Strike 3 Holdings, LLC v. Doe ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 21-cv-00064-WQH-JLB 12 Plaintiff, ORDER ON PLAINTIFF’S EX 13 v. PARTE MOTION FOR LEAVE TO SERVE A THIRD-PARTY 14 JOHN DOE, Subscriber Assigned IP SUBPOENA PRIOR TO A RULE Address 99.120.102.237, 15 26(f) CONFERENCE Defendant. 16 [ECF No. 3] 17 18 Before the Court is an Ex Parte Motion for Leave to Serve a Third-Party Subpoena 19 Prior to a Rule 26(f) Conference filed by Plaintiff Strike 3 Holdings, LLC (“Plaintiff”). 20 (ECF No. 3.) No opposition has been filed, as no defendant has been named or served in 21 this case. For the reasons set forth below, Plaintiff’s ex parte motion is GRANTED. 22 I. BACKGROUND 23 This is one of the numerous cases filed by Plaintiff alleging copyright infringement 24 claims against a John Doe defendant using the BitTorrent file-sharing system.1 Plaintiff 25 26 27 1 From January 2020 to date, Strike 3 Holdings, LLC has filed forty-six cases, 28 including this one, in this District. 1 alleges that it is the copyright owner of motion pictures distributed through adult content 2 websites Blacked, Tushy, Vixen, and Blacked Raw. (ECF No. 1 ¶¶ 2–4.) Plaintiff alleges 3 that between March 13, 2019, and December 10, 2020,2 the person or entity assigned 4 Internet Protocol (“IP”) address 99.120.102.237 illegally downloaded and distributed 5 thirty-nine of Plaintiff’s motion pictures through his, her, or its use of the online BitTorrent 6 file distribution network. (Id. ¶¶ 4–5, 44, 49–53; ECF No. 1-2.) Plaintiff commenced this 7 action against Defendant “John Doe, subscriber assigned IP address 99.120.102.237” on 8 January 12, 2021, alleging a single cause of action of direct copyright infringement. (ECF 9 No. 1 ¶¶ 48–53.) 10 Because Defendant used the Internet to commit the alleged infringement, Plaintiff 11 alleges that it knows Defendant only by his, her, or its IP address, which was assigned to 12 Defendant by the Internet Service Provider (“ISP”), AT&T U-verse. (Id. ¶¶ 5, 13.) In the 13 instant motion, Plaintiff asserts that AT&T U-verse is the owner of Defendant’s IP address, 14 and thus, “is the only party with the information necessary to identify Defendant.” (ECF 15 No. 3-1 at 7.) Plaintiff therefore seeks leave to serve a Rule 45 subpoena on AT&T U- 16 verse requesting the name and address associated with IP address 99.120.102.237. (Id. at 17 7–8.) Without Defendant’s identity, Plaintiff cannot serve Defendant and prosecute this 18 case. 19 II. LEGAL STANDARD 20 Discovery is not permitted before the parties have conferred pursuant to Federal Rule 21 of Civil Procedure 26(f) unless authorized by court order. Fed. R. Civ. P. 26(d)(1). 22 “[H]owever, in rare cases, courts have made exceptions, permitting limited discovery to 23 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 24 25 26 2 Plaintiff does not specifically allege this infringement period in the Complaint. However, attached as an exhibit to the Complaint is a table reflecting that the subscriber 27 assigned IP address 99.120.102.237 engaged in allegedly infringing activity between 28 March 13, 2019, and December 10, 2020. (ECF No. 1-2.) 1 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185 2 F.R.D. 573, 577 (N.D. Cal. 1999). Requests to conduct discovery prior to a Rule 26(f) 3 conference are granted upon a showing of good cause by the moving party, which may be 4 found “where the need for expedited discovery, in consideration of the administration of 5 justice, outweighs the prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron 6 Am., Inc., 208 F.R.D. 273, 275–76 (N.D. Cal. 2002). “A district court’s decision to grant 7 discovery to determine jurisdictional facts is a matter of discretion.” Columbia Ins. Co., 8 185 F.R.D. at 578. 