Strike 3 Holdings, LLC v. Doe ( 2024 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 STRIKE 3 HOLDINGS, LLC, Case No.: 3:24-cv-00541-JO-DTF 9 Plaintiff, ORDER GRANTING EX PARTE 10 v. APPLICATION FOR LEAVE TO SERVE THIRD-PARTY SUBPOENA 11 JOHN DOE, subscriber assigned IP PRIOR TO RULE 26(F) address 50.113.87.62, 12 CONFERENCE Defendant. 13 [ECF 4] 14 15 16 The Ex Parte Application for Leave to Serve a Third-Party Subpoena Prior to a 17 Federal Rule of Civil Procedure 26(f) Conference of Strike 3 Holdings, LLC, Plaintiff, is 18 GRANTED. 19 I. BACKGROUND 20 On March 21, 2024, Plaintiff filed a Complaint alleging copyright infringement 21 against John Doe (Doe Defendant), subscriber assigned Internet Protocol (IP) address 22 50.113.87.62. (Compl. [ECF No. 1].) On April 17, 2024, Plaintiff filed the application 23 here, seeking leave to serve a third-party subpoena to ascertain the identity of Doe 24 Defendant. (ECF No. 4-1.1) 25 26 27 1 Unless otherwise indicated, the Court cites to the Case Management/Electronic Case 28 Files docket for this case. 1 In its Complaint, Plaintiff alleges that Defendant is liable for direct copyright 2 infringement. (Compl. ¶¶ 48-53.) Plaintiff alleges it owns the copyrights for movies it 3 distributes through adult websites and DVD sales. (Id. ¶¶ 2, 14.) Plaintiff alleges Doe 4 Defendant used BitTorrent, a peer-to-peer file sharing system, to copy and distribute its 5 movies without consent. (Id. ¶¶ 18-47.) As discussed further below, to identify the IP 6 address that was illegally distributing its works, Plaintiff utilized its proprietary forensic 7 software, VXN Scan (VXN). (Id. ¶¶ 28-42.) 8 As it can only identify Doe Defendant by the IP address used, Plaintiff requests 9 permission to serve a Rule 45 subpoena on the Internet Service Provider (ISP) that issued 10 the IP address to Doe Defendant, Spectrum. (ECF 4-1 at 17.) The proposed subpoena only 11 demands the name and address of Doe Defendant, and Plaintiff indicates it will only use 12 this information to prosecute claims in the Complaint. (Id. at 8.) 13 Plaintiff claims good cause exists to grant the Application because: (1) Plaintiff has 14 identified Doe Defendant with sufficient specificity through geolocation technology and 15 forensic investigation; (2) Plaintiff has identified all previous steps taken to locate Doe 16 Defendant; (3) Plaintiff’s Complaint could withstand a motion to dismiss; and (4) Plaintiff 17 has established that there is a reasonable likelihood that Plaintiff can identify Doe 18 Defendant and effectuate service. (Id. at 10-18.) 19 II. STANDARD OF REVIEW 20 Absent a court order, discovery is generally not allowed before parties’ Rule 26(f) 21 conference. See Fed. R. Civ. P. 26(d)(1). But, because “a plaintiff cannot have a discovery 22 planning conference with an anonymous defendant,” early discovery to identify a 23 defendant may be warranted. UMG Recordings, Inc. v. Doe, No. C-08-03999-RMW, 2008 24 WL 4104207, at *2 (N.D. Cal. Sept. 4, 2008). To determine whether early discovery is 25 warranted in a particular case, the court applies a “good cause” test by weighing the need 26 for discovery to further justice against the prejudice it may cause the opposing party. 27 Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002); see also 28 1 Strike 3 Holdings, LLC v. Doe, No. 17CV2317 JAH (BLM), 2017 WL 6389848, at *1 (S.D. 2 Cal. Dec. 14, 2017) (citing Semitool, 208 F.R.D. at 274). 3 When a defendant’s identity is unknown at the time a complaint is filed, a court may 4 grant a plaintiff leave to take early discovery to determine the defendant’s identity “unless 5 it is clear that discovery would not uncover the identit[y], or that the complaint would be 6 dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In 7 determining whether to grant leave for early discovery to ascertain a defendant’s identity, 8 district courts consider: (1) whether the plaintiff can “identify the missing party with 9 sufficient specificity such that the defendant is a real person or entity who could be sued in 10 federal court”; (2) whether the plaintiff has described “all previous steps taken to locate the 11 elusive defendant”; (3) whether the “suit against defendant could withstand a motion to 12 dismiss”; and (4) whether there “is a reasonable likelihood that the requested discovery 13 process [proposed] will lead to identifying information about defendant that would make 14 service of process possible.