Strike 3 Holdings, LLC v. Doe, No. 3:2023cv01971 - Document 5 (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. 4 ]. Signed by Magistrate Judge Jill L. Burkhardt on 11/17/2023. (mjw)

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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-01971-H-JLB Plaintiff, 12 13 v. 14 JOHN DOE, Subscriber Assigned IP Address 68.7.209.22, 15 ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO 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-01971-H-JLB Dockets.Justia.com 1 alleges that it is the copyright owner of motion pictures distributed through adult content 2 websites Blacked, MILFY, Tushy, Tushy Raw, Vixen, Blacked Raw, and Slayed. (ECF No. 3 1 ¶¶ 2–3.) Plaintiff alleges that between April 26, 2022, and August 24, 2023, 2 the person 4 or entity assigned Internet Protocol (“IP”) address 68.7.209.22 illegally downloaded and 5 distributed fifty-one of Plaintiff’s motion pictures through his, her, or its use of the online 6 BitTorrent file distribution network. 7 commenced this action against Defendant “John Doe, subscriber assigned IP address 8 68.7.209.22” on October 25, 2023, alleging a single cause of action of direct copyright 9 infringement. (ECF No. 1 ¶¶ 48–53.) (Id. ¶¶ 4–5, 18–47; ECF No. 1-2.) Plaintiff 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 (“Cox”). (Id. 13 ¶¶ 5, 13.) In the instant Motion, Plaintiff asserts that Cox is the owner of Defendant’s IP 14 address, and thus, “is the only party with the information necessary to identify Defendant 15 by correlating the IP address with John Doe’s identity.” (ECF No. 4-1 at 7.) Plaintiff 16 therefore seeks leave to serve a Rule 45 subpoena on Cox requesting the true name and 17 address associated with IP address 68.7.209.22. 18 identity, Plaintiff cannot serve Defendant and prosecute this case. (Id. at 8.) 19 II. (Id. at 7–8.) Without Defendant’s LEGAL STANDARD 20 Discovery is not permitted before the parties have conferred pursuant to Federal Rule 21 of Civil Procedure 26(f) unless authorized by court order. Fed. R. Civ. P. 26(d)(1). 22 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 23 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 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 68.7.209.22 engaged in allegedly infringing activity between April 26, 2022, and August 24, 2023. (ECF No. 1-2.) 2 23-cv-01971-H-JLB 1 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 2 F.R.D. 573, 577 (N.D. Cal. 1999). Requests to conduct discovery prior to a Rule 26(f) 3 conference are granted upon a showing of good cause by the moving party, which may be 4 found “where the need for expedited discovery, in consideration of the administration of 5 justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron 6 Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “A district court’s decision to grant 7 discovery to determine jurisdictional facts is a matter of discretion.” Columbia Ins. Co., 8 185 F.R.D. at 578. 9 District courts in the Ninth Circuit apply a three-factor test to determine whether 10 good cause exists to allow for expedited discovery to identify a Doe defendant. Id. at 578– 11 80. “First, the plaintiff should identify the missing party with sufficient specificity such 12 that the Court can determine that [the] defendant is a real person or entity who could be 13 sued in federal court.” Id. at 578. Second, the plaintiff “should identify all previous steps 14 taken to locate the elusive defendant” to ensure that the plaintiff has made a good faith 15 effort to identify and serve process on the defendant. Id. at 579. Third, the plaintiff “should 16 establish to the Court’s satisfaction that [the] plaintiff’s suit against [the] defendant could 17 withstand a motion to dismiss.” Id. “Lastly, the plaintiff should file a request for discovery 18 with the Court, along with a statement of reasons justifying the specific discovery requested 19 as well as identification of a limited number of persons or entities on whom discovery 20 process might be served and for which there is a reasonable likelihood that the discovery 21 process will lead to identifying information about [the] defendant that would make service 22 of process possible.” Id. at 580. 23 III. DISCUSSION 24 A. 25 For the Court to grant Plaintiff’s Motion, Plaintiff must first identify Defendant with 26 enough specificity to enable the Court to determine that Defendant is a real person or entity 27 who is subject to the Court’s jurisdiction. See Columbia Ins. Co., 185 F.R.D. at 578. The 28 Court finds that Plaintiff has met this burden. Identification of Missing Party with Sufficient Specificity 3 23-cv-01971-H-JLB 1 Courts in the Ninth Circuit have determined that “a plaintiff identifies Doe 2 defendants with sufficient specificity” in cases like the instant case “by providing the 3 unique IP addresses assigned to an individual defendant on the day of the allegedly 4 infringing conduct, and by using ‘geolocation technology’ to trace the IP addresses to a 5 physical point of origin.” 