2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STRIKE 3 HOLDINGS, LLC, Case No.: 23cv288-LL (MSB)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S EX 13 v. PARTE APPLICATION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA 14 JOHN DOE subscriber assigned IP address PRIOR TO A RULE 26(f) CONFERENCE 70.95.181.110, 15 [ECF No. 4] Defendant. 16 17 18 On February 21, 2023, Plaintiff Strike 3 Holdings, LLC (“Strike 3”) filed an “Ex-Parte 19 Application for Leave to Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference” 20 (“Ex Parte Application”). (ECF No. 4.) Plaintiff seeks to subpoena Defendant John Doe’s 21 Internet Service Provider (“ISP”) Spectrum for “limited, immediate discovery . . . so that 22 Plaintiff may learn Defendant’s identity, further investigate Defendant’s role in the 23 infringement, and effectuate service.” (ECF No. 4-1 at 7.) Because Defendant has not 24 been identified, no opposition or reply briefs have been filed. For the reasons discussed 25 below, the Ex Parte Application is GRANTED. 26 I. BACKGROUND 27 Plaintiff owns the copyrights to multiple collections of adult motion pictures. (ECF 2 70.95.181.110, has been using the BitTorrent protocol to download and distribute 24 of 3 Plaintiff’s copyrighted works over an extended period of time. (ECF No. 1 at 2.) Plaintiff 4 alleges it used its proprietary forensic software, VXN Scan, to discover that Defendant’s 5 IP address was illegally distributing Plaintiff’s copyrighted motion pictures. (ECF No. 4-1 6 at 7; ECF No. 4-2 at 20-22.) 7 On February 21, 2023, Plaintiff filed the instant Ex Parte Application requesting 8 leave to serve a subpoena pursuant to Federal Rule of Civil Procedure 45 on Defendant’s 9 ISP, Spectrum. (ECF No. 4-1 at 7.) Plaintiff’s subpoena only asks for the name and 10 address of the IP subscriber and Plaintiff “will only use this information to prosecute the 11 claims made in its Complaint.” (Id. at 8.) Plaintiff further claims that “[w]ithout this 12 information, Plaintiff cannot serve Defendant nor pursue this lawsuit and protect its 13 copyrights.” (Id.) 14 II. LEGAL STANDARD 15 Generally, formal discovery is not permitted before the parties have conferred 16 pursuant to Federal Rule of Civil Procedure 26(f). Fed. R. Civ. P. 26(d)(1). In rare 17 situations, however, courts have made exceptions “permitting limited discovery to 18 ensue after filing of the complaint to permit the plaintiff to learn the identifying facts 19 necessary to permit service on the defendant.” Columbia Ins. Co. v. Seescandy.com, 185

, 577 (N.D. Cal. 1999). Courts in the Ninth Circuit permit early discovery when 21 a plaintiff has established “good cause.” Semitool, Inc. v. Tokyo Electron Am., Inc., 208

, 275–76 (N.D. Cal. 2002). “Good cause” is established “where the need for 23 expedited discovery, in consideration of the administration of justice, outweighs the 24 prejudice to the responding party.”

25 The Ninth Circuit permits the use of discovery to ascertain the identifies of 26 unknown defendants, “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 (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 that 13 its lawsuit could withstand a motion to dismiss.” Id.; see also Gillespie,

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

(explaining that early discovery is 22 precluded if it is not likely to provide the identity of the defendant). These safeguards 23 are intended to ensure that early discovery “will only be employed in cases where the 24 plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant 25 pre-service, and will prevent the use of this method to harass or intimidate.” Columbia 26 Ins. Co., 185 F.R.D. at 578. 27 / / / 2 The Cable Privacy Act prohibits a cable operator from disclosing “personally 3 identifiable information concerning any subscriber without the prior written or 4 electronic consent of the subscriber concerned[.]”

(c)(1). A cable 5 operator, however, may disclose the information if the disclosure is made pursuant to a 6 court order and the cable operator notifies the subscriber of the order.

