United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR LEAVE TO SERVE A
THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f)
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
Malibu Media LLC ("Plaintiff" or "Malibu
Media") alleges that defendant John Doe
("Defendant" or "Defendant Doe"),
identified only by his or her Internet Protocol
("IP") address, has unlawfully distributed four of
Plaintiff's copyrighted adult films using BitTorrent, a
peer-to-peer file sharing system. Doc. 1 at ¶ 11.
Pursuant to Rule 26(d)(1) of the Federal Rules of Civil
Procedure, Malibu Media moves for leave to serve a
third-party subpoena on Defendant's internet service
provider ("ISP"), Frontier Communications, prior to
a Rule 26(f) Conference for the limited purpose of
discovering Defendant's identity so that Plaintiff may
effectuate service and proceed in litigating this case. Doc.
7. For the reasons set forth below, the Court finds that
there is good cause to grant the motion, as limited by the
conditions delineated herein.
general, a party may not propound discovery in advance of a
Rule 26(f) conference. Fed.R.Civ.P. 26(f); Digital Sin,
Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y. 2012)
(in general parties "may not initiate discovery prior to
satisfying the meet and confer requirement of Fed.R.Civ.P.
26(f)"). However, courts may authorize earlier discovery
if they determine it is warranted applying a "flexible
standard of reasonableness and good cause." Artista
Records, LLC v. Doe, 604 F.3d 110, 115 (2d Cir. 2010);
see also Malibu Media, LLC v. John Doe Subscriber
Assigned IP Address 126.96.36.199, No.
1:16-CV-02462(AJN), 2016 WL 2894919, at *2 (S.D.N.Y. May 16,
2016) (collecting cases). In evaluating subpoenas seeking
identifying information from ISPs regarding alleged copyright
infringers, courts examine the following factors:
(1) the concreteness 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, 604 F.3d at 119 (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, 2016 WL
2894919, at *2 (quotation marks and citation omitted).
Plaintiff has stated a prima facie claim for copyright
infringement. To state a prima facie claim for infringement,
Plaintiff must plausibly allege (1) ownership of a valid
copyright and (2) unauthorized copying of original elements
of the copyrighted work. See Feist Publ'ns, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). When
infringement allegations arise from peer-to-peer file
sharing, a plaintiff makes "a concrete, prima facie case
of copyright infringement by alleging ownership of the
registered copyright and alleging unlawful downloading,
copying, and distribution of this work by specifying the type
of technology used, the IP address from which the file was
accessed and shared, and the date and time of the
infringement." Strike 3 Holdings, LLC v. John
Doe, No. 3:18-CV-1332 (CSH), 2018 WL 4846676, at *2 (D.
Conn. Oct. 5, 2018) (internal quotation marks and citation
omitted); see also Sony Music, 326 F.Supp.2d at
565-66 ("[T]he use of P2P [peer-to-peer] systems to
download and distribute copyrighted music has been held to
constitute copyright infringement." (collecting cases));
Patrick Collins, Inc. v. John Doe 1, 945 F.Supp.2d
367, 375 (E.D.N.Y. 2013) ("Indeed, every court to have
addressed this issue has found a sufficiently alleged
copyright infringement claim based on BitTorrent technology,
even when the defendant was merely identified with an IP
Media has alleged that it owns copyrights in the adult films
at issue. See Doc. 1 ¶ 30. Malibu Media has
also made a plausible showing that wrongful
"copying" of that work occurred by alleging that
its investigator, IPP International UG, established a direct
connection with the Defendant's IP address and downloaded
the copyrighted films at issue from the Defendant using
BitTorrent. Id. ¶¶ 18-20; see
also Doc. 1-1 and 1-2 (Ex. A & B, respectively).
Under these facts, Plaintiff has stated a prima facie case
for actionable harm due to copyright infringement.
