Case 2:12-cv-01256-KJM-JFM Document 7 Filed 06/28/12 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
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`Case No. 12-CV-01256-KJM-JFM
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`ORDER GRANTING PLAINTIFF’S
`MOTION FOR LEAVE TO SERVE
`THIRD PARTY SUBPOENAS
`PRIOR TO A RULE 26(f)
`CONFERENCE
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`THIRD DEGREE FILMS, INC., a
`California corporation,
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`Plaintiff,
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`v.
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`JOHN DOES 1 through 18,
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`Defendants.
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`Order Granting Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference
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`Case 2:12-cv-01256-KJM-JFM Document 7 Filed 06/28/12 Page 2 of 7
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`THIS CAUSE came before the Court upon Plaintiff’s Motion for Leave to
`Serve Third Party Subpoenas Prior to a Rule 26(f) Conference (the “Motion”), and
`the Court being duly advised in the premises does hereby:
`FIND, ORDER AND ADJUDGE:
`Plaintiff Third Degree Films, Inc., is the registered owner of the
`1.
`copyrights to the motion picture titled “The Art of Anal 2.”
`Plaintiff filed a complaint against Doe defendants alleging direct
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`copyright infringement and contributory copyright infringement. Compl. ¶¶ 45-61.
`The Cable Privacy Act generally prohibits cable operators from
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`disclosing personally identifiable information regarding subscribers without either
`(1) the prior written or electronic consent of the subscriber; or (2) a court order,
`provided the cable operator provides the subscriber with notice of the disclosure. 47
`U.S.C. § 551(c)(1),(c)(2)(B). A cable operator is defined as “any person or group
`of persons (A) who provides cable service over a cable system and directly or
`through one or more affiliates owns a significant interest in such cable system, or
`(B) who otherwise controls or is responsible for, through any arrangement, the
`management and operation of such a cable system.” 47 U.S.C. § 522(5).
`Accordingly, Plaintiff seeks a court order instructing Comcast Cable, Road Runner,
`SBC Internet Services, SureWest Broadband, and Wave Broadband to produce
`documents and information sufficient to identify the users of the IP addresses. A
`chart of the Internet Protocol Addresses and corresponding Internet Service
`Providers is below:
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`1
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`Comcast Cable
`24.10.120.88
`Comcast Cable
`24.10.77.9
`Comcast Cable
`24.2.56.132
`67.166.140.171 Comcast Cable
`67.172.171.237 Comcast Cable
`76.20.43.4
`Comcast Cable
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`Order Granting Plaintiff’s Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference
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`Case 2:12-cv-01256-KJM-JFM Document 7 Filed 06/28/12 Page 3 of 7
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`Comcast Cable
`98.208.16.86
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`Comcast Cable
`98.244.45.57
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`98.148.194.79 Road Runner
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`64.160.117.151 SBC Internet Services
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`68.123.110.159 SBC Internet Services
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`75.48.8.35
`SBC Internet Services
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`75.6.133.22
`SBC Internet Services
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`99.47.212.180 SBC Internet Services
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`99.60.73.245
`SBC Internet Services
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`99.90.61.152
`SBC Internet Services
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`69.62.188.72
`SureWest Broadband
`17
`24.113.248.119 Wave Broadband
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`Consistent with the vast majority of district courts in this Circuit to
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`consider the issue, the undersigned finds that good cause supports permitting
`plaintiff to conduct limited early discovery in order to discover the identities of the
`Doe defendants. First, Plaintiff has only named Doe Defendants in this action, has
`declared through its counsel that the identities of the Doe Defendants are unknown
`to Plaintiff at this time, and has credibly declared through its counsel that Plaintiff
`cannot serve the Complaint until it conducts discovery into the identities of the
`persons associated with the IP addresses in Exhibit A to Plaintiff's counsel's
`declaration. See Declaration of Leemore Kushner (“Kushner Decl.”) at ¶¶ 3-4.
`Second, Plaintiff plainly cannot conduct a Rule 26(f) conference without knowing
`the names and contact information of the Doe defendants. Kushner Decl. at ¶ 3.
