2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 STRIKE 3 HOLDINGS, LLC, Case No.: 22cv828-JO (MSB)

11 Plaintiff, ORDER GRANTING PLAINTIFF’S EX 12 v. PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA 13 JOHN DOE subscriber assigned IP address PRIOR TO A RULE 26(f) CONFERENCE 24.24.202.203, 14 [ECF No. 4] Defendant. 15 16 17 On June 21, 2022, Plaintiff Strike 3 Holdings, LLC (‘Strike”) filed an “Ex-Parte 18 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference” 19 (“Ex Parte Application”). (ECF No. 4.) Plaintiff seeks to subpoena Defendant John Doe’s 20 Internet Service Provider (“ISP”) Spectrum for “limited, immediate discovery . . . so that 21 Plaintiff may learn Defendant’s identity, further investigate Defendant’s role in the 22 infringement, and effectuate service.” (ECF No. 4-1 at 1.) Because Defendant has not 23 been identified, no opposition or reply briefs have been filed. For the following reasons, 24 the Ex Parte Application is GRANTED. 25 I. BACKGROUND 26 Plaintiff owns the copyright to certain motion pictures. (ECF no. 4-1 at 1.) On June 27 6, 2022, Plaintiff filed a Complaint alleging that Defendant John Doe, an internet 2 downloading and distributing twenty-five of Plaintiff’s copyrighted works over an 3 extended period of time. (ECF No. 1 at 2.) Plaintiff alleges it used its proprietary 4 forensic software, VXN Scan, to discover that Defendant’s IP address was illegally 5 distributing Plaintiff’s copyrighted motion pictures. (ECF No. 4-1 at 5; ECF No. 4-2 at 1.) 6 On June 21, 2022, Plaintiff filed the instant Ex Parte Application to seek leave to 7 serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Defendant’s ISP, 8 Spectrum. (ECF No. 4 at 1.) Plaintiff maintains that the Rule 45 subpoena “will only 9 demand the true name and address of Defendant[,]” and Plaintiff “will only use this 10 information to prosecute the claims made in its Complaint.” (ECF No. 4-1 at 2.) Plaintiff 11 further claims that “[w]ithout this information, Plaintiff cannot serve Defendant nor 12 pursue this lawsuit and protect its copyrights.” (Id.) 13 II. LEGAL STANDARD 14 Generally, formal discovery is not permitted before the parties have conferred 15 pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). Courts, 16 however, have made exceptions “in rare cases . . . permitting limited discovery to ensue 17 after filing of the complaint to permit the plaintiff to learn the identifying facts 18 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185

, 577 (N.D. Cal. 1999). Courts in the Ninth Circuit apply a “good cause” 20 standard to decide whether to permit early discovery. Semitool, Inc. v. Tokyo Electron 21 Am., Inc.,

, 275–76 (N.D. Cal. 2002). “Good cause” is established “where 22 the need for expedited discovery, in consideration of the administration of justice, 23 outweighs the prejudice to the responding party.”

24 “[W]hen the defendants’ identities are unknown at the time the complaint is 25 filed, courts may grant plaintiffs leave to take early discovery to determine the 26 defendants’ identities ‘unless it is clear that discovery would not uncover the identities, 27 or that the complaint would be dismissed on other grounds.’” 808 Holdings, LLC v. 2 2012) (quoting Gillespie v. Civiletti,

(9th Cir. 1980)). “A district court’s 3 decision to grant discovery to determine jurisdictional facts is a matter of discretion.” 4 Columbia Ins. Co., 185 F.R.D. at 578. 5 District Courts in the Ninth Circuit typically apply a three-factor test when 6 considering motions for early discovery to identify Doe defendants. Id. at 578–80. First, 7 the moving party should be able to “identify the missing party with sufficient specificity 8 [] that the Court can determine that [the] defendant is a real person or entity who could 9 be sued in federal court.” Id. at 578. Second, the movant “should identify all previous 10 steps taken to locate the elusive defendant” to ensure “that [the movant has made] a 11 good faith effort to comply with the requirements of the service of process and 12 specifically identifying defendants.” Id. at 579. Third, the plaintiff “should establish to 13 the Court’s satisfaction that plaintiff’s suit against defendant could withstand a motion 14 to dismiss.” Id.; see also Gillespie,

