Well Go USA, Inc. v. Hash
| Decision Date | 24 September 2012 |
| Docket Number | CIVIL ACTION NO. 4:12-cv-00963 |
| Parties | WELL GO USA, INC. A TEXAS CORPORATION, Plaintiff, v. UNKNOWN PARTICIPANTS IN FILESHARING SWARM IDENTIFIED BY HASH: B7FEC872874D0CC9B1372ECE5ED07A D7420A3BBB, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Before the Court is Plaintiff's Motion for Leave to Identify Defendants (Doc. No. 8) relating to the alleged copyright infringement of Plaintiff's movie, "Ip Man 2". Specifically, Plaintiff seeks the names of those it believes used BitTorrent technology to illegally share Ip Man 2. Based on Plaintiff's Motion and the applicable law, this court grants limited discovery.
BitTorrent is a peer-to-peer ("P2P") file sharing protocol used for distributing and sharing data on the Internet. Unlike other P2P protocols, BitTorrent downloading occurs through a piecemeal process by which a user can receive different portions of the file from multiple users. As soon as a user has downloaded a new piece of the file, she or he becomes able to transmit that piece to other peers. All peers who have a common BitTorrent file on their computer are considered a single "swarm." A swarm is identified by a unique hash tag, which Plaintiff identified in its complaint as "B7FEC872874D0CC9-B1372ECE5ED07AD7420A3BBB." As long as users are connected to the BitTorrent protocol, they continue to distribute data to the peers in the swarm until the user manually disconnects from the swarm or the computer is shut down. Diabolic Video Prods., Inc. v. Does 1-2099, 2011 WL 3100404, *1-2 cited by K-Beech, Inc. v. John Does 1-41, CIV.A. V-11-46, 2012 WL 773683 (S.D. Tex. Mar. 8, 2012).
Plaintiff attempts to join all Does who participated in the swarm from May 10, 2011 to July 15, 2011. (Compl. ¶ 12.) During this time, Plaintiff obtained each subscriber's IP address, the specific internet service provider (ISP), and the date and time of the infringing activity. (Doc. No. 8-3.) Plaintiff acknowledges that all Defendants did not engage with the swarm at the exact same time. (Doc. No. 8, at 7.)
Plaintiff requests leave of the court to identify each Defendant's name, address, telephone number, and email address. Plaintiff desires to use the subpoena provision of the Digital Millennium Copyright Act to compel ISPs to release Defendants' information. 17 USC § 512(h). In the alternative, Plaintiff requests permission to serve Rule 45 subpoenas on the ISPs. This Court grants limited discovery under Rule 45, subject to the protective order below.
In order to seek a subpoena for identifying information of users, courts have weighed several factors to balance the need for disclosure against First Amendment interests. These factors include: (1) a concrete showing of a prima facie claim of actionable harm by the plaintiff; (2) specificity of the discovery request; (3) the absence of alternative means to obtain the subpoenaed information; (4) a central need for the subpoenaedinformation to advance the claim; and (5) the user's expectation of privacy. Arista Records, LLC v. Doe 3, 604 F.3d 110, 114 (2d Cir. 2010) citing Sony Music Entm't Inc. v. Does 1-40, 326 F.Supp.2d. 556, 565 (S.D.N.Y. 2004). See also Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 350 (D.D.C. 2011); Interscope Records v. Does 1-14, 558 F. Supp. 2d 1176, 1179 (D. Kan. 2008); London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 164 (D. Mass. 2008).
Plaintiff has asserted a prima facie claim for copyright infringement. Plaintiff's Complaint alleges that Plaintiff is the owner of Ip Man 2 and that Defendants downloaded Ip Man 2 without Plaintiff's authorization. Plaintiff claims that once this file was downloaded, it was a complete and accurate embodiment of Ip Man 2. Plaintiff has also provided the IP addresses of the individuals who were participating in the swarm and downloading the movie file illegally. (Doc. No. 8-3.) Plaintiff's complaint, along with the IP addresses, demonstrate a prima facie case (factor 1) and also demonstrate specificity (factor 2).
Plaintiff also must show that there is no alternate means to obtain the information (factor 3). Plaintiff states in its Motion that it has "obtained all information it possibly can without discovery from the service providers." Without expedited discovery to uncover Defendants' identifying information, the Court finds that Plaintiff cannot proceed. Plaintiff has also fulfilled factor 4, demonstrating a central need for the identifying information of Defendants. Plaintiffs cannot serve Defendants without knowing their identifying information, nor can Defendants respond to Plaintiff's allegations.
