United States District Court, W.D. Washington, Seattle
ORDER GRANTING PLAINTIFF'S MOTION TO EXPEDITE
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
alleges copyright infringement claims against several unknown
John Doe Defendants that appear to be using “peer to
peer” or BitTorrent file “swapping”
networks to illegally obtain and distribute the copyrighted
motion picture “London Has Fallen.” Dkt. #1 at
¶ ¶ 10-35. It now seeks permission to take limited,
expedited discovery from various internet service providers
(“ISP”) in order to identify and name the John
Doe Defendants in this case so that it can complete service
of process and proceed with litigation. Dkt. #5. As further
discussed below, Plaintiff has demonstrated that: (1) the
John Doe Defendants are real people and/or entities that may
be sued in federal court; (2) it has unsuccessfully attempted
to identify the John Doe Defendants prior to filing this
motion; (3) its claims against the John Doe Defendants would
likely survive a motion to dismiss; and (4) there is a
reasonable likelihood that service of the proposed subpoenas
will lead to information identifying the John Doe Defendants.
As a result, the Court finds that good cause exists to allow
Plaintiff to engage in expedited, preliminary discovery.
is a corporation engaged in the production of the motion
picture known as and entitled “London Has
Fallen” for theatrical exhibition, home
entertainment and other forms of distribution. Dkt. #1 at
¶ 5. Plaintiff is the owner of the exclusive rights
under copyright in the United States in London Has
Fallen. London Has Fallen has been registered
with the United States Copyright Office, effective March 14,
2016, and assigned Registration No. PA 1-982-831.
Id. at ¶ 6 and Ex. A.
alleges that each John Doe Defendant copied and distributed
Plaintiff's copyrighted motion picture London Has
Fallen. The true names of Defendants are unknown to
Plaintiff at this time. However, each Defendant is known to
Plaintiff by the Internet Protocol (“IP”) address
assigned by an Internet Service Provider (“ISP”)
and the date and at the time at which the infringing activity
of each Defendant was observed. Dkt. #1 at ¶ 10. Through
geolocation, the IP address used by each Defendant has been
traced to the Western District of Washington. Dkt. #6 at
¶ 20; Dkt. #1-1 at 5. In addition, each IP address has
also been observed and associated with significant infringing
activity and associated with the exchange of other titles on
peer-to-peer networks. Dkt. #1 at ¶ 11. The volume,
titles and persistent observed activity associated with each
Defendant's IP address indicates that each Defendant is
not a transitory or occasional guest, but is either the
primary subscriber of the IP address or someone who resides
with the subscriber and/or is an authorized user of the IP
address. Id. The volume of the activity associated
with each Defendant's IP address further indicates that
anyone using or observing activity on the IP address would
likely be aware of the conduct of Defendant. Also, the volume
and titles of the activity associated with each
Defendant's IP address indicates that each Defendant is
not a child, but an adult, often with mature distinct tastes.
Dkt. #1 at ¶ 11.
alleges that Defendants are each participants in a
peer-to-peer (“P2P”) network using the BitTorrent
protocol. Id. at ¶ 12. The BitTorrent protocol
makes even small computers with low bandwidth capable of
participating in large data transfers across a P2P network.
To begin an exchange, the initial file-provider intentionally
elects to share a file with a torrent network. This initial
file is called a seed. Other users (“peers”)
connect to the network and connect to the seed file to
download. As additional peers request the same file each
additional user becomes a part of the network from where the
file can be downloaded. However, unlike a traditional
peer-to-peer network, each new file downloader is receiving a
different piece of the data from users who have already
downloaded the file that together comprises the whole. This
piecemeal system with multiple pieces of data coming from
peer members is usually referred to as a “swarm.”