(stating early discovery to identify 15 unknown defendants should be permitted unless the complaint would be dismissed on 16 other grounds). 17 In addition to satisfying all three factors, plaintiff should provide “reasons 18 justifying the specific discovery requested [and] identification of a limited number of 19 persons or entities on whom discovery process might be served and for which there is a 20 reasonable likelihood that the discovery process will lead to identifying information 21 about defendant that would make service of process possible.” Columbia Ins. Co., 185 22 F.R.D. at 580; see also Gillespie,

(explaining that early discovery is 23 precluded if it is not likely to provide the identity of the defendant). These safeguards 24 are intended to ensure that early discovery “will only be employed in cases where the 25 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 26 pre-service, and will prevent the use of this method to harass or intimidate.” Columbia 27 Ins. Co., 185 F.R.D. at 578. 2 Plaintiff seeks leave to serve a subpoena pursuant to Federal Rule of Civil 3 Procedure 45 on Defendant’s ISP Spectrum. (ECF No. 4-1 at 7.) The Cable Privacy Act 4 prohibits a cable operator from disclosing “personally identifiable information 5 concerning any subscriber without the prior written or electronic consent of the 6 subscriber concerned[.]”

(c)(1). A cable operator, however, may disclose 7 the information if the disclosure is made pursuant to a court order and the cable 8 operator notifies the subscriber of the order.

(c)(2)(B). A cable operator 9 is “any person or group of persons” who “provides cable service over a cable system and 10 directly or through one or more affiliates owns a significant interest in such cable 11 system,” or “otherwise controls or is responsible for, through any arrangement, the 12 management and operation of such a cable system.”

(5). 13 Spectrum is a cable operator, and the information Plaintiff seeks falls within the 14 exception to the Cable Privacy Act’s disclosure prohibition. See

(c)(2)(B). 15 Accordingly, if Plaintiff satisfies the multi-factor test used by district courts to determine 16 whether early discovery is warranted, Defendant’s ISP may disclose the requested 17 information pursuant to this Court’s order. 18 A. Plaintiff Has Identified Defendant with Sufficient Specificity 19 Plaintiff must identify Defendant with enough specificity to allow the Court to 20 determine that Defendant is a real person or entity, subject to the jurisdiction of this 21 Court. See Columbia Ins. Co., 185 F.R.D. at 578. “[A] plaintiff identifies Doe defendants 22 with sufficient specificity by providing the unique IP addresses assigned to an individual 23 defendant on the day of the allegedly infringing conduct, and by using ‘geolocation 24 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC, 25

, at *4. 26 In support of its Ex Parte Application, Plaintiff submitted the Declaration of David 27 Williamson, an Information Systems and Management Consultant. (See ECF No. 4-2 at 2 BitTorrent protocol. (Id. at 8-14.) Further, although the BitTorrent protocol contains 3 some default and automatic functions, the functions that Plaintiff accuses Defendant of 4 using require human operation. See Christopher Civil, Mass Copyright Infringement 5 Litigation: Of Trolls, Pornography, Settlement and Joinder, 30 Syracuse J. Sci. & Tech. L. 6 2, 12 (2014) (“BitTorrent transfers do not involve a centralized server that hosts or 7 transfers the data files in question. Instead, BitTorrent involves users interacting 8 directly with other users to upload and download the content.”). Accordingly, Plaintiff 9 has established that an actual human was involved in the downloading and sharing of 10 Plaintiff’s allegedly infringed works. 11 Plaintiff also submitted the Declaration of Patrick Paige, a Managing Member at 12 Computer Forensics, LLC, where Mr. Paige contends that he utilized Packet Capture 13 (“PCAP”), “a computer file containing captured or recorded data transmitted between 14 network devices,” and VXN Scan to connect Defendant’s IP address to the alleged “piece 15 of an infringing copy of Plaintiff’s works.” (ECF No. 4-2 at 18-20.) According to Mr. 16 Paige, “[t]he PCAP contains a record data concerning that transaction, including, but not 17 limited to, the [IP] Addresses used in the network transaction, the date and time of the 18 network transaction, the port number used to accomplish each network transaction, 19 and the Info Hash value that the VXN Scan used as the subject of its request for data.” 20 (Id.) Mr. Paige contends that the contents of the PCAP confirm that the infringing 21 activity connected to the IP address 24.24.202.203 was initiated on May 1, 2022, at 22 13:33:33 UTC. (Id.) Mr. Paige concludes that “IP address 24.24202.203 engaged in a 23 transaction that included the transmission of a piece or pieces of a file” corresponding 24 to hash value representing Plaintiff’s works. (Id. at 22.) This date and time correspond 25 with the date and time when one of Plaintiff’s works were allegedly illegally 26 downloaded according to Exhibit A of Plaintiff’s Complaint. (Id.) 27 In addition, Plaintiff submitted the Declaration of Emilie Kennedy, Plaintiff’s in- 2 (ECF No. 4-2 at 29.) First, “[a]fter [Plaintiff] received infringement data from VXN Scan 3 identifying IP address 24.24.202.203 as infringing its works, the IP address was 4 automatically inputted into Maxmind’s Geolocation Database” on May 26, 2022. (Id.) 5 Based on this search, Ms. Kennedy contends that “Maxmind determined that the IP 6 address traced to a location in San Diego, California, which is within this Court’s 7 jurisdiction.” (Id.) Defendant’s IP address was subsequently input by Plaintiff into 8 Maxmind’s Database prior to the filing of Plaintiff’s Complaint, and prior to the filing of 9 the instant Ex Parte Application. (Id.) On both occasions the IP address linked to 10 Defendant, 24.24.202.203, traced to this district.1 11 Plaintiff has provided sufficient information about infringing activity tied to 12 Defendant’s unique IP address, the specific date and time associated with the activity, 13 and the location of the activity. Therefore, Plaintiff has demonstrated with sufficient 14 specificity that Defendant is a real person or entity, likely subject to the jurisdiction of 15 this Court. See Crim. Prods., Inc. v. Doe-72.192.163.220, Case No. 16-cv-2589 WQH 16 (JLB),