`Third, Plaintiff's representations presently support that each IP address is associated
`with a particular
`individual and
`that
`the discovery sought will facilitate
`identification of the defendants and service of process. Kushner Decl. at ¶ 4. The
`Court also finds that the ISPs will not suffer any material prejudice by being served
`with Rule 45 subpoenas that require the ISPs to provide the names and contact
`information of some of its customers. Plaintiff's discovery is limited in terms of the
`type of information sought.
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`Case 2:12-cv-01256-KJM-JFM Document 7 Filed 06/28/12 Page 4 of 7
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`Courts in the Ninth Circuit have considered four factors derived from
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`Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D.Cal. 1999), in evaluating
`motions for permission to conduct early discovery in cases such as this one,
`“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) proves that
`the discovery is likely to lead to identifying information that will permit service of
`process.” See MCGIP, LLC v. Does 1-49, 2011 WL 3607666 at *2 (citing
`Columbia Ins. Co., 185 F.R.D. at 578-80).
`A.
`Identification of Defendants: Plaintiff provides the Court with the
`unique IP addresses and names of the ISPs that provided internet access for the users
`of the identified IP addresses. IPP Limited, Plaintiff’s investigator, allegedly
`recorded each IP address assigned to the defendants by the ISP, sending it a piece of
`plaintiff’s copyrighted work in violation of plaintiff’s exclusive distribution right
`under 17 U.S.C. §106. The requested discovery will provide the true names and
`addresses of the individuals Plaintiff alleged performed the infringing acts. Plaintiff
`has alleged and Plaintiff’s counsel has declared that, the ISP has the ability to
`correlate the IP Address used to commit the infringement to the subscriber of
`internet service, who Plaintiff alleged committed the infringement. See Kushner
`Decl. at ¶ 5. The court finds that plaintiff has sufficiently identified each John Doe
`defendant such that the court can determine that the defendants are real persons or
`entities who may be sued in federal court.
`B.
`Previous Steps Taken to Locate Defendants: Plaintiff has identified the
`Doe defendants' IP addresses and ISPs. Because the transactions at issue occurred
`entirely online, the IP addresses and ISPs are the defendants' only available
`identifying information. Without discovery, there are no other measures Plaintiff
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`Case 2:12-cv-01256-KJM-JFM Document 7 Filed 06/28/12 Page 5 of 7
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`can take to identify the Doe defendants or obtain their personal information. The
`Court therefore finds that Plaintiff has made a good faith effort to comply with the
`requirements of service of process and specifically identify defendants. See
`Columbia Ins. Co., 185 F.R.D. at 579.
`C. The Action can Withstand a Motion to Dismiss: “[A] plaintiff who
`claims copyright infringement must show: (1) ownership of a valid copyright; and
`(2) that the defendant violated the copyright owner's exclusive rights under the
`v. Robertson, 357 F.3d
`Copyright Act.” Ellison
`1072,
`1076
`(9th
`Cir.2004) (citing 17 U.S.C. § 501(a) (2003); Ets–Hokin v. Skyy Spirits, Inc., 225
`F.3d 1068, 1073 (9th Cir.2000)). To prove a claim of direct copyright infringement,
`“a plaintiff must show that he owns the copyright and that the defendant himself
`violated one or more of the plaintiff's exclusive rights under the Copyright Act,”
`whereas “[o]ne who, with knowledge of the infringing activity, induces, causes or
`materially contributes to the infringing conduct of another may be liable as a
`‘contributory’ [copyright] infringer. Id. (alteration in original) (citation omitted).
