United States District Court, W.D. Washington
ORDER GRANTING PLAINTIFF'S MOTION TO EXPEDITE
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
alleges copyright and trademark infringement claims against
several unknown John Doe Defendants that appear to be using
IP addresses 18.104.22.168 and 22.214.171.124 to illegally
activate Plaintiff's software. Dkt. #1 at ¶ ¶
44-57. It now seeks permission to take limited, expedited
discovery from AT&T Services, Inc.
(“AT&T”), an internet service provider
(“ISP”), to identify and name the John Doe
Defendants in this case so that it can complete service of
process and proceed with litigation. Dkt. #9 at 6-7. 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 subpoena
on AT&T will lead to information identifying the John Doe
Defendants. As a result, the Court finds that good cause
exists to allow Microsoft to engage in expedited, preliminary
develops, distributes, and licenses various types of computer
software, including operating system software (such as
Microsoft Windows) and productivity software (such as
Microsoft Office). Dkt. #1 at ¶ ¶ 11-21. Microsoft
holds registered copyrights in the various different versions
of these products, and has registered trademarks and service
marks associated with the products. Id. ¶ 22.
has implemented a wide-range of initiatives to protect its
customers and combat theft of its intellectual property,
including its product activation system, which involves the
activation of software through product keys. Id.
¶ 30. A Microsoft product key is a 25-character
alphanumeric string generated by Microsoft and provided
either directly to Microsoft's customers or to
Microsoft's original equipment manufacturer
(“OEM”) partners. Id. ¶ 31.
Generally, when customers or OEMs install Microsoft software
on a device, they must enter the product key. Id.
Then, as part of the activation process, customers and/or
OEMs voluntarily contact Microsoft's activation servers
over the Internet and transmit the product keys and other
technical information about their device to the servers.
Id. Because Microsoft software is capable of being
installed on an unlimited number of devices, Microsoft uses
the product activation process to detect piracy and protect
consumers from the risk of non-genuine software. Id.
has created the Microsoft Cybercrime Center where they
utilize, inter alia, certain technology to detect
software piracy, which it refers to as
“cyberforensics.” Id. at ¶ 35.
Microsoft uses its cyberforensics to analyze product key
activation data voluntarily provided by users when they
activate Microsoft software, including the IP address from
which a given product key is activated. Dkt. #1 at ¶ 36.
Cyberforensics allows Microsoft to analyze the activations of
Microsoft software and identify activation patterns and
characteristics that make it more likely than not that the IP
address associated with certain product key activations is
one through which unauthorized copies of Microsoft software
are being activated. Dkt. #10 at ¶ ¶ 2-5.
Microsoft's cyberforensics have identified a number of
product key activations originating from IP addresses
126.96.36.199 and 188.8.131.52. Id. at ¶ 6.
According to publicly available data, those IP addresses are
presently under the control of AT&T. Id.
alleges that for at least the past three years, the
aforementioned IP addresses have been used to activate
hundreds of Microsoft product keys. Id. at ¶ 7.
These activations have characteristics that demonstrate that
the John Doe Defendants are using the IP addresses to
activate unauthorized copies of Microsoft's software.
Id. Microsoft believes these activations constitute
the unauthorized copying, distribution, and use of Microsoft
software, in violation of Microsoft's software licenses
and intellectual property rights. Id. at ¶ 8.
Despite its efforts, Microsoft has been unable to positively
identify the John Doe Defendants. Id. at ¶ 9.
Microsoft believes AT&T has access to the subscriber
information associated with the IP addresses from records
kept in the regular course of its business. Id. at
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 Early Discovery
Plaintiff established good cause to engage in early discovery
to identify the John Doe Defendants. First, Plaintiff has
associated the John Doe Defendants with specific acts of
activating unauthorized software using product keys that are
known to have been stolen from Microsoft, and have been used
more times than are authorized for the particular software.
Dkt. #10 at ¶ ¶ 6-8. Plaintiff has been able to
trace the product key activations as originating from two IP
addresses, and nearly all of the activations have involved
voluntary communication between the John Doe Defendants and
Microsoft activation servers in this judicial District.
Id. at ¶ 7. Second, Plaintiff has adequately
described the steps it took in an effort to locate and
identify the John Doe Defendants. Dkt. #10. Specifically, it
utilized its “cyberforensics” technology to
analyze product key activation data and identified certain
patterns and characteristics which indicate software piracy.
Dkt. #10 at ¶ ¶ 2-4 and Dkt. #1 at ¶ ¶
35-38. Third, Plaintiff has pleaded the essential elements to
state a claim for Copyright Infringement under 17 U.S.C.
§ 501, et seq., and Trademark Infringement
under 15 U.S.C. § 1114. Dkt. #1 at ¶ ¶ 44-57
and Exs. 1-51. Fourth, the information proposed to be sought
through a Rule 45 subpoena appears likely to lead to
identifying information that will allow Plaintiff to effect
service of process on the John Doe Defendants. Dkt. #10 at
11-12. Specifically, Plaintiff states it will seek subscriber
information associated with the alleged infringing IP
addresses. Dkt. #10 at ¶ 12.
together, the Court finds that the foregoing factors
demonstrate good cause to grant Plaintiff's motion for
leave to conduct limited expedited discovery. See
Semitool, 208 F.R.D. at 276. Therefore, the Court will
grant discovery limited to documents and/or information that
will allow Plaintiff to ...