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578- 15 80 (N.D. Cal. 1999). 16 III. DISCUSSION 17 A. Identification of the Doe Defendant with Sufficient Specificity 18 Plaintiff has identified Doe Defendant with sufficient specificity to enable the Court 19 to determine whether Doe Defendant is a real person subject to the Court’s jurisdiction. 20 Columbia Ins., 185 F.R.D. at 578; see also Distinct Media Ltd. v. Doe Defendants 1-50, 21 Case No. 15-cv-3312 NC, 2015 WL 13389609, *2 (N.D. Cal. Sept. 29, 2015). To 22 determine whether a doe defendant has been identified with sufficient specificity, courts 23 look to whether a plaintiff provided “the unique IP address[ ] assigned to an individual 24 defendant on the day of the allegedly infringing conduct” and used “‘geolocation 25 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC v. 26 Collective of Dec. 29, 2011 Sharing Hash, Case No. 12CV00186 MMA (RBB), 2012 WL 27 12884688, at *4 (S.D. Cal. May 8, 2012) (collecting cases) (citing OpenMind Sols., Inc. v. 28 1 Does 1-39, No. C-11-3311 MEJ, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7, 2011)). 2 Identifying the unique IP address and location of the IP address has been shown to meet 3 the requirement for identifying a doe defendant with sufficient specificity. Id. 4 Plaintiff has submitted several declarations in support of its request to serve a Rule 5 45 subpoena: David Williamson, Plaintiff’s Chief Technology Officer (Ex. A [ECF 4-2 at 6 1-15] (Williamson Decl.); Patrick Paige of Computer Forensics LLC, retained to analyze 7 forensic evidence captured by Plaintiff’s infringement detection system (Ex. B [ECF 4-2 8 at 16-22] (Paige Decl.); Susan B. Stalzer, an employee of Plaintiff that verifies infringing 9 files are identical or strikingly similar to Plaintiff’s works (Ex. C [ECF 4-2 at 23-26] 10 (Stalzer Decl.); and Emile Kennedy, Plaintiff’s in-house General Counsel who verifies the 11 infringing IP address traces to Carlsbad (Ex. D [ECF 4-2 at 27-30] (Kennedy Decl.). 12 Plaintiff has identified Doe Defendant with sufficient specificity. Mr. Williamson’s 13 declaration explains that he “oversaw the design, development, and overall creation of the 14 infringement detection system called VXN Scan[,] which [Plaintiff] both owns and uses to 15 identify the IP addresses used by individuals infringing Plaintiff’s movies via the 16 BitTorrent protocol.” (Williamson Decl. ¶ 40.) One part of the VXN Scan system involves 17 the development of a proprietary BitTorrent client that emulates the behavior of a standard 18 BitTorrent client by repeatedly downloading data pieces from peers within the BitTorrent 19 network that are distributing Plaintiff’s movies. (Id. ¶¶ 52-55.) Mr. Williamson’s 20 declaration also explains that another component of the VXN Scan system is the PCAP2 21 Recorder that uses a PCAP Capture Card, which can record the IP addresses connecting to 22 the Proprietary Client and sending the infringed copies of Plaintiff’s work to the Proprietary 23 Client through the BitTorrent network. (Id. ¶¶ 57-59.) A PCAP contains the IP addresses 24 used in the network transaction, the port number and BitTorrent client used to accomplish 25 each transaction, and the “Info Hash” associated with the infringing computer file, which 26 27 28 2 PCAP stands for “Packet Capture.” (Williamson Decl. ¶ 58; Paige Decl. ⁋ 14.) 