This is one ofthe cases attempting to identify a Doe Defendant through a subpoena The use of John Doe subpoenas in copyright cases involving movies has been somewhat controversial. The application of the law by the Courts has been anything but uniform. For example, attorney Domingo J. Rivera has prevailed against companies seeking to discover our clients’ identities. The Doe subpoena approach is frequently employed by pornographers in order to demand unreasonable amounts against individuals accused of illegally downloading porn movies. Obviously, the threat of this type of lawsuit and the potential social stigma is often enough to elicit a payout of thousands of dollars in hush money. Although we have been able to successfully protect our clients from these legal tactics, in this case (not our case), the Court in Arizona granted the subpoena.
A relevant portion of the opinion of the opinion stated that the service of these subpoenas has been subject to restrictions aimed at protecting the privacy and the interests of the individuals whose identity is discovered pursuant to the subpoenas. With this interest-balancing framework in mind, and particularly the concerns highlighted regarding these cases, the Court turns to Plaintiff’s request to serve a third-party subpoena in this case and whether good cause exists to do so.
The Good Cause Factors - In evaluating whether a plaintiff has established good cause to learn the identity of Doe defendants through early discovery, courts examine whether the plaintiff (1) identifies the 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 previously taken to locate and identify the defendant, (3) demonstrates that the action can withstand a motion to dismiss, and (4) establishes that the discovery is likely to lead to identifying information that will permit service of process.
Sufficient Specificity - Plaintiff has identified Defendant with sufficient specificity and has set forth the steps it has taken to do so. Its investigator Tobias Fieser is employed by IPP International UG (“IPP”), a company that provides forensic investigation services to copyright owners. IPP’s forensic software monitors the BitTorrent file distribution network for the presence of infringing transactions involving Plaintiff’s works and identifies IP addresses that are being used by infringers to distribute Plaintiff’s copyrights works within BitTorrent. Upon review of IPP’s forensic activity logs, Fieser determined that a computer using the IP Address identified in Plaintiff’s complaint connected to IPP’s servers and transmitted a full copy, or portion, of at least one of the digital media files identified by the file hash values. The IP Address identification is sufficient, at this stage, to indicate a real person used the network to download the copyrighted file. Moreover, P
Withstanding a Motion to Dismiss - To be entitled to early discovery, Plaintiff must establish its complaint can withstand a motion to dismiss. Plaintiff alleges it is the owner of the Copyrights-in-Suit (as identified in an exhibit to the complaint); using BitTorrent, Defendant copied and distributed constituent elements of each of the original works covered by the Copyrights-in-Suit; and Plaintiff did not permit or consent to Defendant’s distribution of its works.
Parsonal Jurisdiction Plaintiff bears the burden to establish jurisdictional facts, which includes personal jurisdiction over the defendant. Plaintiff has identified the IP Address associated with the allegedly infringing downloading and copying, and it is located in Fresno, California. This location is within the geographical boundaries of this judicial district.
Venue - “In copyright infringement actions, venue is proper ‘in the district in which the defendant or his agent resides or may be found.‘” Plaintiff has determined the alleged infringing activity occurred through an IP Address within this judicial district; thus, it is likely Plaintiff will be able to survive a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3).
Subpoena Likely to Lead to Discovery of Identifying Information It appears Plaintiff has obtained and investigated the available data pertaining to the alleged infringements and there is no alternative means to ascertain Defendant’s identity other than by subpoenaing the ISP.
The Cable Privacy Act The Cable Privacy Act, 47 U.S.C. §551, generally prohibits cable operators from disclosing personally identifiable information regarding subscribers without the prior written or electronic consent of the subscriber. 47 U.S.C. §551(c)(1). The cable operator, however, may disclose this information if the disclosure is made pursuant to a court order and the cable operator provides the subscriber with notice of the order. Id. § 551(c)(2)(B). The ISP Plaintiff intends to subpoena is a cable operator within the meaning of the Act.
This was a short summary of some of the issues explored by the Court. The text of the Court’s opinion can be found here.