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LLC v. Doe

United States District Court, D. Connecticut

February 26, 2019

STRIKE 3 HOLDINGS, LLC, Plaintiff,
v.
JOHN DOE, subscriber assigned IP address 71.234.109.137, Defendant.

          RULING ON PLAINTIFF'S MOTION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO RULE 26(F) CONFERENCE [DOC. 7]

          CHARLES S. HAIGHT, JR., SENIOR UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff, Strike 3 Holdings, LLC ("Strike 3") brings this copyright infringement action as the owner of original adult motion pictures that are featured on its subscription-based websites. See Doc. 7-2 (Declaration of Greg Lansky), ¶ 3.[1] Through its hired investigator, IPP International U.G. ("IPP"), Strike 3 has learned that Defendant Doe's Internet Protocol ("IP") address (71.234.109.137) was used to illegally distribute several of Strike 3's motion pictures.[2] Doc. 7-1, at 5, Doc. 7-3 (Fieser Decl.), ¶ 7; Doc. 7-4 (Pasquale Decl.), ¶¶ 7-9. See also Doc. 1, Ex. A. (List of 25 "Total Works Infringed" by IP Address: 71.234.109.137).[3]

         IPP employs forensic software to identity IP addresses that infringers use to distribute Strike 3's copyrighted movies within the BitTorrent File Distribution Network.[4] Doc. 7-3 (Fieser Decl.), ¶¶ 7, 11. According to Plaintiff, IPP's investigations have revealed that Defendant used the BitTorrent protocol to illegally distribute multiple pieces of Strike 3's copyrighted movies listed in Exhibit A to Plaintiff's Complaint. Id., ¶ 7. Each piece of the various movies was recorded in a "packet capture" ("PCAP"), a "forensically sound interface for recording network traffic," which records the time in logs kept by United States Internet Service Providers ("ISPs"), which track the IP Address of internet customers at a given time. Id., ¶ 8. IPP's software confirmed that the BitTorrent pieces distributed by Doe's IP Address were reassembled into "a fully playable digital movie." Id., ¶ 9. According to IPP's investigation, the alleged infringement at issue was "consistent and on-going." Id., ¶ 8. IPP also confirmed through its ancillary worldwide BitTorrent surveillance program that Doe's IP Address is associated with "significant long term BitTorrent use." Id., ¶ 12.

         Strike 3 asserts that the only means it has to identify this persistent infringer is through his assigned IP address. Strike 3 has thus filed the pending motion for leave to serve a third party subpoena on Comcast Cable Communications, LLC ("Comcast Cable"), Defendant's ISP, pursuant to Rules 26(d)(1) and 45, Fed.R.Civ.P. See Doc. 7, at 1, Doc. 7-1, at 6. By obtaining the name and address of the Defendant, Plaintiff will be able to properly identify and serve him, and thereby prosecute Plaintiff's copyright infringement claim.[5]

         II. DISCUSSION

         In general, parties "may not initiate discovery prior to satisfying the meet and confer requirement of Fed.R.Civ.P. 26(f)." Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y. 2012). Specifically, under Rule 26(d)(1), Fed. R. Civ. P., "[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)," except in limited proceedings delineated in Rule 26(a)(1)(B), or "when authorized by these rules, by stipulation, or by court order." "[C]ourts may in some instances order earlier discovery." Digital Sin, 279 F.R.D. at 241 (citing Fed.R.Civ.P. 26(d)). See, e.g., Strike 3 Holdings, LLC v. Doe, No. 3: 17-CV-1680 (CSH), 2017 WL 5001474, at *2 (D. Conn. Nov. 1, 2017) ("[A] party may engage in discovery before such a [26(f)] conference pursuant to a court order.") (quoting Malibu Media, LLC v. John Doe Subscriber Assigned IP Address 173.68.5.86, No. 1:16-CV-02462 (AJN), 2016 WL 2894919, at *2 (S.D.N.Y. May 16, 2016)) (citing Fed.R.Civ.P. 26(d)(1)).

