Malibu Media, LLC v. Doe , 177 F. Supp. 3d 554 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MALIBU MEDIA, LLC,
Plaintiff
v.
Civil Action No. 16-638 (CKK)
JOHN DOE subscribed assigned IP address
66.44.33.75,
Defendant
MEMORANDUM OPINION
(April 14, 2016)
Presently before the Court is Plaintiff’s [2] Motion for Leave to Serve a Third Party
Subpoena Prior to a Rule 26(f) Conference. Plaintiff, Malibu Media, has filed an action against
Defendant, John Doe, under the Copyright Act of 1976, alleging that Defendant used BitTorrent
file sharing to copy and distribute Plaintiff’s copyrighted works. Plaintiff seeks leave of the
Court to serve a Rule 45 subpoena on John Doe Defendant’s Internet Service Provider, RCN
Corporation, so that Plaintiff may learn Defendant’s true identity. Upon consideration of the
pleadings, 1 the relevant legal authorities, and the record for purposes of this motion, the Court
GRANTS Plaintiff’s Motion for Expedited Discovery.
I. BACKGROUND
A. Factual Background
Plaintiff, Malibu Media LLC, operates a subscription based website comprised of its
copyrighted content. Pl.’s Mot., Ex. A (Colette Field Decl.) ¶¶ 3-6. Using Defendant John Doe’s
Internet Protocol (“IP”) address (a series of numbers assigned to each Internet service subscriber)
and IP geolocation technology, Plaintiff’s investigator, IPP International UG (“IPP”), identified
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Compl., ECF No. 1; Plaintiff’s Motion for Leave to Serve a Third Party Subpoena Prior
to a Rule 26(f) Conference (“Pl.’s Mot.”), ECF No. 2.
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Defendant John Doe’s IP address as using the BitTorrent file distribution network to access and
distribute copyrighted movies owned by Plaintiff. Compl. ¶¶ 19-21. IPP’s software traced
Defendant’s IP address to a physical address located within the District of Columbia. Id. ¶ 5.
Plaintiff now seeks relief against Defendant, but only knows Defendant by his or her IP address.
Id. ¶ 9.
B. Procedural Background
On April 4, 2016, Plaintiff filed suit in this Court, alleging that Defendant John Doe
committed tortious copyright infringement in violation of the United States Copyright Act of
1976, as amended, 17 U.S.C. §§ 101 et seq. The same day, Plaintiff filed a Motion for Leave to
Serve a Third Party Subpoena Prior to a Rule 26(f) Conference so that it could identify and
properly serve Defendant John Doe. Pl.’s Mot. Plaintiff alleges that the only way it may identify
Defendant is to subpoena the Defendant’s Internet Service Provider (“ISP”), RCN Corporation,
pursuant to Federal Rule of Civil Procedure 45. Id.
II. LEGAL STANDARD
A plaintiff who seeks to conduct expedited discovery prior to the Rule 26(f) Conference
in order to learn the identity of putative defendants is in essence seeking jurisdictional discovery.
See Exquisite Multimedia, Inc. v. Does 1-336, No. 11-1976, 2012 WL 177885, at *1 (D.D.C. Jan.
19, 2012). Federal Rule of Civil Procedure 26(d) explains that parties may generally seek
discovery only after a Rule 26(f) conference, “except … when authorized by … court order.”
Fed. R. Civ. P. 26(d)(1). This Circuit has held that Federal Rule of Civil Procedure 26 “vests the
trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of
discovery.” Watts v. SEC, 482 F.3d 501, 507 (D.C. Cir. 2007) (quoting Crawford-El v. Britton,
523 U.S. 574, 598 (1998)). To determine whether to authorize discovery prior to a Rule 26(f)
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conference in a particular case, this district has applied a “good cause” standard. See Warner
Bros. Records Inc. v. Does 1-6, 527 F. Supp. 2d 1, 2 (D.D.C. 2007) (“the Court finds that
plaintiffs have made a showing of good cause for the discovery they seek”). In order to obtain
jurisdictional discovery a “plaintiff must have at least a good faith belief that such discovery will
enable it to show that the court has personal jurisdiction over the defendant.” Exquisite
Multimedia, Inc., 2012 WL 177885, at *1 (quoting Caribbean Broad. Sys. Ltd. v. Cable &
Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)). See also Exponential Biotherapies, Inc. v.
Houthoff Buruma N.V., 638 F. Supp. 2d 1, 11 (D.D.C. 2009) (holding that while “as a general
matter, discovery should be freely permitted … [j]urisdictional discovery is justified only if the
plaintiff reasonably demonstrates that it can supplement its jurisdictional allegations through
discovery.”) (quoting Kopff v. Battaglia, 425 F. Supp. 2d 76, 89 (D.D.C. 2006)). “Mere
conjecture or speculation” is not enough to justify jurisdictional discovery. FC Investment Group
LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008).