in order to show "good cause" for early discovery,
Plaintiff must narrowly tailor and specifically identify the
information sought by the discovery request. Here, the
subpoena is limited and seeks only "concrete and narrow
information: the name and address of the subscriber
associated with [Defendant's] IP address." John
Wiley & Sons, Inc. v. Doe Nos. 1-30, 284 F.R.D. 185,
190 (S.D.N.Y. 2012); see also Malibu Media, 2016 WL
4574677, at *6 (subscriber's identity and address
constitute "highly specific" information). This
request is sufficiently specific and narrowly tailored
because it seeks only the information necessary to enable
Plaintiff to effectuate service on the Defendant. The
procedural safeguards set forth in Section I(C),
supra, will further ensure that the scope of
discovery is no broader than necessary. Accordingly, the
second factor weighs in favor of granting leave to serve the
there must be no "alternative means to obtain the
subpoenaed information." Arista Records, 604
F.3d at 119 (citation omitted). In the present case,
Plaintiff "knows Defendant only by his or her IP
address." Doc. 7-1 at 10. With no other identifying
information about Defendant, the only way that Plaintiff can
obtain the information that it seeks-Defendant's true
name and address-is through a subpoena of the ISP. See
Id. at 10-13 ("The government, law enforcement
officials, criminal and civil judges, and ISPs alike all
acknowledge that subpoenaing an ISP is the only way to
identify an internet subscriber."); see also Malibu
Media, LLC v. Doe, No. 1:15-cv-01834, 2015 WL 4403407,
*2 (S.D.N.Y. July 20, 2015) (denying motion to quash
and explaining that “subpoenaing the ISP . . . is the
only means to obtain identifying
information”). Indeed, Plaintiff attempted to ascertain
Defendant's identity in other ways prior to submitting
its motion, including through use of web search tools and
consultation with a computer forensics investigator, to no
avail: the information is in the exclusive control of the
ISP. Doc. 7-1 at 12-13. Plaintiff has therefore established
that it lacks alternative means to obtain the information at
Plaintiff must show that the subpoenaed information is
necessary to advance the claim at issue. As stated
supra, litigation cannot proceed without the
subpoenaed information, which is necessary to serve process
on the Defendant. See Sony Music, 326 F.Supp.2d at
566 ("Ascertaining the identities and residences of the
Doe defendants is critical to plaintiffs' ability to
pursue litigation, for without this information, plaintiffs
will be unable to serve process."); Arista Records
LLC v. Does 1-4, 589 F.Supp.2d 151, 153 (D. Conn. 2008)
("Because learning the true identities of the
pseudonymous individuals alleged to have violated
Plaintiffs' copyrights is essential to their prosecution
of this litigation, Plaintiffs have demonstrated their need
for expedited discovery."); Malibu Media, LLC v.
Doe, No. 15-CV-3504 (JFB) (SIL), 2016 WL 4444799, at *11
(E.D.N.Y. Aug. 23, 2016) ("Without learning the
Defendant's identity and address, the Plaintiff will be
unable to serve process and pursue its claim." (citation
omitted)). This factor, too, weighs heavily in favor of
granting leave to serve the subpoena.
the Court weighs the Defendant's right to privacy against
the Plaintiff's interest in obtaining the information.
Plaintiff has a strong, legitimate interest in protecting its
copyrighted material from unauthorized distribution.
Defendant, on the other hand, has no legitimate expectation
of privacy in identifying information that has already been
exposed to a third party, the internet service provider.
See United States v. Ulbricht, 858 F.3d 71, 96-97
(2d Cir. 2017) ("[A] person has no legitimate
expectation of privacy in information he voluntarily turns
over to third parties," including "IP address
information and similar routing data, which reveal the
existence of connections between communications devices
without disclosing the content of the communications."
(quoting Smith v. Maryland, 442 U.S. 735 (1979)));
see also, e.g., Sony Music, 326 F.Supp.2d
at 566 ("[D]efendants have little expectation of privacy
in downloading and distributing copyrighted songs without
permission."); Raw Films, Ltd. v. John Does
1-15, No. CIV.A. 11-7248, 2012 WL 1019067, at *8 (E.D.
Pa. Mar. 26, 2012) (The "expectation of internet users
engaging in online file-sharing . . . is at most minimal
because those individuals have already voluntarily given up
certain information by engaging in that behavior.").
Indeed, in cases in which parties have argued that the First
Amendment protected their anonymous speech in using their IP
addresses, the Second Circuit has held that copyright
infringers are not entitled to shield their identities from
those who seek to enforce their claims under copyright law.
See Sony Music, 326 F.Supp.2d at 567
("[D]efendants' First Amendment right to remain
anonymous must give way to plaintiffs' right to use the
judicial process to pursue what appear to be meritorious
copyright infringement claims."); Artista
Records, 604 F.3d at 118 (rejecting defendant's
motion to quash subpoena of an ISP on First Amendment grounds
because "to the extent that anonymity is used to mask
copyright infringement or to facilitate such infringement by
other persons, it is unprotected by the First
Amendment."); Strike 3, 2017 WL 5001474, at *5,
n.1 (permitting plaintiff to subpoena ISP and holding that
"[t]he First Amendment does not protect copyright
infringement."); see also Columbia Pictures, Inc. v.
Bunnell, 245 F.R.D. 443, 451 (C.D. Cal. 2007) ("To
the extent the [internet] users are engaged in copyright
infringement, the First Amendment affords them no protection
whatsoever." (citing Harper & Row Publishers,
Inc. v. Nation Enters, 471 U.S. 539, 559 (1985))).
District courts within this Circuit have thus consistently
permitted copyright plaintiffs to obtain infringers'
identifying information based on their IP addresses. See,
e.g., Arista Records, LLC, 604 F.3d at 124
(holding defendant's "expectation of privacy for
sharing copyrighted [works] through an online file-sharing
network [was] simply insufficient to permit him to avoid
having to ...