UNITED STATES DISTRICT COURT yFOR THE DISTRICT OF COLUMB_IA
) MALIBU MEDIA, LLC ) ' ) Plaintiff, )
. ) 44 '
v. ) No. 1:18-cv-01203 (JDB/GMH) JOHN DOE subscriber assigned ) IP address 208.58.207.83 ) 4 - ) Defendant. ) ) MEMORANDUM OPINION
Before the C_ourt is Plaintift"s motion for leave to serve a third party subpoena prior to
a Rule 26(f) conference For the reasons stated herein, the motion is granted.' ' I.~ ` BACKGRoUND
Malibu Media, LLC (“Plaintiff’) produced and owns the copyrights to certain motion
pictures involved in this action [Dkt. l, at il 3]. Plaintiff has filed suit under the Copyright Act- of 1976 against Defendant' John Doe, alleging that Defendant “downloaded,> copied, and distributed” Plaintist Works using the BitTorrent file-sharing networl<.l Ia'. ‘W l,_24. Plaintiff v 4
seeks statutory damages and declaratory and injunctive relief prohibiting further infringement of
its copyrighted vvorks. Id. 11 34.
Though 'Plaintiff has identified Defendant’s lnternet Protocol address (“IP address”) and
lnternet _Service Provider (“lSP”), Defendant’s identity remains unknown Id. 1 9. Forl this
l BitTorrent is “one of the most common peer-to-peer tile sharing systems used for distributing large amounts of data, including, but not limited to, digital movie tiles.” [Dkt. l,at1l ll].
”\¥
reason, Plaintiff seeks leave to serve a third party subpoena on Defendant’s lSP-RCN _ Corporation_that would require the ISP to identify Defendant. B`ecause Defendant has not
been named or served2 no response has been filed to Plaintiffs motion.
11. LEGAL sTANDA`RDl Ordinarily, a party "‘may not seek discovery from any source” before a Rule 26(f} ' conference unless “authorized by . . . a court order.” Fed. R. Civ.. P. 26(d)(l). “To determine ' whether to authorize discovery prior to a Rule 26(f) conference in a particular case, this district l has applied a*‘good cause’ standard.” Malz'bu Medz'a, LLC v. Doe, 64 F. Supp. 3d 47, 49 (D.D.C. 2014). “Good cause to take discovery prior to the Rule 26(f) conference exists where 'the_discovery is necessary ‘before th[e ] suit can progress further. ”’ Malz`bu Media,` LLC v. Doe, No. l5-cv-986 (RDM), 2015 WL 5173890, at *l (D. D. C. Sept. 2, 2015) (alteration m original) (quoting A)ista Records LLC v Does 1-]9, 551 F. Supp. 2d l, _6 (D. D C. 2008)) v A plaintiff seeking discovery of the identities of unknown defendants “must have at least ' a good faith belief that such discovery will enable it to show that _the court has personal jurisdiction over the defendant,” i.e., that the putative defendant is either a District of Columbia resident or the ' allegedinjury occurred within the Districtof Columbia See AF Holdz`ngs, LLC v. Does, 752 fiSd l 990,'995~'(1).€. Cir. 2014); Malzbu Medza, LLC, 2015 wL 5173890, ar *1.1 “The oopyrighr`A¢r does not provide for the exercise of personal jurisdiction over alleged infringers on any basis.” l Malz"b`u .Medz`a, LLC v. Doe, 177 F. Supp. 3d 554, 556~57 (D.D.C'. 2016) (citing Exquz`sz're. Multimeciia, Inc. v. Does ]_336, No. ll-cv~l976 (RWR/JMF), 20l2iWL 177885, at *2 (D.D.C. _ Jan. l9, 2012)). A plaintiff “must predicate this Court’s jurisdiction over'the infringers on the . reach of District of Columbia law.” Id. “The only conceivable way that personal jurisdiction
might properly be exercised” is if the defendant is a “resident[ ] of the District of_ Columbia or at -
least downloaded the copyrighted work in the District.” AF Ho'ldz`ngs`, 752 F.3d at 996 (citing D.C. . Code§ 13_423(a)<3), (4)). ` 1 j l j III. ANALYSIS
