Malibu Media, LLC v. Doe ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MALIBU MEDIA, LLC,
Plaintiff,
v.
Civil Action No. 19-2025 (TJK)
JOHN DOE subscriber assigned IP address
216.15.8.6,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Motion for Leave to Serve a Third Party Subpoena Prior to
a Rule 26(f) Conference. ECF No. 4. For all the below reasons, the Motion will be granted.
I. FACTUAL BACKGROUND
Plaintiff Malibu Media, LLC, owns the rights to certain adult entertainment films. ECF
No. 1 (“Compl.”) ¶ 3. Plaintiff alleges that Defendant, currently identified as John Doe
subscriber assigned internet protocol (“IP”) address 216.15.8.6, has been downloading and
distributing these films using the BitTorrent file distribution network, a peer-to-peer file sharing
system, in violation of the Copyright Act, 17 U.S.C. §§ 101 et seq. Compl. ¶¶ 11–26, 33.
Plaintiff further alleges that it used geolocation technology to trace the IP address used by
Defendant to a physical address in the District of Columbia. Id. ¶ 5. Plaintiff has moved for
leave to serve a third-party subpoena on Defendant’s internet service provider (“ISP”)—RCN
Corporation—to learn Defendant’s “true name and address,” which would, among other things,
allow Plaintiff to serve process on Defendant. ECF No. 4-1 (“Pl.’s Mem.”) at 3–4. Plaintiff
asserts that it will only use Defendant’s name and address to prosecute the claims in its
Complaint. Id.
II. LEGAL STANDARD
A party ordinarily “may not seek discovery from any source” before a Rule 26(f)
conference unless “authorized . . . by court order.” Fed. R. Civ. P. 26(d)(1). “To determine
whether to authorize discovery prior to a Rule 26(f) conference in a particular case, this district
has applied a ‘good cause’ standard.” Malibu Media, LLC v. Doe, 64 F. Supp. 3d 47, 49 (D.D.C.
2014) (collecting cases). “Good cause to take discovery prior to the Rule 26(f) conference exists
where the discovery is necessary ‘before th[e] suit can progress further.’” Malibu Media, LLC v.
Doe, No. 15-986 (RDM), 2015 WL 5173890, at *1 (D.D.C. Sept. 2, 2015) (alteration in original)
(quoting Arista Records, LLC v. Does 1–19, 551 F. Supp. 2d 1, 6 (D.D.C. 2008)).
A plaintiff also “must ‘have at least a good faith belief that such discovery will enable it
to show that the court has personal jurisdiction over the defendants.’” AF Holdings, LLC v. Does
1–1058, 752 F.3d 990, 995 (D.C. Cir. 2014) (quoting Caribbean Broadcasting System, Ltd. v.
Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998)). “The Copyright Act does not
provide for the exercise of personal jurisdiction over alleged infringers on any basis.” Malibu
Media, LLC v. Doe, 177 F. Supp. 3d 554, 556 (D.D.C. 2016) (citing Exquisite Multimedia, Inc. v.
Does 1–336, No. 11-1976 (RWR/JMF), 2012 WL 177885, at *2 (D.D.C. Jan. 19, 2012)). For
that reason, a plaintiff “must predicate this Court’s jurisdiction over the infringers on the reach of
District of Columbia law.” Id. Under the District of Columbia’s long-arm statute, “the only
conceivable way that personal jurisdiction might properly be exercised” is if the defendant is a
“resident[] of the District of Columbia or at least downloaded the copyrighted work in the
District.” AF Holdings, LLC, 752 F.3d at 996 (citing D.C. Code § 13–423(a)(3), (4)).
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III. ANALYSIS
Plaintiff has satisfied the good cause standard to serve discovery prior to a Rule 26(f)
conference. To begin with, “this suit cannot move forward without Plaintiff first being able to
identify Defendant so that service can be effected.” Malibu Media, LLC v. Doe, No. 16-639
(RC/AK), 2016 WL 1698263, at *2 (D.D.C. Apr. 27, 2016). According to a declaration
provided by Plaintiff, Defendant’s ISP is the only entity that can identify Defendant by
correlating the IP address linked to the alleged infringement with its subscriber. Pl.’s Mem.,
Ex. B ¶ 27.
