Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.176.36.179,, No. 3:2023cv01784 - Document 4 (S.D. Cal. 2023)
Court Description: ORDER Granting Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior to Rule 26(F) Conference [ECF No. 3 ]. Signed by Magistrate Judge Bernard G. Skomal on 11/29/2023. (mjw)
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Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 98.176.36.179, Doc. 4 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-1784-BAS-BGS Plaintiff, 12 13 v. 14 JOHN DOE subscriber assigned IP address 98.176.36.179, 15 ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO RULE 26(F) CONFERENCE Defendant. 16 [ECF NO. 3] 17 18 19 For the reasons set forth below, Plaintiff Strike 3 Holdings, LLC’s Ex Parte 20 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference 21 is GRANTED. 22 I. 23 BACKGROUND On September 27, 2023, Strike 3 Holdings, LLC (“Plaintiff”) filed its Complaint 24 against Defendant John Doe subscriber assigned Internet Protocol (“IP”) address 25 98.176.36.179 (“Doe Defendant”) for copyright infringement. (Compl. [ECF No. 1].) On 26 October 17, 2023, Plaintiff filed an Ex Parte Application seeking leave to serve a third- 27 party subpoena to ascertain the identity of the Doe Defendant. (Ex Parte Appl. [ECF No. 28 1 23-cv-1784-BAS-BGS Dockets.Justia.com 1 3-1]. 1) 2 In its Complaint, Plaintiff asserts that Defendant is liable for direct copyright 3 infringement. (Compl. ¶¶ 48-53.) Plaintiff alleges that it owns the copyrights for movies 4 it distributes through adult websites and DVD sales. (Id. ¶¶ 3, 14.) Plaintiff alleges Doe 5 Defendant used BitTorrent, a peer-to-peer file sharing system, to copy and distribute its 6 movies without consent. (Id. ¶¶ 18-47.) As discussed further below, to identify the IP 7 address that was illegally distributing its works, Plaintiff utilized its proprietary forensic 8 software, VXN Scan (“VXN”). (Id. ¶¶ 28-44.) 9 As it can only identify the Doe Defendant by the IP address used, Plaintiff requests 10 permission to serve a Federal Rule of Civil Procedure 45 subpoena on the Internet 11 Service Provider (“ISP”), Cox Communications, that issued the IP address to Doe 12 Defendant. (Ex Parte Appl. [ECF No. 3-1] at 7-8, 17.) The proposed subpoena only 13 demands the name and address of Doe Defendant, and Plaintiff indicates it will only use 14 this information to prosecute claims in the Complaint. (Id. at 8.) 15 Plaintiff claims good cause exists to grant the Ex Parte Application because: 16 (1) Plaintiff has identified Doe Defendant with sufficient specificity through geolocation 17 technology and forensic investigation; (2) Plaintiff has identified all previous steps taken 18 to locate Doe Defendant; (3) Plaintiff’s Complaint could withstand a motion to dismiss; 19 and (4) Plaintiff has established that there is a reasonable likelihood that Plaintiff can 20 identify the Doe Defendant and effectuate service. (Id. at 11-17.) 21 II. 22 STANDARD OF REVIEW Absent a court order, discovery is generally not allowed prior to the parties’ 23 Federal Rule of Civil Procedure 26(f) conference. See Fed. R. Civ. P. 26(d)(1). Early 24 discovery to identify a defendant may be warranted given “a plaintiff cannot have a 25 26 27 28 1 The Court cites Plaintiff’s Memorandum of Points and Authorities in Support of Plaintiff’s Ex Parte Application (ECF No. 3-1), with page cites to the numbers affixed by the Court’s Case Management/Electronic Case Filing (“CM/ECF”) system. 2 23-cv-1784-BAS-BGS 1 discovery planning conference with an anonymous defendant.” UMG Recordings, Inc. v. 2 Doe, No. C-08-03999-RMW, 2008 WL 4104207, at *2 (N.D. Cal. Sept. 4, 2008). To 3 determine if early discovery is warranted in a particular case, the court applies a “good 4 cause” test by weighing the need for discovery to further the administration of justice 5 against the prejudice it may cause the opposing party. Semitool, Inc. v. Tokyo Electron 6 Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002); see also Strike 3 Holdings, LLC v. Doe, 7 No. 17cv2317-JAH (BLM), 2017 WL 6389848, at *1 (S.D. Cal. Dec. 14, 2017) (citing 8 Semitool, 208 F.R.D. at 274). 