Strike 3 Holdings, LLC v. Doe ( 2024 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 STRIKE 3 HOLDINGS, LLC, Case No.: 3:24-cv-00547-LL-JLB 14 Plaintiff, ORDER GRANTING PLAINTIFF’S 15 v. EX PARTE APPLICATINO FOR LEAVE TO SERVE A THIRD- 16 JOHN DOE, subscriber of assigned IP PARTY SUBPOENA PRIOR TO A address 76.171.172.138, 17 RULE 26(f) CONFERENCE Defendants. 18 19 [ECF No. 4] 20 21 22 Before the Court is an Ex Parte Application for Leave to Serve a Third-Party 23 Subpoena Prior to a Rule 26(f) Conference (“Motion”) file by Plaintiff Strike 3 Holdings, 24 LLC (Plaintiff). (ECF No. 4.) No opposition has been filed, as no defendant has been 25 named or served. For the reasons set forth below, Plaintiff’s ex parte Motion is 26 GRANTED. 27 /// 28 1 I. BACKGROUND 2 This case is one of a number of cases filed by Plaintiff alleging copyright 3 infringement against a John Doe defendant using a BitTorrent file-sharing system. Plaintiff 4 alleges that it owns the copyrights to motion pictures distributed through adult content 5 websites and DVD distributors Blacked, Blacked RAW, MILFY, Tushy, Tushy Raw, and 6 Vixxen. (ECF No 1. ¶ 2–3, 14.) Plaintiff alleges that Defendant, the person or entity 7 assigned Internet Protocol (“IP”) address 76.171.172.138, illegally downloaded and 8 distributed twenty-six (26) of Plaintiff’s motion pictures using a BitTorrent file distribution 9 network. (Id. at ¶¶ 4–6, 13, 18–46; ECF No. 1-2.) Plaintiff commenced this action against 10 Defendant “John Doe, subscriber of assigned IP address 76.171.172.138” on March 21, 11 2024, alleging one count of direct copyright infringement (ECF No. 1 ¶¶ 48–53.) 12 Plaintiff alleges that, because Defendant committed the alleged infringement using 13 the Internet, Plaintiff knows Defendant only by his, her, or its IP address, assigned to 14 Defendant by the Internet Service Provider (“ISP”), Spectrum. (Id. at ¶5; ECF No. 4-1 15 at 11.) In its Motion, Plaintiff asserts that Spectrum owns Defendant’s IP address, and thus 16 “is the only party with the information necessary to identify Defendant by correlating the 17 IP address with John Doe’s identity.” (ECF No 4-1 at 7.) Plaintiff thus seeks leave to 18 serve a Rule 45 subpoena on Spectrum to secure the true name and address associated with 19 IP address 76.171.172.138, information without which Plaintiff cannot serve Defendant 20 and prosecute the case. (Id. at 8.) 21 II. LEGAL STANDARD 22 Unless authorized by Court order, discovery is not permitted in cases of the instant 23 action’s type before the parties have conferred pursuant to Federal Rule of Civil Procedure 24 26(f). Fed. R. Civ. P. 26(d)(1). “[H]owever, in rare cases, courts have made exceptions, 25 permitting limited discovery to ensue after filing of the complaint to permit the plaintiff to 26 learn the identifying facts necessary to permit service on the defendant.” Columbia Ins. 27 Co. v. seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999). Requests for such exceptions 28 are granted upon a showing of good cause by the moving party, which may be found 1 “where the need for expedited discovery, in consideration of the administrative of justice, 2 outweighs the prejudice to the responding party.” Semitool Inc. v. Tokyo Electron Am. 3 Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “A district court’s decision to grant 4 discovery to determine jurisdictional facts is a matter of discretion.” Columbia Ins. Co., 5 185 F.R.D. at 578. 6 Within the Ninth Circuit, courts apply a three-factor test to determine whether good 7 cause exists to allow expedited discovery to identify a Doe defendant. Id. at 579–79. 