, Spectrum, is the only entity that can correlate the IP address 22 76.176.105.210 to its subscriber to pinpoint Defendant’s identity. Ex. B ¶ 28. Thus, the 23 Court finds Plaintiff has shown it has made a good-faith effort to identify and locate 24 Defendant through other means before resorting to filing the instant motion. 25 c. Whether Plaintiff Can Withstand a Motion to Dismiss 26 Lastly, Plaintiff must establish it could survive a motion to dismiss. See Fed. R. Civ. 27 P. 12(b); Columbia Ins., 185 F.R.D. at 579. To survive a motion to dismiss for failure to 28 state a claim upon which relief can be granted, “a complaint must contain sufficient factual 7 3:23-cv-01380-LL-AHG Case 3:23-cv-01380-LL-AHG Document 5 Filed 08/11/23 PageID.79 Page 8 of 10 1 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 3 (2007)). To present a prima facie case of copyright infringement, Plaintiff must show: (1) 4 ownership of a valid copyright; and (2) that Defendant violated the copyright owner’s 5 exclusive rights under the Copyright Act. Range Road Music, Inc. v. East Coast Foods, 6 Inc., 668 F.3d 1148, 1153 (9th Cir. 2012). In addition, for direct infringement Plaintiff is 7 required to show causation by Defendant. Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 8 666 (9th Cir. 2017). 9 Here, Plaintiff’s Complaint clearly alleges that Plaintiff owns a valid copyright in 10 the works at issue, which are registered with the United States Copyright Office. See ECF 11 No. 1 ¶¶ 43, 46, 49.3 And again, Ms. Stalzer attests that she reviewed the files correlating 12 to the hashes identified in Exhibit A to the Complaint and confirmed that they are 13 “identical, strikingly similar or substantially similar” to Strike 3’s original copyrighted 14 Works. Ex. C ¶¶ 7–11; ECF No. 1 ¶¶ 34–35. Plaintiff’s Complaint also alleges Defendant 15 used BitTorrent to copy and distribute the copyrighted works without authorization, and 16 that the infringement was continuous and ongoing. ECF No. 1 ¶¶ 4, 19–30, 33, 33–36, 44– 17 46. Thus, Plaintiff’s Complaint has stated a claim for copyright infringement against the 18 Doe Defendant sufficient to survive a motion to dismiss. Additionally, Plaintiff has alleged 19 sufficient facts to show it could withstand a motion to dismiss for lack of personal 20 jurisdiction or a motion for improper venue, because Defendant’s IP address was traced to 21 a location in this District. Accordingly, the Court concludes Plaintiff has met the third 22 prong necessary to establish good cause for granting early discovery. 23 24 25 26 27 28 3 Exhibit A to the Complaint, which shows the hash values of the purportedly infringing movies downloaded from the IP address 76.176.105.210, also contains the United States Copyright Office registration information of the works that correspond with those hash files. ECF No. 1-2. 8 3:23-cv-01380-LL-AHG Case 3:23-cv-01380-LL-AHG Document 5 Filed 08/11/23 PageID.80 Page 9 of 10 1 IV. 2 For the reasons set forth above, and for good cause shown, the Court GRANTS 3 Plaintiff’s ex parte application for leave to serve a subpoena prior to a Rule 26(f) 4 conference. ECF No. 4. However, the Court is cognizant of the potential embarrassment of 5 being identified in this type of case and “shares the growing concern about unscrupulous 6 tactics used by certain plaintiffs, especially in the adult film industry, to shake down the 7 owners of IP addresses.” Malibu Media, LLC v. Does 1-5, No. 12-Civ-2950-JPO, 2012 WL 8 2001968, at *1 (S.D.N.Y. June 1, 2012). Anticipating and sharing these concerns, Plaintiff 9 invites the Court to issue a protective order establishing procedural safeguards if the Court 10 finds such procedures appropriate. ECF No. 4-1 at 18. Accordingly, the Court ORDERS 11 as follows: CONCLUSION 12 1. Plaintiff shall attach a copy of this Order to any subpoena. 13 2. Plaintiff may serve the ISP, Spectrum, with a Rule 45 subpoena commanding 14 the ISP to provide Plaintiff with only the true name and address of the 15 Defendant to whom the ISP assigned an IP address as set forth on Exhibit A 16 to the Complaint. The ISP is not to release the Defendant’s telephone number 17 or email address. 18 3. Within fourteen (14) calendar days after service of the subpoena, the ISP shall 19 notify the subscriber that his or her identity has been subpoenaed by Plaintiff, 20 in compliance with 47 U.S.C. § 551(c)(2)(B). The ISP must also provide a 21 copy of this Order along with the required notice to the subscriber whose 22 identity is sought pursuant to this Order. 23 4. The subscriber whose identity has been subpoenaed shall have thirty (30) 24 calendar days from the date of such notice to challenge the disclosure of his 25 or her name and contact information by filing an appropriate pleading with 26 this Court contesting the subpoena. A subscriber who moves to quash or 27 modify the subpoena may proceed anonymously as “John Doe,” and shall 28 9 3:23-cv-01380-LL-AHG Case 3:23-cv-01380-LL-AHG Document 5 Filed 08/11/23 PageID.81 Page 10 of 10 1 remain anonymous until the Court orders that the identifying information may 2 be released. 3 5. If the ISP wishes to move to quash the subpoena, it shall do so before the 4 return date of the subpoena. The return date of the subpoena must allow for at 5 least forty-five (45) days from service to production. If a motion to quash or 6 other challenge is brought, the ISP shall preserve the information sought by 7 Plaintiff in the subpoena pending resolution of such motion or challenge. 8 6. Plaintiff may only use the information disclosed in response to a Rule 45 9 subpoena served on the ISP for the purpose of protecting and enforcing 10 Plaintiff’s rights as set forth in its Complaint. If Defendant wishes to proceed 11 anonymously, Plaintiff may not release any identifying information without a 12 court order allowing the release of the information. 13 IT IS SO ORDERED. 14 15 Dated: August 11, 2023 16 17 18 19 20 21 22 23 24 25 26 27 28 10 3:23-cv-01380-LL-AHG

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