Case 2:15-cv-06337-CMR Document 7 Filed 01/19/16 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`Plaintiff,
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`MALIBU MEDIA, LLC,
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`JOHN DOE subscriber assigned IP Address
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`68.80.134.5,
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`Defendant.
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`Case No. 2:15-cv-06337-CMR
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`PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO QUASH
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`Plaintiff, Malibu Media, LLC (“Plaintiff”), by and through undersigned counsel, files the
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`instant response to Defendant John Doe’s (“Defendant”) Motion to Quash (“Defendant’s
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`Motion”) [CM/ECF 6].
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`I.
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`INTRODUCTION
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`Plaintiff’s constitutional right under the Petition Clause to seek redress for the online
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`infringement of its copyrights is at issue. Without the ability to obtain a subscriber’s identity in
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`an online infringement case, there is no remedy for online copyright infringement. Granting
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`Defendant’s motion to quash would be inconsistent with the Copyright Act, congressional intent,
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`Third Circuit precedent, and the nearly universal opinion of district court judges around the
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`country. The Court need not do so, however, because, as explained below, none of Defendant’s
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`three arguments to support his request have merit. Stated simply, Defendant’s Motion fails to
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`assert a legally cognizable reason to quash a subpoena under Rule 45.
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`1
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`Case 2:15-cv-06337-CMR Document 7 Filed 01/19/16 Page 2 of 8
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`II.
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`LEGAL STANDARD
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`At issue is Defendant’s request that the Court quash the Rule 45 subpoena directed at
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`Defendant’s internet service provider. This request is governed by Rule 45(d)(3) which sets
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`forth six limited situations under which a subpoena may be quashed (or modified): (1) if the
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`subpoena “fails to allow a reasonable time to comply”; (2) if the subpoena requires a non-party
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`to travel more than 100 miles (except for trial within the state); (3) if the subpoena requires
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`disclosure of privileged materials; (4) if the subpoena subjects a person to “undue burden”; (5) if
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`the subpoena requires disclosure of “a trade secret or other confidential research, development,
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`or commercial information”; or (6) if the subpoena requires disclosure of certain expert opinions.
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`See Fed. R. Civ. P. 45(d)(3)(A)–(B). The six circumstances enumerated in Rule 45(d)(3) are the
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`only permissible circumstances under which a motion to quash may be granted. See Fed. R. Civ.
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`P. 45(d)(3)(A)–(B); Malibu Media, LLC v. John Does, No. 12-cv-03170, 2013 WL 1164867, *2
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`(D. Colo. Mar. 20, 2013) (denying a motion to quash in a similar action under similar
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`circumstances, emphasizing: “no other grounds are listed”); Malibu Media, LLC v. Doe, No.
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`JKB-13-512, 2013 WL 6577039, *1 (D. Md. Dec. 12, 2013) (same); Malibu Media, LLC v. John
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`Does 1–9, No. 8:12-cv-00669, CM/ECF 25 (M.D. Fla. July 6, 2012) (same).
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`III. ARGUMENT
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`A. Even if Defendant—the Subscriber Assigned the IP Address Used to Infringe
`Plaintiff’s Copyrights—Is Not the Infringer, the Subpoenaed Information
`Remains Relevant and Discoverable
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`Although Defendant does not actually deny using his Internet to infringe Plaintiff’s
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`copyrights, he asks the Court to foreclose Plaintiff from proceeding with its claims since, at this
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`point, it has not discovered evidence to exclude the possibility of a third-party infringer. As
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`Defendant explains, any person of his household “would have unrestricted internet access,” such
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`Case 2:15-cv-06337-CMR Document 7 Filed 01/19/16 Page 3 of 8
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`that pinpointing Defendant, as opposed to his family members, as the actual infringer “is
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`guessing.” CM/ECF 6 at p. 2. This argument fails; while Defendant is very likely the infringer,
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`even if someone else used Defendant’s Internet to infringe Plaintiff’s copyrights—a
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`consideration that is entirely premature at this stage of the litigation—Defendant’s identity
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`remains relevant and discoverable under the Federal Rules.
