Case 3:15-cv-05537-LB Document 11 Filed 12/22/15 Page 1 of 5
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`San Francisco Division
`
`DALLAS BUYERS CLUB LLC,
`Plaintiff,
`
`v.
`
`DOE-50.76.49.97,
`Defendant.
`
`Case No. 3:15-cv-05537-LB
`
`ORDER GRANTING THE PLAINTIFF'S
`EX PARTE MOTION TO TAKE EARLY
`DISCOVERY
`[Re: ECF No. 5]
`
`
`
`
`
`
`
`
`
`
`
`INTRODUCTION
`
`Dallas Buyers Club LLC (“DBC”) owns the copyright for the motion picture Dallas Buyers
`
`Club. It alleges that someone — the Doe defendant here — who uses the IP address 50.76.49.97
`
`infringed on that copyright. Despite its own efforts, DBC has not been able to identify the
`
`individual associated with that IP address. DBC now asks the court to let it serve a subpoena on
`
`non-party Comcast Cable, presumably the Doe defendant’s internet service provider, to learn the
`
`Doe defendant’s identity. Because DBC has demonstrated that good cause exists to allow it to
`
`serve a subpoena, the court grants the motion.
`
`STATEMENT
`
`DBC is the registered copyright holder of the motion picture Dallas Buyers Club. (Complaint,
`
`ORDER (No. 3:15-cv-05537-LB)
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`United States District Court
`
`

`
`Case 3:15-cv-05537-LB Document 11 Filed 12/22/15 Page 2 of 5
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`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.)
`
`The Doe defendant, who uses the Comcast Cable-provided IP address 50.76.49.97, allegedly
`
`downloaded, without DBC’s permission, a distinct copy of Dallas Buyers Club on various
`
`occasions between August 9, 2015 and November 27, 2015. (Id. ¶¶ 12-13, 15, 21, Ex. A.) The Doe
`
`defendant used the software Azureus 5.3.0 to do this. (Id. ¶ 16.) Through well-accepted
`
`geolocation technology, DBC has traced each download made to the Doe defendant’s IP address
`
`to the Northern District of California. (Id. ¶ 14.)
`
`The Doe defendant also has downloaded a large number of other copyrighted works. (Id. ¶ 17.)
`
`DBC alleges that the consistency of the observed activity, as well as the number and titles of the
`
`copyrightable works, indicates that the Doe defendant is an identifiable and singular adult who
`
`likely is the primary subscriber of the IP address or someone who resides with and is known to the
`
`subscriber, because the activity suggests that the Doe defendant is an authorized user of the IP
`
`address with consistent and permissive access to it. (Id. ¶¶ 19-20.)
`
`DBC alleges on information and belief that Comcast Cable generally assign an IP address to a
`
`single party for extended periods of time. (Id. ¶ 21.) It also alleges that records maintained by
`
`Comcast Cable should be able to identify either the Doe defendant, or the subscriber who
`
`contracted with Comcast Cable for internet service and is likely to have knowledge that will help
`
`DBC identify the Doe defendant. (Id. ¶ 22.)
`
`On December 3, 2015, DBC filed a complaint against the Doe defendant, alleging one claim
`
`for copyright infringement under the Copyright Act. (See generally id.) On December 4, 2015,
`
`DBC filed an ex parte motion asking the court to allow it to serve Comcast Cable with a subpoena
`
`under Federal Rule of Civil Procedure 45. (Motion, ECF No. 5.) DBS says that the subpoena will
`
`be limited to the name and address of the individual/individuals associated with the Doe
`
`defendant’s IP address. (Memorandum, ECF No. 5-1 at 2.)
`
`
`
`
`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
`
`ORDER (No. 3:15-cv-05537-LB)
`
`Northern District of California
`United States District Court
`
`

