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Malibu Media, LLC v. Doe

United States District Court, M.D. Pennsylvania

May 2, 2018

MALIBU MEDIA, LLC, Plaintiff,
v.
JOHN DOE subscriber assigned IP Address 71.114.133.7, Defendant.

          MEMORANDUM

          SYLVIA H. RAMBO UNITED STATES DISTRICT JUDGE.

         In this internet copyright infringement action, Plaintiff claims that Defendant, identified at this time only by his or her IP address, used a file-sharing network to infringe on Plaintiff's copyrighted content. (See generally Doc. 1.) Presently before the court is Plaintiff's motion to serve a third-party subpoena on an internet service provider (“ISP”) identified by a forensic investigator prior to a Rule 26(f) conference in order to obtain the name and address of the unidentified defendant, who is associated with the identified Internet Protocol (“IP”) address that was allegedly used to illegally copy and distribute Plaintiff's copyrighted work. (Doc. 5.) For the following reasons, Plaintiff's motion will be granted, subject to the restrictions set forth in the accompanying order.

         I. Background

         Plaintiff, Malibu Media, LLC (d/b/a “X-Art.com”), operates a popular subscription based website and is responsible for the production of its own copyrighted movie content. Plaintiff asserts the following facts in its complaint (Doc. 1), motion for expedited discovery (Doc. 5), and brief in support thereof (Doc. 6). The court accepts the averments as true for purposes of this motion, without making any findings of fact.

         Plaintiff claims that the individual associated with IP address 71.114.133.7 used the BitTorrent protocol to persistently infringe on its exclusive rights by copying and distributing its original works, despite Plaintiff holding a registered copyright for each title. By way of background, BitTorrent is a common peer-to-peer file sharing system that allows users to distribute large amounts of data over the Internet. (Doc. 1, ¶ 11.) The BitTorrent protocol allows an individual user to copy a digital file from another user via download, and in turn, distribute the file to other users via upload. (See Id. at ¶¶ 11-17.) For the file to be placed on the protocol, a user initially uploads a new file, such as a digital movie, which BitTorrent breaks up into multiple pieces, or bits. (See Id. at ¶¶ 13-14.) BitTorrent allows many users to join on the network to download different pieces of the initial file from each other, rather than transferring a much larger digital file. (See Id. at ¶¶ 12-13) Once a user has downloaded all the pieces of the file, BitTorrent uses a unique identifier on each piece, known as a “hash value, ” to reassemble the pieces into a complete file so the user can play the downloaded file. (See Id. at ¶¶ 16-17.) Although the individual user does not display his or her name while using BitTorrent, an individual exposes the IP address he or she is using when downloading or sharing a file.

         Plaintiff engaged IPP International UG (“IPP International”), a forensic investigator, to identify direct infringers of its copyrighted media files. (Id. at ¶ 18.) The investigator established a direct TCP/IP connection with the IP address 71.114.133.7, the John Doe Defendant in this matter, and downloaded from that IP address one or more pieces of each of the digital media files identified by file hashes listed in Exhibit A to the complaint. (Id. at ¶¶ 18-19; Doc. 1-1.) Each digital media file correlates to a copyrighted movie owned by Plaintiff. (Doc. 1 at ¶ 20.) Plaintiff then used geolocation technology to trace the identified IP address to a physical address purportedly located within the Middle District of Pennsylvania. (Id. at ¶¶ 5-6.)[1] Plaintiff alleges that it did not authorize or consent to the John Doe Defendant's reproduction or redistribution of the work. (Id. at ¶ 32.) Plaintiff's complaint asserts that the John Doe Defendant's aforementioned conduct constitutes direct copyright infringement.

         On March 28, 2018, Plaintiff filed the instant motion to serve a third party subpoena upon Verizon Internet Services, the ISP associated with the IP address identified by IPP International. (See Doc. 5.) In the motion, Plaintiff asserts that only the ISP is able to determine the identity of the John Doe Defendant, as the ISP has the billing information for each account holder associated with each IP address. (See Doc. 6.) Plaintiff argues that such expedited discovery is reasonable under the circumstances.