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`Identifying Defendant, the subscriber of the infringing IP address, is the only way to
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`identify the infringer; even if Defendant is not responsible, he likely possesses information that
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`will assist Plaintiff in identifying who is. This is extremely well-settled; courts repeatedly and
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`uniformly instruct that the possibility that an internet subscriber is not the actual infringer is not a
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`sufficient basis for quashing a Rule 45 subpoena. See, e.g., Malibu Media, LLC v. Does, No.
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`CIV.A. 12-07789 KM, 2014 WL 229295, at *8–9 (D.N.J. Jan. 21, 2014) (“The appropriate
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`inquiry … is … whether the information sought reasonably leads to the discovery of admissible
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`evidence. [I]t is possible that the Internet subscriber did not download the infringing material. It
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`is also possible, however, that the subscriber either knows, or has additional information which
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`could lead to the identification of the alleged infringer. If any defendant could quash a subpoena
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`based on the mere possibility that someone else has used the defendant subscriber’s IP address to
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`perpetuate the alleged infringement, then a plaintiff would be unable to enforce its rights.”); see
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`also Malibu Media, LLC v. Doe, No. 15-1742, 2015 WL 5996319, at *2 (D. N.J. Oct. 14, 2015)
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`(same); Malibu Media, LLC v. Doe, No. CIV.A. 14-3945 MAS, 2015 WL 3795716, at *4 (D.
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`N.J. June 18, 2015) (same); Malibu Media, LLC v. Doe, No. 13 C 8484, 2014 WL 1228383, *2
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`(N.D. Ill. Mar. 24, 2014) (same); TCYK, LLC v. Does, No. 2:13-cv-539, 2013 WL 4805022, *4
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`(S.D. Ohio Sept. 9, 2013) (same); Malibu Media, LLC v. Doe, 2013 WL 5876192 (E.D. Wis.
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`2013) (same).
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`Case 2:15-cv-06337-CMR Document 7 Filed 01/19/16 Page 4 of 8
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`B. Defendant Does Not Have a Reasonable Expectation of Privacy in the
`Subpoenaed Information Pursuant to Rule 45(d)(3)(A)(iii)
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`Defendant’s second argument is that an order quashing the Rule 45 subpoena is needed to
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`prevent disclosure of private and sensitive information. Defendant bizarrely asserts, without any
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`support or explanation, that failure to quash the Rule 45 subpoena may expose his “credit card
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`information, purchase history, medical documents, appointments, job searches, as well as social
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`media contacts….” CM/ECF 6 at p. 2. This argument is without any factual support whatsoever
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`and should be rejected outright. To be sure, Plaintiff has only requested—and the Court has only
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`authorized—issuance of a subpoena to learn Defendant’s true name and address. See CM/ECF
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`4–5. This information, which is necessary for Plaintiff to effectuate service of process and
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`proceed with this suit, is the only information that Plaintiff will obtain.
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`Further, Defendant’s privacy argument is foreclosed by well-established law. “Courts
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`have consistently ruled that Internet subscribers do not have a reasonable expectation of privacy
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`in their subscriber information. This is because Internet subscribers have already voluntarily
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`conveyed their subscriber information—name, address, and phone number to their Internet
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`Service Provider. … Accordingly, [BitTorrent copyright infringement defendants] cannot now
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`claim that such information is so confidential as to establish a basis for quashing a subpoena.”
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`Malibu Media, LLC v. John Does 1-18, No. CIV.A. 12-07789 KM, 2014 WL 229295, at *6–7
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`(D. N.J. Jan. 21, 2014); see also Malibu Media, LLC v. Doe, No. CIV.A. 14-3945 MAS, 2015
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`WL 3795716, at *3 (D. N.J. June 18, 2015) (denying motion to quash and rejecting argument
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`that the defendant’s “identifying information is so confidential as to establish a basis for
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`quashing the subpoena”); Malibu Media, LLC v. Does, No. 1:12-cv-263, 2012 WL 6019259, *4
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`(N.D. Ind. Dec. 3, 2012) (“there is no expectation of privacy in Internet subscriber information
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`because it has already been exposed to a third party, the Internet Service Provider. … Doe’s
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`Case 2:15-cv-06337-CMR Document 7 Filed 01/19/16 Page 5 of 8
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`argument that fulfilling the subpoena would invade his privacy and jeopardize his identity is
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`insufficient to quash the subpoena as he has no expectation of privacy in the identifying
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`information the subpoena seeks from the ISP.”); Raw Films, Ltd. V. John Does 1-15, No. 11-
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`7248, 2012 WL 1019067, *8 (E.D. Pa. Mar. 26, 2012) (holding that individuals who use the
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`internet to illegally copy and distribute copyrighted material have a minimal expectation of
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`privacy since they “have already voluntarily given up certain information by engaging in that
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`behavior”).