808 Holdings, LLC v. Collective of December 29, 2011 Sharing 6 Hash E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12-cv-00186-MMA- 7 RBB, 2012 WL 12884688, at *4 (S.D. Cal. May 8, 2012); see also Pink Lotus Entm’t, LLC 8 v. Does 1–46, No. C-11-02263, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) (finding 9 that the plaintiff met its burden to identify the Doe defendants with sufficient specificity 10 by identifying the Doe defendants’ IP addresses and then using geolocation technology to 11 trace the IP addresses to a point of origin). 12 Here, Plaintiff has sufficiently demonstrated that Defendant is a real person or entity 13 likely subject to the Court’s jurisdiction. Plaintiff attached to its Complaint a table 14 reflecting that the subscriber assigned IP address 68.7.209.22 engaged in allegedly 15 infringing activity between April 26, 2022, and August 24, 2023, in Chula Vista, 16 California. 17 declarations to the instant Motion. (ECF No. 1-2.) To substantiate these claims, Plaintiff attached four 18 Plaintiff first attached the Declaration of David Williamson, an independent 19 contractor hired by Plaintiff as an Information Systems and Management Consultant. 20 (ECF No. 4-2 at 1–15 (“Ex. A”).) Mr. Williamson states that he “oversaw the design, 21 development, and overall creation of the infringement detection system called VXN Scan[,] 22 which [Plaintiff] both owns and uses to identify the IP addresses used by individuals 23 infringing Plaintiff’s movies via the BitTorrent protocol.” (Ex. A ¶ 40.) Mr. Williamson’s 24 declaration explains in detail how VXN Scan operates and its six components. One 25 component of VXN Scan is a proprietary BitTorrent client that emulates the behavior of a 26 standard BitTorrent client by repeatedly downloading data pieces from peers within the 27 BitTorrent network that are distributing Plaintiff’s movies. (Id. ¶¶ 52–56.) Another 28 component of VXN Scan is the PCAP Recorder, which records infringing BitTorrent 4 23-cv-01971-H-JLB 1 computer transactions in the form of PCAPs, or packet captures. (Id. ¶¶ 57–70.) The 2 PCAPs contain the IP addresses that connect to the Proprietary Client and send pieces of 3 the computer file containing an infringing copy of one of Plaintiff’s movies to the 4 Proprietary Client through the BitTorrent network. (Id. ¶¶ 57–59.) Not only do PCAPs 5 record the IP addresses used in the network transaction, but they also record the date and 6 time of the transaction, the port number used, and the BitTorrent client used to accomplish 7 each transaction. (Id. ¶ 61.) PCAPs also identify the “Info Hash value that was used to 8 obtain the transacted piece.” (Id. ¶ 62.) This information identifies the data that was shared 9 in the recorded transaction as part of a file containing an infringing copy of one of 10 Plaintiff’s movies. (Id.) This Order touches on only two of the components of VXN Scan, 11 but Mr. Williamson’s eighty-one-paragraph declaration sets forth additional, in-depth 12 details of all six components of the system, providing the Court with a thorough 13 understanding of how the system reliably identifies the IP addresses assigned to individuals 14 infringing Plaintiff’s movies and verifies the infringement. (See id. ¶¶ 43–51, 63–81.) 15 Second, Plaintiff attached the Declaration of Patrick Paige, a computer forensics 16 expert Plaintiff retained to analyze and retain evidence captured by VXN Scan. 17 (ECF No. 4-2 at 16–22 (“Ex. B”).) Mr. Paige explains that VXN Scan “recorded numerous 18 BitTorrent computer transactions between the system and IP address 68.7.209.22 in the 19 form of PCAPs.” (Ex. B ¶ 13.) Mr. Paige states that, using a program called Wireshark, 20 he viewed and analyzed a PCAP he received from Plaintiff and was able to confirm that on 21 August 24, 2023, “IP address 68.7.209.22 uploaded a piece or pieces of a file corresponding 22 to hash value 1149632029B2203A09EF6DB1B644D4E0F5F00FE5 to VXN Scan.” 23 (Id. ¶¶ 16–19.) The hash value, or Info Hash, is the data used by BitTorrent to identify and 24 locate other pieces of a desired file; in this case, the desired file contained an infringing 25 copy of one of Plaintiff’s movies. (Id. ¶ 22; see also ECF No. 1-2 at 1.) Based on his 26 experience in similar cases, Mr. Paige opines that Cox, Defendant’s ISP, “is the only entity 27 that can correlate the IP address [68.7.209.22] to its subscriber and identify Defendant as 28 5 23-cv-01971-H-JLB 1 the person assigned [this] IP address . . . during the time of the alleged infringement.” (Ex. 2 B ¶ 28.) 