`
`Case 3:15-cv-05537-LB Document 11 Filed 12/22/15 Page 3 of 5
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`GOVERNING LAW
`
`A court may authorize early discovery before the Rule 26(f) conference for the parties’ and
`
`witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the
`
`Ninth Circuit generally consider whether a plaintiff has shown “good cause” for early discovery.
`
`See, e.g., IO Grp., Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct.
`
`15, 2010); Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002);
`
`Tex. Guaranteed Student Loan Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, at *2 (E.D.
`
`Cal. June 9, 2010); Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D.
`
`Ariz. 2001) (collecting cases and standards). “Good cause may be found where the need for
`
`expedited discovery, in consideration of the administration of justice, outweighs the prejudice to
`
`the responding party.” Semitool, 208 F.R.D. at 276.
`
`In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe
`
`defendant through early discovery, courts examine whether the plaintiff: (1) identifies the Doe
`
`defendant with sufficient specificity that the court can determine that the defendant is a real person
`
`who can be sued in federal court; (2) recounts the steps taken to locate and identify the defendant;
`
`(3) demonstrates that the action can withstand a motion to dismiss; and (4) shows that the
`
`discovery is reasonably likely to lead to identifying information that will permit service of process.
`
`Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999) (citations omitted).
`
`“‘[W]here the identity of alleged defendants [is not] known prior to the filing of a complaint[,] the
`
`plaintiff should be given an opportunity through discovery to identify the unknown defendants,
`
`unless it is clear that discovery would not uncover the identities, or that the complaint would be
`
`dismissed on other grounds.’” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999)
`
`(quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
`
`ANALYSIS
`
`DBC has made a sufficient showing under each of the four seescandy factors listed above to
`
`establish good cause to permit it to engage in early discovery to identify the Doe defendant.
`
`First, DBC has identified the Doe defendant with sufficient specificity that the court can
`
`determine that he or she is a real person who can be sued in federal court. It alleges that the Doe
`
`ORDER (No. 3:15-cv-05537-LB)
`
`3
`
`Northern District of California
`United States District Court
`
`

`
`Case 3:15-cv-05537-LB Document 11 Filed 12/22/15 Page 4 of 5
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`defendant has downloaded Dallas Buyers Club and a large number of other copyrighted works,
`
`and that the consistency of the observed activity, as well as the number and titles of the
`
`copyrightable works, indicates that the Doe defendant is an identifiable and singular adult who
`
`likely is the primary subscriber of the IP address or someone who resides with and is known to the
`
`subscriber. (Complaint, ECF No. 1, ¶¶ 17, 19-20.) DBC also has traced each download made to
`
`the Doe defendant’s IP address to the Northern District of California, thus giving the court
`
`jurisdiction over him and DBC’s federal claim. (Id. ¶ 14.)
`
`Second, DBC has recounted the steps taken to locate and identify the Doe defendant. The Doe
`
`defendant used the software Azureus 5.3.0 to download Dallas Buyers Club to his IP address, and
`
`his IP address was traced to this district. (Id. ¶¶ 14, 16.) The IP address alone, however, is not
`
`sufficient for DBC to identify the Doe defendant.
`
`Third, DBC has demonstrated that its copyright claim could withstand a motion to dismiss. A
`
`plaintiff “must satisfy two requirements to present a prima facie case of direct infringement: (1)
`
`[he or she] must show ownership of the allegedly infringed material and (2) [he or she] must
`
`demonstrate that the alleged infringers violate at least one exclusive right granted to copyright
`
`holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
`
`Cir. 2007) (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see
`
`17 U.S.C. § 501(a). Under Section 106, a copyright holder has the exclusive rights to reproduce,
`
`distribute, publicly display, perform, and create derivative works of the copyrighted work. Direct
`
`copyright infringement does not require intent or any particular state of mind. Fox Broad. Co, Inc.
`
`v. Dish Network, LLC, 905 F. Supp. 2d 1088, 1098-99 (C.D. Cal. 2012); Religious Tech. Ctr. v.
`
`Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995). DBC alleges
`
`that it holds the copyright for Dallas Buyers Club and that the Doe defendant downloaded (and
`
`thus copied) Dallas Buyers Club without its permission. (Complaint, ECF No. 1, ¶¶ 4, 6, 12-13,
`
`15, 21, Ex. A.) DBC has sufficiently alleged a prima facie claim for copyright infringement.
`
`Fourth, DBC has shown that the discovery it seeks is reasonably likely to lead to identifying
`
`information that will permit service of process on the Doe defendant. DBC alleges on information
`
`and belief that Comcast Cable generally assign an IP address to a single party for extended periods
`4
`
`ORDER (No. 3:15-cv-05537-LB)
`
`Northern District of California
`United States District Court
`
`

`
`Case 3:15-cv-05537-LB Document 11 Filed 12/22/15 Page 5 of 5
`
`
`
`of time and that Comcast Cable’s records should identify either the Doe defendant or the
`
`subscriber who knows the Doe defendant. (Id. ¶¶ 21-22.)
`
`CONCLUSION
`
`Good cause appearing, the court grants DBC’s ex parte motion. The court directs DBC to file a
`
`proposed subpoena and a proposed order, see N.D. Cal. Civ. L.R. 7-2(c), for the court’s approval
`
`by January 5, 2015. Once the court approves the subpoena, DBC may serve it on Comcast Cable.
`
`IT IS SO ORDERED.
`
`Dated: December 22, 2015
`
`______________________________________
`LAUREL BEELER
`United States Magistrate Judge
`
`
`
`ORDER (No. 3:15-cv-05537-LB)
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`United States District Court