Case3:10-cv-03647-WHA Document12 Filed09/23/10 Page1 ofof 5 Case3:10-cv-03851-SI Document8-1 Filed10/01/10 Page1 5

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff retained the services of Media Protector International GmbH (“Media Protector”) to locate and document infringing copies of its protected works and Media Protector is the entity who identified the IP addresses at issue. See Declaration of Michael Eichner.


1O GROUP, INC, Plaintiff, v. DOES 1-19, Defendants. /


Currently before the Court is plaintiff’s request for leave to take early discovery. For the reasons described below, the Court GRANTS the request.

BACKGROUND Plaintiff, a Californian corporation doing business as “Titan Media,” produces, markets and distributes adult entertainment products. Plaintiff has sued 19 Doe defendants for copyright

infringement. Plaintiff alleges that the Doe defendants have reproduced, distributed and publicly displayed plaintiff’s copyrighted materials through a peer-to-peer (“P2P”) sharing network. Complaint ¶ 1. Plaintiff does not know the names of the Doe defendants, but has identified each defendant by a unique Internet Protocol (“IP”) address assigned to that defendant and the date and time of the each defendant’s allegedly infringing activity.1 Plaintiff has also identified the internet service provider (“ISP”) for each of the IP addresses as Earthlink, Inc. Plaintiff seeks leave of the Court to serve

Case3:10-cv-03647-WHA Document12 Filed09/23/10 Page2 ofof 5 Case3:10-cv-03851-SI Document8-1 Filed10/01/10 Page2 5

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

immediate discovery on Earthlink to identify each defendant. Plaintiff intends to serve a Federal Rule of Civil Procedure 45 subpoena on Earthlink seeking the true name, address, telephone number, e-mail address of the subscribers assigned to each IP addresses plaintiff has identified. See Ex. A to Request.2

DISCUSSION I. Good Cause for Leave to Conduct Early Discovery The Federal Rules of Civil Procedure provide that, generally, a party may not initiate discovery before the parties have met and conferred pursuant to Rule 26(f). However, Rule 26(d) provides that a court may authorize earlier discovery “for the convenience of parties and witnesses and in the interests of justice.” Fed. R. Civ. Pro. 26(d). A court may grant a request to take discovery prior to the parties’ meeting under Rule 26(f) where the requesting party demonstrates good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” Id. Good cause is frequently found in cases involving claims of infringement and unfair competition. Id. Good cause is demonstrated here and outweighs any prejudice to the Doe defendants for several reasons. First, plaintiff has no other way to obtain the identity of defendants, which is necessary to advance the lawsuit by enabling plaintiff to effect service of process. Second, expedited discovery is appropriate because ISPs typically retain user activity logs for only a short period of time before destroying the information. Eichner Decl. ¶ 10. Finally, copyright infringement claims necessarily involve irreparable harm to plaintiff, as a copyright holder is presumed to suffer irreparable harm as a matter of law when his right to the exclusive use of copyrighted material is invaded. See, e.g., Health Ins. Ass’n. of Am. v. Novelli, 211 F.Supp.2d 23, 28 (D.D.C. 2002).

The subpoena attached as Exhibit A to the Request indicates that plaintiff is seeking identities of “Comcast” subscribers. The Court assumes this is a typographical error as the subpoena is issued to Earthlink, Inc. 2


Case3:10-cv-03647-WHA Document12 Filed09/23/10 Page3 ofof 5 Case3:10-cv-03851-SI Document8-1 Filed10/01/10 Page3 5

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28


Discovery Before Service and First Amendment Concerns The existence of good cause for granting leave to take early discovery, however, does not end

the analysis. The general rule is that “discovery proceedings take place only after the defendant has been served; however, in rare cases, courts have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant.” Columbia Ins. Co. v.,185 F.R.D. 573, 577 (N.D. Cal. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). Leave to take limited discovery will be granted in those rare circumstances where certain safeguards are met that “will ensure that this unusual procedure will only be employed in cases where the plaintiff has in good faith exhausted traditional avenues for identifying a civil defendant pre-service, and will prevent use of this method to harass or intimidate.” Id. at 578. Those safeguards include: (1) whether the plaintiff can identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court; (2) the plaintiff should identify all previous steps taken to locate the elusive defendant; (3) plaintiff should establish to the Court’s satisfaction that plaintiff’s suit against defendant could withstand a motion to dismiss; and (4) plaintiff should justify the specific discovery request it seeks to serve and explain how that request will lead to identifying information about the defendant plaintiff seeks to serve. Id., 185 F.R.D. at 578-80. Related issues are raised given the First Amendment concerns present when a party seeks to compel a third party to disclose the personal information of anonymous internet users. However, a person who uses the Internet to download or distribute copyrighted works without permission is engaging in the exercise of speech, but only to a limited extent, and the First Amendment does not protect the person’s identity from disclosure. See Sony Music Entertainment, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 558 (S.D.N.Y. 2004) (addressing musical works). In addressing a similar request for early discovery to compel the disclosure of the identifies of Doe defendants accused of illegally downloading and sharing copyrighted music, Judge Chen of this Court relied on Sony Music, supra, and required plaintiffs there to meet the following factors before granting the request for leave to serve a subpoena on an ISP: “(1) a concrete showing of a prima facie claim of actionable harm; (2) the specificity of the discovery request; (3) the absence of alternative means to obtain the subpoenaed 3

