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`Case 2:16-cv-01733-JAM-KJN Document 22 Filed 03/03/17 Page 1 of 7
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`UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF CALIFORNIA
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`MALIBU MEDIA, LLC,
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`No. 2:16-cv-1733-JAM-KJN
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`Plaintiff,
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`v.
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`ORDER
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`JOHN DOE SUBSCRIBER ASSIGNED
`IP ADDRESS 73.235.190.122,
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`Defendant.
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`INTRODUCTION
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`In this action, plaintiff Malibu Media, LLC alleges that defendant John Doe, known to
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`plaintiff only by his IP address, infringed plaintiff’s copyrights by using the BitTorrent File
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`Distribution Network. On October 11, 2016, the court granted plaintiff’s ex parte motion to
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`conduct expedited discovery and serve a Rule 45 subpoena on defendant’s internet service
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`provider (“ISP”), in this case Comcast, to obtain defendant’s name and address. (ECF No. 9.)
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`Subsequently, on January 2, 2017, defendant appeared through counsel and filed a motion
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`to quash the subpoena on Comcast and/or for a stay of this action. (ECF No. 12.) Plaintiff has
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`opposed the motion, and defendant filed a reply brief. (ECF Nos. 14, 15.) At the March 2, 2017
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`hearing on the motion, attorney Henrik Mosesi appeared telephonically on behalf of plaintiff, and
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`Case 2:16-cv-01733-JAM-KJN Document 22 Filed 03/03/17 Page 2 of 7
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`attorney Robert Robinson appeared on behalf of defendant.
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`After carefully considering the court’s record and the applicable law, the court DENIES
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`the motion.
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`DISCUSSION
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`Plaintiff commenced a large number of BitTorrent copyright infringement cases in this
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`district, which have since been related. On May 5, 2016, the court conducted a global hearing
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`with respect to plaintiff’s ex parte motions to conduct expedited discovery that had been pending
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`in several of the related actions filed by plaintiff in the Sacramento division of this district. In
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`connection with those motions, plaintiff lodged with the court for initial in camera review a status
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`report addressing various questions/issues outlined in the court’s April 8, 2016 order scheduling
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`the May 5, 2016 hearing, including inter alia plaintiff’s ownership and management; an
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`explanation of plaintiff’s process for detecting infringement, identifying infringers and their
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`location, and prioritizing prosecution of certain infringers; and plaintiff’s litigation statistics.
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`Plaintiff also provided representative samples of plaintiff’s settlement correspondence and
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`settlement agreements. The status report was subsequently filed on the court’s public docket, and
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`the exhibits to the status report, which contain confidential settlement correspondence and
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`settlement agreements, were filed under seal.1 At the May 5, 2016 hearing, plaintiff’s sole owner,
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`Colette Pelisseir Field, appeared along with counsel and responded to further questioning by the
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`court. Following that hearing, on May 10, 2016, the court issued a comprehensive order granting
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`the motions to conduct expedited discovery in all of the related cases, subject to certain
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`restrictions identified in that order.
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`Subsequently, plaintiff commenced several new actions, including the instant action on
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`July 24, 2016, which were also ultimately related to the initial set of actions on August 4, 2016.
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`(ECF No. 5.) As noted above, on October 11, 2016, the court granted plaintiff’s ex parte motion
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`to conduct expedited discovery and serve the subpoena at issue on Comcast. (ECF No. 9.) The
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`1 Those documents were filed on the court’s docket in the first-filed case, Malibu Media, LLC v.
`John Doe subscriber assigned IP address 108.206.113.196, 2:15-cv-2701-JAM-KJN, ECF Nos.
`11, 12.
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`Case 2:16-cv-01733-JAM-KJN Document 22 Filed 03/03/17 Page 3 of 7
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`court found, based on the showing made in plaintiff’s motion, as well as plaintiff’s
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`representations made in its status report filed in Malibu Media, LLC v. John Doe subscriber
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`assigned IP address 108.206.113.196, 2:15-cv-2701-JAM-KJN, ECF Nos. 11, 12, and verbally at
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`the May 5, 2016 hearing in that matter, that plaintiff had shown that good cause exists to conduct
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`the expedited discovery to identify and serve defendant John Doe. (Id.) The instant motion to
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`quash by defendant John Doe followed.
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`“On timely motion, the court for the district where compliance is required must quash or
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`modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to
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`comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of
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`privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to
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`undue burden.” Fed. R. Civ. P. 45(d)(3)(A). Additionally, the court “may, on motion, quash or
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`modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research,
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`development, or commercial information; or (ii) disclosing an unretained expert’s opinion or
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`information that does not describe specific occurrences in dispute and results from the expert’s
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`study that was not requested by a party.” Fed. R. Civ. P. 45(d)(3)(B).