, at *3 (S.D. Cal. Nov. 18, 2016) (holding that the sufficient 17 specificity threshold is satisfied when the IP address identified by Maxmind geolocation 18 services identifies a physical location within the court’s jurisdiction). 19 B. Plaintiff Made a Good Faith Effort to Identify Defendant 20 Plaintiff must also demonstrate that it has taken previous steps to locate and 21 serve the Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. Plaintiff maintains it 22 diligently attempted to identify Defendant by searching for Defendant’s IP address “on 23 various web search tools, including basic search engines like www.google.com,” but 24 does not submit evidence supporting this claim. (ECF No. 4-1 at 14.) It further 25 conducted its own research to identify Defendant by additional authority, including 26

27 1 Attached as Exhibit 1 to Ms. Kennedy’s Declaration is a chart reflecting the results of the third and 2 law, etc.” (Id.) Despite these efforts, Plaintiff was unable to identify Defendant’s 3 identity from the IP address. The Court therefore finds that Plaintiff has made a good 4 faith effort to identify, locate, and serve Defendant. See Malibu Media, LLC v. John Does 5 1 through 6, Civil No. 12–cv–1355–LAB (DHB),

, at *3 (S.D. Cal. Sept. 6 26, 2012) (finding plaintiff’s efforts to identify Doe defendant’s identity were sufficient 7 where “there is no other way for Plaintiff to obtain Defendants' identities, except by 8 serving a subpoena on Defendants' ISPs demanding it”); see also Digital Sin, Inc. v. Does 9 1-5698, No. C 11-04397 LB,

, at *2 (N.D. Cal. Nov. 4, 2011) (finding 10 plaintiff’s attempts to identify and locate defendant sufficient, where the plaintiff 11 “investigated and collected data on unauthorized distribution of copies of the [alleged 12 infringed work] on BitTorrent-based peer-to-peer networks”). 13 C. Plaintiff’s Suit Could Withstand a Motion to Dismiss 14 Plaintiff must further show that the Complaint could withstand a motion to 15 dismiss. See Columbia Ins. Co., 185 F.R.D. at 579. Of all the bases that bear dismissal, 16 those relevant here are lack of subject matter jurisdiction, lack of personal jurisdiction, 17 and failure to state a claim. Fed. R. Civ. P. 12(b)(1), (2), (6). As to both subject matter 18 and personal jurisdiction, Plaintiff has alleged sufficient facts to survive a motion to 19 dismiss. For subject matter jurisdiction, Plaintiff’s Complaint alleges that “[t]his Court 20 has subject matter jurisdiction over this action pursuant to