9 The Ninth Circuit has held that when a defendant’s identity is unknown at the time 10 a complaint is filed, courts may grant a plaintiff leave to take early discovery to 11 determine the defendant’s identity “unless it is clear that discovery would not uncover the 12 identit[y], or that the complaint would be dismissed on other grounds.” Gillespie v. 13 Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In determining whether to grant leave for 14 early discovery to ascertain a defendant’s identity, district courts consider: (1) whether 15 the plaintiff can “identify the missing party with sufficient specificity such that the Court 16 can determine that defendant is a real person or entity who could be sued in federal 17 court”; (2) whether the plaintiff has described “all previous steps taken to locate the 18 elusive defendant”; (3) whether the “suit against defendant could withstand a motion to 19 dismiss”; and (4) whether there “is a reasonable likelihood that the [requested] discovery 20 process will lead to identifying information about defendant that would make service of 21 process possible.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. 22 Cal. 1999). 23 III. DISCUSSION 24 A. 25 Plaintiff has identified the Doe Defendant with sufficient specificity to enable the 26 Court to determine if Doe Defendant is a real person, subject to the Court’s jurisdiction. 27 Columbia Ins., 185 F.R.D. at 578; see also Distinct Media Ltd. v. Doe Defendants 1-50, 28 Case No. 15-cv-3312 NC, 2015 WL 13389609, *2 (N.D. Cal. Sept. 29, 2015). To Identification of the Doe Defendant with Sufficient Specificity 3 23-cv-1784-BAS-BGS 1 determine whether a doe defendant has been identified with sufficient specificity, courts 2 look to whether a plaintiff provided “the unique IP address[ ] assigned to an individual 3 defendant on the day of the allegedly infringing conduct” and used “‘geolocation 4 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC v. 5 Collective of Dec. 29, 2011 Sharing Hash, Case No. 12cv00186 MMA (RBB), 2012 WL 6 12884688, at *4 (S.D. Cal. May 8, 2012). Identifying the unique IP address and location 7 of the IP address has been shown to meet the requirement for identifying a doe defendant 8 with sufficient specificity. Id. (citing cases). 9 Here, Plaintiff has submitted several declarations in support of its request to serve 10 a Rule 45 subpoena: David Williamson, Plaintiff’s Chief Technology Officer (Ex Parte 11 Appl. Ex. A [ECF No. 3-2 at 1-15] (“Williamson Decl.”); Patrick Paige of Computer 12 Forensics, LLC, retained to analyze forensic evidence captured by Plaintiff’s 13 infringement detection system (Id. Ex. B [ECF No. 3-2 at 16-22] (“Paige Decl.”); Susan 14 B. Stalzer, an employee of Plaintiff that verifies infringing files are identical or strikingly 15 similar to Plaintiff’s works (Id. Ex. C [ECF No. 3-2 at 23-26] (“Stalzer Decl.”); and 16 Emilie Kennedy, Plaintiff’s in-house General Counsel who verifies the infringing IP 17 address traces to San Diego (Id. Ex. D [ECF No. 3-2 at 27-32] (“Kennedy Decl.”). 18 Mr. Williamson’s declaration explains that he “oversaw the design, development, 19 and overall creation of the infringement detection system called VXN Scan[,] which 20 [Plaintiff] both owns and uses to identify the IP addresses used by individuals infringing 21 Plaintiff’s movies via the BitTorrent protocol.” (Williamson Decl. ¶ 40.) One part of the 22 VXN Scan system involves the development of a proprietary BitTorrent client that 23 emulates the behavior of a standard BitTorrent client by repeatedly downloading data 24 pieces from peers within the BitTorrent network that are distributing Plaintiff’s movies. 