9 District courts in the Ninth Circuit apply a three-factor test to determine whether 10 good cause exists to allow for expedited discovery to identify a Doe defendant. Id. at 578– 11 80. “First, the plaintiff should identify the missing party with sufficient specificity such 12 that the Court can determine that [the] defendant is a real person or entity who could be 13 sued in federal court.” Id. at 578. Second, the plaintiff “should identify all previous steps 14 taken to locate the elusive defendant” to ensure that the plaintiff has made a good faith 15 effort to identify and serve process on the defendant. Id. at 579. Third, the plaintiff “should 16 establish to the Court’s satisfaction that [the] plaintiff’s suit against [the] defendant could 17 withstand a motion to dismiss.” Id. “Lastly, the plaintiff should file a request for discovery 18 with the Court, along with a statement of reasons justifying the specific discovery requested 19 as well as identification of a limited number of persons or entities on whom discovery 20 process might be served and for which there is a reasonable likelihood that the discovery 21 process will lead to identifying information about [the] defendant that would make service 22 of process possible.” Id. at 580. 23 III. DISCUSSION 24 A. Identification of Missing Party with Sufficient Specificity 25 For the Court to grant Plaintiff’s motion, Plaintiff must first identify Defendant with 26 enough specificity to enable the Court to determine that Defendant is a real person or entity 27 who is subject to the Court’s jurisdiction. See Columbia Ins. Co., 185 F.R.D. at 578. The 28 Court finds that Plaintiff has met this burden. 1 Courts in the Ninth Circuit have determined that “a plaintiff identifies Doe 2 defendants with sufficient specificity” in cases like the instant case “by providing the 3 unique IP addresses assigned to an individual defendant on the day of the allegedly 4 infringing conduct, and by using ‘geolocation technology’ to trace the IP addresses to a 5 physical point of origin.” 808 Holdings, LLC v. Collective of December 29, 2011 Sharing 6 Hash E37917C8EEB4585E6421358FF32F29C D63C23C91, No. 12-cv-00186 MMA 7 (RBB), 2012 WL 12884688, at *4 (S.D. Cal. May 8, 2012); see also Pink Lotus Entm’t, 8 LLC v. Does 1–46, No. C-11-02263, 2011 WL 2470986, at *3 (N.D. Cal. June 21, 2011) 9 (finding that the plaintiff met its burden to identify the Doe defendants with sufficient 10 specificity by identifying the Doe defendants’ IP addresses and then using geolocation 11 technology to trace the IP addresses to a point of origin). 12 Here, Plaintiff has sufficiently demonstrated that Defendant is a real person or entity 13 likely subject to the Court’s jurisdiction. Plaintiff attached to its Complaint a table 14 reflecting that the subscriber assigned IP address 99.120.102.237 engaged in allegedly 15 infringing activity between March 13, 2019, and December 10, 2020, in San Diego, 16 California. (ECF No. 1-2.) To substantiate these claims, Plaintiff attached four 17 declarations to the instant motion. 18 Plaintiff first attached the Declaration of David Williamson, an independent 19 contractor hired by Plaintiff as an Information Systems and Management Consultant. (ECF 20 No. 3-2 at 1–15 (“Ex. A”).) Mr. Williamson states that he “oversaw the design, 21 development, and overall creation of the infringement detection system called VXN Scan[,] 22 which [Plaintiff] both owns and uses to identify the IP addresses used by individuals 23 infringing Plaintiff’s movies via the BitTorrent protocol.” (Ex. A ¶ 40.) Mr. Williamson’s 24 declaration explains in detail how VXN Scan operates and its five components. One 25 component of VXN Scan is a proprietary BitTorrent client that emulates the behavior of a 26 standard BitTorrent client by repeatedly downloading data pieces from peers within the 27 BitTorrent network that are distributing Plaintiff’s movies. (Id. ¶¶ 52–55.) Another 28 component of VXN Scan is the PCAP Recorder, which records infringing BitTorrent 1 computer transactions in the form of PCAPs, or packet captures. (Id. ¶¶ 57–70.) The 2 PCAPs contain the IP addresses that connect to the Proprietary Client and send pieces of 3 the computer file containing an infringing copy of one of Plaintiff’s movies to the 4 Proprietary Client through the BitTorrent network. (Id. ¶¶ 57–59.) Not only do PCAPs 5 record the IP addresses used in the network transaction, but they also record the date and 6 time of the transaction, the port number used, and the BitTorrent client used to accomplish 7 each transaction. (Id. ¶ 61.) PCAPs also identify the “Info Hash value that was used to 8 obtain the transacted piece.” (Id. ¶ 62.) This information identifies the data that was shared 9 in the recorded transaction as part of a file containing an infringing copy of one of 10 Plaintiff’s movies. (Id.) This Order touches on only two of the components of VXN Scan, 11 but Mr. Williamson’s eighty-one-paragraph declaration sets forth additional, in-depth 12 details of all five components of the system, providing the Court with a thorough 13 understanding of how the system reliably identifies the IP addresses assigned to individuals 14 infringing Plaintiff’s movies and verifies the infringement. (See id. ¶¶ 63–81.) 