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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`San Francisco Division
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`DALLAS BUYERS CLUB LLC,
`Plaintiff,
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`v.
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`DOE-50.174.109.117,
`Defendant.
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`Case No. 3:15-cv-05312-LB
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`ORDER GRANTING THE PLAINTIFF'S
`EX PARTE MOTION TO TAKE EARLY
`DISCOVERY
`[Re: ECF No. 5]
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`INTRODUCTION
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`Dallas Buyers Club LLC (“DBC”) owns the copyright for the motion picture Dallas Buyers
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`Club. It alleges that someone — the Doe defendant here — who uses the IP address
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`50.174.109.117 infringed on that copyright. Despite its own efforts, DBC has not been able to
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`identify the individual associated with that IP address. DBC now asks the court to let it serve a
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`subpoena on non-party Comcast Cable, presumably the Doe defendant’s internet service provider,
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`to learn the Doe defendant’s identity. Because DBC has demonstrated that good cause exists to
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`allow it to serve a subpoena, the court grants the motion.
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`STATEMENT
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`DBC is the registered copyright holder of the motion picture Dallas Buyers Club. (Complaint,
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`ORDER (No. 3:15-cv-05312-LB)
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`Northern District of California
`United States District Court
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`Case 3:15-cv-05312-LB Document 8 Filed 12/03/15 Page 2 of 5
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`ECF No. 1, ¶¶ 4, 6.1) Dallas Buyers Club contains wholly original material that is copyrightable
`subject matter, and it is currently offered for sale in commerce. (Id. ¶¶ 8-9.)
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`The Doe defendant, who uses the Comcast Cable-provided IP address 50.174.109.117,
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`allegedly downloaded, without DBC’s permission, a distinct copy of Dallas Buyers Club on
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`various occasions between August 5, 2015 and November 10, 2015. (Id. ¶¶ 12-13, 15, 21, Ex. A.)
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`The Doe defendant used the software μTorrent 3.4.5 to do this. (Id. ¶ 16.) Through well-accepted
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`geolocation technology, DBC has traced each download made to the Doe defendant’s IP address
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`to the Northern District of California. (Id. ¶ 14.)
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`The Doe defendant also has downloaded a large number of other copyrighted works. (Id. ¶ 17.)
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`DBC alleges that the consistency of the observed activity, as well as the number and titles of the
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`copyrightable works, indicates that the Doe defendant is an identifiable and singular adult who
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`likely is the primary subscriber of the IP address or someone who resides with and is known to the
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`subscriber, because the activity suggests that the Doe defendant is an authorized user of the IP
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`address with consistent and permissive access to it. (Id. ¶¶ 19-20.)
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`DBC alleges on information and belief that Comcast Cable generally assign an IP address to a
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`single party for extended periods of time. (Id. ¶ 21.) It also alleges that records maintained by
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`Comcast Cable should be able to identify either the Doe defendant, or the subscriber who
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`contracted with Comcast Cable for internet service and is likely to have knowledge that will help
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`DBC identify the Doe defendant. (Id. ¶ 22.)
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`On November 19, 2015, DBC filed a complaint against the Doe defendant, alleging one claim
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`for copyright infringement under the Copyright Act. (See generally id.) On November 25, 2015,
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`DBC filed an ex parte motion asking the court to allow it to serve Comcast Cable with a subpoena
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`under Federal Rule of Civil Procedure 45. (Motion, ECF No. 5.) DBS says that the subpoena will
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`be limited to the name and address of the individual/individuals associated with the Doe
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`defendant’s IP address. (Id. at 2.)
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`1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
`ECF-generated page numbers at the tops of the documents.
`2
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`ORDER (No. 3:15-cv-05312-LB)
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`Northern District of California
`United States District Court
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`Case 3:15-cv-05312-LB Document 8 Filed 12/03/15 Page 3 of 5
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`GOVERNING LAW
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`A court may authorize early discovery before the Rule 26(f) conference for the parties’ and
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`witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the
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`Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery.
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`See, e.g., IO Grp., Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct.
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`15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002);
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`Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, at *2 (E.D.
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`Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D.
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`Ariz. 2001) (collecting cases and standards). “Good cause may be found where the need for
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`expedited discovery, in consideration of the administration of justice, outweighs the prejudice to
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`the responding party.” Semitool, 208 F.R.D. at 276.