Plaintiff’s cause of action, tortious copyright infringement, is brought under a federal
statute, the Copyright Act. The Copyright Act does not provide for the exercise of personal
jurisdiction over alleged infringers on any basis. See Exquisite Multimedia, Inc., 2012 WL
177885, at *2. Therefore, Plaintiff must predicate this Court’s jurisdiction over the infringers on
the reach of District of Columbia law. Id. District of Columbia law provides for the exercise of
personal jurisdiction over a person domiciled in the District of Columbia as to “any claim for
relief.” Id. (quoting D.C. Code § 13–422 (2001)). The so-called “long arm” provision of the
personal jurisdiction statute provides, in pertinent part, as follows:
(a) A District of Columbia court may exercise personal jurisdiction over a person,
who acts directly or by an agent, as to a claim for relief arising from the
person’s—
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(3) causing tortious injury in the District of Columbia by an act or omission in the
District of Columbia;
D.C. Code § 13–423 (2001). Personal jurisdiction might properly be exercised over Defendant
John Doe if he or she is a resident of the District of Columbia or at least downloaded the
copyrighted work in the District. AF Holdings LLC v. Cox Commc’ns Inc., 752 F.3d 990, 996
(D.C. Cir. 2014) (citing D.C. Code § 23-423(3), (4)). Thus, unless the infringer is domiciled in
the District of Columbia, the question presented is where the infringement occurred and whether
it occurred in the District of Columbia. It is especially important in cases involving allegations of
copyright infringement using an IP address that the plaintiff demonstrate a good faith basis to
believe a putative defendant may be a District of Columbia resident or that the injury occurred in
the District of Columbia. See Nu Image, Inc. v. Doe, 799 F. Supp. 2d 34, 39-40 (D.D.C. 2011).
In AF Holdings LLC, the Court of Appeals for the District of Columbia Circuit found that
geolocation services which “enable anyone to estimate the location of Internet users based on
their IP addresses” are “sufficiently accurate to provide at least some basis for determining
whether a particular subscriber might live in the District of Columbia.” AF Holdings LLC, 752
F.3d at 996; see also Nu Image, Inc., 799 F. Supp. 2d at 41 (holding that “the Plaintiff has a good
faith basis to believe a putative defendant may be a District of Columbia resident if a geolocation
service places his/her IP address within the District of Columbia, or within a city located within
30 miles of the District of Columbia.”).
III. DISCUSSION
Upon consideration of the relevant legal authorities and Plaintiff’s pleadings, the Court
finds that good cause exists for Plaintiff’s requested expedited discovery. First, Defendant must
be identified before this suit can progress further. See Arista Records LLC v. Does 1–19, 551
F. Supp. 2d 1, 6 (D.D.C. 2008). Second, the Plaintiff has established a good faith basis for
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believing the putative defendant may be a District of Columbia resident. In Plaintiff’s Complaint,
Plaintiff alleges that it used “proven IP address geolocation technology which has consistently
worked in similar cases to ensure that the Defendant’s acts of copyright infringement occurred
using an Internet Protocol address … traced to a physical address located within this District.”
See Compl. ¶ 5. Cf. AF Holdings LLC, 752 F.3d at 996 (finding that “AF Holdings’s refusal to
cabin its suit and corresponding discovery requests to individuals whom it has some realistic
chance of successfully suing in this district demonstrates that it has not ‘sought the information
because of its relevance to the issues’ that might actually be litigated here.”) (quoting
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978)). Accordingly, under the broad
discretion granted this Court under the Federal Rule of Civil Procedure 26, this Court grants
Plaintiff leave to serve a Rule 45 subpoena on the ISP identified in Exhibits A and B of the
Complaint, RCN Corporation, for the purpose of identifying the putative Defendant’s true
identity prior to a Rule 26(f) Conference. See Compl., Ex. A (File Hashes for IP Address
66.44.33.75); id., Ex. B (Copyrights-In-Suit for IP Address 66.44.33.75).
Plaintiff shall be allowed to serve immediate discovery on the identified ISP in order to
obtain the identity of John Doe Defendant by serving a Rule 45 subpoena that seeks information
sufficient to identify John Doe Defendant, including the individual’s name, current and
permanent address, telephone number, e-mail address, and Media Access Control address. Any
information disclosed to Plaintiff in response to a Rule 45 subpoena may be used by Plaintiff
solely for the purpose of protecting Plaintiff’s rights as set forth in the Complaint. If and when
the ISP is served with a subpoena, the ISP shall give written notice, which may include e-mail
notice, to the subscriber in question within ten (10) business days prior to releasing the
subscriber’s identifying information to Plaintiff. If the ISP and/or Defendant want to move to
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quash the subpoena, the party must do so before the return date of the subpoena, which shall be
no earlier than thirty (30) days from the date of service. The ISP shall preserve any subpoenaed
information pending the resolution of any timely filed motion to quash. Plaintiff shall provide the
ISP with a copy of this Memorandum Opinion and the accompanying Order with its subpoenas.
On or before June 16, 2016, Plaintiff shall file a Status Report with the Court briefly outlining
its progress, including providing an expected completion date of the discovery allowed by the
accompanying Order.
IV. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has made a showing of “good
cause” for the expedited discovery it seeks. Accordingly, the Court shall GRANT Plaintiff’s [2]
Motion for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference.
An appropriate Order accompanies this Memorandum Opinion.
Dated: April 14, 2016
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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