15 Second, Plaintiff attached the Declaration of Patrick Paige, a computer forensics 16 expert Plaintiff retained to analyze and retain evidence captured by VXN Scan. (ECF No. 17 3-2 at 16–22 (“Ex. B”).) Mr. Paige explains that VXN Scan “recorded numerous 18 BitTorrent computer transactions between the system and IP address 99.120.102.237 in the 19 form of PCAPs.” (Ex. B ¶ 13.) Mr. Paige states that, using a program called Wireshark, 20 he viewed and analyzed a PCAP he received from Plaintiff and was able to confirm that on 21 December 10, 2020, “IP address 99.120.102.237 uploaded a piece or pieces of a file 22 corresponding to hash value 0998597ED9A23DB6F54A42C08BDFCF1B1DCC7C55 to 23 VXN Scan.” (Id. ¶¶ 16–19.) The hash value, or Info Hash, is the data used by BitTorrent 24 to identify and locate other pieces of a desired file; in this case, the desired file contained 25 an infringing copy of one of Plaintiff’s movies. (Id. ¶ 22; see also ECF No. 1-2 at 1.) 26 Based on his experience in similar cases, Mr. Paige opines that AT&T U-verse, 27 Defendant’s ISP, “is the only entity that can correlate the IP address [99.120.102.237] to 28 /// 1 its subscriber and identify Defendant as the person assigned [this] IP address . . . during 2 the time of the alleged infringement.” (Id. ¶ 28.) 3 Third, Plaintiff attached the Declaration of Susan B. Stalzer, an employee of 4 Plaintiff’s who verified that each digital file VXN Scan received through its transactions 5 with IP address 99.120.102.237 was identical, strikingly similar, or substantially similar to 6 one of Plaintiff’s original copyrighted works. (ECF No. 3-2 at 23–26 (“Ex. C”).) To do 7 so, Ms. Stalzer viewed each of the digital media files side-by-side with Plaintiff’s original 8 films. (Ex. C ¶¶ 8–10.) 9 Last, Plaintiff attached the Declaration of Emilie Kennedy, Plaintiff’s in-house 10 General Counsel. (ECF No. 3-2 at 27–30 (“Ex. D”).) Ms. Kennedy explains that after 11 Plaintiff received data from VXN Scan identifying IP address 99.120.102.237 as infringing 12 its movies, “the IP address was automatically inputted into Maxmind’s Geolocation 13 Database” on March 22, 2019.3 (Ex. D ¶ 4.) “Maxmind [then] determined that the IP 14 address traced to a location in Bonita, California,” which is within San Diego County. (Id. 15 ¶ 5.) Ms. Kennedy states that Plaintiff inputted IP address 99.120.102.237 again into the 16 Maxmind Database “[p]rior to filing its Complaint” and “before filing [her] [D]eclaration” 17 on January 27, 2021, and both times the IP address traced to San Diego, California. (Id. ¶¶ 18 6–7.) In its motion, Plaintiff argues that this Court has previously “accepted Maxmind’s 19 20 3 Mr. Williamson provides in his declaration that: 21 22 Maxmind is “an industry-leading provider of IP intelligence and online fraud detection tools.” “Over 5,000 companies use GeoIP data to locate their 23 Internet visitors and show them relevant content and ads, perform analytics, 24 enforce digital rights, and efficiently route Internet traffic.” Maxmind is not “software” or technology, but . . . a database. Maxmind compiles information 25 it receives from Internet Service Providers (ISPs) containing the city and state 26 locations of the users of the ISPs and their respective IP addresses. Maxmind maintains and updates this list weekly and sells access to it. 27 28 (Ex. A ¶ 77 (footnotes omitted).) 1 findings for purposes of allowing expedited discovery.” (ECF No. 3-1 at 13 (citing 2 Criminal Prods., Inc. v. Doe, No. 16-cv-2589 WQH (JLB), 2016 WL 6822186, at *3 (S.D. 3 Cal. Nov. 18, 2016).) 4 Based on Plaintiff’s IP address tracing efforts, the timing of its efforts, and Plaintiff’s 5 continued tracing of IP address 99.120.102.237 to a location within San Diego, California, 6 the Court concludes that Plaintiff has met its evidentiary burden of identifying Defendant 7 with sufficient specificity and has shown that Defendant’s IP address likely relates to a 8 physical address within the Court’s jurisdiction. 