25 (Id. ¶¶ 52–55.) Mr. Williamson’s declaration also explains that another component of the 26 VXN Scan system is the Packet Capture (“PCAP”) Recorder that uses a PCAP Capture 27 Card, which can record the IP addresses connecting to the Proprietary Client and sending 28 the infringed copies of Plaintiff’s work to the Proprietary Client through the BitTorrent 4 23-cv-1784-BAS-BGS 1 network. (Id. ¶¶ 57–59.) A PCAP contains the IP addresses used in the network 2 transaction, the port number and BitTorrent client used to accomplish each transaction, 3 and the “Info Hash” associated with the infringing computer file, which identifies the 4 data that was shared in the recorded transaction as part of the specific digital media file, 5 i.e., an infringing copy of Plaintiff’s copyrighted works. (Id. ¶¶ 61–62.) The PCAP 6 Capture Card records perfect copies of every network packet received by the Proprietary 7 Client. (Id. ¶ 65.)2 8 Mr. Paige’s declaration explains that the VXN Scan recorded numerous BitTorrent 9 computer transactions with IP address 98.176.36.179 in the form of PCAPs. (Paige Decl. 10 ¶¶ 13–16.) Mr. Paige then reviewed the PCAP to confirm that it evidences a recorded 11 transaction with that IP address on September 17, 2023, at 06:00:32 UTC involving the 12 IP address uploading a piece or pieces of a file corresponding to a specific hash value to 13 VXN Scan. (Id. ¶¶ 16–18.) He then explains that based on his experience in similar cases, 14 Defendant’s ISP is the only entity that can correlate the identified IP address to its 15 subscriber to pinpoint Defendant’s identity. (Id. ¶ 28.) 16 Ms. Stalzer’s declaration explains that she was provided the digital media files 17 identified using the VXN Scan’s Torrent Collector and Downloader, she compared them 18 side-by-side with Plaintiff’s original movies, and she verified they are copies of one of 19 Plaintiff’s copyrighted works. (Stalzer Decl. ¶¶ 7-11.) And finally, Ms. Kennedy’s 20 declaration explain that Plaintiff used Maxmind’s Geolocation Database to trace the 21 infringing IP address to San Diego, California, within this Court’s jurisdiction, prior to 22 Plaintiff filing its complaint and prior to the filing of her declaration. (Kennedy Decl. ¶¶ 23 4-7.) Exhibit 1, attached to the Kennedy Declaration, indicates the ISP for 98.176.36.179 24 is Cox Communications. (Id., Ex. 1.) 25 /// 26 27 2 28 Mr. Williamson’s declaration sets forth additional in-depth details regarding all components of the system. 5 23-cv-1784-BAS-BGS 1 Plaintiff has identified the missing party with such “sufficient specificity” so as to 2 assure the Court that the Doe Defendant is real, subject to the Court’s jurisdiction, and 3 able to be sued. Columbia Ins., 185 F.R.D. at 578. 4 B. 5 Plaintiff has sufficiently described all prior attempts it has made to identify Doe Previous Steps Taken to Locate Doe Defendant 6 Defendant. Id. at 579. This element is aimed at ensuring that “plaintiffs make a good faith 7 effort to comply with the requirements of service of process and specifically identify 8 defendants.” Id. In addition to the efforts described above to trace the infringing activity 9 to the IP address, Plaintiff has asserted that it has searched for Doe Defendant’s IP 10 address “on various web search tools [and] review[ed] numerous sources of authority,” 11 including technology guides and agency websites, but has not been able to identify 12 Defendant. (Ex Parte Appl. at 14.) Further, Plaintiff has “discussed the issue at length 13 with computer investigators and cyber security consultants [and] does not know how else 14 it could possibly enforce its copyrights from illegal piracy over the Internet.” (Id.) 15 Therefore, the Court finds that Plaintiff has made a good faith effort to identify the Doe 16 Defendant. 17 C. 18 Plaintiff has also demonstrated that its claim could withstand a motion to dismiss. Ability to Withstand a Motion to Dismiss 19 This requires Plaintiff to “make some showing that an act giving rise to civil liability 20 actually occurred and that the discovery is aimed at revealing specific identifying features 21 of the person or entity who committed that act.” Columbia Ins., 185 F.R.D. at 580. 22 A claim may be dismissed pursuant to Rule 12(b) for lack of subject matter 23 jurisdiction or for failure to state a claim. Fed. R. Civ. P. 12(b)(1), 12(b)(6). To prevail on 24 a copyright infringement claim, Plaintiff must show: “(1) ownership of a valid copyright; 25 and (2) that the defendant violated the copyright owner’s exclusive rights under the 26 Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 27 U.S.C. § 501(a)); see also Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 28 2017). “Direct infringement requires the plaintiff to show causation (also referred to as 6 23-cv-1784-BAS-BGS 1 ‘volitional conduct’) by the defendant.” Perfect 10, 847 F.3d at 666. 