         II. Legal Standard

         Generally, “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f).”[2] Fed.R.Civ.P. 26(d)(1). However, courts have broad discretion to manage the discovery process and can expedite or otherwise alter the timing and sequence of discovery. See id.

         Courts faced with motions for expedited discovery requests to ascertain the identity of “John Doe” defendants in internet copyright infringement cases often apply the “good cause” or reasonableness standard.[3] See Canal St. Films v. Does 1-22, Civ. No. 13-cv-0999, 2013 WL 1775063, *2 (M.D. Pa. Apr. 25, 2013); see also, e.g., Samuel, Son & Co. v. Beach, Civ. No. 13-cv-0128, 2013 WL 4855325, *3 (W.D. Pa. Sept. 11, 2013); West Coast Prod. Inc. v. Does 1-169, Civ. No. 12-cv-5930, 2013 WL 3793969, *1 (D.N.J. July 19, 2013); Leone v. Towanda Borough, Civ. No. 12-cv-0429, 2012 WL 1123958, *2 (M.D. Pa. Apr. 4, 2012) (citing Kone Corp. v. Thyssenkrupp USA, Inc., Civ. No. 11-cv-0465, 2011 WL 4478477, *3 (D. Del. Sept. 26, 2011)).

         On ruling on a motion for expedited discovery, the court should consider the “entirety of the record to date and the reasonableness of the request in light of all of the surrounding circumstances.” Modern Woman, LLC v. Does I-X, Civ. No. 12-cv-4858, 2013 WL 888603, *2 (D.N.J. Feb. 27, 2013) (citing Better Packages, Inc. v. Zheng, Civ. No. 05-cv-4477, 2006 WL 1373055, *2 (D.N.J. May 17, 2006)). Good cause is usually found where the plaintiff's need for expedited discovery, in consideration of the administration of justice, outweighs the possible prejudice or hardship to the defendant. Leone, 2012 WL 1123958 at *2; Fonovisa, Inc. v. Does 1-9, Civ. No. 07-cv-1515, 2008 WL 919701, *10 n.22 (W.D. Pa. Apr. 3, 2008) (citing Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002)).

         III. Discussion

         The reasonableness standard requires the court to consider the “actual circumstances of this case, as well as . . . certain factors such as . . . the need for discovery, and the breadth of the moving party's discovery requests.” Kone Corp., 2011 WL 4478477 at *6 (quoting BAE Sys. Aircraft Controls, Inc. v. Eclipse Aviation Corp., 224 F.R.D. 581, 587 (D. Del. 2004)). In the matter sub judice, the actual circumstances favor expedited discovery and satisfy the reasonableness standard.

         For purposes of the instant motion, Plaintiff asserts a prima facie claim of copyright infringement. To make such a claim, two elements must be proven: (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., 499 U.S. 340, 361 (1991) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 548 (1985)). Here, Plaintiff satisfies both elements. First, Plaintiff avers that it is the copyright holder for each of the original works listed in Exhibits A and B. (Doc. 1, ¶ 20.) In addition, Plaintiff asserts that the John Doe Defendant, through the use of BitTorrent, illegally copied, reproduced, and distributed nine of its original works. (Id. at ¶¶ 19-24.) Therefore, the court finds that Plaintiff has adequately set forth a prima facie claim of copyright infringement for purposes of the motion sub judice. See Malibu Media, 2012 WL 3089383 at *7. Moreover, Plaintiff has no way to identify the alleged infringer, apart from serving a subpoena on the identified ISP. Without granting the pending motion, Plaintiff can neither identify nor serve the John Doe Defendant and this action cannot proceed. Furthermore, Plaintiff asserts that, because the protocol does not have a central server, the only way Plaintiff can prevent the continued illegal distribution of its work is to take legal action. Accordingly, identifying and serving the alleged infringer is the only method ...


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