9 B. Previous Attempts to Locate Defendant 10 Plaintiff must next identify all steps it took to locate Defendant to ensure the Court 11 that it has made a good-faith effort to identify and serve process on Defendant. See 12 Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this burden. 13 In its motion, Plaintiff states that it has diligently attempted to locate Defendant by 14 searching for Defendant’s IP address using online search engines and “various web search 15 tools.” (ECF No. 3-1 at 14.) Plaintiff has also “review[ed] numerous sources of authority,” 16 such as “legislative reports, agency websites, informational technology guides, [and] 17 governing case law” regarding whether it is possible to identify such a defendant by other 18 means and has “discussed the issue at length with computer investigators and cyber security 19 consultants.” (Id.) Plaintiff argues that it cannot determine any other means of obtaining 20 Defendant’s identity other than through subpoenaing the information from Defendant’s 21 ISP, as it has “exhausted all other alternatives for identifying Defendant.” (Id.) 22 Further, as discussed above, Plaintiff retained Mr. Paige, a computer forensics 23 expert, who analyzed the data captured by VXN Scan and was able to determine that IP 24 address 99.120.102.237 was engaged in the allegedly infringing activity on December 25 10, 2020. (See Ex. B ¶¶ 13–25.) Mr. Paige also opined that Defendant’s ISP is the only 26 entity that can correlate IP address 99.120.102.237 to its subscriber and identify Defendant 27 as the person assigned this IP address during the time of the alleged infringement. (Id. 28 ¶ 28.) 1 Based on the foregoing, the Court is satisfied that Plaintiff has attempted in good 2 faith to locate Defendant and that Plaintiff cannot, on its own, identify Defendant with any 3 greater specificity than as the subscriber assigned by AT&T U-verse to IP address 4 99.120.102.237. Accordingly, the Court finds that Plaintiff has made a good-faith effort 5 to identify and locate Defendant before filing the instant motion. 6 C. Whether Plaintiff’s Complaint Could Withstand a Motion to Dismiss 7 Lastly, Plaintiff must establish that its Complaint could survive a motion to dismiss. 8 Columbia Ins. Co., 185 F.R.D. at 579. The Court finds that Plaintiff has met this burden. 9 Plaintiff’s Complaint alleges a single cause of action against Defendant: direct 10 copyright infringement. (ECF No. 1 ¶¶ 48–53.) To survive a motion to dismiss for failure 11 to state a claim upon which relief can be granted, “a complaint must contain sufficient 12 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 14 544, 570 (2007)). To state a claim of direct copyright infringement, a plaintiff “must show: 15 (1) ownership of a valid copyright; and (2) that the defendant violated the copyright 16 owner’s exclusive rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 17 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a) (2003)). “In addition, direct infringement 18 requires the plaintiff to show causation (also referred to as ‘volitional conduct’) by the 19 defendant.” Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 666 (9th Cir. 2017). 20 In the Complaint, Plaintiff alleges to be the owner of the copyrighted movies or 21 “works” at issue and asserts that each work was registered with the United States Copyright 22 Office. (ECF No. 1 ¶¶ 2, 46.) Exhibit A to the Complaint shows the hash values of the 23 purportedly infringed workss and the copyright registration number for each of the works 24 that correspond with those hash values. (ECF No. 1-2.) Plaintiff further alleges that 25 Defendant is the user behind IP address 99.120.102.237 who used the BitTorrent file 26 network to “illegally download and distribute Plaintiff’s copyrighted motion pictures” and 27 that the infringement was “continuous and ongoing.” (ECF No. 1 ¶¶ 13, 29, 45.) Lastly, 28 Plaintiff alleges that “[a]t no point in time did [it] authorize, permit or consent to 1 Defendant’s copying, distribution, performance and/or display of its Works, expressly or 2 otherwise.” (Id. ¶ 51.) 3 The Court finds that Plaintiff has alleged a prima facie case of direct copyright 4 infringement and therefore, its Complaint would likely withstand a motion to dismiss by 5 Defendant. 