Strike 3 Holdings, LLC v. John Doe

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 21cv1897-TWR (MSB)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S EX 13 v. PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA 14 JOHN DOE subscriber assigned IP address PRIOR TO A RULE 26(f) CONFERENCE 23.126.155.167, 15 [ECF NO. 4] Defendant. 16 17 18 On November 17, 2021, Plaintiff Strike 3 Holdings, LLC (“Strike 3”) filed an “Ex- 19 Parte Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) 20 Conference” (“Ex Parte Application”). (ECF No. 4.) Plaintiff seeks to subpoena 21 Defendant John Doe’s Internet Service Provider (“ISP”) AT&T U-verse for “limited, 22 immediate discovery . . . so that Plaintiff may learn Defendant’s identity, further 23 investigate Defendant’s role in the infringement, and effectuate service.” (ECF No. 4-1 24 at 7–8.) Because Defendant has not been identified, no opposition or reply briefs have 25 been filed. For the following reasons, the Ex Parte Application is GRANTED. 26 / / / 27 / / / 2 Plaintiff owns the copyright to certain motion pictures. (ECF No. 1 at 7–8.) On 3 November 8, 2021, Plaintiff filed a Complaint alleging that Defendant John Doe, an 4 internet subscriber assigned Internet protocol (“IP”) address 23.126.155.167, is using 5 the BitTorrent protocol to commit “rampant and wholesale copyright infringement” by 6 downloading and distributing twenty-four of Plaintiff’s copyrighted works over an 7 extended period of time. (Id. at 1–2.) Plaintiff alleges it used its proprietary forensic 8 software, VXN Scan, to discover that Defendant’s IP address was illegally distributing 9 Plaintiff’s copyrighted motion pictures. (Id. at 5–7; ECF No. 4-2 at 19–20.) 10 On November 17, 2021, Plaintiff filed the instant Ex Parte Application to seek 11 leave to serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Defendant’s 12 ISP, AT&T U-verse. (ECF No. 4-1 at 7–8.) Plaintiff maintains that the Rule 45 subpoena 13 “will only demand the true name and address of Defendant[,]” and Plaintiff “will only 14 use this information to prosecute the claims made in its Complaint.” (Id. at 8.) Plaintiff 15 further claims that “[w]ithout this information, Plaintiff cannot serve Defendant nor 16 pursue this lawsuit and protect its copyrights.” (Id.) 17 II. LEGAL STANDARD 18 Generally, formal discovery is not permitted before the parties have conferred 19 pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Courts, 20 however, have made exceptions “in rare cases . . . permitting limited discovery to ensue 21 after filing of the complaint to permit the plaintiff to learn the identifying facts 22 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 23 F.R.D. 573, 577 (N.D. Cal. 1999). Courts in the Ninth Circuit apply a “good cause” 24 standard to decide whether to permit early discovery. Semitool, Inc. v. Tokyo Electron 25 Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “Good cause” is established “where 26 the need for expedited discovery, in consideration of the administration of justice, 27 outweighs the prejudice to the responding party.” Id. 2 filed, courts may grant plaintiffs leave to take early discovery to determine the 3 defendants’ identities ‘unless it is clear that discovery would not uncover the identities, 4 or that the complaint would be dismissed on other grounds.’” 808 Holdings, LLC v. 5 Collective of Dec. 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29C 6 D63C23C91, Civil No. 12cv00186 MMA(RBB), 2012 WL 12884688, at *3 (S.D. Cal. May 8, 7 2012) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). “A district court’s 8 decision to grant discovery to determine jurisdictional facts is a matter of discretion.” 9 Columbia Ins. Co., 185 F.R.D. at 578. 10 District Courts in the Ninth Circuit typically apply a three-factor test when 11 considering motions for early discovery to identify Doe defendants. Id. at 578–80. First, 12 the moving party should be able to “identify the missing party with sufficient specificity 13 [] that the Court can determine that [the] defendant is a real person or entity who could 14 be sued in federal court.” Id. at 578. Second, the movant “should identify all previous 15 steps taken to locate the elusive defendant” to ensure that the movant has made a 16 “good faith effort to comply with the requirements of the service of process and 17 specifically identifying defendants.” Id. at 579. Third, the plaintiff “should establish to 18 the Court’s satisfaction that plaintiff’s suit against defendant could withstand a motion 19 to dismiss.” Id.; see also Gillespie, 629 F.2d at 642 (stating early discovery to identify 20 unknown defendants should be permitted unless the complaint would be dismissed on 21 other grounds). 