2 Here, Plaintiff’s Complaint alleges subject matter jurisdiction under 28 U.S.C. 3 § 1331 (federal question) and 28 U.S.C. § 1338 (jurisdiction over copyright actions). 4 (Compl. ¶ 7.) Further, Plaintiff provides evidence that it is the exclusive rights holder of 5 the copyrighted works at issue. (See Compl., Ex. A.)3 Plaintiff alleges that Defendant 6 infringed Plaintiff’s copyrighted work via the BitTorrent file distribution network. 7 (Compl. ¶¶ 4, 41-46 & Ex. A.) Plaintiff also alleges that it did not permit or consent to 8 Doe Defendant’s copying or distribution of this work. (Id. ¶ 51.) Accordingly, Plaintiff 9 has alleged the prima facie elements of direct copyright infringement and could withstand 10 a motion to dismiss for failure to state a claim. See Columbia Ins., 185 F.R.D. at 579-80. 11 Additionally, the Court finds the Complaint could withstand a challenge based on 12 personal jurisdiction or venue. As discussed at length above, Plaintiff has traced the 13 infringing conduct to this district. 14 D. 15 Finally, Plaintiff has satisfied the last element required in Columbia Insurance by Requested Discovery Will Lead to Identifying Information 16 demonstrating the requested discovery will lead to identifying information about Doe 17 Defendant that would make service of process possible. Columbia Ins., 185 F.R.D. at 18 580. As explained above, Plaintiff’s investigation has revealed a unique IP address and 19 based on Maxmind’s geolocation, Plaintiff has identified Cox Communications as the 20 owner. (Ex Parte Appl. at 17.) Because the only entity able to correlate an IP address to a 21 specific individual is the ISP, Cox Communications, the requested Rule 45 subpoena 22 would lead to information making service of process possible. 23 24 25 26 27 28 3 Exhibit A is a chart containing United States Copyright Office registration information, including registration numbers. In its Complaint, Plaintiff states that it “owns the copyrights to the Works and the Works have been registered with the United States Copyright Office.” (Compl. ¶¶ 42-46.) 7 23-cv-1784-BAS-BGS 1 IV. 2 3 CONCLUSION AND ORDER The Ex Parte Application (ECF No. 3) is GRANTED. Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiff may serve Cox Communications with a Rule 45 subpoena 5 commanding the ISP to provide Plaintiff with the true name and address of the subscriber 6 assigned the IP address 98.176.36.179. Plaintiff may not subpoena additional information 7 about the subscriber and Plaintiff may only use the disclosed information to protect its 8 copyrights in pursing this litigation. 9 2. Plaintiff shall attach a copy of this Order to any Rule 45 subpoena issued 10 pursuant to this Order and the ISP must also provide a copy of this Order along with the 11 required notice to the subscriber whose identity is sought. 12 13 3. Within fourteen (14) calendar days after the service of the subpoena, the ISP shall notify the subscriber that their identity has been subpoenaed by Plaintiff. 14 4. The subscriber whose identity has been subpoenaed shall have thirty (30) 15 calendar days from the date of such notice to seek a protective order or challenge the 16 disclosure by filing an appropriate pleading with this Court contesting the subpoena. The 17 subscriber may proceed anonymously as a Doe Defendant until the Court orders 18 otherwise. 4 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 27 4 28 Plaintiff’s Ex Parte Application specifically states that Plaintiff is not opposed and “in fact welcomes” allowing Defendant to proceed anonymously. (Ex Parte Appl. at 18.) 8 23-cv-1784-BAS-BGS 1 5. If the ISP wishes to move to quash the subpoena, it shall do so before the 2 return date of the subpoena. The return date of the subpoena must allow for forty-five 3 (45) calendar days from service to production. If a motion to quash or other customer 4 challenge is brought, the ISP shall preserve the information sought by Plaintiff in the 5 subpoena pending resolution of such motion or challenge. 6 7 IT IS SO ORDERED. Dated: November 29, 2023 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 23-cv-1784-BAS-BGS
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