(federal 21 question); and 28 U.S.C § 1338 (jurisdiction over copyright actions).” (ECF No. 1 at 2.) 22 Regarding personal jurisdiction, Plaintiff has identified Defendant’s IP address 23 associated with the alleged infringing downloading and copying, and traced it to a 24 physical address in San Diego, California. (Id.) This location is within the geographical 25 boundaries of this district. 26 Lastly, a suit may be dismissed pursuant to Rule 12(b) for “failure to state a 27 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Plaintiff’s Complaint 2 “(1) ownership of a valid copyright; and (2) that the defendant violated the copyright 3 owner’s exclusive rights under the Copyright Act.” Ellison v. Robertson,

, 4 1076 (9th Cir. 2004). “In addition, direct infringement requires the plaintiff to show 5 causation (also referred to as ‘volitional conduct’) by the defendant.” Perfect 10, Inc. v. 6 Giganews, Inc.,

(9th Cir. 2017). 7 Plaintiff alleges that it is the copyright owner of the adult motion pictures that are 8 the subject of this suit. (ECF No. 1 at 7.) Plaintiff also alleges Defendant used the 9 BitTorrent file network to illegally download and distribute Plaintiff’s copyrighted 10 motion pictures without authorization, permission, or consent. (Id.) Assuming 11 Plaintiff’s allegations are true, they state a claim on which relief can be granted. See 12 A&M Recs., Inc. v. Napster, Inc.,

, 1013–14 (9th Cir. 2001) (finding 13 plaintiffs sufficiently demonstrated ownership and infringement by showing Napster 14 allowed its users to download copyrighted music, and more than seventy percent of 15 which was owned or administered by the plaintiffs); see also Malibu Media, LLC v. Doe, 16 Case No. 16CV1916-GPC(JMA),

, at *2 (S.D. Cal. Oct. 25, 2016) (holding 17 plaintiff alleged a prima facie case of copyright infringement by alleging that plaintiff 18 owned twelve copyrighted movies at issue, and that defendant infringed plaintiff’s 19 copyrights by copying and distributing plaintiff’s movies through the BitTorrent network 20 without plaintiff’s permission). Therefore, Plaintiff has sufficiently alleged a prima facie 21 claim of copyright infringement which could withstand a motion to dismiss. 22 D. Whether Requested Discovery Will Lead to Identifying Information 23 Lastly, the Plaintiff must prove that the requested discovery is likely to lead to 24 identifying information. Columbia Ins. Co., 185 F.R.D. at 580. As discussed above, 25 Plaintiff’s forensic investigation directly connected Defendant’s IP address 26 24.24.202.203 to the alleged infringements, and the only entity that can identify 27 Defendant based on this information is Spectrum. (ECF No. 4-2 at 20-22.) Accordingly, 2 information making it possible for Plaintiff to effectuate service on Defendant. 3 IV. CONCLUSION 4 For the foregoing reasons, the Court finds that Plaintiff has demonstrated good 5 cause to conduct early discovery and GRANTS the Ex Parte Application for Leave to 6 Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [ECF No. 4] as follows: 7 1. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 8 45 on Spectrum, seeking only the name and address of the subscriber assigned to the IP 9 address 24.24.202.203. Plaintiff may not subpoena additional information about the 10 subscriber; 11 2. Plaintiff may only use the disclosed information to protect its copyrights in 12 the instant litigation; 13 3. Within fourteen (14) calendar days after service of the subpoena, Spectrum 14 shall notify the subscriber assigned the IP address 24.24.202.203 that his, her, or its 15 identity has been subpoenaed by Plaintiff; 16 4. The subscriber whose identity has been subpoenaed shall have thirty (30) 17 calendar days from the date of the notice to challenge the disclosure of his, her, or its 18 name and address by filing an appropriate pleading with this Court contesting the 19 subpoena; 20 5. If Spectrum wishes to move to quash the subpoena, it shall do so before 21 the return date of the subpoena. The return date of the subpoena must allow for at 22 least forty-five (45) days from service to production. If a motion to quash or other 23 customer challenge is brought, Spectrum shall preserve the information sought by 24 Plaintiff in the subpoena pending resolution of the motion or challenge; 25 6. Plaintiff shall serve a copy of this Order with any subpoena obtained and 26 served to Spectrum pursuant to this Order; 27 7. Spectrum must provide a copy of this Order along with the required notice 1 8. No other discovery is authorized at this time. 2 IT 1S SO ORDERED. 3 ||Dated: July 26, 2022 _ 2? F— 5 Honorable Michael S. Berg United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28