         When considering whether to grant a motion for expedited discovery prior to a Rule 26(f) conference, courts apply a "flexible standard of reasonableness and good cause." Malibu Media, LLC, 2016 WL 2894919, at *2 (gathering cases). See also Arista Records LLC v. Does 1-4, 589 F.Supp.2d 151, 152-53 (D. Conn. 2008) (applying "good cause" standard to request for expedited discovery) (citation omitted). See generally 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2046.1 (3d ed. 2011) ("Although [Rule 26(d)] does not say so, it is implicit that some showing of good cause should be made to justify such an order, and courts presented with requests for immediate discovery have frequently treated the question whether to authorize early discovery as governed by a good cause standard.").

         In the Second Circuit, in evaluating subpoenas seeking identifying information from ISPs regarding subscribers who are parties to copyright infringement litigation, courts have examined the following factors:

(1) [the] concrete[ness of the plaintiff's] showing of a prima facie claim of actionable harm, . . . (2) [the] specificity of the discovery request, . . . (3) the absence of alternative means to obtain the subpoenaed information, . . . (4) [the] need for the subpoenaed information to advance the claim, . . . and (5) the [objecting] party's expectation of privacy.

Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010) (quoting Sony Music Entm't, Inc. v. Does 1-40, 326 F.Supp.2d 556, 564-65 (S.D.N.Y. 2004)). If "[a]pplication of these 'principal factors' confirms that the Plaintiff is entitled" to the requested subpoena, the motion for early discovery will be granted for "good cause." Malibu Media, LLC, 2016 WL 2894919, at *2.

         Examining the principal factors in detail, the plaintiff must first state a prima facie claim for copyright infringement. See, e.g., Sony Music Entm't Inc., 326 F.Supp.2d at 565. Specifically, the plaintiff must show: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). See also Urbont v. Sony Music Entm't, 831 F.3d 80, 88 (2d Cir. 2016) (same).

         Strike 3 has alleged that it is the owner of the multiple works at issue, "which have either been registered with the United States Copyright Office or have pending copyright registrations." Doc. 1 ("Complaint"), ¶ 31. The registration numbers and copyright application numbers for all works appear on Exhibit A to the Complaint, which lists the 25 "Total Works Infringed." Doc. 1-1, at 1-2. See also 17 U.S.C. § 410(c) ("In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.").

         Under § 411(a) of the Copyright Act, "no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title." 17 U.S.C. § 411(a). With respect to this provision, Plaintiff is advised that filing an application alone may or may not be sufficient to show ownership of a valid copyright for purposes of litigating a civil copyright infringement action.

         As the Second Circuit noted:

[T]he Federal Courts of Appeals are divided over whether a pending application satisfies § 411(a)'s requirement of copyright registration as a precondition to instituting an infringement action. Compare Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386-87 (5th Cir.1984) (Copyright Office's receipt of application suffices), with M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488-89 (11th Cir. 1990) (approving district court's decision to allow suit to proceed only after plaintiff received Copyright Office's response to registration application and amended the complaint), Gaiman v. McFarlane, 360 F.3d 644, 655 (7th Cir.2004) ("[A]n application to register must be filed, and either granted or refused, before suit can be brought"), and La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1202-05 (10th Cir.2005) (comparing the Fifth Circuit's "application approach" with the Eleventh Circuit's "registration approach" and adopting the latter) abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010)."

Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 125 (2d Cir. 2014). In Psihoyos, the Second Circuit found it "need not resolve the dispute [among the circuits] or otherwise embroil [itself] in this circuit split because, even assuming arguendo that a pending application constitutes a 'registration' under § 411(a), Psihoyos had not even filed the applications for registration of the relevant works prior to instituting the action claiming infringement of the copyright in these works, as required by the plain terms of the statute." Id. (citing 17 U.S.C. § 411(a)). See also A Star Grp., Inc. v. Manitoba Hydro, 621 Fed.Appx. 681, 683 (2d Cir. 2015) ("Our Court has not yet determined . . . whether a merely pending application for registration satisfies the Act's requirement that a work be registered before a related infringement suit is filed.") (citing 17 U.S.C. § 411(a)). The questionthus remains undecided. [6]

         Because, however, Strike 3's complaint includes a number of works for which the Copyright Office has approved registration, the Court will continue to consider its motion for leave to serve a third party subpoena. In so doing, the Court expresses no opinion as to whether Strike 3 has also presented a valid copyright infringement claim with respect to the works for ...


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