310-Cv-03647-MEJ Docket 5 MOTION Leave to Take Discovery

8/6/2019 310-Cv-03647-MEJ Docket 5 MOTION Leave to Take Discovery

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PLAINTIFF'S REQUEST FOR LEAVETO TAKE EARLY DISCOVERY

C-1O-3647(MEJ)

Case3:10-cv-03647-WHA DocumentS Filed10101/10 Page1 of 7

D. GILL SPERLEIN (SBN 172887)2 THE LAW OFFICE OF D. GILL SPERLEIN

584 Castro Street, Suite 8793 San Francisco, California 941144 Telephone: (415) 404-6615

Facsimile: (415) 404-66166 [email protected] Attorney for plaintiff8 10GROUP, INC.9 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA011 )

) CASE NO.: C-IO-3647 (MEJ))))))))))))

12 10GROUP, INC. d/b/a TITAN13 MEDIA, a California corporation,14 PLAINTIFF'S MISCELLANEOUSADMINISTRATIVE REQUEST PURSUANT

TO LOCAL RULE 7-11 FOR LEAVE TOTAKE DISCOVERY PRIOR TO RULE 26CONFERENCE

Plaintiff,15 vs.16 DOES 1-244, individuals,1718 Defendants.1920

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Pursuant to Local Rule 7-11, Plaintiff seeks leave to take limited discovery prior to23 the scheduled Rule 26 conference for the reasons set forth herein, and in the concurrently24

filed Declaration of Michael Eichner in support of this motion. Plaintiff could not obtain2526

stipulation for this motion because Plaintiff cannot identify the Doe Defendants until the27 requested discovery takes place.28

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INTRODUCTION AND FACTUAL BACKGROUND10 Group, Inc. is a California corporation doing business as "Titan Media," with its

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4 principal place of business located at 69 Converse Street, San Francisco, California 941035 Titan Media produces, markets, and distributes adult entertainment products, including6 Internet website content, videos, DVDs, photographs, etc. Plaintiff operates and maintains7

8 a website by and through which individuals who pay a monthly subscription fee can view9 its photographic and audiovisual works. (Complaint at ~2.)

10 Defendant DOES 1-244 are individuals whose true names and addresses are1112 unknown to Plaintiff. (Id. at ~3.) DOE Defendants 1 through 244 distributed unauthorized13 and infringing copies of Plaintiffs audiovisual works. (Id., passim.)14 10 Group, Inc. engaged Media Protector International GmbH (Media Protector15

16International) to locate and document infringing copies of its copyright protected works on

17 the P2P Network eDonkey2000. (Decl. of Michael Eichner at ~2.) Media Protector18 International identified locations from which individuals distributed files previously19 verified to be 10 Group movies. (Id. at ~9.) Media Protector International then recorded

the IP address and the exact time and date at which itwitnessed the infringing files. (Id.)Plaintiff can only identify the infringers by way of further investigation

Specifically, in order to determine the identity of the subscribers, Plaintiff must nowsubpoena AT&T Internet Services, the Internet service provider (ISP) that provided

activity logs for a short period before destroying the information contained in the logs. (Id.at ~10.) Accordingly, Plaintiff seeks leave from the Court to serve a Rule 45 third-party

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subpoena on AT&T Internet Services prior to the Rule 26 Case Management Conferencein this matter.

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4 Federal law provides for the relief Plaintiff seeks.5 ARGUMENT6 Federal Rules Allow for Early Discovery7 The Federal Rules of Civil Procedure provide that, generally, a party may not initiate8

9 discovery before the parties have met and conferred pursuant to Rule 26(f). However, Rule 26(d)10 provides that a court may authorize earlier discovery "for the convenience of parties and witnesses11 and in the interests of justice." Fed. R. Civ. Pro. 26(d). A court may grant a request to take12 discovery prior the parties' meeting under Rule 26(f) where the requesting party demonstrates13 good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002)1415 "Good cause may be found where the need for expedited discovery, in consideration of the16 administration of justice, outweighs the prejudice to the responding party." Id. Good cause is17 frequently found in cases involving claims of infringement and unfair competition. Id.18 Courts have recognized that, "[s]ervice of process can pose a special dilemma for plaintiffs19 in cases like this in which the tortuous activity occurred entirely on-line." Columbia Ins. Co. v

Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999). Accordingly, courts have developed thefollowing factors to consider when granting motions for expedited discovery to identifyanonymous Internet users: (1) whether the plaintiff can identify the missing party with sufficienspecificity such that the court can determine that defendant is a real person or entity who could besued in federal court; (2) all previous steps taken by the plaintiff to identify the Doe defendantand (3) whether the plaintiffs suit could withstand a motion to dismiss. Id. at 578-80. Each ofthese factors resolves in favor of granting Plaintiffs requested relief.