1 identifies the data that was shared in the recorded transaction as part of the specific digital 2 media file, i.e., an infringing copy of Plaintiff’s copyrighted works. (Id. ¶¶ 61-62.) The 3 PCAP Capture Card records perfect copies of every network packet received by the 4 Proprietary Client. (Id. ¶ 65.)3 5 Mr. Paige’s declaration explains that the VXN Scan recorded numerous BitTorrent 6 computer transactions with IP address 50.113.87.62 in the form of PCAPs. (Paige Decl. 7 ¶¶ 13-16.) Mr. Paige then reviewed the PCAP to confirm that it evidences a recorded 8 transaction with that IP address on March 4, 2024, at 07:24:49 UTC, involving the IP 9 address uploading a piece or pieces of a file corresponding to a specific hash value to VXN 10 Scan. (Id. ¶¶ 16-18.) He then explains that based on his experience in similar cases, 11 Defendant’s ISP is the only entity that can correlate the identified IP address to its 12 subscriber to pinpoint Defendant’s identity. (Id. ¶ 28.) 13 Ms. Stalzer’s declaration explains that she was provided the digital media files 14 identified using the VXN Scan’s Torrent Collector and Downloader, she compared them 15 side-by-side with Plaintiff’s original movies, and she verified they are copies of one of 16 Plaintiff’s copyrighted works. (Stalzer Decl. ¶¶ 7-11.) And finally, Ms. Kennedy’s 17 declaration explains that she used Maxmind’s Geolocation Database to trace the infringing 18 IP address to Carlsbad, California, within this Court’s jurisdiction, on May 11, 2023, at 19 16:13:53 UTC, and shortly before her declaration was provided. (Kennedy Decl. ¶¶ 4-7.) 20 Exhibit 1, attached to the Kennedy Declaration, indicates the ISP for 50.113.87.62 is 21 Spectrum. 22 Plaintiff has identified the missing party with such “sufficient specificity” to assure 23 the Court that Doe Defendant is real, subject to the Court’s jurisdiction, and able to be sued. 24 Columbia Ins., 185 F.R.D. at 578. 25 26 27 3 Mr. Williamson’s declaration sets forth additional in-depth details regarding all 28 components of the system. 1 /// 2 /// 3 B. Previous Steps Taken to Locate Doe Defendant 4 Plaintiff has sufficiently described all prior attempts it has made to identify Doe 5 Defendant. Id. at 579. This element is aimed at ensuring that “plaintiffs make a good faith 6 effort to comply with the requirements of service of process and specifically identify 7 defendants.” Id. In addition to the efforts described above to trace the infringing activity 8 to the IP address, Plaintiff has asserted that it has searched for Doe Defendant’s IP address 9 “on various web search tools, including basic search engines like www.google.com,” and 10 “has further conducted its own diligent research on its ability to identify Defendant by other 11 means by reviewing numerous sources of authority, . . . e.g., legislative reports, agency 12 websites, informational technology guides, governing case law, etc.” (ECF 4-1 at 14.) 13 Plaintiff “has also discussed the issue at length with computer investigators and cyber 14 security consultants. Strike 3 has been unable to identify any other way to go about 15 obtaining the identities of its infringers and does not know how else it could possibly 16 enforce its copyrights from illegal piracy over the Internet.” (Id.) Therefore, the Court 17 finds that Plaintiff has made a good faith effort to identify Doe Defendant. 18 C. Ability to Withstand a Motion to Dismiss 19 Plaintiff has also demonstrated that its claim could withstand a motion to dismiss. 20 This requires Plaintiff to “make some showing that an act giving rise to civil liability 21 actually occurred and that the discovery is aimed at revealing specific identifying features 22 of the person or entity who committed that act.” Columbia Ins., 185 F.R.D. at 580. 23 A claim may be dismissed under Rule 12(b) for lack of subject matter jurisdiction 24 or for failure to state a claim. Fed. R. Civ. P. 12(b)(1), 12(b)(6). To prevail on a copyright 25 infringement claim, Plaintiff must show: “(1) ownership of a valid copyright; and (2) that 26 the defendant violated the copyright owner’s exclusive rights under the Copyright Act.” 27 Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a))); 28 1 Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017). “Direct infringement 2 requires the plaintiff to show causation (also referred to as ‘volitional conduct’) by the 3 defendant.” Perfect 10, 847 F.3d at 666. 