The effect of this technology makes every downloader also an
uploader of the illegally transferred file(s). This means
that every “node” or peer user who has a copy of
the infringing copyrighted material on a torrent network can
also be a source of download, and thus distributor for that
infringing file. Id.
further alleges that Defendants' actions are part of a
common design, intention and purpose to hide behind the
apparent anonymity provided by the Internet and the
BitTorrent technology to download pieces of the copyrighted
motion picture in a manner that, but for the investigative
technology used by Plaintiff, would be untraceable, leaving
the Plaintiff without the ability to enforce its copyright
rights. Dkt. #1 at ¶ 14. By participating in the
“swarm” to download Plaintiff's copyrighted
motion picture, the Defendants agreed with one another to use
the Internet and BitTorrent technology to engage in violation
of federal statute to accomplish an unlawful objective. Dkt.
#1 at ¶ 14.
has identified each Defendant by the IP address assigned by
the ISP used by each Defendant and the date and time at which
the infringing activity of each Defendant was observed.
Id. at ¶ 15. This is accomplished using
forensic software to collect, identify and record the IP
addresses in use by those people that employ the BitTorrent
protocol to share, copy, reproduce and distribute copyrighted
works. The end results are evidence logs of infringing
transactions and the IP addresses of the users responsible
for copying and distributing the audiovisual work, here
London Has Fallen. Dkt. #1 at ¶ 17. The IP
addresses, hash value, dates and times, ISP and geolocation
contained in Exhibit B to the Complaint correctly reflect the
subscribers using the IP addresses and that they were all
part of a “swarm” of users that were reproducing,
distributing, displaying or performing the copyrighted work.
believes that each Defendant, without the permission or
consent of Plaintiff, has used, and continues to use, an
online media distribution system to wrongfully
misappropriate, reproduce and distribute to the public,
including by making available for distribution to others,
London Has Fallen. Dkt. #1 at ¶28. Plaintiff
further believes that each Defendant participated in a swarm
and/or reproduced and/or distributed the same seed file of
London Has Fallen in digital form either directly or
with each other. Plaintiff has identified each Defendant by
the IP address assigned to that Defendant by his or her ISP
and the date and time at which the infringing activity of
each Defendant was observed. Id. In addition, or in
the alternative, Plaintiff believes that Defendants obtained
Internet access through an ISP and permitted, facilitated and
materially contributed to the extensive use of the Internet
through his ISP for infringing Plaintiff's exclusive
rights under The Copyright Act by others. Id. at
¶ 29. Defendants, with knowledge of the infringing
conduct, failed to reasonably secure, police and protect the
use of his Internet service against use for improper purposes
such as piracy, including the downloading and sharing of
Plaintiff's motion picture by others. Id.
Defendants had the right and ability to supervise and control
the activity constituting the infringement. Id.
Plaintiff now seeks expedited discovery to identify the
Court may authorize early discovery before the Rule 26(f)
conference for the parties' and witnesses'
convenience and in the interests of justice. Fed.R.Civ.P.
26(d). Courts within the Ninth Circuit generally consider
whether a plaintiff has shown “good cause” for
such early discovery. See, e.g., Yokohama Tire Crop. v.
Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D.
Ariz. 2001) (collecting cases and standards). When the
identities of defendants are not known before a Complaint is
filed, a plaintiff “should be given an opportunity
through discovery to identify the unknown defendants, unless
it is clear that discovery would not uncover the identities,
or that the complaint would be dismissed on other
grounds.” Gillespie v. Civiletti, 629 F.2d
637, 642 (9th Cir. 1980). In evaluating whether a plaintiff
establishes good cause to learn the identity of John Doe
defendants through early discovery, courts examine whether
the plaintiff (1) identifies the John Doe defendant with
sufficient specificity that the Court can determine that the
defendant is a real person who can be sued in federal court,
(2) recounts the steps taken to locate and identify the
defendant, (3) demonstrates that the action can withstand a
motion to dismiss, and (4) proves that the discovery is
likely to lead to identifying information that will permit
service of process. Columbia Ins. Co. v.
seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).
Plaintiff Has Shown Good Cause to Take ...