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First, Plaintiff has sufficiently identified individuals who are real persons Plaintiff couldsue in Federal Court. Plaintiff observed and documented infringement of its registered works by

3 the individuals identified as DOES in the Complaint. (Eichner Decl, at -,r 9.) The requested45 discovery is necessary for Plaintiff to determine the true name and address of the individuals who6 performed the infringing acts. (Id. at -,r-,rlland 13.)7 Second, there are no other practical measures Plaintiff could take to identify the DOE8 Defendants. (Id. at -,rll.) Plaintiff is aware of no available information that would identify the9

10 infringing users, other than information maintained by AT&T (the name and address of account

11 holders assigned the IP addresses identified by Media Protector International). Due to the12 nature of on-line transactions, Plaintiff has no way of determining Defendants' identities except13 through a third-party subpoena. Id.14 Third, Plaintiff has asserted a prima facia claim for copyright infringement in its15

16 Complaint that can withstand a motion to dismiss. Specifically, Plaintiff has alleged that a) it17 owns and has registered the copyrights in the works at issue and b) the Defendants made18 unauthorized reproductions of those works and distributed them without Plaintiff s authorization.19 These allegations state a claim for copyright infringement. 17 U.S.C. 106(1)(3). As further20

21 proof of copyright ownership, Plaintiff submits concurrently with this request, Keith Ruoff's22 declaration attaching copies of the relevant copyright registration certificates issued by the United23 States Copyright Office. See Ruoff Application Exhibit A.24

When outlining the above factors, the court in Columbia noted that in cases where injured25 parties are likely to find themselves chasing unidentified tortfeasors from ISP to ISP, the26

27 traditional enforcement of strict compliance with service requirements should be tempered by the28 need to provide injured parties with a forum in which they may seek redress for grievances.

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Case3:10-cv-03647-WHA DocumentS Filed10101/10 PageSof 7

Columbia, 185 F.R.D. at 579. An analysis of the factors clearly demonstrates Plaintiffs legitimateinterest in identifying the name and address of the individuals who infringed upon its copyrighted

3 works.45 Explanation of Specific Requests6 In addition to the three factors discussed above, courts have indicated that a plaintiff7 requesting early discovery to identify defendants should justify specific requests and explain how8 such requests "will lead to identifying information about defendant that would make service of9

10 process possible. See Columbia 185 F.R.D. at 580; Gillespie v. Civiletti, 629 F. 2d 637, 642 (9th

11 Cir.1980).12 The infringement at issue in this action occurred through a distribution method commonly13 referred to as peer-to-peer (P2P). Users download software to their computers that allows them to14 locate and transfer files to and from other users. In order to use the software to locate and15

16 exchange files, a user must connect to the Internet. (Eichner Dec1.at ,-r5.)17 Individuals gain access to the Internet through an Internet service provider (ISP). When an18 ISP such as AT&T Internet Services provides Internet access to a subscriber, it does so through a19 modem located at the subscriber's home or office. (Id. at ,-r6.) Each time the subscriber accesses20 the Internet, AT&T provides a unique number to the subscriber called an Internet protocol (IP)2122 address. This is somewhat akin to a telephone number. (Id.) The IP address for a subscriber may23 stay the same (a static ip address) or it may change from time to time (a dynamic ip address). (Id.)24 ISPs generally record the times and dates it assigns each IP address to a subscriber. (Id.)25 P2P technology used to locate and exchange files relies on the ability to identify the26

27computers to and from which users search and exchange files. The technology identifies those

28 computers through the IP address from which the computer connects to the Internet. In this

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manner, Media Protector International identified the IP addresses from which individualsconnected to the Internet for the purpose of distributing unauthorized copies of Plaintiff's works to

3 others by and through P2P technology. (Id. at ~7.) Media Protector International recorded the45 exact date and time individuals used various IP addresses to access the Internet to make these files6 available. (Id.) In all cases, Media Protector International also conducted test downloads in order7 to provide conclusive evidence of the fact that the logged IP addresses uploaded copyrighted8 works of the 10 Group to others by and through the eD2K network. (Id.)9

10 Anyone can perform a simple search on public databases to determine which Internet

11 access provider controls a specific ip address. (Id. at ~12.) All of the Internet connections used to12 distribute Plaintiff's works as alleged in this action originated from IP addresses controlled by13 AT&T. (Id. at ~13.) Plaintiff now seeks to subpoena AT&T to determine the name and address of14 the subscribers to whom AT&T assigned the various IP addresses recorded by Media Protector15

International.1617 Plaintiff requests that the Court issue an order allowing Plaintiff to serve a subpoena on18 AT&T in substantially the same form as the example attached hereto as Exhibit A. Judges of this19 District have issued similar orders. See, UMG Recordings, Inc. v. Does, 2006 U.S. Dist LEXIS20 32821, *6 (N.D. Cal. Mar. 6, 2006). Judge Susan Illston recently issued such an order in a case2122 identical in every detail to the one now before the Court except that all the infringers used a23 different ISP to access the Internet. See, Declaration ofD. Gill Sperlein, Exhibit A.24 Since 47 U.S.C. 551 (The Cable Privacy Act) prohibits cable operators from disclosing25 personally identifiable information concerning subscribers without the prior written or electronic26

27consent of the subscriber or a court order, and since some Internet service providers, including

28 AT&T, are also cable operators, Plaintiff requests that the Court order state clearly that the Court

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contemplated the Cable Privacy Act and that the order specifically complies with the Act'srequirements. See, 47 U.S.C. 551.

3CONCLUSION4

5 For the forgoing reasons, Plaintiff respectfully asks that the Court grant Plaintiffs request6 and enter an order substantially in the form of the attached Proposed Order.7

8 Dated: October 1,20109

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Respectfully submitted,

/s/ D. Gill Sperlein

GILL SPERLEINAttorney for Plaintiff 10GROUP, INC.

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Documents

310-Cv-03647-MEJ Docket 5 MOTION Leave to Take Discovery