4 Here, Plaintiff’s Complaint alleges subject matter jurisdiction under 28 U.S.C. 5 § 1331 (federal question) and 28 U.S.C. § 1338 (jurisdiction over copyright actions). 6 (Compl. ¶ 7.) Plaintiff also provides evidence that it is the exclusive rights holder of the 7 copyrighted works at issue. (See ECF 1-2, Ex. A.)4 Plaintiff alleges that Defendant 8 infringed Plaintiff’s copyrighted work via the BitTorrent file distribution network. (Compl. 9 ¶¶ 41-46, Ex. A.) Plaintiff also alleges that it did not permit or consent to Doe Defendant’s 10 copying or distribution of this work. (Id. ¶ 51.) Accordingly, Plaintiff has alleged the 11 prima facie elements of direct copyright infringement and could withstand a motion to 12 dismiss for failure to state a claim. See Columbia Ins., 185 F.R.D. at 579-80. Additionally, 13 the Court finds the Complaint could withstand a challenge based on personal jurisdiction 14 or venue. As discussed at length above, Plaintiff has traced the infringing conduct to this 15 district. (III.A.) 16 D. Requested Discovery Will Lead to Identifying Information 17 Finally, Plaintiff has satisfied the last element required in Columbia Insurance by 18 demonstrating the requested discovery will lead to identifying information about Doe 19 Defendant that would make service of process possible. Columbia Ins., 185 F.R.D. at 580. 20 As explained above, Plaintiff’s investigation has revealed a unique IP address and based 21 on Maxmind’s geolocation, Plaintiff has identified Spectrum as the owner. (ECF 4-1 at 22 17.) Because the only entity able to correlate an IP address to a specific individual is the 23 24 25 4 Exhibit A is a chart containing United States Copyright Office registration information, 26 including the registration numbers and application numbers for those works who registration is still pending. In its Complaint, Plaintiff states that it “owns the copyrights 27 to the Works and the Works have either been registered with the United States Copyright 28 Office or have pending copyright registrations.” (ECF 1-2, Ex. A.) 1 ISP, Spectrum, the requested Rule 45 subpoena would lead to information making service 2 of process possible. 3 IV. CONCLUSION AND ORDER 4 The Application (ECF 4) is GRANTED. Accordingly, IT IS HEREBY 5 ORDERED that: 6 1. Plaintiff may serve Spectrum with a Rule 45 subpoena commanding the ISP to 7 provide Plaintiff with the true name and address of the subscriber assigned the IP 8 address 50.113.87.62. Plaintiff may not subpoena additional information about 9 the subscriber and Plaintiff may only use the disclosed information to protect its 10 copyrights in pursing this litigation. 11 2. Plaintiff shall attach a copy of this Order to any Rule 45 subpoena issued pursuant 12 to this Order and the ISP must also provide a copy of this Order along with the 13 required notice to the subscriber whose identity is sought. 14 3. Within fourteen (14) calendar days after the service of the subpoena, the ISP 15 shall notify the subscriber that its identity has been subpoenaed by Plaintiff. 16 4. The subscriber whose identity has been subpoenaed shall have thirty (30) 17 calendar days from the date of such notice to seek a protective order or challenge 18 the disclosure by filing an appropriate pleading with this Court contesting the 19 subpoena. The subscriber may proceed anonymously as a Doe Defendant until 20 the Court orders otherwise.5 21 5. If the ISP seeks to move to quash the subpoena, it shall do so before the return 22 date of the subpoena. The return date of the subpoena must allow for forty-five 23 (45) calendar days from service to production. If a motion to quash or other 24 customer challenge is brought, the ISP shall preserve the information sought by 25 26 27 5 Plaintiff’s Application specifically states that Plaintiff is not opposed and “in fact 28 welcomes” allowing Defendant to proceed anonymously. (ECF 4-1 at 18.) 1 Plaintiff in the subpoena pending resolution of such motion or challenge. 2 3 || Dated: May 7, 2024 EZ, 5 6 Hon. D. Thomas Ferraro United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28