Malibu Media, LLC v. John Doe

• Decision Date: 23 August 2016
• Docket Number: 15-CV-3504 (JFB)(SIL)
• Parties: MALIBU MEDIA, LLC, Plaintiff, v. JOHN DOE, subscriber assigned IP address 98.116.160.61, Defendant.
• Court: U.S. District Court — Eastern District of New York

MALIBU MEDIA, LLC, Plaintiff, v. JOHN DOE, subscriber assigned IP address 98.116.160.61, Defendant.

15-CV-3504 (JFB)(SIL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 23, 2016

MEMORANDUM AND ORDER

LOCKE, Magistrate Judge:

Presently before the Court in this copyright infringement action is Defendant John Doe's ("Defendant" or "Doe") Motion to Quash Subpoena and Motion for a Protective Order, which Plaintiff Malibu Media, LLC ("Plaintiff" or "Malibu Media") opposes. See Docket Entry ("DE") [10], [14]. For the reasons set forth herein, Defendant's motion is denied.

I. BACKGROUND

The relevant factual background, as well as a description of the relevant "BitTorrent" technology, is discussed at length in this Court's July 29, 2015 Order granting Plaintiff's Motion for Expedited Discovery (the "Discovery Order"), and is incorporated herein by reference. See DE [9]. Nevertheless, the following facts provide relevant context for the instant motion.

A. The Parties and the Discovery Order

Malibu Media is a California corporation engaged in the production and distribution of adult erotic films through its website "X-art.com." See Declaration of Colette Pelissier Field (the "Field Decl."), DE [16], ¶¶ 3-7. Through monthly or annual subscriptions, Malibu Media offers access to an online library of copyrighted video content. Id. at ¶ 6. According to Plaintiff, piracy of its copyrighted content is "a serious threat to [its] business because more people steal [Malibu Media's] works via BitTorrent than pay for subscriptions." Id. at ¶ 10. Relevant for purposes of this action, Plaintiff alleges that Defendant infringed upon the copyrights that Malibu Media owns for eighteen original works of authorship. See Compl., DE [1], ¶ 29, Ex. B.

The Doe Defendant is the Internet subscriber assigned the Internet Protocol ("IP") address 98.116.160.61. Id. at Ex. A. Although Malibu Media "only knows defendant by his, her or its IP Address," see id. at ¶ 9, by establishing a direct connection with Defendant's IP address, Malibu Media's investigator, IPP International UG ("IPP International"), downloaded from Defendant one or more bits of each of the eighteen digital movie files identified in the Complaint. Id. at ¶¶ 18-20. According to Plaintiff, between February 10, 2015 and May 23, 2015, Defendant illegally copied and distributed eighteen movies to which Malibu Media owns the copyright. Id. at ¶ 20. To that end, Plaintiff alleges that "Defendant is a habitual and persistent BitTorrent user and copyright infringer." Id. at ¶ 25. Accordingly, by way of Complaint dated June 16, 2015, Malibu Media commenced this action against the Doe Defendant, alleging one count of direct copyright infringement in violation of 17 U.S.C. §§ 106, 501. Id. at ¶¶ 28-33.

Although Plaintiff does not know the Doe Defendant's identity, Malibu Media alleges that "Defendant's Internet Service Provider can identify the Defendant." Id. at ¶¶ 9, 10. Accordingly, on July 13, 2015, Plaintiff filed a motion seeking leave to serve a third-party subpoena on Verizon Internet Services ("Verizon") pursuant to Fed. R. Civ. P. 26(f) (the "Discovery Motion"). See DE [4]. Specifically, Malibu Media sought permission to "demand the true name and address of the Defendant." See Memorandum of Law in Support of Plaintiff's Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(f) Conference ("Discovery Mot. Mem."), DE [5], at 4. According to Plaintiff, "without [that] information, Plaintiff cannot serve the Defendant nor pursue this lawsuit to protect its valuable copyrights." Id.

On July 29, 2015, the Court granted the Discovery Motion, holding that "Malibu Media has demonstrated good cause for limited expedited discovery designed to ascertain the names and addresses of the Doe Defendants." Discovery Order at 9.¹ However, in light of "the high risk of false positives in the identification process . . . combined with the sensitive nature of the copyright material at issue," the Court issued a Protective Order governing the manner in which such information would be disclosed. Id. at 10-12. Pursuant to the Protective Order, within sixty days of receiving a subpoena from Malibu Media, Defendant's Internet Service Provider ("ISP") was required to provide notice thereof to Defendant, who is the Internet subscriber associated with the IP address at issue. Id. at 11. Upon receiving suchnotice from the ISP, Defendant then had sixty days to file any motion with this Court seeking to contest the subpoena or litigate the subpoena anonymously. Id. If, after sixty days, Defendant did not contest disclosure of his identity, the ISP was required to either produce information responsive to the subpoena or file its own motion to quash within ten days. Id. at 12.