6 D. Specific Discovery Request 7 Finally, before the Court grants Plaintiff’s Motion, Plaintiff “should file a request 8 for discovery with the Court.” Columbia Ins. Co., 185 F.R.D. at 580. Plaintiff has not 9 provided the Court with a proposed subpoena, but the Court has sufficient information to 10 determine that “there is a reasonable likelihood that [a subpoena] will lead to identifying 11 information about [D]efendant that would make service of process possible.” Id. Plaintiff 12 states that it plans to issue a subpoena upon AT&T U-verse, Defendant’s ISP, requesting 13 “only the true name and address” of Defendant, the subscriber of IP address 14 99.120.102.237. (ECF No. 3-1 at 8.) Further, Plaintiff provides that AT&T U-verse is the 15 only entity that can identify Defendant by his, her, or its IP address. (Ex. B ¶ 28.) 16 Accordingly, the Court finds that Plaintiff need not file the proposed subpoena with the 17 Court. 18 IV. CONCLUSION 19 For the reasons set forth above, the Court finds good cause to grant Plaintiff leave to 20 serve a Rule 45 subpoena upon AT&T U-verse in advance of the Rule 26(f) conference. 21 However, despite Plaintiff’s representations of good faith (ECF No. 3-1 at 9–10), the Court 22 shares the concern noted by other courts in this District of “‘unscrupulous tactics [being] 23 used by certain plaintiffs, especially in the adult film industry, to shake down the owners 24 of IP addresses’ to exact quick and quiet settlements from possibly innocent defendants 25 who pay out only to avoid potential embarrassment.” Malibu Media, LLC v. John Doe, 26 No. 16-cv-00786-JLS-NLS, 2016 WL 9488778, at *4 (S.D. Cal. May 6, 2016) (quoting 27 Malibu Media, LLC v. Does 1–5, No. 12 Civ. 2950(JPO), 2012 WL 2001968, at *1 28 (S.D.N.Y. June 1, 2012)). The Court therefore finds that a limited protective order is 1 necessary to protect Defendant’s privacy. Further, Plaintiff has invited the Court to issue 2 a protective order establishing procedural safeguards, “should the Court find such 3 procedures to be appropriate.” (ECF No. 3-1 at 18.) Accordingly, the Court GRANTS 4 Plaintiff’s ex parte motion (ECF No. 3) and ORDERS as follows: 5 1. Plaintiff may serve on AT&T U-verse a subpoena, pursuant to and compliant 6 with the procedures of Federal Rule of Civil Procedure 45, seeking only the name and 7 address of the subscriber assigned IP address 99.120.102.237 for the relevant time period 8 of the alleged infringement. Plaintiff shall not seek from AT&T U-verse any other 9 personally identifiable information about the subscriber. 10 2. Plaintiff’s subpoena to AT&T U-verse must provide a minimum of forty- 11 five (45) calendar days’ notice before any production responsive to the subpoena shall be 12 made to Plaintiff. 13 3. At the time Plaintiff serves its subpoena on AT&T U-verse, Plaintiff shall also 14 serve on AT&T U-verse a copy of this Order. 15 4. Within fourteen (14) calendar days after service of the subpoena, AT&T U- 16 verse shall notify the subscriber assigned IP address 99.120.102.237 that his, her, or its 17 identity has been subpoenaed by Plaintiff and shall provide the subscriber a copy of this 18 Order with the required notice. 19 5. The subscriber whose identity has been subpoenaed shall have thirty (30) 20 calendar days from the date of such notice to challenge AT&T U-verse’s disclosure of 21 his, her, or its name and address by filing an appropriate pleading with this Court contesting 22 the subpoena. 23 6. If AT&T U-verse seeks to modify or quash the subpoena, it shall do so as 24 provided by Federal Rule of Civil Procedure 45(d)(3). 25 7. In the event a motion to quash, modify, or otherwise challenge the subpoena 26 is brought properly before the Court, AT&T U-verse shall preserve the information sought 27 by the subpoena pending the resolution of any such motion. 28 /// 1 8. Plaintiff may only use the information disclosed in response to a Rule 45 2 ||subpoena served on AT&T U-verse for the purpose of protecting and enforcing □□□□□□□□□□□ 3 ||rights as set forth in the Complaint (ECF No. 1). If Defendant wishes to proceed 4 ||anonymously, Plaintiff may not release any identifying information without a court order 5 || allowing the release of the information. 6 IT IS SO ORDERED. 7 |\|Dated: April 7, 2021 - 8 Balladt n. Jill L. Burkhardt ? ited States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14