22 In addition to satisfying all three factors, plaintiff should provide “reasons 23 justifying the specific discovery requested [and] identification of a limited number of 24 persons or entities on whom discovery process might be served and for which there is a 25 reasonable likelihood that the discovery process will lead to identifying information 26 about defendant that would make service of process possible.” Columbia Ins. Co., 185 27 F.R.D. at 580; see also Gillespie, 629 F.2d at 642 (explaining that early discovery is 2 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 3 pre-service, and will prevent the use of this method to harass or intimidate.” Columbia 4 Ins. Co., 185 F.R.D. at 578. 5 III. ANALYSIS 6 Plaintiff seeks leave to serve a subpoena pursuant to Federal Rule of Civil 7 Procedure 45 on Defendant’s ISP, AT&T U-verse. (ECF No. 4-1 at 8.) The Cable Privacy 8 Act generally prohibits a cable operator from disclosing “personally identifiable 9 information concerning any subscriber without the prior written or electronic consent of 10 the subscriber concerned[.]” 47 U.S.C. § 551(c)(1). A cable operator, however, may 11 disclose the information if the disclosure is made pursuant to a court order and the 12 cable operator notifies the subscriber of the order. 47 U.S.C. § 551(c)(2)(B). A cable 13 operator is “any person or group of persons” who “provides cable service over a cable 14 system and directly or through one or more affiliates owns a significant interest in such 15 cable system,” or “otherwise controls or is responsible for, through any arrangement, 16 the management and operation of such a cable system.” 47 U.S.C. § 522(5). AT&T U- 17 verse is a cable operator, and the information Plaintiff seeks falls within the exception to 18 the Cable Privacy Act’s disclosure prohibition. See 47 U.S.C. §551(c)(2)(B). Accordingly, 19 if Plaintiff satisfies the multi-factor test used by district courts to determine whether 20 early discovery is warranted, Doe defendants’ ISP may disclose the requested 21 information pursuant to this Court’s order. 22 A. Plaintiff Has Identified Defendant with Sufficient Specificity 23 Plaintiff must identify Defendant with enough specificity to allow the Court to 24 determine that Defendant is a real person or entity, subject to the jurisdiction of this 25 Court. See Columbia Ins. Co., 185 F.R.D. at 578. Courts in the Ninth Circuit have 26 determined that “a plaintiff identifies Doe defendants with sufficient specificity by 27 providing the unique IP addresses assigned to an individual defendant on the day of the 2 addresses to a physical point of origin.” 808 Holdings, LLC, 2012 WL 12884688, at *4. 3 In support of its Ex Parte Application, Plaintiff submitted the Declaration of David 4 Williamson, an Information Systems and Management Consultant. (See ECF No. 4-2.) 5 Mr. Williamson uses Plaintiff’s infringement detection system, VXN Scan, to identify the 6 IP addresses used by individuals infringing Plaintiff’s movies through the BitTorrent 7 protocol. (Id. at 8.) Further, although the BitTorrent protocol contains some default 8 and automatic functions, the functions that Plaintiff accuses Defendant of using require 9 human operation. (See id. at 9); see also Christopher Civil, Mass Copyright Infringement 10 Litigation: Of Trolls, Pornography, Settlement and Joinder, 30 Syracuse J. Sci. & Tech. L. 11 2, 12 (2014) (“BitTorrent transfers do not involve a centralized server that hosts or 12 transfers the data files in question. Instead, BitTorrent involves users interacting 13 directly with other users to upload and download the content.”). Accordingly, Plaintiff 14 has established that an actual human was involved in the downloading and sharing of 15 Plaintiff’s allegedly infringed works. 16 Plaintiff also submitted the Declaration of Patrick Paige, a managing member at 17 Computer Forensics, LLC, where Mr. Paige contends that he utilized Packet Capture 18 (“PCAP”), “a computer file containing captured or recorded data transmitted between 19 network devices[,]” and VXN Scan to connect Defendant’s IP address to the alleged 20 “piece of an infringing copy of Plaintiff’s works.” (ECF No. 4-2 at 20; see also id. at 18.) 21 According to Mr. Paige, “[t]he PCAP contains a record data concerning that transaction, 22 including, but not limited to, the Internet Protocol (IP) Addresses used in the network 23 transaction, the date and time of the network transaction, the port number used to 24 accomplish each network transaction, and the Info Hash value that the VXN Scan used 25 as the subject of its request for data.” (Id. at 20.) Mr. Paige contends that the contents 26 of the PCAP confirm that the infringing activity connected to the IP address 27 23.126.155.167 was initiated on October 14, 2021, at 15:42:12 UTC. (Id.) Mr. Paige 2 [representing Plaintiff’s works] to VXN Scan.” (Id.) This date and time correspond with 3 the date and time when one of Plaintiff’s works was allegedly illegally downloaded 4 according to Exhibit A of Plaintiff’s Complaint. (ECF No. 1-2 at 1.) 