`The Ninth Circuit has “interpreted the knowledge requirement for contributory
`copyright infringement to include both those with actual knowledge and those
`who have reason to know of direct infringement.” Id. (alteration in original)
`(citation omitted). Plaintiff alleges that it is the owner, and holds the copyright
`registration certificate, of a motion picture that Defendants copied and publicly
`distributed without authorization. Plaintiff alleges that the Defendants knew or
`should have known that other BitTorrent users in a swarm with it, here the other
`Defendants, were directly infringing Plaintiff’s copyrighted Work by copying
`constituent elements of the registered Work that are original and each Defendant
`directly participated in and therefore materially contributed to each other
`Defendant’s infringing activities. Compl. ¶¶ 57-59. Accordingly, Plaintiff has
`alleged the prima facie elements of both direct and contributory copyright
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`Case 2:12-cv-01256-KJM-JFM Document 7 Filed 06/28/12 Page 6 of 7
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`infringement and could withstand a motion to dismiss these claims. See Columbia
`Ins. Co., 185 F.R.D. at 579–80. In this case, Third Degree Films, Inc., has alleged
`sufficient facts to withstand a motion to dismiss on its claim asserted in this lawsuit.
`i.
`Joinder: Consistent with the overwhelming majority of Courts to
`consider the issue, prior to the identification of the Doe Defendants, this Court finds
`joinder is proper. This finding is made without prejudice to the Defendant’s ability
`to raise the issue after the disclosure of the Doe Defendants’ identities. (See Liberty
`Media Holdings, LLC v. Does 1-62, 2011 WL 1869923 (S.D. Cal. 2011);
`OpenMind Solutions, Inc. v. Does 1-39, 2011 WL 4715200 (N.D. Cal. 2011)).
`D. Reasonable Likelihood that Discovery will lead to Identification: The
`fourth factor examines whether Plaintiff has demonstrated that there is a reasonable
`likelihood that the discovery it requests will lead to the identification of Defendants
`such that it may effect service of process. Columbia Ins. Co., 185 F.R.D. at 580. As
`indicated above, Plaintiff contends that the key to locating Defendants is through the
`IP addresses associated with the alleged activity on BitTorrent. Specifically,
`Plaintiff contends that because ISPs assign a unique IP address to each subscriber
`and retain subscriber activity records regarding the IP addresses assigned, the
`information sought in the subpoena will enable Plaintiff to serve Defendants and
`proceed with this case. Taking this into account, the Court finds that Plaintiff has
`made a sufficient showing as to this factor.
` For Good Cause shown, It Is Hereby Ordered that:
`6.
`(A) Plaintiff Third Degree Films, Inc., may serve subpoenas, pursuant
`to Fed.R.Civ.P. 45, on Comcast Cable, Road Runner, SBC Internet Services,
`SureWest Broadband, and Wave Broadband that seek information sufficient to
`identify the Defendants, including their names, current addresses, telephone
`numbers and e-mail addresses;
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`Case 2:12-cv-01256-KJM-JFM Document 7 Filed 06/28/12 Page 7 of 7
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`(B)
` Plaintiff Third Degree Films, Inc. may only use the information
`disclosed for the sole purpose of protecting its rights in pursuing this litigation;
`(C)
` Within thirty (30) calendar days after service of the subpoenas,
`Comcast Cable, Road Runner, SBC Internet Services, SureWest Broadband, and
`Wave Broadband shall notify the subscribers that their identities are sought by Third
`Degree Films, Inc. and shall deliver a copy of this order to them;
`Comcast Cable, Road Runner, SBC Internet Services, SureWest Broadband,
`and Wave Broadband shall not require plaintiff to pay a fee in advance of providing
`the subpoenaed information; nor shall Comcast Cable, Road Runner, SBC Internet
`Services, SureWest Broadband, and Wave Broadband require plaintiff to pay a fee
`for an IP address that is not controlled by it, or for duplicate IP addresses that
`resolve to the same individual, or for an IP address that does not provide the name
`of a unique individual, or for their internal costs to notify its customers. If
`necessary, the Court shall resolve any disputes between Comcast Cable, Road
`Runner, SBC Internet Services, SureWest Broadband, and Wave Broadband and
`Plaintiff regarding the reasonableness of the amount proposed to be charged by
`Comcast Cable, Road Runner, SBC Internet Services, SureWest Broadband, and
`Wave Broadband after the subpoenaed information is provided to plaintiff.
`IT IS SO ORDERED.
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`Date: 6/27/2012
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`______________________________________
`UNITED STATES MAGISTRATE JUDGE
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`DEAC_Signature-END:
`9cekb3i
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