8 “First, the plaintiff should identify the missing party with sufficient specificity such that 9 the Court can determine that [the] defendant is a real person or entity who can be sued in 10 federal court.” Id. at 578. Second, the plaintiff “should identify all previous steps taken to 11 locate the defendant” to ensure plaintiff has made a good faith effort to identify and serve 12 process on the defendant. Id. at 578. Third, the plaintiff “should establish to the Court’s 13 satisfaction that [the] plaintiff’s suit against [the] defendant could withstand a motion to 14 dismiss.” Id. Finally, “. . .the plaintiff should file a request for discovery with the Court, 15 along with a statement of reasons justifying the specific discovery requested as well as 16 identification of a limited number of persons or entities on whom discovery process might 17 be served and for which there is a reasonable likelihood that the discovery process will lead 18 to identifying information about [the] defendant that would make service of process 19 possible.” Id. at 580. 20 III. DISCUSSION 21 A. Identification of Missing Party with Sufficient Specificity 22 To prevail on its Motion, Plaintiff must identify Defendant with specificity sufficient 23 to enable the Court to determine that Defendant is a real person or entity subject to the 24 Court’s jurisdiction. See Columbia Ins. Co., 185 F.R.D. at 578. The Court finds that 25 Plaintiff has met this burden. 26 Courts within the Ninth Circuit have determined that “a plaintiff identifies Doe 27 Defendants with sufficient specificity” in cases like the instant case “by providing the 28 unique IP addresses to a physical point of origin.” 808 Holdings, LLC v. Collective of 1 December 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29C D63C23C91, 2 No. 12-cv-00186-MMA-RBB, 2012 WL 12884688, at *4 (S.D. Cal. May 8, 2012); see also 3 Pink Lotus Entm’t, LLC v. Does 1-46, No. C-11-02263, 2011 WL 2470986, at *3 (N.D. 4 Cal. June 21, 2011) (finding that the plaintiff met its burden to identify Doe defendants by 5 identifying the Doe defendants’ IP addresses and using geolocation technology to trace the 6 IP addresses to a point of origin). 7 Here, Plaintiff has sufficiently demonstrated that Defendant is a real person or entity 8 likely subject to this Court’s jurisdiction. Plaintiff attached to its Complaint a table 9 reflecting that the subscribed assigned IP address 76.171.172.138 engaged in allegedly 10 infringing activity on 26 occasions between July 31, 2021, and February 27, 2024. (ECF 11 No. 1-2.) 12 To substantiate its claims, Plaintiff included for declarations in support of the instant 13 Motion. Plaintiff first attached the Declaration of David Williamson, an Information 14 Technology (“IT”) consultant who serves as Plaintiff’s Chief Technology Officer. (ECF 15 No. 4-2 at 1–15 (“Ex. A”).) Mr. Williamson declares that he “oversaw the design, 16 development, and overall creation of the infringement detection system called VXN Scan 17 (‘VXN’) which [Plaintiff] both owns and uses to identify IP addresses used by individuals 18 infringing on Plaintiff’s movies via the BitTorrent protocol.” (Ex. A at ¶40.) Mr. 19 Williamson explains in detail how VXN Scan operates and its six components. 20 VXN Scan includes a proprietary BitTorrent client component that emulates the 21 behavior of a standard BitTorrent client by repeatedly downloading data pieces from peers 22 within the BitTorrent network which are distributing Plaintiff’s movies. (Id. at ¶¶52–56.) 23 VXN likewise contains a “Packet Capture” (“PCAP”) component, which records allegedly 24 infringing BitTorrent computer transactions, including the associated IP address used in 25 the network transaction, the date and time of transaction, the BitTorrent client used in the 26 transaction, and other information. (Id. at ¶¶ 57–70.) The PCAP component also identifies 27 the “Info Hash value that was used to obtain the transacted piece”—information that 28 identifies the data that was shared in the recorded transaction allegedly containing an 1 infringing copy of Plaintiff’s movie. (Id. at ¶61–62.) Mr. Williams’ declaration sets forth 2 additional details of all six components of the system in specificity, providing the Court 3 with a comprehensive understanding of how the system reliably identifies IP addresses 4 assigned to individuals allegedly infringing on Plaintiff’s movies and verifies the 5 infringement. (See id. at ¶¶ 43–82.) 