United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE.
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.
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.
claims that the individual associated with IP address
126.96.36.199 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.
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 188.8.131.52,
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.) 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
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
“[a] party may not seek discovery from any source
before the parties have conferred as required by Rule
26(f).” 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.
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. 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,
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.
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.
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 ...