In terms of Defendants' expectation of privacy, under the protective order, Defendants will have a chance to object and respond to Plaintiff's claims, and will have achance to contest the subpoena before their names are turned over to Plaintiff. Thus, their information will remain private during the Court's determination of any motions that ISPs or Defendants wish to file (including a motion to quash, or to proceed anonymously). Thus, the Court believes that Defendants' First Amendment rights to anonymity do not prevent disclosure of identifying information.
Plaintiff seeks to identify Defendants under the Digital Millennium Copyright Act. 17 USC § 512(h). The first and most significant decision to interpret the extent of the subpoena authority of 512(h) was Recording Industry Ass'n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003). The Verizon court held that 512(h) authorized subpoenas only for ISPs that were actually storing infringing material, not simply acting as conduits for the material. In P2P protocols such as BitTorrent, ISPs do not generally store any infringing material. The material is located on users' computers (or in an off-line storage device, such as a compact disc), not on the ISP computers. Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229, 1235 (D.C. Cir. 2003).
Looking at both the language and the structure of the Act, the Verizon court rested its decision, in the main, on the text of 512(h) in relation to another subsection, 512(c)(3)(A). The court found that 512(h) required that subpoenas contain "a copy of a notification described in subsection [512](c)(3)(A)." Verizon, 351 F.3d at 1234. The notification provision of 512(c)(3)(A) "is found within one of the four safe harbors created by the statute to protect ISPs from liability for copyright infringement under certainconditions." In re Charter Communications, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 775 (8th Cir. 2005). Each safe harbor applies to a particular ISP function. The first safe harbor, under § 512(a), limits the liability of ISPs when they do nothing more than transmit, route, or provide connections for copyrighted material—that is, when the ISP is a mere conduit for the transmission. Id. Thus, a copyright owner cannot request a subpoena for an ISP which merely acts as a conduit for data.
Each of the other three safe harbors protects the ISP from liability if the ISP responds expeditiously to remove or disable access to infringing material. These three safe harbors require the ISP to be able both to locate and remove the infringing material, as a way of allowing the ISP to protect itself from liability. However, with P2P file sharing, the file itself is on the user's system and cannot be located or removed by the ISP.
Thus, the safe harbor implicated here, 512(a), limits the liability of an ISP when it merely acts as a conduit for infringing material. A number of other courts have read 512(h) in a similar manner. In re Charter Communications, 393 F.3d at 773; In re Subpoena To Univ. of N. Carolina at Chapel Hill, 367 F. Supp. 2d 945, 952 (M.D.N.C. 2005); Interscope Records v. Does 1-7, 494 F. Supp. 2d 388, 391 (E.D. Va. 2007). While this Court acknowledges it is not bound to follow the precedent of Verizon, it finds compelling the statutory analysis employed in Verizon.
Plaintiff lists nine ISPs in its Motion, but does not allege that all ISPs were storing infringing material on their servers (rather than merely acting as conduits). Plaintiff claims that Defendants using Verizon may have stored, shared, and viewed documents on Verizon's own servers. (Doc. No. 11.) However, there are eight other ISPs that were used by Doe Defendants. Because of the nature of P2P activity, these ISPs were likely used onlyas conduits to download any infringing material. Thus, these ISPs likely fall within the safe harbor described in 512(a) and discovery should be granted through a different mechanism if possible.
Discovery can be granted under Rule 45 to obtain Defendants' identifying information, subject to a protective order. The protective order—issued under Rule 26(c)(1) of the Federal Rules of Civil Procedure—will allow the Doe Defendants and the ISPs to be heard before identifying information is released to Plaintiff. See Hard Drive Productions, Inc. v. Does 1-59, CIV.A. H-12-0699, 2012 WL 1096117 (S.D. Tex. Mar. 30, 2012); Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012).
The Court is also concerned as to whether Defendants are properly joined under Fed. R. Civ. P. 20(a). Courts are split on the question of whether a swarm of users can be joined in a single case. The Court recognizes that, while the Defendants participated in the same swarm in downloading Ip Man 2, this may not be considered the same transaction or occurrence, or the same series of transactions or occurrences. Liberty Media Holdings, LLC v. BitTorrent Swarm, 277 F.R.D. 669 (S.D. Fla. 2011); CineTel Films, Inc. v. Does 1-1,052, 853 F. Supp. 2d 545 (D. Md. 2012); Patrick Collins, Inc. v. John Does 1-23, 11-CV-15231, 2012 WL...
To continue reading
Request your trial