551(c)(2)(B). A cable operator is “any person or group of persons” who “provides cable 8 service over a cable system and directly or through one or more affiliates owns a 9 significant interest in such cable system,” or “otherwise controls or is responsible for, 10 through any arrangement, the management and operation of such a cable system.” 47

(5). 12 Spectrum is a cable operator, and the information Plaintiff seeks falls within the 13 exception to the Cable Privacy Act’s disclosure prohibition. See

(c)(2)(B). 14 Accordingly, if Plaintiff satisfies the multi-factor test used by district courts to determine 15 whether early discovery is warranted, Defendant’s ISP may disclose the requested 16 information pursuant to this Court’s order. 17 A. Plaintiff Has Identified Defendant with Sufficient Specificity 18 Plaintiff must identify Defendant with enough specificity to allow the Court to 19 determine that Defendant is a real person or entity, subject to the jurisdiction of this 20 Court. See Columbia Ins. Co., 185 F.R.D. at 578. “[A] plaintiff identifies Doe defendants 21 with sufficient specificity by providing the unique IP addresses assigned to an individual 22 defendant on the day of the allegedly infringing conduct, and by using ‘geolocation 23 technology’ to trace the IP addresses to a physical point of origin.” 808 Holdings, LLC, 24

, at *4. 25 Here, Plaintiff’s infringement detection system, VXN, is used to identify IP 26 addresses used by individuals infringing on Plaintiff’s movies through the BitTorrent 27 protocol. (ECF No. 4-2 at 9-15.) The VXN system identified Defendant’s IP address 2 functions that Plaintiff accuses Defendant of using require human operation. See 3 Christopher Civil, Mass Copyright Infringement Litigation: Of Trolls, Pornography, 4 Settlement and Joinder, 30 Syracuse J. Sci. & Tech. L. 2, 12 (2014) (“BitTorrent transfers 5 do not involve a centralized server that hosts or transfers the data files in question. 6 Instead, BitTorrent involves users interacting directly with other users to upload and 7 download the content.”). Accordingly, Plaintiff has established that an actual human 8 was involved in the downloading and sharing of Plaintiff’s allegedly infringed works. 9 Plaintiff also used the Maxmind database of IP address information to identify 10 both the Internet Service Provider, Spectrum, and the city and state where the IP 11 address 70.95.181.110 is used. (ECF No. 4-2 at 14.) Therefore, Plaintiff has 12 demonstrated with sufficient specificity that Defendant is a real person or entity, likely 13 subject to the jurisdiction of this Court. See Crim. Prods., Inc. v. Doe-72.192.163.220, 14 Case No. 16-cv-2589 WQH (JLB),

, at *3 (S.D. Cal. Nov. 18, 2016) 15 (holding that the sufficient specificity threshold is satisfied when the IP address 16 identified by Maxmind geolocation services identifies a physical location within the 17 court’s jurisdiction). 18 B. Plaintiff Made a Good Faith Effort to Identify Defendant 19 Plaintiff must also demonstrate that it has taken previous steps to locate and 20 serve the Defendant. See Columbia Ins. Co., 185 F.R.D. at 579. Plaintiff maintains it 21 diligently attempted to identify Defendant by searching for Defendant’s IP address “on 22 various web search tools, including basic search engines like www.google.com,” but 23 does not submit evidence supporting this claim. (ECF No. 4-1 at 14.) It further 24 conducted its own research to identify Defendant by “legislative reports, agency 25 websites, information technology guides, governing case law, etc.” (Id.) Despite these 26 efforts, Plaintiff was unable to identify Defendant’s identity from the IP address. The 27 Court therefore finds that Plaintiff has made a good faith effort to identify, locate, and 2 efforts to identify Doe defendant’s identity were sufficient where “there is no other way 3 for Plaintiff to obtain Defendants' identities, except by serving a subpoena on 4 Defendants' ISPs demanding it”); see also Digital Sin, Inc. v. Does 1-5698, No. C 11-04397 5 LB,

, at *2 (N.D. Cal. Nov. 4, 2011) (finding plaintiff’s attempts to 6 identify and locate defendant sufficient, where the plaintiff “investigated and collected 7 data on unauthorized distribution of copies of the [alleged infringed work] on 8 BitTorrent-based peer-to-peer networks”). 9 C. Plaintiff’s Suit Could Withstand a Motion to Dismiss 10 Plaintiff must further show that the Complaint could withstand a motion to 11 dismiss. See Columbia Ins. Co., 185 F.R.D. at 579. As relevant here, a claim may be 12 dismissed pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for lack of 13 subject matter jurisdiction, lack of personal jurisdiction, or for failure to state a claim. 14 See Fed. R. Civ. P. 12(b)(1), (2), (6). As to both subject matter and personal jurisdiction, 15 Plaintiff has alleged sufficient facts to survive a motion to dismiss. For subject matter 16 jurisdiction, Plaintiff’s Complaint alleges that “[t]his Court has subject matter jurisdiction 17 over this action pursuant to 28 U.S.C § 1338 (jurisdiction over copyright actions).” (ECF 18 No. 1 at 2.) Regarding personal jurisdiction, Plaintiff has identified Defendant’s IP 19 address associated with the alleged infringing downloading and copying, and traced it to 20 a physical address in San Diego, California. (ECF No. 4-2 at 29.) This location is within 21 the geographical boundaries of this district. Thus, it appears the Complaint can 22 withstand a motion to dismiss for lack of personal jurisdiction because Defendant’s IP 23 address can be traced to this district. 24 Lastly, a suit may be dismissed pursuant to Rule 12(b) for “failure to state a claim 25 upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Plaintiff’s Complaint alleges 26 a single cause of action for direct copyright infringement. (ECF No. 1 at 7-9). Thus, 27 Plaintiff must satisfy two requirements to present a prima facie case of direct copyright 2