Case3:10-cv-03647-WHA Document12 Filed09/23/10 Page4 ofof 5 Case3:10-cv-03851-SI Document8-1 Filed10/01/10 Page4 5

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

information; (4) a central need for the subpoenaed information to advance the claim; and (5) the Doe defendants’ expectation of privacy.” UMG Recordings, Inc. v. Does, 2006 U.S. Dist. LEXIS 32821, *6 (N.D. Cal. Mar. 6, 2006). Considering the somewhat overlapping factors identified by Columbia Ins. and Sony Music, the Court finds that plaintiff’s request for leave to serve a subpoena on Earthlink should be granted. Plaintiff, through the Eichner declaration, has shown how plaintiff has identified the IP addresses and evidence of illegal activity, and that plaintiff knows of no other reliable way to identify the subscribers other than obtaining the information sought from Earthlink. Eichner Decl. ¶¶ 8-9, 11. Plaintiff has shown, through the Ruoff Declaration that it holds copyrights on works that plaintiff alleges were illegally distributed, shared or displayed by the Doe defendants. Ruoff Decl., ¶ 2 and exhibits thereto. Taken together, along with the allegations of the complaint, plaintiff has demonstrated a prima facie claim of copyright infringement. Plaintiff has also attached the proposed subpoena, which demonstrates that plaintiff will seek (and is allowed to seek) only enough basic identifying information to allow plaintiff to effect service on the Doe defendants. Request, Ex. A. Finally, with respect to the Doe defendants’ expectation of privacy, the Court concludes that the Doe defendants have little expectation of privacy because they opened their computers to others through peer-to-peer file sharing. See, e.g., UMG Recordings, Inc., 2006 U.S. Dist. LEXIS 32821 at *8-9. Consistent with plaintiff’s proposed order, and in the interest of fairness and pursuant to Rule 45(c)(3)(A)(iii) and (iv) (which provide that a subpoena may be quashed or modified if it requires disclosure of privileged or “other protected matter,” or if it subjects a person to undue burden), Earthlink shall be required to provide notice of the subpoena to the subscribers so that they have the opportunity to object and/or move to quash. As such, while the Court is granting plaintiff’s request to serve the subpoena on Earthlink, the Court is not predetermining the merits of any motion to quash that might be filed by the Doe defendants after they receive notice.


Cable Communications Policy Act The Cable Communications Policy Act (“Act”) generally protects against the disclosure of cable

service subscribers’ personally identifiable information. 47 U.S.C. § 551. The names and addresses of 4

Case3:10-cv-03647-WHA Document12 Filed09/23/10 Page5 ofof 5 Case3:10-cv-03851-SI Document8-1 Filed10/01/10 Page5 5

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

such subscribers may be disclosed, however, if the cable operator has provided the subscriber the opportunity to prohibit or limit such disclosure. § 551(c)(2)(B). Plaintiff argues that since some ISPs are also cable operators, the Court’s Order should state clearly that the Court contemplated the Act and that the Order complies with the Act’s requirements. The Court, however, need not reach a determination as to whether the Act applies to Earthlink. Regardless of whether the Act applies, Earthlink will be required to provide notice to the subscribers and the discovery provided will be limited within the parameters allowed under the Act.

CONCLUSION For good cause shown, plaintiff’s Request for Administrative Relief Pursuant to Local Rule 7-11(a) for Leave to Take Immediate Discovery is GRANTED. Plaintiff is hereby allowed to serve a Rule 45 subpoena in substantially the same form as the subpoena attached as Exhibit A to the Request upon Earthlink. Earthlink, in turn, shall serve a copy of the subpoena and a copy of this Order upon its relevant subscribers within five (5) days of Earthlink’s receipt of the subpoena. The subscribers shall then have 15 days from the date of service upon them to file any objections or motions to quash. If that 15-day period elapses without a subscriber filing an objection or a motion to quash, Earthlink shall have five (5) days after said lapse to produce that subscriber’s name, address, phone number, and e-mail address to plaintiff pursuant to the subpoena.


Dated: 9/23/10 SUSAN ILLSTON United States District Judge