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`C. To The Extent Defendant’s Ad Hominem Attack Purports to Assert “Undue
`Burden” Under Rule 45(d)(3)(iv), He Lacks Standing
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`Defendant’s final argument is that he has googled Plaintiff and formed a belief that
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`Plaintiff will inundate him with phone calls and letters urging him to settle. See CM/ECF 6 at p.
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`1–2. Presumably, Defendant’s argument is that the quashing the subpoena is necessary to avoid
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`subjecting him to undue burden. This argument is factually and legally untenable.
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`Factually, Defendant will not be exposed to any sort of burden and Plaintiff will not
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`harass Defendant to settle. Other than vaguely referring to google, Defendant does not identify
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`the source of the any information that would leave him to believe otherwise. Truth be told,
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`Defendant’s allegations appear to be entirely fabricated insofar as Plaintiff never calls defendants
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`to discuss settlement, nor does it ever even initiate settlement discussions with defendants prior
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`to service of process. To urge this Court to infer otherwise, Defendant refers to an outlier
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`opinion from the Southern District of Ohio, wherein one judge, concerned about so-called
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`copyright trolls and less familiar with Plaintiff, opined that Plaintiff might engage in abusive
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`litigation tactics. See CM/ECF 6 at p. 2–3. Plaintiff respectfully disagrees with that commentary
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`and submits that it is erroneous. Indeed, following an extensive trial, this Court ruled that
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`Plaintiff is not likely to abuse the process and that the criticism attributed to “copyright trolls” is
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`Case 2:15-cv-06337-CMR Document 7 Filed 01/19/16 Page 6 of 8
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`unwarranted when directed at Plaintiff. See Malibu Media, LLC v. Does, 950 F. Supp. 2d 779,
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`780–87 (E.D. Pa. 2013) (“Because of significant interest in these cases, I have prepared this
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`report of the proceedings, which may be of value to other judges in this and other districts who
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`have numerous cases involving similar allegations. In so doing, I emphasize that Malibu is not
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`what has been referred to in the media and legal publications, and in the internet blogosphere,
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`as a ‘copyright troll’ … Malibu is an actual producer of adult films and owns valid copyrights…
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`[It] spends substantial amounts of money to operate its business. Malibu’s expenses include
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`compensation to actors, payments for servers and website maintenance, and purchases of
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`bandwidth, among other things. Malibu’s subscription base has not increased over the last
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`several years because people are downloading its movies for free via the BitTorrent Protocol.”).
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`And, nearly every other court to address this issue has ruled in accord.1 “In order to establish an
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`undue burden, Defendant must show a ‘clearly defined and serious injury.’” Malibu Media,
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`2014 WL 229295, at *8. It is “the rare civil lawsuit in which a defendant is not accused of
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`behavior of which others may disapprove” and presented with a settlement offer to resolve the
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`dispute; Defendant’s vague and speculative assertions derived from some alleged google
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`searches and his misplaced reliance on an isolated and inapposite Southern District of Ohio
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`opinion “fail to demonstrate a clearly defined and serious injury.” Id.
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`Legally, Defendant lacks standing to assert undue burden under Rule 45(d)(3)(iv).
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`“[T]he undue burden contemplated by Rule 45 is one placed on the direct recipient of the
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`1 See, e.g., Malibu Media v. John Doe, Case No. 1:15-cv-01834, CM/ECF 19 (S.D.N.Y. July 20, 2015) (holding that
`courts should not refuse to grant a Rule 45 subpoena to Plaintiff on the basis that Plaintiff might use the subpoena as
`an instrument of abuse—“It would be unfair to assume that Malibu would employ abusive litigation tactics…”);
`Malibu Media, LLC v. Doe, 285 F.R.D. 273, 278 (S.D.N.Y. 2012) (“None of the instances of improper litigation
`tactics involve Plaintiff or Plaintiff’s counsel. We are reluctant to prevent plaintiff from proceeding with its case
`based only on a ‘guilt-by-association’ rationale.”); Malibu Media, LLC v. Doe, No. 14-cv-00259, 2014 WL
`1689935, *2–5 (D. Colo. April 28, 2014) (“[T]his Court and others have found Plaintiff does not engage in improper
`litigation tactics. [T]he Court has personally observed Plaintiff’s willingness to settle and/or dismiss cases without
`payment of any damages where the defendant has come forward with exculpatory evidence”).
