1:13-cv-12178-TLL-CEB Doc # 10 Filed 07/31/13 Pg 1 of 9 Pg ID 71
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`NORTHERN DIVISION
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`MALIBU MEDIA LLC,
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`Plaintiff,
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`Case Number 13-12178
`Honorable Thomas L. Ludington
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`v.
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`JOHN DOE,
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`Defendant.
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`________________________________________/
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`OPINION AND ORDER DENYING DEFENDANT’S MOTION TO QUASH
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`The question in this copyright infringement action is whether to quash the subpoena
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`issued to Defendant John Doe’s internet service provider. For the reasons that follow, the
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`question will be answered in the negative.
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`I
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` A
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`This case arises out of allegations of unauthorized copying and distribution of protected
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`works via BitTorrent. To assess the parties’ arguments, some understanding of how this
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`technology works is helpful. We begin with the relevant vocabulary:
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`Internet Protocol (IP): The system of communication standards that ensures that
`data packets transmitted over the internet reach their intended destinations.1
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`IP Address: The unique identifying number of a device connected to the internet.2
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`Transmission Control Protocol/Internet Protocol (TCP/IP): The standard set of
`protocols for transmitting data over the internet.3
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`1 See generally Patrick Collins, Inc. v. John Does 1-21, 282 F.R.D. 161, 163 (E.D. Mich. 2012), report and
`recommendation adopted, 11-15232, 2012 WL 4498373 (E.D. Mich. Sept. 28, 2012).
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` 2
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`IP Address?, HowStuffWorks.com,
`is an
` See generally Stephanie Crawford, What
`http://computer.howstuffworks.com/internet/basics/question549.htm (last visited July 31, 2013).
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` 3
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` See generally id.
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`1:13-cv-12178-TLL-CEB Doc # 10 Filed 07/31/13 Pg 2 of 9 Pg ID 72
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`File: A collection of related data packets treated as a unit.4
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`Hash Identifier: A 40 character alphanumeric string that forms a unique identifier
`of an encoded file.5
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`BitTorrent: A peer-to-peer file sharing protocol.6
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`Peer: A BitTorrent user.7
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`Initial Seeder: A BitTorrent user who first takes a particular file (such as a
`movie), breaks it into pieces, encodes the pieces with hash identifiers, creates a
`torrent file with the data about that file and its tracker, and makes the complete
`file available to other BitTorrent users.8
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`Swarm: A group of peers sharing a particular file (identified by its unique hash
`identifier). A swarm has two types of peers — “leechers” and “seeds.” It bears
`reiterating: to constitute a swarm all of the peers must be sharing the same file
`(identified by its unique hash identifier).9
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`Leecher: A peer in the process of downloading the file from the other peers. As
`soon as a leecher downloads new content (a piece of the file), the leecher begins
`sharing its content with the other leechers in the swarm.10
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`Piece: A one-quarter megabyte size part of a file being shared via BitTorrent
`(except for the last, smaller piece, which is the size of the remainder of the file).11
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`Tracker: A server containing an updated list of peers in the swarm. It allows a
`peer to learn about other peers sharing a particular torrent and join the swarm.12
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` 4
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` 5
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` 6
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` 7
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` See generally Patrick Collins, 282 F.R.D. at 163.
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` See generally id.
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` See generally Patrick Collins, 282 F.R.D. at 163.
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` See generally Patrick Collins, 282 F.R.D. at 163.
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` See generally Third Degree Films v. Does 1-36, 11-CV-15200, 2012 WL 2522151, at *1 (E.D. Mich.
`May 29, 2012).
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` 8
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` 9
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` See generally Sean B. Karunaratne, Note, The Case Against Combating Bittorrent Piracy Through Mass
`John Doe Copyright Infringement Lawsuits, 111 Mich. L. Rev. 283, 289 (2012).
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`10 See generally Annemarie Bridy, Is Online Copyright Enforcement Scalable?, 13 Vand. J. Ent. & Tech. L.
`695, 701 (2011).
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`11 See generally Patrick Collins, 282 F.R.D. at 163.