3 Third, Plaintiff attached the Declaration of Susan B. Stalzer, an employee of 4 Plaintiff’s who verified that each digital file VXN Scan received through its transactions 5 with IP address 68.7.209.22 was identical, strikingly similar, or substantially similar to one 6 of Plaintiff’s original copyrighted works. (ECF No. 4-2 at 23–26 (“Ex. C”).) To do so, 7 Ms. Stalzer viewed each of the digital media files side-by-side with Plaintiff’s original 8 films. (Ex. C ¶¶ 8–10.) 9 Last, Plaintiff attached the Declaration of Emilie Kennedy, Plaintiff’s in-house 10 General Counsel. (ECF No. 4-2 at 27–30 (“Ex. D”).) Ms. Kennedy explains that after 11 Plaintiff received data from VXN Scan identifying IP address 68.7.209.22 as infringing its 12 movies, “the IP address was automatically inputted into Maxmind’s Geolocation 13 Database” on April 27, 2022.3 (Ex. D ¶ 4.) “Maxmind [then] determined that the IP 14 address traced to a location in San Marcos, California, which is within this Court’s 15 jurisdiction.” (Id. ¶ 5.) Ms. Kennedy states that Plaintiff inputted IP address 68.7.209.22 16 again into the Maxmind Database “[p]rior to filing its Complaint” and “before filing [her] 17 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-01971-H-JLB 1 [D]eclaration,”4 and both times the IP address “continued to trace to this District.” (Id. ¶¶ 2 6–7.) 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 68.7.209.22 to locations within San Diego County, the 8 Court concludes that Plaintiff has met its evidentiary burden of identifying Defendant with 9 sufficient specificity and has shown that Defendant’s IP address likely relates to a physical 10 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 26 27 28 4 Before filing her declaration, Ms. Kennedy inputted the IP address into the Maxmind Database again and it traced to Chula Vista, California, which is also in this District. (Id. ¶¶ 7–8.) 7 23-cv-01971-H-JLB 1 Further, as discussed above, Plaintiff retained Mr. Paige, a computer forensics 2 expert, who analyzed the data captured by VXN Scan and was able to determine that IP 3 address 68.7.209.22 was engaged in the allegedly infringing activity on August 24, 2023. 4 (See Ex. B ¶¶ 13–26.) Mr. Paige also opined that Defendant’s ISP is the only entity that 5 can correlate IP address 68.7.209.22 to its subscriber and identify Defendant as the person 6 assigned this IP address during the time of the alleged infringement. (Id. ¶ 28.) 7 Based on the foregoing, the Court is satisfied that Plaintiff has attempted in good 8 faith to locate Defendant and that Plaintiff cannot, on its own, identify Defendant with any 9 greater specificity than as the subscriber assigned by Cox to IP address 68.7.209.22. 10 Accordingly, the Court finds that Plaintiff has made a good-faith effort to identify and 11 locate Defendant before filing the instant Motion. 12 C. 13 Lastly, Plaintiff must establish that its Complaint could survive a motion to dismiss. 14 Whether Plaintiff’s Complaint Could Withstand a Motion to Dismiss Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this burden. 15 Plaintiff’s Complaint alleges a single cause of action against Defendant: direct 16 copyright infringement. (ECF No. 1 ¶¶ 48–53.) To survive a motion to dismiss for failure 17 to state a claim upon which relief can be granted, “a complaint must contain sufficient 18 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 20 544, 570 (2007)). To state a claim of direct copyright infringement, a plaintiff “must 21 show: (1) ownership of a valid copyright; and (2) that the defendant violated the copyright 22 owner’s exclusive rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 23 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a) (2003)). “In addition, direct infringement 24 requires the plaintiff to show causation (also referred to as ‘volitional conduct’) by the 25 defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017). 26 In the Complaint, Plaintiff alleges to be the owner of the copyrighted movies or 27 “[w]orks” at issue and asserts that each work was registered with the United States 28 Copyright Office. (ECF No. 1 ¶¶ 2, 46.) Exhibit A to the Complaint shows the hash values 8 23-cv-01971-H-JLB 1 of the purportedly infringed works and the copyright registration number for each of the 2 works that correspond with those hash values. (ECF No. 1-2.) Plaintiff further alleges that 3 Defendant is the user behind IP address 68.7.209.22 who used the BitTorrent file network 4 to “illegally download and distribute Plaintiff’s copyrighted motion pictures” and that the 5 infringement was “continuous and ongoing.” (ECF No. 1 ¶¶ 13, 29, 45.) Lastly, Plaintiff 6 alleges that “[a]t no point in time did [it] authorize, permit or consent to Defendant’s 7 copying, distribution, performance and/or display of its Works, expressly or otherwise.” 