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`Defendant’s motion to quash here does not argue that the subpoena should be quashed
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`based on any of the specific mandatory or permissive grounds outlined above. He identifies no
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`issue with respect to the timing or geographical area for compliance; nor does he contend that
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`disclosure of his name and address implicates privileged or protected matter sufficient to quash
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`the subpoena, or that it somehow involves an undue burden.2 Additionally, he does not argue that
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`the subpoena requests trade secrets, protected commercial information, or certain expert
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`information. Instead, defendant appears to contend that plaintiff should not have been permitted
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`to issue the subpoena in the first place, because plaintiff’s factual showing in support of the
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`requested expedited discovery is lacking and inaccurate. As such, defendant’s motion to quash is
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`2 For the first time at the hearing, defendant’s counsel suggested that disclosure of the information
`subpoenaed (defendant’s name and address) implicates privileged or protected matter and
`involves an undue burden. However, defendant’s motion did not raise those arguments, or
`provide any legal authority and analysis in support of such arguments; nor did plaintiff have an
`opportunity to respond. As such, the court declines to consider them.
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`Case 2:16-cv-01733-JAM-KJN Document 22 Filed 03/03/17 Page 4 of 7
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`more appropriately construed as a motion for reconsideration of the court’s prior order
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`authorizing the requested expedited discovery.
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`Defendant seeks reconsideration based on three primary arguments: (1) the software and
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`methods used by plaintiff’s investigators to detect infringement are inadequate; (2) the method
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`used by plaintiff’s investigators to manually verify infringement lacks integrity; and (3) plaintiff
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`fails to protect its works according to industry media distribution standards. Each argument is
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`addressed separately below.
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`Software/Methods Used To Detect Infringement
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`Plaintiff’s investigator, a company named Excipio, uses a certain forensics system called
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`NARS to detect infringement of plaintiff’s copyrighted works. Defendant claims that NARS was
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`developed without the standard verification and validation processes in place for mission critical
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`software and samples a too small fraction of the file (typically 16KB out of a 100MB file) to
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`determine infringement. In support of that argument, defendant relies primarily on the expert
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`reports (see ECF Nos. 12-5, 12-6) of a software reliability expert, Dr. Kal Toth, and a Bittorrent
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`media distribution expert, Mr. Bradley Witteman, whom defendant intends to offer as experts in a
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`case apparently set for trial in late March 2017 in the Northern District of California. See Malibu
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`Media, LLC v. John Doe subscriber assigned IP address 76.126.99.126, 3:15-cv-4441-WHA.
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`The court has carefully reviewed the reports, but finds that they do not compel
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`reconsideration of the court’s prior order authorizing the expedited discovery. To be sure, the
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`reports point to various alleged deficiencies in the software and methods used by Excipio as
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`found by those experts. At the hearing, defendant’s counsel also emphasized that the software
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`and methods used by Excipio fail to adequately demonstrate that defendant downloaded a
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`complete copy of plaintiff’s copyrighted work(s). However, plaintiff’s own computer forensics
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`expert and a former computer crimes detective, Patrick Paige, purportedly tested and verified the
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`accuracy of Excipio’s software. (ECF No. 7-3.) Additionally, plaintiff cites numerous cases in
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`which courts accepted the accuracy of Excipio’s software and methods for purposes of permitting
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`expedited discovery. (ECF No. 14 at 3-4.) See, e.g., Malibu Media, LLC v. Doe, 2016 WL
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`4444799, at **7, 12 (E.D.N.Y. Aug. 23, 2016) (concluding, after conducting a full evidentiary
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`Case 2:16-cv-01733-JAM-KJN Document 22 Filed 03/03/17 Page 5 of 7
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`hearing, that Excipio’s senior assistant architect “offered credible testimony regarding the
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`methods that Excipio used on behalf of Malibu Media in identifying the Doe Defendant’s IP
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`address as an infringer of its copyrighted material,” and denying motion to quash subpoena).
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`In short, a battle of the experts (or as defendant alludes to, a full Daubert analysis) at this
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`early stage of the case is inappropriate. It may or may not be that defendant could ultimately
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`show that the Excipio software and methods are flawed and incapable of proving copyright
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`infringement. That question is for another day, and the court expresses no definitive opinion
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`regarding the matter at this time. However, at this preliminary juncture, plaintiff has sufficiently
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`demonstrated the reliability of the Excipio software and methods to support issuance of the
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`subpoena.3
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`Method Used to Verify Infringement
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`Plaintiff also apparently uses the services of Tobias Fieser, an employee of IPP
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`International UG in Germany, to verify the infringements by manually comparing video clips to
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`plaintiff’s videos.
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`Defendant contends that Mr. Fieser does not spend sufficient time on the project to
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`properly verify the infringements:
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`Tobias Fieser verifies infringements for 3-5 hours per week.