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`1:13-cv-12178-TLL-CEB Doc # 10 Filed 07/31/13 Pg 3 of 9 Pg ID 73
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`.Torrent file: The hub of the BitTorrent system, a .torrent file is a small file
`containing the file name, the IP address of the tracker, the number of and size of
`the pieces, and the hash identifier unique to the pieces of that particular torrent
`file.13
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`BitTorrent, as this vocabulary notes, is a peer-to-peer file sharing protocol. To download a file, a
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`peer performs six steps:
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`1. Install BitTorrent (or have done so already).
`2. Surf the web.
`3. Click on a link to a .torrent file.
`4. Select where to save the file locally, or select a partial download to resume.
`5. Wait for download to complete.
`6. Tell downloader to exit (it keeps uploading until this happens).
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`Bram Cohen, The BitTorrent Protocol Specification, BitTorrent.org (June 25, 2009),
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`http://www.bittorrent.org/beps/bep_0003.html, cited in Patrick Collins, Inc. v. John Does 1-21,
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`282 F.R.D. 161, 163–64 (E.D. Mich. 2012).
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`One key to BitTorrent is reciprocity. “To keep the torrent operating at maximum
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`capacity, the BitTorrent protocol uses a process called pipelining. Every active peer in a torrent
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`maintains a continuously refreshed queue of requests for pieces, so that no connection is ever left
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`idle after any one piece is downloaded.” Annemarie Bridy, Is Online Copyright Enforcement
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`Scalable?, 13 Vand. J. Ent. & Tech. L. 695, 702 (2011) (footnote omitted). A second key is
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`decentralization — which makes it a tough nut to crack for copyright holders:
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`Data is not stored on a central server. Rather, a user downloads the file in discrete
`segments from many different users who send data directly to one another. While
`trackers coordinate and assist peers in locating a swarm, the tracker itself sends
`out very little data. This makes BitTorrent an extremely efficient mechanism for
`transferring large files and at the same time, it insulates the protocol itself from
`anti-piracy efforts because there are no central servers to enjoin from unlawfully
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`12 See generally Pac. Century Int’l, Ltd. v. Does 1-48, C 11-3823 MEJ, 2011 WL 4725243, at *3 (N.D. Cal.
`Oct. 7, 2011).
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`13 See generally Patrick Collins, 282 F.R.D. at 164.
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`1:13-cv-12178-TLL-CEB Doc # 10 Filed 07/31/13 Pg 4 of 9 Pg ID 74
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`distributing copyrighted content. Thus, when copyrighted data is transmitted via
`BitTorrent, the copyright holder is largely limited to holding the individual file
`sharers liable for infringement.
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`Sean Karunaratne, Note, The Case Against Combating BitTorrent Piracy Through Mass John
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`Doe Copyright Infringement Lawsuits, 111 Mich. L. Rev. 283, 290 (2012) (quotation marks
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`omitted) (footnotes, brackets, and quotation marks omitted) (quoting Diabolic Video Prods., Inc.
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`v. Does 1-2099, No. 10-CV-5865-PSG, 2011 WL 3100404, at *2 (N.D. Cal. May 31, 2011)).
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`Tough nut or not, copyright holders — including a number of copyright holders of
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`pornographic works — have recently been attempting to crack down on alleged infringement.14
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`This practice has drawn sharp criticism from some courts and commentators, particularly when
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`the copyrighted work is pornographic and the copyright holder is a “copyright troll.” E.g.,
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`Ingenuity 13 LLC v. John Doe, 2:12-CV-8333-ODW JCX, 2013 WL 1898633, at *1 (C.D. Cal.
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`May 6, 2013) (“Plaintiffs have outmaneuvered the legal system. They’ve discovered the nexus
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`of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they
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`exploit this anomaly by accusing individuals of illegally downloading a single pornographic
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`video.”); cf. Richard Posner, Patent Trolls, Becker–Posner Blog (July 21, 2013), available at
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`http://www.becker-posner-blog.com/2013/07/patent-trollsposner.html.
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`B
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`The plaintiff in this case, Malibu Media, LLC, “is not what has been referred to in the
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`media and legal publications, and in the internet blogosphere, as a ‘copyright troll’ — i.e., a non-
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`producer who merely has acquired the right to bring lawsuits against alleged infringers. Rather,
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`Malibu is an actual producer of adult films and owns valid copyrights, registered with the United
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`States Copyright Office, in its works.” Malibu Media, LLC v. John Does 1, 6, 13, 14, CIV.A.