5 In addition, Plaintiff submitted the Declaration of Emilie Kennedy, Plaintiff’s in- 6 house General Counsel, in which Ms. Kennedy asserts geolocation was done by an 7 unspecified person to identify the location of Defendant on three separate occasions. 8 (ECF No. 4-2 at 28–29.) On the first occasion, “[a]fter [Plaintiff] received infringement 9 data from VXN Scan identifying IP address 23.126.155.167 as infringing its works, the IP 10 address was automatically inputted into Maxmind’s Geolocation Database . . . on 11 October 22, 2021.” (Id. at 29.) Based on this search, Ms. Kennedy contends that 12 “Maxmind determined that the IP address traced to a location in San Diego, California, 13 which is within this Court’s jurisdiction.” (Id.) Further, Plaintiff inputted Defendant’s IP 14 address into Maxmind’s Database before the filing of Plaintiff’s Complaint, and prior to 15 the filing of the instant Ex Parte Application. (Id.) On both occasions the IP address 16 linked to Defendant, 23.126.155.167, traced to this district.1 17 Plaintiff has provided sufficient information about infringing activity tied to 18 Defendant’s unique IP address, the specific date and time associated with the activity, 19 and the location of the activity. Therefore, Plaintiff has demonstrated with sufficient 20 specificity that Defendant is a real person or entity, likely subject to the jurisdiction of 21 this Court. See Crim. Prods., Inc. v. Doe-72.192.163.220, Case No. 16-cv-2589 WQH 22 (JLB), 2016 WL 6822186, at *3 (S.D. Cal. Nov. 18, 2016) (holding that the sufficient 23 specificity threshold is satisfied when the IP address identified by Maxmind geolocation 24 services identifies a physical location within the court’s jurisdiction). 25 / / / 26

27 1 Attached as Exhibit 1 to Ms. Kennedy’s Declaration is a chart reflecting the results of the third and 2 Plaintiff must also demonstrate that it has taken previous steps to locate and 3 serve the Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. Although Plaintiff 4 maintains it diligently attempted to identify Defendant by searching for Defendant’s IP 5 address “on various web search tools, including basic search engines like 6 www.google.com,” Plaintiff does not submit evidence supporting this claim. (ECF No. 4- 7 1 at 14.) However, Ms. Kennedy’s Declaration and the MaxMind results attached as 8 Exhibit 1 indicate that Plaintiff took substantial steps to locate Defendant’s IP address 9 and identify Defendant’s ISP. (ECF No. 4-2 at 28–32.) Despite these efforts, Plaintiff was 10 unable to correlate the IP address to Defendant’s identity. 11 Plaintiff maintains that it has been “unable to identify any other way to go about 12 obtaining the identities of its infringers and does not know how else it could possibly 13 enforce its copyrights from illegal piracy over the Internet.” (ECF No. 4-1 at 14.) The 14 Court therefore finds that Plaintiff has made a good faith effort to identify, locate, and 15 serve the Defendant. See Malibu Media, LLC v. John Does 1 through 6, Civil No. 12–cv– 16 1355–LAB (DHB), 2012 WL 4471538, at *3 (S.D. Cal. Sept. 26, 2012) (finding the 17 plaintiff’s efforts to identify Doe defendant were sufficient because “there is no other 18 way for [p]laintiff to obtain [d]efendants’ identities, except by serving a subpoena on 19 [d]efendants’ ISPs demanding it”); see also Digital Sin, Inc. v. Does 1-5698, No. C 11- 20 04397 LB, 2011 WL 5362068, at *2 (N.D. Cal. Nov. 4, 2011) (finding the plaintiff’s 21 attempts to identify and locate the defendant sufficient when the plaintiff “investigated 22 and collected data on unauthorized distribution of copies of the [alleged infringed work] 23 on BitTorrent-based peer-to-peer networks”). 24 C. Plaintiff’s Suit Could Withstand a Motion to Dismiss 25 Plaintiff must further show that the Complaint in this case could withstand a 26 motion to dismiss. See Columbia Ins. Co., 185 F.R.D. at 579. A suit may be dismissed 27 pursuant to Rule 12(b) on several bases. Of all the bases that bear dismissal, those 2 personal jurisdiction, Plaintiff has alleged facts sufficient to survive a motion to dismiss. 3 For subject matter jurisdiction, Plaintiff’s Complaint alleges that “[t]his Court has subject 4 matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question); and 5 28 U.S.C. § 1338 (jurisdiction over copyright actions).” (ECF No. 1 at 2.) On the issue of 6 personal jurisdiction, Plaintiff maintains it used geolocation technology to determine 7 that Defendant’s IP address correlates to a physical address in San Diego, CA, which falls 8 within the jurisdiction of the Southern District of California. (Id. at 2–3.) 