6 Second, Plaintiff attached the Declaration of Patrick Page, a computer forensics 7 expert retained to “analyze and retain forensic evidence captured by its infringement 8 detection system[,]” VXN Scan. (ECF No. 4-2 at 16–22 (“Ex. B”).) Mr. Paige explains 9 that VXN Scan “recorded numerous BitTorrent computer transactions between the system 10 and IP address 76.171.172.138 in the form of PCAPs.” (Ex. B at ¶ 13.) Mr. Paige states 11 that he received a PCAP from Plaintiff that, using a program called Wireshark, Mr. Paige 12 confirmed is evidence of a recorded transaction with IP address 76.171.172.138 on 13 February 27, 2024, which contained “a piece or pieces of a file corresponding to hash value 14 3350AD6ED2ECD3F20CA9BFAB853A3CED164589B0.” (Id. at ¶¶ 16–18.) This hash 15 value is data used to identify and locate other pieces of a desired file; here, the desired file 16 contained an infringing copy of one of Plaintiff’s movies. (Id. at ¶ 22; see also ECF No. 1- 17 2.) Based on his experience, Mr. Page states that Defendant’s ISP, Spectrum, “is the only 18 entity that can correlate the IP address to its subscriber and identify Defendant as the person 19 assigned the IP address 76.171.172.138 during the time of the alleged infringement.” (Ex. 20 B at ¶ 28.) 21 Plaintiff additionally attached the Declaration of Susan B. Stalzer, Plaintiff’s 22 employee who verified that each of the digital files VXN Scan received through its 23 transactions with IP address 76.171.172.138 was “identical, strikingly similar, or 24 substantially similar” to one of Plaintiff’s copyrighted works. (ECF No. 4-2 at 24–26 (“Ex. 25 C”).) 26 Finally, Plaintiff included the Declaration of Emilie Kennedy, Plaintiff’s in-house 27 General Counsel (ECF No. 4-2 at 27–30 (“Ex. D”).) Ms. Kennedy states that after Plaintiff 28 “received infringement data from VXN Scan identifying IP address 76.171.172.138 as 1 infringing its works, the IP address was automatically inputted into Maxmind’s 2 Geolocation Database. . .” on August 5, 2021. 1 (Ex. D. at ¶ 4.) This searched traced the 3 IP address’s location to Fallbrook, California, within the Court’s jurisdiction. (Id. at ¶ 4– 4 5.) A later such search traced the IP address to Carlsbad, California (Id. at ¶ 7; see also 5 ECF No. 4-2 at 31–32 (“Ex. 1”).) Plaintiff argues in its motion that both this Court and 6 others have accepted Maxmind’s findings in assessing the appropriateness of expedited 7 discovery. (ECF No. 4-1 at 13 (citing Strike 3 Holdings LLC v. Doe, No. 17-cv-2317-JAH- 8 BLM, 2017 WL 6389847, at *2 (S.D. Cal. Dec. 14, 2017)).) 9 Based on Plaintiff’s IP address tracing efforts, the timing of these efforts, and 10 Plaintiff’s continued tracing of IP address 76.171.172.138 to locations within this Court’s 11 jurisdiction, the Court concludes that Plaintiff has met its evidentiary burden of identifying 12 Defendant with sufficient specificity and has shown that Defendant’s IP address likely 13 relates to a physical address—or physical addresses—within the Court’s jurisdiction. 14 B. Previous Attempts to Locate Defendant 15 Plaintiff must likewise identify all steps taken to locate Defendant to ensure the 16 Court that it has made a good-faith effort to identify and serve process on Defendant. 17 See Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met that 18 burden. 19 /// 20 21 1 In his respective declaration, Mr. Williams states that Maxmind is 22 ‘an industry-leading provider of IP intelligence and online fraud 23 detection tools.’ ‘Over 5,000 companies use Geo IP data to locate their Internet visitors and show them relevant content and 24 ads, perform analytics, enforce digital rights, and efficiently 25 route Internet traffic.’ Maxmind compiles information it receives from Internet Service Providers (ISPs) containing the city and 26 state locations of the users of the ISPs and their respective IP 27 addresses. Maxmind maintains and updates this list weekly and sells access to it. 28 1 In its Motion, Plaintiff states that it has made diligent attempts to locate Defendant 2 by searching for Defendant’s IP address using web tools and online search engines, 3 reviewing “numerous sources of authority” including legislative reports and informational 4 technology guides, and engaging computer investigators and cybersecurity consultants to 5 identify other means through which to identify Defendant. (ECF No. 4-1 at 14.) Plaintiff 6 argues that it has “exhausted all other alternatives for identifying Defendant,” and that thus 7 subpoenaing the information from Defendant’s ISP remains the only means of obtaining 8 Defendant’s identity. (Id.) 9 As discussed above, Plaintiff retained Mr. Paige, who analyzed the data captured by 10 VXN scan and determined that IP address 76.171.172.138 was engaged in allegedly 11 infringing activity on February 27, 2024. (See Ex. B ¶¶ 13–28.) Mr. Page opined that 12 Defendant’s ISP is the only entity that can correlate IP address 76.171.172.138 to its 13 subscriber and identify Defendant as the person assigned this IP address during the time of 14 the alleged infringement. (Id.) 15 Based on the foregoing, the Court is satisfied that Plaintiff has attempted in good 16 faith to locate Defendant and that Plaintiff cannot, on its own, identify Defendant with any 17 greater specificity than as the subscriber Spectrum has assigned IP address 76.171.172.138. 18 Accordingly, the Court finds that Defendant has made a good-faith effort to identify and 19 locate Defendant before filing the instant Motion. 20 C. Whether Plaintiff’s Complaint Could Withstand a Motion to Dismiss 21 Finally, Plaintiff must establish that its Complaint could survive a motion to dismiss. 22 Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this burden. 23 Plaintiff’s Complaint alleges a single cause of action against Defendant: direct 24 copyright infringement. (ECF No. 1 ¶¶ 48–53.) To survive a motion to dismiss for failure 25 to state a claim upon which relief can be granted, “a complaint must contain sufficient 26 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 27 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 28 544, 570 (2007)). To state a claim of direct copyright infringement, a plaintiff “must show: 1 (1) ownership of a valid copyright; and (2) that the defendant violated the copyright 2 owner’s exclusive rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 3 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a) (2003)). “In addition, direct infringement 4 requires the plaintiff to show causation (also referred to as ‘volitional conduct’) by the 5 defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017.) 6 In its Complaint, Plaintiff alleges to be the owner of the copyrighted movies or 7 “[w]orks” at issue and asserts that each work was registered with the United States 8 Copyright office. (ECF No. 1 ¶¶ 2, 34, 43, 46.) Exhibit A to the Complaint shows the hash 9 values of the purportedly infringed works and the copyright registration number for each 10 of the works that correspond with those hash values. (ECF No. 1-2.) Plaintiff further 11 alleges that Defendant is the user behind IP address 76.171.172.138 who used the 12 BitTorrent file network to “illegally download and distribute Plaintiff’s copyrighted motion 13 pictures” and that the infringement was “continuous and ongoing.” (ECF No. 1 ¶¶ 13, 29, 14 38–45.) Lastly, Plaintiff alleges that “[a]t no point in time did [it] authorize, permit[,] or 15 consent to Defendant’s copying, distribution, performance[,] and/or display of its Works, 16 expressly or otherwise.” (Id. at 51.) 17 D. Specific Request 18 Finally, before the Court grants Plaintiff’s Motion, Plaintiff “should file a request for 19 discovery with the Court.” Columbia Ins. Co., 185 F.R.D. at 580. Plaintiff has not 20 provided the Court with a proposed subpoena, but the Court has sufficient information to 21 determine that “there is a reasonable likelihood that [a subpoena] will lead to identifying 22 information about [D]efendant that would make service of process possible.” Id. Plaintiff 23 states that it plans to issue a subpoena upon Spectrum, Defendant’s ISP, requesting only 24 the “true name and address of Defendant,” the subscriber to IP address 76.171.172.138. 