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`14 Cf. Adam Aft et al., Web 2.0 Citations in the Federal Courts, 3 J.L.: Periodical Laboratory of Leg.
`Scholarship 31, 32 n.4 (2013) (observing that BitTorrent was addressed in 271 federal court opinions in 2012 alone).
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`1:13-cv-12178-TLL-CEB Doc # 10 Filed 07/31/13 Pg 5 of 9 Pg ID 75
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`12-2078, 2013 WL 3038025, at *1 (E.D. Pa. June 18, 2013) (footnote omitted) (emphasis in
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`original).
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`A number of Plaintiff’s copyrighted works have evidently been making the rounds on
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`BitTorrent. Plaintiff wants to put a stop to it. So Plaintiff has hired a forensic investigator: IPP,
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`Limited.
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`From March 22, 2013 to April 8, 2013, the complaint alleges, IPP “established a direct
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`TCP/IP connection with Defendant’s IP address.” Compl. ¶ 17. A device using Defendant’s IP
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`address was a part of swarms copying and distributing complete copies of 10 of Plaintiff’s
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`copyrighted works. See id. ¶¶ 18–21; id. Ex. A.
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`From Defendant’s IP address Plaintiff downloaded bits of each of Plaintiff’s 10 works.15
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`Compl. ¶ 20. And from the swarm, Plaintiff downloaded the complete work (meaning that the
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`device on Defendant’s IP address had copied and was distributing the complete work to the
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`swarm as well). Id. This litigation ensued.
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`C
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`In May 2013, Plaintiff filed a complaint against John Doe in this Court alleging direct
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`copyright infringement of Plaintiff’s works. The same day, Plaintiff moved for leave to file
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`third-party subpoenas on Defendant’s internet service provider to learn the identity of the
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`subscriber of IP address 24.247.208.185. The motion was granted.
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`Defendant now moves to quash the subpoena issued to his internet service provider.
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`15 Specifically, on March 22, IPP downloaded from Defendant’s IP address “Vacation Fantasy.” Compl.
`Ex. A. On March 27, “Lovers in Paradise.” Id. On April 6, “Angie VIP Lounge,” “Tiffany Teenagers In Love,” and
`“Anneli Dream Girl.” Id. On April 7, “The Masseuse,” “Red Hot Summer,” “Blonde Ambition,” and “Flexible
`Beauty.” Id. And on April 8, “Sacred Romance.” Id.
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`-5-
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`1:13-cv-12178-TLL-CEB Doc # 10 Filed 07/31/13 Pg 6 of 9 Pg ID 76
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`II
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`A
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`Defendant first asserts that “the complaint fails to allege any volitional act by defendant
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`that amounts to copyright infringement. Instead, plaintiff alleges that defendant ‘controls’ his
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`ISP and that he is ‘the most likely infringer’ without any basis for such allegation.” Def.’s Br. 1.
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`Effectively, Defendant is arguing that the complaint should be dismissed for not stating a
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`claim on which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Yet accepting the allegations
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`in the complaint as true, as this Court must on a Rule 12(b)(6) motion, it states a prima facie case
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`of copyright infringement.
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`Section 106 of the Copyright Act provides that the copyright owner “has the exclusive
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`rights . . . (1) to reproduce the copyrighted work in copies . . . [and] (3) to distribute copies . . . of
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`the copyrighted work to the public by sale or other transfer of the ownership, or by rental, lease,
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`or lending.” 17 U.S.C. § 106.
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`To plead a prima facie case of copyright infringement of a motion picture, a plaintiff
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`must allege that: (1) it owns a valid copyrights in the motion picture; and (2) the defendant
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`violated one or more of the exclusive rights that § 106 grants copyright holders. Columbia
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`Pictures Indus., Inc. v. T & F Enters., Inc., 68 F. Supp. 2d 833, 837 (E.D. Mich. 1999) (citing
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`Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985)).
