Malibu Media, LLC v. Doe

Citations: 319 F.R.D. 299; 2016 U.S. Dist. LEXIS 64355; 2016 WL 8730719Docket: Case No. 1:16-cv-00226-AWI-SKO

Court: District Court, E.D. California; May 13, 2016; Federal District Court

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Plaintiff Malibu Media, LLC filed a complaint against an unnamed defendant, John Doe, on February 18, 2016, alleging copyright infringement under the United States Copyright Act of 1976. The plaintiff claims the defendant has persistently infringed its copyrights by downloading its adult films using the BitTorrent file-sharing protocol. On April 7, 2016, the plaintiff sought permission to serve a third-party subpoena prior to the Rule 26(f) conference to identify the account holder linked to an IP address associated with the alleged infringement, as the defendant had not yet been identified by name, and no opposition was filed.

The court, under Local Rule 230(g), determined that a hearing was unnecessary and granted the plaintiff's motion, imposing certain restrictions. The BitTorrent technology allows users to download and upload files simultaneously, facilitating faster speeds and enabling peers to see each other's IP addresses within a "swarm." The plaintiff argued that a Rule 45 subpoena directed at the Internet Service Provider (ISP) was essential for identifying the subscriber associated with the IP address to hold the responsible party accountable for the unauthorized downloads, as there are no alternative means to obtain this information before the discovery conference.

A party may not initiate discovery before a Rule 26(f) conference, unless exempted or authorized by rules, stipulation, or court order. The Ninth Circuit allows early discovery to identify unknown defendants if it is unlikely that the discovery would fail to reveal their identities or that the complaint would be dismissed. District courts in this circuit recognize "good cause" for expedited discovery when the need for it outweighs any prejudice to the opposing party. Typically, in copyright infringement cases involving anonymous internet users, courts have granted early subpoenas to ISPs to identify alleged infringers. 

When considering good cause, courts weigh the interests of the injured party against the right of individuals to remain anonymous online. While the internet enables tortious acts to be committed anonymously, it is essential to provide victims with a means to pursue redress. However, the right to participate anonymously must also be protected, as it fosters open communication and allows individuals to seek sensitive information without fear of exposure. Courts must strike a balance to prevent harassment or the misuse of legal processes to unveil innocent users' identities.

Copyright infringement cases on the internet have raised concerns about "copyright trolls," defined as plaintiffs who prioritize litigation over product sales or licensing. These trolls often target numerous defendants, especially anonymous individuals (John Does) accused of BitTorrent-related infringements, with over 43% of copyright lawsuits in 2013 aimed at such defendants, primarily in the pornography sector. The lawsuits leverage court-ordered discovery to reveal IP address holders' identities, facilitating quick, low-settlement negotiations without intention of trial. This practice is seen as exploitative, particularly in pornography cases where innocent defendants risk public embarrassment and coerced settlements. Courts, including the Southern District of New York, have criticized the tactics of plaintiffs like Malibu Media, which aggressively seeks IP identity through litigation for the purpose of coercing settlements. Judges have noted that many cases do not progress beyond the initial discovery phase, often being dismissed without summons, indicating a misuse of judicial processes for financial gain through settlement rather than genuine litigation.

Malibu employs tactics designed to embarrass defendants, illustrated by recent Wisconsin federal court cases where it listed additional pornographic videos in complaints, despite not owning the copyrights. This tactic aimed to coerce larger settlements through shaming. Courts have sanctioned Malibu for these practices, particularly when it violated orders to keep certain information confidential, such as publicly filing the identity of an IP-registrant despite explicit sealing orders. In another case, Malibu disregarded a court's directive to send subpoenaed information directly to the court, instead sending it to its own counsel. Despite concerns about Malibu's conduct, many district courts have allowed it to serve third-party subpoenas on ISPs to discover defendants' identities, albeit with restrictions to protect privacy. 

To evaluate whether a plaintiff has established good cause for early discovery of Doe defendants' identities, courts consider four factors: (1) sufficient specificity in identifying the defendant, (2) recounting efforts made to locate the defendant, (3) whether the action can survive a motion to dismiss, and (4) the likelihood that discovery will yield identifying information. In this case, the plaintiff has satisfied all four factors, demonstrating sufficient specificity and detailing the investigative steps taken by Daniel Susac, an investigator for Excipio GmbH, who used forensic software to trace infringing transactions linked to the plaintiff’s works.

The identification of the IP address is adequate to establish that a real individual used the network to download copyrighted files. The Plaintiff has made reasonable efforts to identify the Defendant, despite not obtaining the Defendant's name. The initial good cause factors for early discovery are satisfied. To obtain early discovery, the Plaintiff must demonstrate that the complaint can withstand a motion to dismiss. Copyright protection is a federal law granted to authors of original works, requiring proof of two elements for infringement: ownership of a valid copyright and unauthorized copying of original elements. The Plaintiff asserts ownership of the copyrights in question and claims that the Defendant used BitTorrent to copy and distribute these works without permission, thus presenting a prima facie case for copyright infringement.

Regarding personal jurisdiction, the Plaintiff must prove jurisdictional facts, which includes demonstrating personal jurisdiction over the Defendant. The identified IP address linked to the infringement is located in Fresno, California, falling within the district's jurisdiction. The complaint suggests that the Defendant's infringing acts occurred in this district, making it likely to withstand a motion to dismiss for lack of personal jurisdiction. 

For venue considerations, copyright infringement cases must be filed in the district where the Defendant resides or can be found. The Plaintiff has indicated that the alleged infringement occurred via an IP address within the district, suggesting that venue is likely appropriate and could survive a motion to dismiss for improper venue.

Lastly, the Plaintiff has conducted an investigation into the alleged infringements and has no other means to identify the Defendant aside from subpoenaing the Internet Service Provider (ISP). The subpoena is expected to yield identifying information, including the Defendant's name and address, enabling the Plaintiff to serve process effectively.

Plaintiff has demonstrated sufficient good cause to conduct discovery before the Rule 26(f) conference. Under the Cable Privacy Act (47 U.S.C. 551), cable operators cannot disclose personally identifiable subscriber information without consent, except under a court order with prior notice to the subscriber. The Court allows Plaintiff to subpoena Comcast Cable, as it qualifies as a cable operator, to reveal the identity of Defendant John Doe linked to allegedly infringing downloads. 

The Court balances the Defendant's privacy concerns with Plaintiff's discovery needs, imposing restrictions to safeguard privacy. The order permits Plaintiff to issue a Rule 45 Subpoena to Comcast for Defendant's name and address, prohibiting the release of the subscriber's phone number or email. Comcast must notify Defendant within 30 days of the subpoena's service, and Defendant has 60 days to contest the subpoena. If contested, Comcast must withhold information until the Court resolves the motions. If unchallenged after 60 days, Comcast has 10 days to provide the information to Plaintiff. Comcast must also preserve subpoenaed information pending any motions to quash.

Plaintiff's discovery request is based on allegations that Defendant downloaded 62 specific works without authorization between February 10, 2014, and December 1, 2015. However, other courts have previously denied similar requests by Malibu Media. The order emphasizes that any information disclosed may only be used by Plaintiff to protect its rights in the complaint.