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`In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe
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`defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe
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`defendant with sufficient specificity that the court can determine that the defendant is a real person
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`who can be sued in federal court; (2) recounts the steps taken to locate and identify the defendant;
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`(3) demonstrates that the action can withstand a motion to dismiss; and (4) shows that the
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`discovery is reasonably likely to lead to identifying information that will permit service of process.
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`Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999) (citations omitted).
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`“‘[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the
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`plaintiff should be given an opportunity through discovery to identify the unknown defendants,
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`unless it is clear that discovery would not uncover the identities, or that the complaint would be
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`dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)
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`(quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
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`ANALYSIS
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`DBC has made a sufficient showing under each of the four seescandy factors listed above to
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`establish good cause to permit it to engage in early discovery to identify the Doe defendant.
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`First, DBC has identified the Doe defendant with sufficient specificity that the court can
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`determine that he or she is a real person who can be sued in federal court. It alleges that the Doe
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`ORDER (No. 3:15-cv-05312-LB)
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`Northern District of California
`United States District Court
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`Case 3:15-cv-05312-LB Document 8 Filed 12/03/15 Page 4 of 5
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`defendant has downloaded Dallas Buyers Club and a large number of other copyrighted works,
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`and that the consistency of the observed activity, as well as the number and titles of the
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`copyrightable works, indicates that the Doe defendant is an identifiable and singular adult who
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`likely is the primary subscriber of the IP address or someone who resides with and is known to the
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`subscriber. (Complaint, ECF No. 1, ¶¶ 17, 19-20.) DBC also has traced each download made to
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`the Doe defendant’s IP address to the Northern District of California, thus giving the court
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`jurisdiction over him and DBC’s federal claim. (Id. ¶ 14.)
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`Second, DBC has recounted the steps taken to locate and identify the Doe defendant. The Doe
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`defendant used the software μTorrent 3.4.5 to download Dallas Buyers Club to his IP address, and
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`his IP address was traced to this district. (Id. ¶¶ 14, 16.) The IP address alone, however, is not
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`sufficient for DBC to identify the Doe defendant.
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`Third, DBC has demonstrated that its copyright claim could withstand a motion to dismiss. A
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`plaintiff “must satisfy two requirements to present a prima facie case of direct infringement: (1)
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`[he or she] must show ownership of the allegedly infringed material and (2) [he or she] must
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`demonstrate that the alleged infringers violate at least one exclusive right granted to copyright
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`holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
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`Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see
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`17 U.S.C. § 501(a). Under Section 106, a copyright holder has the exclusive rights to reproduce,
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`distribute, publicly display, perform, and create derivative works of the copyrighted work. Direct
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`copyright infringement does not require intent or any particular state of mind. Fox Broad. Co, Inc.
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`v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098-99 (C.D. Cal. 2012); Religious Tech. Ctr. v.
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`Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995). DBC alleges
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`that it holds the copyright for Dallas Buyers Club and that the Doe defendant downloaded (and
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`thus copied) Dallas Buyers Club without its permission. (Complaint, ECF No. 1, ¶¶ 4, 6, 12-13,
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`15, 21, Ex. A.) DBC has sufficiently alleged a prima facie claim for copyright infringement.
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`Fourth, DBC has shown that the discovery it seeks is reasonably likely to lead to identifying
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`information that will permit service of process on the Doe defendant. DBC alleges on information
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`and belief that Comcast Cable generally assign an IP address to a single party for extended periods
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`ORDER (No. 3:15-cv-05312-LB)
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`Northern District of California
`United States District Court
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`Case 3:15-cv-05312-LB Document 8 Filed 12/03/15 Page 5 of 5
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`of time and that Comcast Cable’s records should identify either the Doe defendant or the
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`subscriber who knows the Doe defendant. (Id. ¶¶ 21-22.)
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`CONCLUSION
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`Good cause appearing, the court grants DBC’s ex parte motion. The court directs DBC to file a
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`proposed subpoena and a proposed order, see N.D. Cal. Civ. L.R. 7-2(c), for the court’s approval
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`by December 10, 2015. Once the court approves the subpoena, DBC may serve it on Comcast
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`Cable.
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`IT IS SO ORDERED.
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`Dated: December 3, 2015
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`______________________________________
`LAUREL BEELER
`United States Magistrate Judge
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`ORDER (No. 3:15-cv-05312-LB)
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`Northern District of California
`United States District Court