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`Here, the complaint alleges both elements. Paragraph 29 alleges that Plaintiff owns a
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`copyright for the 10 works that Defendant copied and distributed. Paragraph 30 alleges that
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`Defendant violated the exclusive rights that § 106 grants Plaintiff by distributing Plaintiff’s
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`copyrighted work without Plaintiff’s authorization. These factual assertions plausibly state a
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`claim for relief on which relief may be granted.
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`1:13-cv-12178-TLL-CEB Doc # 10 Filed 07/31/13 Pg 7 of 9 Pg ID 77
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`Defendant’s argument to the contrary — that the complaint doesn’t state a claim because
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`it “fails to allege any volitional act by defendant” — lacks merit. The argument is presumably
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`based on paragraph 24 of the complaint, which asserts: “As the subscriber in control of the IP
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`address being used to distribute Plaintiff’s copyrighted movies, Defendant is the most likely
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`infringer. Consequently, Plaintiff hereby alleges Defendant is the infringer.”
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`To survive a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient
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`factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (quoting Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard,” the Supreme Court cautions,
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`“is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
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`defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
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`Here, as noted, the complaint alleges that Defendant exercises control over the IP address
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`in question. Defendant is the person who purchased an internet subscription and was assigned
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`the unique IP address at issue. And that unique IP address is being used to distribute Plaintiff’s
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`copyrighted movies. While there is a possibility that a third party has somehow gained access to
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`Defendant’s IP address, the more likely explanation is that it is Defendant who is distributing
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`Plaintiff’s works. This is all that is required to plausibly state a claim for relief on which relief
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`may be granted.
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`B
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`Defendant’s second argument is that “typically, these suits are designed to intimidate
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`innocent subscribers and force them to settle — regardless of liability — simply to avoid a public
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`accusation that they illegally downloaded pornographic material.” Def.’s Br. 1.
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`1:13-cv-12178-TLL-CEB Doc # 10 Filed 07/31/13 Pg 8 of 9 Pg ID 78
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`Implicitly, Defendant appears to be making a First Amendment argument. See Sony
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`Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556, 562 (S.D.N.Y. 2004) (“The Supreme Court
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`has recognized that the First Amendment protects anonymous speech. . . . It is well-settled that
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`the First Amendment’s protection extends to the Internet”); see also Arista Records, LLC v. Doe
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`3, 604 F.3d 110, 118 (2d Cir. 2010) (“To the extent that anonymity is protected by the First
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`Amendment, a court should quash or modify a subpoena designed to breach anonymity.”).
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`But, as the Second Circuit cogently observes: “The First Amendment does not . . .
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`provide a license for copyright infringement. Thus, to the extent that anonymity is used to mask
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`copyright infringement or to facilitate such infringement by other persons, it is unprotected by
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`the First Amendment.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir. 2010)
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`(citations omitted) (citing Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555–
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`57 (1985); Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 849 (11th Cir.
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`1990); Sony Music, 326 F. Supp. 2d at 563).
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`Here, accepting the allegations in the complaint as true for present purposes, that is
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`precisely what is happening. See Sony Music, 326 F. Supp. 2d at 565. Moreover, Plaintiff writes
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`that it “does not object to allowing Defendant to remain anonymous through the end of discovery
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`so long as Plaintiff is not prevented from conducting discovery in an orderly and efficient
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`manner.” Pl.’s Resp. to Def.’s Mot. to Quash 5. Defendant’s argument that the subpoena
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`should be quashed because it is simply an in terrorem strategy lacks merit.
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`1:13-cv-12178-TLL-CEB Doc # 10 Filed 07/31/13 Pg 9 of 9 Pg ID 79
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`Accordingly, it is ORDERED that Defendant’s motion to quash (ECF No. 6) is
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`III
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`DENIED.
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`s/Thomas L. Ludington
`THOMAS L. LUDINGTON
`United States District Judge
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`PROOF OF SERVICE
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`The undersigned certifies that a copy of the foregoing order was served
`upon each attorney or party of record herein by electronic means or first
`class U.S. mail on July 31, 2013.
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`s/Tracy A. Jacobs
`TRACY A. JACOBS
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`Dated: July 31, 2013
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`-9-