Plaintiff has also established a good-faith belief that this Court has personal jurisdiction
over Defendant. Plaintiff used geolocation technology to trace Defendant’s IP address to a
physical location within the District of Columbia. Pl’s. Mem. at 6. The D.C. Circuit “has
suggested that reliance on ‘geolocation services’ of this sort is sufficient to justify a ‘good faith
belief’ that a district court has personal jurisdiction over unknown defendants.” Malibu Media,
2015 WL 5173890, at *2 (quoting A.F. Holdings, 752 F.3d at 996); see also Malibu Media, 2016
WL 1698263, at *2 (“Using a geolocation service that estimates that location of Internet users
based on their IP addresses is sufficient to demonstrate a good faith belief that the court has
personal jurisdiction over the defendant.”); Nu Image, Inc. v. Does 1–23, 322, 799 F. Supp. 2d
34, 41 (D.D.C. 2011) (“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.”) (emphasis in original). Thus, in its “broad discretion 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)), the Court authorizes Plaintiff to serve limited discovery on
Defendant’s ISP.
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IV. PROCEDURAL SAFEGUARDS
In similar cases involving adult content, courts have found it appropriate to establish
certain procedural safeguards to protect the privacy interests of the subscriber assigned to the IP
address at issue. See, e.g., Malibu Media, LLC v. Doe, 308 F. Supp. 3d 235, 238–39 (D.D.C.
2018); Strike 3 Holdings, LLC v. Doe, No. 17-2347 (TJK), 2018 WL 385418, at *2–3 (D.D.C.
Jan. 11, 2018). “The fact that a copyrighted work was illegally downloaded from a certain IP
address does not necessarily mean that the owner of that IP address was the infringer.” Media
Prods., Inc. v. Does 1–26, No. 12-3719 (HB), 2012 WL 2190613, at *1 (S.D.N.Y. June 12,
2012). “Indeed, the true infringer could just as easily be a third party who had access to the
internet connection, such as a son or daughter, houseguest, neighbor, or customer of a business
offering an internet connection,” and “[t]here is a real risk that defendants might be falsely
identified and forced to defend themselves against unwarranted allegations.” Id. There is also a
risk that “the innocent defendant may be coerced into an unjust settlement with the plaintiff to
prevent the dissemination of publicity surrounding unfounded allegations.” Id. In these
circumstances, “there is no reason to conclude that adequate protections exist to safeguard the
individuals or entities subscribing to the implicated IP address[] against the danger of
‘annoyance, embarrassment, oppression, or undue burden or expense.’” In re Malibu Media
Adult Film Copyright Infringement Cases, Nos. 15-1855 (SJF) (SIL) et al., 2015 WL 3605834, at
*4 (E.D.N.Y. June 8, 2015) (quoting Fed. R. Civ. P. 26(c)).
In light of these considerations, the Court finds that additional procedural safeguards are
warranted here.
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V. CONCLUSION AND ORDER
For all the above reasons, Plaintiff’s Motion for Leave to Serve a Third Party Subpoena
Prior to a Rule 26(f) Conference, ECF No. 4, is GRANTED. Plaintiff shall be allowed to pursue
early discovery by serving a subpoena on the identified ISP that seeks information sufficient to
identify John Doe subscriber assigned IP address 216.15.8.6 subject to the following conditions:
1. If and when the ISP is served with a subpoena, Plaintiff shall provide the ISP with
a copy of this Memorandum Opinion and Order with its subpoena.
2. The ISP shall give written notice, which may include e-mail notice, and shall
include a copy of the subpoena and this Memorandum Opinion and Order, to the
subscriber in question at least twenty-one (21) days before releasing the
subscriber’s identifying information to Plaintiff.
3. Any motion to quash the subpoena shall be filed before the return date of the
subpoena, which shall be no earlier than forty-five (45) days from the date of
service.
4. The ISP shall preserve any subpoenaed information pending the resolution of any
timely-filed motion to quash.
5. Any information disclosed to Plaintiff in response to the subpoena may be used
by Plaintiff solely for the purpose of protecting Plaintiff’s rights as set forth in the
Complaint.
6. If Defendant, once identified, wishes to proceed anonymously in this litigation, he
shall make that request through a motion for a protective order. See Fed. R.
Civ. P. 26(c). Any such motion shall be filed within thirty (30) days from the date
Defendant receives written notice of the subpoena from the ISP.
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7. To preserve Defendant’s ability to seek a protective order, Plaintiff shall refrain
from identifying Defendant on the public docket or from otherwise disclosing
Defendant’s identity for a period of thirty (30) days after receiving any identifying
information from the ISP.
8. On or before August 21, 2019, Plaintiff shall file a status report with the Court
briefly outlining its progress, including by providing an expected completion date
of the discovery authorized.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: July 18, 2019
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