Plaintiff has demonstrated that good cause exists to take discoveryprior to the Rule 26(f) conference As a preliminary matter, discovery is necessary because this suit cannot progress without first identifying Defendant so Plaintiff can effect service. See Arz`sta Records, LLC, 551 F. Supp. 2d at 6. Second, Plaintiff has established a good faith basis for believing that Defendant is a District of Columbia resident 'Using “proven IP address geolocation technology which has l consistently’worked in similar cases,” Plaintiff determined that “D‘efend’ant’s acts of copyright v infringement occurred using an llP address] traced to a physical address located-within’i the District of Columbia. [Dkt. 1, at 11 5]. This use of geolocationservice technology, which “enable[s] ,- anyone to estimate the location of Internet users based on their 'IP addresses,” suffices to “provide at least some basis for determining whether [Defendant] might live in the District of Columbia.” l `See AF Hola’l`ngs, LLC, 752 lF.S`d at 996; see also Nu Image,-Inc. v. Does, 799 F. Supp. 2d 34, 41 ' j (D.D.C. 2011) (holding that “[p]laintiff has a good faith basis to~believe a putative defendant may be a District of Columbia resident if a geolocation service places his/her IP address within the District of Columbia, or within a city located within 30 miles of the‘District of Columbia”) (ernphasis in original)'; Malibu Medz`a, fLC, 2015 WL 5173'890`, at *2 (same); West Coast Prod. ' lnc. v. Does, 280 F.R.D.`73, 75 (D.D.C. 2'012) (same). Thle Court therefore inds.that Plaintiff _ should be permitted to propound discovery on Defendant’s ISP for the purpose of determining
Defendant_’s identity. .
IV. v PROTECTIVE ORDER
1n similar cases involving adult content, other courts have issued protective orders to ' establish procedural safeguards See e g., Strike 3 Holdz`ngs, LLC v. Do`e, No 17- -c.v- -2347 (TJK), 2018 WL 385418, at *2-*3 (D.D.C. Jan. 11, 2018); Malibu Mea’z‘a, LLC v. Doe, No. 15-cv~3504 (JFB/SIL), 2016 WL 4444799, at *2 (E.D.N.Y. Aug. 23, 2016). “The fact that acopyrighted work n was illegally downloaded from a certain 113 address does not necessarily mean that the owner of that IP address was the infringer.” Medz'a Proa's. Inc. v. Does 1~26,1\10. 12-cv-371'9 (HB) 2012 n WL 2190613, at *1 (S. D. N. Y. June 12 2012). “1ndeed, the true infringer couldjust as easily be a ~ third party who had access to the internet connection, such as a son or daughter houseguest, neighbor, or customer of a business offering an internet connection.” ]d. As such,- “[t ]here 1s a . real risk that [a] defendant[ ] might be falsely identified and forced to defend themselves against unwarranted allegations [or that an] innocent defendant may be coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations.” Id. Without a protective order, “there is no reason to conclude that adequate protections exist to 1 safeguard the individuals or entities subscribing to the implicated IPadd-ress[ ] against the danger of ‘.annoyance, embarrassment, oppression, or undue burden or expense.”’ In re Malibu Mea’ia v Aa'ul_l Fz`lm Copyright lnfrz'ngement Cases, No.' 15-cv-‘1855 (SJF/SIL), 2015 WL 36058.34, at *4 (E.D.N.Y. June 8, 2015) (quoting Fed. R. Civ..P. 26(c)). 1n_ light ofthese considerations, the Court ` finds that a protective order is warranted here._
As such, Plaintiff shall be allowed to serve early discovery by serving a Rule 45 subpoena on the identified 1SP that seeks information sufficient to identify John Doe subscriber assigned 113 - address 208.58.207.83, which may include his/her name, address, telephone number, and email
address vAny information disclosed to Plaintiff in response to a Rule 45 subpoena may be used by
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UNITED STATES DISTRICT COURT yFOR THE DISTRICT OF COLUMB_IA
) MALIBU MEDIA, LLC ) ' ) Plaintiff, )
. ) 44 '
v. ) No. 1:18-cv-01203 (JDB/GMH) JOHN DOE subscriber assigned ) IP address 208.58.207.83 ) 4 - ) Defendant. ) ) MEMORANDUM OPINION
Before the C_ourt is Plaintift"s motion for leave to serve a third party subpoena prior to
a Rule 26(f) conference For the reasons stated herein, the motion is granted.' ' I.~ ` BACKGRoUND
Malibu Media, LLC (“Plaintiff’) produced and owns the copyrights to certain motion
pictures involved in this action [Dkt. l, at il 3]. Plaintiff has filed suit under the Copyright Act- of 1976 against Defendant' John Doe, alleging that Defendant “downloaded,> copied, and distributed” Plaintist Works using the BitTorrent file-sharing networl<.l Ia'. ‘W l,_24. Plaintiff v 4
seeks statutory damages and declaratory and injunctive relief prohibiting further infringement of
its copyrighted vvorks. Id. 11 34.