8 (Id. ¶ 51.) 9 The Court finds that Plaintiff has alleged a prima facie case of direct copyright 10 infringement and therefore, its Complaint would likely withstand a motion to dismiss by 11 Defendant. 12 D. 13 Finally, before the Court grants Plaintiff’s Motion, Plaintiff “should file a request 14 for discovery with the Court.” Columbia Ins. Co., 185 F.R.D. at 580. Plaintiff has not 15 provided the Court with a proposed subpoena, but the Court has sufficient information to 16 determine that “there is a reasonable likelihood that [a subpoena] will lead to identifying 17 information about [D]efendant that would make service of process possible.” Id. Plaintiff 18 states that it plans to issue a subpoena upon Cox, Defendant’s ISP, requesting “only the 19 true name and address” of Defendant, the subscriber of IP address 68.7.209.22. (ECF No. 20 4-1 at 7–8.) Further, Plaintiff provides that Cox is the only entity that can identify 21 Defendant by his, her, or its IP address. (Ex. B ¶ 28.) Accordingly, the Court finds that 22 Plaintiff need not file the proposed subpoena with the Court. 23 IV. Specific Discovery Request CONCLUSION 24 For the reasons set forth above, the Court finds good cause to grant Plaintiff leave to 25 serve a Rule 45 subpoena upon Cox in advance of the Rule 26(f) conference. However, 26 despite Plaintiff’s representations of good faith (ECF No. 4-1 at 9–10), the Court shares 27 the concern noted by other courts in this District of “‘unscrupulous tactics [being] used by 28 certain plaintiffs, especially in the adult film industry, to shake down the owners of IP 9 23-cv-01971-H-JLB 1 addresses’ to exact quick and quiet settlements from possibly innocent defendants who pay 2 out only to avoid potential embarrassment.” Malibu Media, LLC v. Doe, No. 16-cv-00786- 3 JLS-NLS, 2016 WL 9488778, at *4 (S.D. Cal. May 6, 2016) (quoting Malibu Media, LLC 4 v. Does 1–5, No. 12 Civ. 2950(JPO), 2012 WL 2001968, at *1 (S.D.N.Y. June 1, 2012)). 5 The Court therefore finds that a limited protective order is necessary to protect Defendant’s 6 privacy. Further, Plaintiff has invited the Court to issue a protective order establishing 7 procedural safeguards, “should the Court find such procedures to be appropriate.” (ECF 8 No. 4-1 at 18.) Accordingly, the Court GRANTS Plaintiff’s ex parte Motion (ECF No. 4) 9 and ORDERS as follows: 10 1. Plaintiff may serve on Cox a subpoena, pursuant to and compliant with the 11 procedures of Federal Rule of Civil Procedure 45, seeking only the name and address of 12 the subscriber assigned IP address 68.7.209.22 for the relevant time period of the alleged 13 infringement. 14 information about the subscriber. 15 2. Plaintiff shall not seek from Cox any other personally identifiable Plaintiff’s subpoena to Cox must provide a minimum of forty-five (45) 16 calendar days’ notice before any production responsive to the subpoena shall be made to 17 Plaintiff. 18 3. 19 At the time Plaintiff serves its subpoena on Cox, Plaintiff shall also serve on Cox a copy of this Order. 20 4. Within fourteen (14) calendar days after service of the subpoena, Cox shall 21 notify the subscriber assigned IP address 68.7.209.22 that his, her, or its identity has been 22 subpoenaed by Plaintiff and shall provide the subscriber a copy of this Order with the 23 required notice. 24 5. The subscriber whose identity has been subpoenaed shall have thirty (30) 25 calendar days from the date of such notice to challenge Cox’s disclosure of his, her, or its 26 name and address by filing an appropriate pleading with this Court contesting the 27 subpoena. 28 /// 10 23-cv-01971-H-JLB 1 2 3 6. If Cox seeks to modify or quash the subpoena, it shall do so as provided by Federal Rule of Civil Procedure 45(d)(3). 7. In the event a motion to quash, modify, or otherwise challenge the subpoena 4 is brought properly before the Court, Cox shall preserve the information sought by the 5 subpoena pending the resolution of any such motion. 6 8. Plaintiff may only use the information disclosed in response to a Rule 45 7 subpoena served on Cox for the purpose of protecting and enforcing Plaintiff’s rights as 8 set forth in the Complaint (ECF No. 1). If Defendant wishes to proceed anonymously, 9 Plaintiff may not release any identifying information without a court order allowing the 10 11 12 release of the information. IT IS SO ORDERED. Dated: November 17, 2023 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 23-cv-01971-H-JLB

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