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`Case 2:15-cv-06337-CMR Document 7 Filed 01/19/16 Page 7 of 8
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`subpoena, the ISP in this case, not on third parties such as the Doe defendants.” CineTel Films,
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`Inc. v. Does, 853 F. Supp. 2d 545, 556 (D. Md. 2012). “[The] argument that the subpoena
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`presents an undue burden is unavailing because the subpoena is directed toward the ISPs and not
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`the Doe Defendants and accordingly does not require them to produce any information or
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`otherwise respond. [B]ecause the subpoena is directed to a third party, Comcast, John Doe 14
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`cannot establish that it imposes an undue burden.” Malibu Media, LLC, 2014 WL 229295 at *7.
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`This legal analysis is now very well established—courts throughout the Third Circuit and across
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`the country agree that BitTorrent copyright infringement defendants lack standing to contest
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`third-party subpoenas on the basis of undue burden. Accord Malibu Media, 2015 WL 3795716,
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`at *3 (D.N.J. June 18, 2015) (“Defendant is not faced with an undue burden because the
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`subpoena is directed at the Internet Service Provider and not the Defendant. Defendants do not
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`have standing to contest the third-party Subpoenas on the basis of undue burden. [I]t is the
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`Internet Service Provider that is compelled to disclose the information, and thus, its prerogative
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`to claim an undue burden.”); Breaking Glass Pictures v. John Does 1-32, No. 2:13-CV-849,
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`2014 WL 467137, at *6 (S.D. Ohio Feb. 5, 2014) (same); Malibu Media, LLC v. Does, No. 12-
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`3896, 2012 WL 6203697, at *4 (D. N.J. Dec. 12, 2012) (same); Malibu Media, LLC v. Does, No.
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`12-2077, 2012 WL 3089383, at *8 (E.D. Pa. July 30, 2012) (same); Third Degree Films, Inc. v.
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`Does, No. 11-cv-03006, 2011 WL 6837774, at *3 (D. Md. Dec. 28, 2011) (same); Samad Bros.,
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`Inc. v. Bokara Rug Co., Inc., No. 09 Civ. 5843, 2010 WL 5094344, at *2 (S.D.N.Y. Nov. 30,
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`2010) (same); see also Malibu Media, LLC v. Does, 902 F.Supp.2d 690. 698 (E.D. Pa. 2012)
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`(“The Court rejects the assertion that the third-party subpoenas served on the ISPs would subject
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`the John Does to undue burden. Notably, the subpoenas are addressed to third parties—the ISPs,
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`not the John Does. The ISPs have not objected to the subpoenas, nor would any objection by
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`Case 2:15-cv-06337-CMR Document 7 Filed 01/19/16 Page 8 of 8
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`them have much chance of success….”); CineTel Films, Inc. v. Does, 853 F. Supp. 2d 545, 556
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`(D. Md. 2012) (“[T]he undue burden contemplated by Rule 45 is one placed on the direct
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`recipient of the subpoena, the ISP in this case, not on third parties such as the Doe defendants.”).
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`IV. CONCLUSION
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`For the foregoing reasons, Plaintiff respectfully requests that this Court deny Defendant’s
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`Motion.
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`Respectfully submitted,
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`FIORE & BARBER, LLC
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` /s/ Christopher P. Fiore
`Christopher P. Fiore, Esquire
`418 Main Street, Suite 100
`Harleysville, PA 19438
`Tel: (215) 256-0205
`Fax: (215) 256-9205
`E-mail: cfiore@fiorebarber.com
`Attorneys for Plaintiff
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`CERTIFICATE OF SERVICE
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` I
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` hereby certify that on January 19, 2016, I electronically filed the foregoing document
`with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of
`record and interested parties through this system.
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` /s/ Christopher P. Fiore
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