Though 'Plaintiff has identified Defendant’s lnternet Protocol address (“IP address”) and
lnternet _Service Provider (“lSP”), Defendant’s identity remains unknown Id. 1 9. Forl this
l BitTorrent is “one of the most common peer-to-peer tile sharing systems used for distributing large amounts of data, including, but not limited to, digital movie tiles.” [Dkt. l,at1l ll].
”\¥
reason, Plaintiff seeks leave to serve a third party subpoena on Defendant’s lSP-RCN _ Corporation_that would require the ISP to identify Defendant. B`ecause Defendant has not
been named or served2 no response has been filed to Plaintiffs motion.
11. LEGAL sTANDA`RDl Ordinarily, a party "‘may not seek discovery from any source” before a Rule 26(f} ' conference unless “authorized by . . . a court order.” Fed. R. Civ.. P. 26(d)(l). “To determine ' whether to authorize discovery prior to a Rule 26(f) conference in a particular case, this district l has applied a*‘good cause’ standard.” Malz'bu Medz'a, LLC v. Doe, 64 F. Supp. 3d 47, 49 (D.D.C. 2014). “Good cause to take discovery prior to the Rule 26(f) conference exists where 'the_discovery is necessary ‘before th[e ] suit can progress further. ”’ Malz`bu Media,` LLC v. Doe, No. l5-cv-986 (RDM), 2015 WL 5173890, at *l (D. D. C. Sept. 2, 2015) (alteration m original) (quoting A)ista Records LLC v Does 1-]9, 551 F. Supp. 2d l, _6 (D. D C. 2008)) v A plaintiff seeking discovery of the identities of unknown defendants “must have at least ' a good faith belief that such discovery will enable it to show that _the court has personal jurisdiction over the defendant,” i.e., that the putative defendant is either a District of Columbia resident or the ' allegedinjury occurred within the Districtof Columbia See AF Holdz`ngs, LLC v. Does, 752 fiSd l 990,'995~'(1).€. Cir. 2014); Malzbu Medza, LLC, 2015 wL 5173890, ar *1.1 “The oopyrighr`A¢r does not provide for the exercise of personal jurisdiction over alleged infringers on any basis.” l Malz"b`u .Medz`a, LLC v. Doe, 177 F. Supp. 3d 554, 556~57 (D.D.C'. 2016) (citing Exquz`sz're. Multimeciia, Inc. v. Does ]_336, No. ll-cv~l976 (RWR/JMF), 20l2iWL 177885, at *2 (D.D.C. _ Jan. l9, 2012)). A plaintiff “must predicate this Court’s jurisdiction over'the infringers on the . reach of District of Columbia law.” Id. “The only conceivable way that personal jurisdiction
might properly be exercised” is if the defendant is a “resident[ ] of the District of_ Columbia or at -
least downloaded the copyrighted work in the District.” AF Ho'ldz`ngs`, 752 F.3d at 996 (citing D.C. . Code§ 13_423(a)<3), (4)). ` 1 j l j III. ANALYSIS
Plaintiff has demonstrated that good cause exists to take discoveryprior to the Rule 26(f) conference As a preliminary matter, discovery is necessary because this suit cannot progress without first identifying Defendant so Plaintiff can effect service. See Arz`sta Records, LLC, 551 F. Supp. 2d at 6. Second, Plaintiff has established a good faith basis for believing that Defendant is a District of Columbia resident 'Using “proven IP address geolocation technology which has l consistently’worked in similar cases,” Plaintiff determined that “D‘efend’ant’s acts of copyright v infringement occurred using an llP address] traced to a physical address located-within’i the District of Columbia. [Dkt. 1, at 11 5]. This use of geolocationservice technology, which “enable[s] ,- anyone to estimate the location of Internet users based on their 'IP addresses,” suffices to “provide at least some basis for determining whether [Defendant] might live in the District of Columbia.” l `See AF Hola’l`ngs, LLC, 752 lF.S`d at 996; see also Nu Image,-Inc. v. Does, 799 F. Supp. 2d 34, 41 ' j (D.D.C. 2011) (holding that “[p]laintiff has a good faith basis to~believe a putative defendant may be a District of Columbia resident if a geolocation service places his/her IP address within the District of Columbia, or within a city located within 30 miles of the‘District of Columbia”) (ernphasis in original)'; Malibu Medz`a, fLC, 2015 WL 5173'890`, at *2 (same); West Coast Prod. ' lnc. v. Does, 280 F.R.D.`73, 75 (D.D.C. 2'012) (same). Thle Court therefore inds.that Plaintiff _ should be permitted to propound discovery on Defendant’s ISP for the purpose of determining
Defendant_’s identity. .