(9th Cir. 2004). Here, Plaintiff alleges that it is the copyright owner 3 of the adult motion pictures that are the subject of this suit. (ECF No. 1 at 7.) Plaintiff 4 also alleges Defendant used the BitTorrent file network to illegally download and 5 distribute Plaintiff’s copyrighted motion pictures without authorization, permission, or 6 consent. (Id.) Assuming Plaintiff’s allegations are true, they state a claim on which relief 7 can be granted. See A&M Recs., Inc. v. Napster, Inc.,

, 1013–14 (9th Cir. 8 2001) (finding plaintiffs sufficiently demonstrated ownership and infringement by 9 showing Napster allowed its users to download copyrighted music, and more than 10 seventy percent of which was owned or administered by the plaintiffs); see also Malibu 11 Media, LLC v. Doe, Case No. 16CV1916-GPC(JMA),

, at *2 (S.D. Cal. 12 Oct. 25, 2016) (holding plaintiff alleged a prima facie case of copyright infringement by 13 alleging that plaintiff owned twelve copyrighted movies at issue, and that defendant 14 infringed plaintiff’s copyrights by copying and distributing plaintiff’s movies through the 15 BitTorrent network without plaintiff’s permission). Therefore, Plaintiff has sufficiently 16 alleged a prima facie claim of copyright infringement which could withstand a motion to 17 dismiss. 18 D. Whether Requested Discovery Will Lead to Identifying Information 19 Lastly, the Plaintiff must prove that the requested discovery is likely to lead to 20 identifying information. As discussed above, Plaintiff’s forensic investigation directly 21 connected Defendant’s IP address 70.95.181.110 to the alleged infringements, and the 22 only entity that can identify Defendant based on this information is Spectrum. (ECF No. 23 4-2 at 22.) Although the owner of the IP address may not be the actual infringer, the 24 forensic investigation and the Complaint identifies Defendant as the owner of the IP 25 address 70.95.181.110. Accordingly, if Spectrum provides Plaintiff with Defendant’s 26 name and address, this will likely lead to information making it possible for Plaintiff to 27 effectuate service on Defendant. 2 For the foregoing reasons, the Court finds that Plaintiff has demonstrated good 3 cause to conduct early discovery and GRANTS the Ex Parte Application for Leave to 4 Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference [ECF No. 4] as follows: 5 1. Plaintiff may serve a subpoena pursuant to Federal Rule of Civil Procedure 6 45 on Spectrum, seeking only the name and address of the subscriber assigned to the IP 7 address 70.95.181.110. Plaintiff may not subpoena additional information about the 8 subscriber; 9 2. Plaintiff may only use the disclosed information to protect its copyrights in 10 the instant litigation; 11 3. Within fourteen (14) calendar days after service of the subpoena, Spectrum 12 shall notify the subscriber assigned the IP address 70.95.181.110 that his, her, or its 13 identity has been subpoenaed by Plaintiff; 14 4. The subscriber whose identity has been subpoenaed shall have thirty (30) 15 calendar days from the date of the notice to challenge the disclosure of his, her, or its 16 name and address by filing an appropriate pleading with this Court contesting the 17 subpoena; 18 5. If Spectrum wishes to move to quash the subpoena, it shall do so before 19 the return date of the subpoena. The return date of the subpoena must allow for at 20 least forty-five (45) days from service to production. If a motion to quash or other 21 customer challenge is brought, Spectrum shall preserve the information sought by 22 Plaintiff in the subpoena pending resolution of the motion or challenge; 23 6. Plaintiff shall serve a copy of this Order with any subpoena obtained and 24 served to Spectrum pursuant to this Order; 25 7. Spectrum must provide a copy of this Order along with the required notice 26 to the subscriber whose identity is sought pursuant to this Order. 27 / / / 1 8. No other discovery is authorized at this time. 2 IT IS SO ORDERED. 3 ||Dated: February 28, 2023 _ 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