`Assume Fieser works 5 hours per week for 52 weeks a year, this
`computes to a total of 15,600 minutes of verification time. Given
`that the average Malibu Media work is 20 minutes, and the average
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`Malibu sued over 1000 defendants, the total amount of time needed
`to verify the infringements by Mr. Fieser would have amounted to
`400,000 minutes. The numbers 15,600 vs. 400,000 are not even in
`the same ballpark and do not make sense.
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`(ECF No. 12-1 at 5.) Plaintiff counters that defendant’s calculation “ignores that each movie is
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`3 In his reply brief, defendant also raises questions as to the accuracy of plaintiff’s geolocation
`technology. Because defendant failed to raise the issue in his motion, and raises it for the first
`time on reply, the court declines to consider it. Nevertheless, even if the court reached the issue,
`it would find that plaintiff has made a satisfactory preliminary showing in its global status report
`that the geolocation technology used is reasonably reliable, at least for purposes of issuing the
`subpoena. See Malibu Media, LLC v. John Doe subscriber assigned IP address 108.206.113.196,
`2:15-cv-2701-JAM-KJN, ECF No. 11.
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`identified by a unique hash value, and Mr. Fieser only needs to confirm each movie once, not
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`again and again in each suit.” (ECF No. 14 at 5.) In any event, defendant will have an adequate
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`opportunity to conduct discovery in an attempt to show that Mr. Fieser’s methods are somehow
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`deficient or improper. If such discovery is developed, it may well be fodder for cross-
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`examination at trial. Nevertheless, defendant’s rough and speculative calculations at this juncture
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`do not warrant reconsideration of the subpoena.4
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`Defendant also posits that Mr. Fieser improperly compares the video clips with the movies
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`posted on plaintiff’s website as opposed to the depository copies lodged with the Copyright
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`Office. However, defendant does not explain his basis for believing that the copies of the movies
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`posted on plaintiff’s website are somehow different from the copies lodged with the Copyright
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`Office. Furthermore, defendant does not elucidate how that argument impacts the analysis as to
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`whether the subpoena should be quashed, especially given that the court here is not concerned
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`with the ultimate merits of whether plaintiff has sufficiently proven infringement.
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`Defendant further suggests that Mr. Fieser is not licensed as a private investigator in
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`California, and that the court therefore should not accept his testimony. That argument borders
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`on the frivolous. Individuals provide evidence in court every day without necessarily being
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`licensed as private investigators. Significantly, defendant cites no legal authority for the
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`proposition that Mr. Fieser, a German resident, required a California private investigator license
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`to perform the type of work he did for plaintiff, or to provide evidence regarding such work in
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`court.
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`Plaintiff’s Efforts To Protect Its Works
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`Finally, defendant argues that plaintiff does not protect its works according to industry
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`media distribution standards, because it posts unencrypted files on its website and distributes such
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`4 Defendant’s careless use of statistics in his briefing certainly does not tend to lend significant
`credibility to his arguments. For example, defendant states that the “gross data demonstrates that
`the Malibu [sic] has a false positive rate of at least 80% or more (this is the number of cases
`dismissed vs. the total number of cases).” (ECF No. 15 at 3) (emphasis in original). However, as
`defendant is no doubt aware, cases are dismissed for various reasons, including settlement. As
`such, it is disingenuous to argue that the 80% figure necessarily suggests that plaintiff identified
`the wrong defendant in 80% of filed cases.
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`Case 2:16-cv-01733-JAM-KJN Document 22 Filed 03/03/17 Page 7 of 7
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`unencrypted files to affiliates, and also fails to send Digital Millennium Copyright Act
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`(“DMCA”) notices to infringers. Plaintiff disputes at least the latter, but even if true, defendant
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`provides no legal authority suggesting that such measures are required to prosecute a traditional
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`copyright infringement claim.
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`CONCLUSION
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`In sum, defendant’s motion does not provide sufficient grounds for the court to reconsider
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`its prior order authorizing expedited discovery in the form of the subpoena issued to Comcast.
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`Furthermore, defendant has provided no proper basis for a stay of this action pending a trial of the
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`above-mentioned Malibu Media action in the Northern District of California.5
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`Accordingly, IT IS HEREBY ORDERED that the motion to quash the subpoena to
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`Comcast or to stay the action (ECF No. 12) is DENIED.
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`Dated: March 3, 2017
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`5 Significantly, at the hearing, defendant conceded that the trial scheduled in the Northern District
`of California would be a jury trial, and not a bench trial with findings of fact and conclusions of
`law prepared by a judge. As such, even assuming arguendo that Malibu Media lost in that trial, it
`is far from clear that a judgment in the defendant’s favor in that case would be dispositive with
`respect to the technology and methodology issues raised in this motion.
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