25 (ECF No. 4-1 at 7–8.) Further, Plaintiff argues that Spectrum is the only entity that can 26 identify Defendant by his, her, or its IP address, an argument supported by the statements 27 of its declarant Mr. Paige. (See Ex. B ¶ 28.) Accordingly, the Court finds that Plaintiff 28 need not file the proposed subpoena with the Court. 1 IV. CONCLUSION 2 For the reasons set forth above, the Court finds good cause to grant Plaintiff leave to 3 serve a Rule 45 subpoena upon Spectrum in advance of the Rule 26(f) conference. 4 However, despite Plaintiff’s representations of good faith (ECF No. 4-1 at 9–10), the Court 5 shares the concern noted by other courts in this District of “‘unscrupulous tactics [being] 6 used by certain plaintiffs, especially in the adult film industry, to shake down the owners 7 of IP addresses’ to exact quick and quiet settlements from possibly innocent defendants 8 who pay out only to avoid potential embarrassment.” Malibu Media, LLC v. Doe, No. 9 3:16-cv-00786-JLS-NLS, 2016 WL 9488778, at *4 (S.D. Cal. May 6, 2016) (quoting 10 Malibu Media, LLC v. Does 1–5, No. 12 Civ. 2950(JPO), 2012 WL 2001968, at *1 11 (S.D.N.Y. June 1, 2012)). The Court therefore finds that a limited protective order is 12 necessary to protect Defendant’s privacy. Further, Plaintiff has invited the Court to issue 13 a protective order establishing procedural safeguards, “should the Court find such 14 procedures to be appropriate.” (ECF No. 4-1 at 18.) 15 Accordingly, the Court GRANTS Plaintiff’s ex parte Motion (ECF No. 4) and 16 ORDERS as follows: 17 1. Plaintiff may serve on Spectrum a subpoena, pursuant and compliant with the 18 procedures of Federal Rule of Civil Procedure 45, seeking only the name and address of 19 the subscriber assigned IP address 76.171.172.138 for the relevant time period of the 20 alleged infringement. Plaintiff shall not seek from Spectrum any other personally 21 identifying information about the subscriber. 22 2. Plaintiff’s subpoena to Spectrum must include a minimum of forty-five (45) 23 calendar days’ notice before any production responsive to the subpoena shall be made to 24 Plaintiff. 25 3. At the time Plaintiff serves its subpoena on Spectrum, Plaintiff shall also serve on 26 Spectrum a copy of this Order. 27 4. Within fourteen (14) calendar days after service of the subpoena, Spectrum shall 28 notify the subscriber assigned IP address 76.171.172.138 that his, her, or its identity has 1 subpoenaed by Plaintiff and shall provide the subscribed a copy of this Order with 2 || the required notice. 3 5. The subscriber whose identity has been subpoenaed shall have thirty (30) calendar 4 || days from the date of such notice to challenge Spectrum’s disclosure of his, her, or its name 5 address by filing an appropriate pleading with this Court contesting the subpoena. 6 6. If Spectrum seeks to quash the subpoena, it will do so as provided by Federal Rule 7 || of Civil Procedure 45(d)(3). 8 7. In the event of a motion to quash, modify, or otherwise challenge the subpoena is 9 || brought properly before the Court, Spectrum shall preserve the information sought by the 10 || subpoena pending resolution of any such motion. 11 8. Plaintiff may only use the information disclosed in response to a Rule 45 subpoena 12 ||served on Spectrum for the purpose of protecting and enforcing Plaintiff's rights as set 13 || forth in the Complaint (ECF No. 1.) If Defendant wishes to proceed anonymously, Plaintiff 14 ||may not release any identifying information without a court order allowing the 15 |}information’s release. 16 IT IS SO ORDERED. 17 || Dated: May 17, 2024 - n. Jill L. Burkhardt 19 ited States Magistrate Judge 20 21 22 23 24 25 26 27 28