IV. v PROTECTIVE ORDER
1n similar cases involving adult content, other courts have issued protective orders to ' establish procedural safeguards See e g., Strike 3 Holdz`ngs, LLC v. Do`e, No 17- -c.v- -2347 (TJK), 2018 WL 385418, at *2-*3 (D.D.C. Jan. 11, 2018); Malibu Mea’z‘a, LLC v. Doe, No. 15-cv~3504 (JFB/SIL), 2016 WL 4444799, at *2 (E.D.N.Y. Aug. 23, 2016). “The fact that acopyrighted work n was illegally downloaded from a certain 113 address does not necessarily mean that the owner of that IP address was the infringer.” Medz'a Proa's. Inc. v. Does 1~26,1\10. 12-cv-371'9 (HB) 2012 n WL 2190613, at *1 (S. D. N. Y. June 12 2012). “1ndeed, the true infringer couldjust as easily be a ~ third party who had access to the internet connection, such as a son or daughter houseguest, neighbor, or customer of a business offering an internet connection.” ]d. As such,- “[t ]here 1s a . real risk that [a] defendant[ ] might be falsely identified and forced to defend themselves against unwarranted allegations [or that an] innocent defendant may be coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations.” Id. Without a protective order, “there is no reason to conclude that adequate protections exist to 1 safeguard the individuals or entities subscribing to the implicated IPadd-ress[ ] against the danger of ‘.annoyance, embarrassment, oppression, or undue burden or expense.”’ In re Malibu Mea’ia v Aa'ul_l Fz`lm Copyright lnfrz'ngement Cases, No.' 15-cv-‘1855 (SJF/SIL), 2015 WL 36058.34, at *4 (E.D.N.Y. June 8, 2015) (quoting Fed. R. Civ..P. 26(c)). 1n_ light ofthese considerations, the Court ` finds that a protective order is warranted here._
As such, Plaintiff shall be allowed to serve early discovery by serving a Rule 45 subpoena on the identified 1SP that seeks information sufficient to identify John Doe subscriber assigned 113 - address 208.58.207.83, which may include his/her name, address, telephone number, and email
address vAny information disclosed to Plaintiff in response to a Rule 45 subpoena may be used by
Plaintiff solely for the purpose of pursuing the claim'_set forth in its Complaint. 1f and when the-
' ISP is served with the subpoena, the ISP shall provide the Defendant with a copy of this l\/lemorandum Opinio`n and the accompanying Order with the attached N_otice at least ten (10) business days prior to releasing Defendan_t’s identifying information_to Plaintiff. lf either the ISP l or Defendant wishes to,move to quash the subpoena, it must do so before t_he return date of the subpoena, which shall be no earlier than thirty (30) days from the date of service The ISP shall v preserve any information sought in the subpoena pending the resolution of any timely filed motion to quash. vPlaintiff shall provide the ISP with a copy of this Memorandum Opinion and the accompanying Order with the attached Notice when it serves its subpoena On or before July 31, _ 2018, Plaintiff shall file a status report with the Court briefiy outlining its progress, including an
' expected completion date of the discovery-allowed by the accompanying Order. v. CoNCLUs'IoN For the foregoing reasons, the Court finds that Plaintiff has demonstrated that “good
cause” exists to permit limited discovery prior to' the Rule 26(1) conference Accordingly,
Plaintiff’s motion for leave to serve a third party subpoena prior to a Rule 26(1) conference is
g Date: June 1, 2018
C<£_MK'HAEL HA`RVW Judge
United States l\/Iagistrae
2 This Memorandum Opinion merely allows Plaintiffto propound discovery requests earlier than usual. lt does not, however address whether the subpoena will survive a motion to quash, if raised by Defendant or the ISP See A) isla . Records LLCv D0e3, 604F.3d 110, 118 l9(2d Cir. 2010)