9 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure 10 tests the sufficiency of the allegations in the Complaint. Navarro v. Block, 250 F.3d 729, 11 732 (9th Cir. 2001). Plaintiff’s Complaint alleges a single cause of action against 12 Defendant for direct copyright infringement. (ECF No. 1 at 7–8.) To allege a claim for 13 direct copyright infringement, a plaintiff “must show: (1) ownership of a valid copyright; 14 and (2) that the defendant violated the copyright owner’s exclusive rights under the 15 Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). “In addition, 16 direct infringement requires the plaintiff to show causation (also referred to as 17 ‘volitional conduct’) by the defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 18 666 (9th Cir. 2017). 19 Plaintiff alleges it owns the copyrights to the works that are the subject of this suit 20 and claims that the works “have been registered with the United States Copyright 21 Office.” (ECF No. 1 at 7.) Plaintiff also alleges that Defendant “used the BitTorrent file 22 network to illegally download and distribute Plaintiff’s copyrighted motion pictures” and 23 did so “without authorization.” (Id. at 5, 7.) Assuming Plaintiff’s allegations are true, 24 they state a claim on which relief can be granted. See A&M Recs., Inc. v. Napster, Inc., 25 239 F.3d 1004, 1013-14 (9th Cir. 2001) (finding plaintiffs sufficiently demonstrated 26 ownership and infringement by showing Napster allowed its users to download 27 copyrighted music, up to seventy percent of which was owned or administered by the 2 copyright infringement against defendant by alleging that plaintiff owned twelve 3 copyrighted movies at-issue, and that defendant infringed plaintiff’s copyrights by 4 copying and distributing plaintiff’s movies through the BitTorrent network without 5 plaintiff’s permission). Therefore, Plaintiff has sufficiently alleged a prima facie claim of 6 copyright infringement, and its Complaint will likely withstand a motion to dismiss. 7 D. Whether Requested Discovery Will Lead to Identifying Information 8 Finally, Plaintiff is required to demonstrate that “there is a reasonable likelihood 9 that the discovery process will lead to identifying information about defendant that 10 would make service of process possible.” Columbia Ins. Co., 185 F.R.D. at 580. As 11 discussed above, Plaintiff’s forensic investigation uncovered the unique IP address 12 23.126.155.167. (ECF No. 4-2 at 20.) Further, Plaintiff submits the declaration of Susan 13 B. Stalzer, who, among other things, states that she used the American Registry for 14 Internet Numbers to determine that the ISP AT&T U-verse owned Defendant’s IP 15 address at the time of the infringement. (Id. at 24, 26.) Based on his experience in 16 similar cases, Mr. Paige explains that “AT&T U-verse is the only entity that can 17 correlate” Defendant’s IP address to the IP address owner’s identity. (Id. at 22.) 18 Accordingly, if AT&T U-verse provides Plaintiff with Defendant’s name and address, this 19 will likely lead to information making it possible for Plaintiff to effectuate service on 20 Defendant. 21 IV. CONCLUSION 22 For the foregoing reasons, the Court GRANTS the Ex Parte Application for Leave 23 to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [ECF No. 4] as follows: 24 1. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil 25 Procedure 45 on AT&T U-verse, seeking only the name and address of the subscriber 26 assigned to the IP address 23.126.155.167. Plaintiff may not subpoena additional 27 information about the subscriber; 1 2. Plaintiff may only use the disclosed information to protect its copyrights in 2 || the instant litigation; 3 3. Within fourteen (14) calendar days after service of the subpoena, AT&T U- 4 || verse shall notify the subscriber assigned the IP address 23.126.155.167 that his, her, or 5 |lits identity has been subpoenaed by Plaintiff; 6 4. The subscriber whose identity has be subpoenaed shall have thirty (30) 7 ||calendar days from the date of the notice to challenge the disclosure of his, her, or its 8 ||name and address by filing an appropriate pleading with this Court contesting the 9 || subpoena; 10 5. If AT&T U-verse wishes to move to quash the subpoena, it shall do so 11 || before the return date of the subpoena. The return date of the subpoena must allow 12 || for at least forty-five (45) days from service to production. If a motion to quash or other 13 || customer challenge is brought, AT&T U-verse shall preserve the information sought by 14 || Plaintiff in the subpoena pending resolution of the motion or challenge; 15 6. Plaintiff shall serve a copy of this Order with any subpoena obtained and 16 ||served to AT&T U-verse pursuant to this Order; 17 7. AT&T U-verse must provide a copy of this Order along with the required 18 || notice to the subscriber whose identity is sought pursuant to this Order. 19 8. No other discovery is authorized at this time. 20 IT IS SO ORDERED. 21 || Dated: November 23, 2021 _ = _ 2 FF 33 Honorable Michael S. Berg United States Magistrate Judge 24 25 26 27 28