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Malibu Media, LLC v. Doe

United States District Court, D. Connecticut

April 9, 2019

MALIBU MEDIA, LLC, Plaintiff,
v.
JOHN DOE, subscriber assigned IP address 32.210.216.224, Defendant.

          RULING ON PLAINTIFF'S MOTION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE.

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

         Plaintiff 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.

         I. DISCUSSION

         A. Legal Standard

         In 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 173.68.5.86, 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).

         B. Application

         First, 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 address.").

         Malibu 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.

         Second, 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 subpoena.

         Third, 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 issue.

         Fourth, 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.

         Fifth, 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 ...


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