B. The Instant Motion

On or about August 7, 2015, Defendant received a letter from Verizon informing him that Verizon received a subpoena from Malibu Media seeking disclosure of Defendant's name and address (the "Verizon Subpoena"). See Motion to Quash Subpoena and Motion for a Protective Order by Defendant John Doe ("Def.'s Mot."), DE [10], ¶ 2. On September 28, 2015, Defendant filed the instant motion seeking an Order: (i) quashing the Verizon Subpoena pursuant to Fed. R. Civ. P. 45(d), and (ii) protecting his identity from disclosure pursuant to Fed. R. Civ. P. 26(c). Id. at ¶¶ 55, 62. According to Defendant, he "did not copy or transmit Plaintiff's copyrighted works . . . and was not a part of Plaintiff's alleged BitTorrent 'swarm.'" Id. at ¶ 4. Defendant further argues that "Plaintiff has failed to show 'good cause' for the expedited discovery [provided for in the Discovery Order] because it couldn't establish a prima facie claim and its claim that there is no alternative means of obtaining the desired information was inadequate." Id. at ¶ 63. To that end, relying on a 2008 paper published by the University of Washington Department of Computer Science, Defendant argues, among other things, that the "common approach for identifying infringing users in the popular BitTorrent file sharing network is notconclusive." Id. at ¶¶ 8-11 (quoting Tadayoshi Kohno, Arvind Krishnamurthy & Michael Piatek, University of Washington, Challenges and Directions for Monitoring P2P File Sharing Networks - or - Why My Printer Received a DMCA Takedown Notice (available at www.dmca.cs.washington.edu/dmca_hotsec08.pdf) [hereinafter Univ. of Wash. Paper]). According to Defendant, "practically any Internet user[] can be framed for copyright infringement and even without being explicitly framed, innocent users may still be identified as an infringer even if they have never used [peer-to-peer] software." Id. at ¶ 8.

In opposition, Plaintiff argues, among other things: (i) that Defendant lacks standing to oppose the Verizon Subpoena; (ii) that the Court did not err in concluding that good cause existed to allow for expedited discovery; and (iii) that Defendant fails to identify a legally cognizable reason to quash the Verizon Subpoena pursuant to Fed. R. Civ. P. 45. See Plaintiff's Response in Opposition to Defendant's Motion to Quash ("Pl.'s Opp'n"), DE [14], at 1-2. Malibu Media further argues that the University of Washington Paper does not actually support Defendant's position because "Plaintiff used the exact process that the study recommends . . . ." Id. at 5. Plaintiff does not oppose allowing Defendant to proceed anonymously through the conclusion of discovery. Id. at 1.

On October 6, 2015, this Court stayed the directives and relief provided for in the Discovery Order "[b]ecause the arguments advanced in the Doe Defendant's Motion to Quash raise[d] serious questions as to whether good cause exists . . . to permit the expedited pre-answer discovery provided for in [the Discovery Order] . . .."² See DE [12]. The Court held an evidentiary hearing on Defendant's motion on April 20, 2016. See DE [30]. At the evidentiary hearing, Plaintiff offered testimony from: (i) Michael Patzer, Senior Assistant Architect for the German copyright infringement detection firm Excipio, which designed the monitoring software that Malibu Media relied upon in detecting Defendant's allegedly infringing activity; and (ii) Patrick Paige, Plaintiff's forensic expert, who conducted tests to verify the accuracy of Excipio's monitoring software. See Transcript of April 20, 2016 Evidentiary Hearing ("Tr."), DE [34-1], at 6:21-8:4, 41:3-6, 106:6-15. Although the Court invited testimony from the authors of the University of Washington Paper, Defendant did not present any witnesses. Following the evidentiary hearing, the parties submitted post-hearing briefs. See Defendant's Post-Hearing Memorandum ("Def.'s Supp. Br."), DE [33]; Plaintiff's Supplemental Brief ("Pl.'s Supp. Br."), DE [34].

II. DISCUSSION

At the outset, the Court notes that the parties disagree regarding the applicable standard. Although styled as a motion to quash pursuant to Fed. R. Civ. P. 45, Defendant claims that its "arguments on the 'good cause' inquiry [are] based on Rule 26." See Defendant's Reply to Plaintiff's Opposition to Motion to Quash ("Def.'s Reply Mem."), DE [17], at 1. Defendant also "asks that this Court, among other things, reconsider [its] finding" that good cause existed to permit expedited discovery. Def.'s Mot. ¶ 21; see also Def.'s Reply Mem. at 1 (observing that the "courthas discretion to reconsider its orders"). Therefore, the Court reviews the instant motion as both a motion for reconsideration of the Court's Discovery Order and a motion to quash the already issued Verizon Subpoena. However, regardless of which standard applies, for the reasons set forth herein, Defendant's motion is denied.

A. Motion for Reconsideration

Motions for reconsideration are governed by Local Civil Rule 6.3, which requires that the movant "set forth concisely the matters or controlling decisions which the party believes the court has overlooked." Pickering-George v. Attorney Gen. of U.S., No....