United States District Court, S.D. New York
ORDER AND OPINION DENYING MOTION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO RULE 26(f) CONFERENCE
ALVIN K. HELLERSTEIN, District Judge.
On June 5, 2015, Plaintiff Malibu Media, LLC filed this lawsuit against an unnamed and unidentified Defendant, John Doe, as the subscriber to an identified internet protocol ("IP") address, "IP 18.104.22.168." The case appears to be part of the latest iteration of "a nationwide blizzard of civil actions brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent." In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 82 (E.D.N.Y. 2012). Malibu alleges that John Doe violated the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., by downloading and sharing over the internet a large file containing 127 movies owned by Plaintiff, including such titles as Cum In Get Wet and Tie Her Up For Me (Compl. Ex. B.) Malibu alleges that its investigator, IPP International UG, "downloaded one or more bits of each of the digital media files" from John Doe, (Compl. ¶ 20), and used "proven IP address geolocation technology" to trace the internet activity in question to a Time Warner Cable ("TWC") account in this district. (Compl. ¶ 6). Malibu also alleges that "Defendant's Internet Service Provider can identify the Defendant, " (Compl. ¶ 11), and on June 18, 2015, it moved for leave to subpoena Time Warner Cable pursuant to Fed.R.Civ.P. 26(d)(1) to discover the identity of the individual to whom the IP address is registered. For the following reasons, Malibu's motion is denied.
Ordinarily, a "party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempt from initial disclosure under Rule 26(a)(1)(B),  or when authorized by these rules, by stipulation, or by court order." Fed.R.Civ.P. 26(d)(1). The Court can order earlier discovery if the party seeking discovery shows "good cause." Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 326 (S.D.N.Y. 2005). The following factors frame the "good cause" inquiry in cases of online copyright infringement:
(1)[the] concrete[ness of the plaintiffs] 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 information, ... (4) [THE] NEED FOR THE SUBPOENAED information to advance the claim, ... and (5) the [objecting] party's expectation of privacy.
Arista Records, LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010) (quoting Sony Music Entm't v. Does 1-40, 326 F.Supp.2d 556, 564-65 (S.D.N.Y. 2004)). A pre-conference subpoena motion, like any "motion seeking a discovery ruling[, ] is addressed to the discretion of the district court." Baker v. F & F. Inv., 470 F.2d 778, 781 (2d Cir. 1972).
The Court's understanding of BitTorrent comes primarily from Judge Spratt's opinion in Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233 (E.D.N.Y. 2012), Judge Marrero's opinion in Next Phase Distribution, Inc. v. John Does 1-27, 284 F.R.D. 165 (S.D.N.Y. 2012), and Magistrate Judge Brown's opinion in In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80 (E.D.N.Y. 2012). BitTorrent is a peer-to-peer file-sharing protocol that allows users to transfer large files over the internet by breaking the complete file (the "Seed") into small pieces to be downloaded in parts. Other users ("Peers") download a small "torrent" file that contains an index of the pieces and directions for connecting to the Seed. When Peers connect to the Seed, they download pieces of the file at random, and begin sharing each piece once it has completed downloading. After all the pieces are downloaded, the BitTorrent software reassembles the pieces into a complete file for the Peer to view.
BitTorrent is distinguished from other file sharing protocols by its users' ability to upload and download files simultaneously. This non-sequential download structure reduces the bottleneck of traffic, which allows for faster download speeds. The Peers that are uploading and downloading the same Seed file from each other at a given point in time are collectively called a "Swarm." Members of a Swarm are able to see the IP addresses of other Peers to whom they are connected. In addition, BitTorrent "tracks" the pieces of a file as it is shared, so Peers can identify the IP addresses from which the file was downloaded.
II. Copyright Trolls
Recent empirical studies show that the field of copyright litigation is increasingly being overtaken by "copyright trolls, " roughly defined as plaintiffs who are "more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third parties to sell a product or service." Matthew Sag, Copyright Trolling, An Empirical Study, 100 low AL. REV. 1105, 1108 (2015). "The paradigmatic troll plays a numbers game in which it targets hundreds or thousands of defendants, seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim." Id. The lawsuits most frequently target anonymous John Does for alleged infringement related to the use of BitTorrent. Indeed, of "the 3, 817 copyright law suits filed in 2013, over 43% were against John Does and more than three-quarters of those related to pornography" Id. at 1108-09. But almost none ever reaches a hearing. Rather, the "lawsuits are filed to take advantage of court ordered discovery [under Fed.R.Civ.P. 26(d)] to break the veil of anonymity that separates IP addresses from the account information of actual human beings." Id. at 1109; see also Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y. 2012). They then use this information to quickly negotiate settlements on mass scale without any intention of taking the case to trial. See, e.g., Media Prods., Inc., DBA Devil's Film v. John Does 1-26, No. 12-cv-3719, at 4 (S.D.N.Y. June 18, 2012) (explaining that the settlements in these BitTorrent cases are "are for notoriously low amounts relative to the possible statutory damages, but high relative to the low value of the work and minimal costs of mass litigation. Cases are almost never prosecuted beyond sending demand letters and threatening phone calls.").
In 2012, judges in the Southern District and across the country began awakening to the danger of copyright trolls, especially in the context of pornography. For example, the late Judge Harold Baer, Jr. explained that "[i]n such cases, there is a risk not only of public embarrassment for the misidentified defendant, but also that the innocent defendant may be coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations." Media Prods., Inc, No. 12-cv-3719, at 4. The largest copyright trolls were increasingly unscrupulous in abusing the litigation process to exploit this dynamic. See In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 89 (E.D.N.Y. 2012) ("The most persuasive argument against permitting plaintiffs to proceed with early discovery arises from the clear indicia, both in this case and in related matters, that plaintiffs have employed abusive litigations tactics to extract settlements from John Doe defendants."); Patrick Collins, Inc. v. Doe 1, Patrick Collins, Inc. v. John Does 1-37, No. 12-cv-1259, 2012 WL 287832, at *3 n.2 (C.D. Cal. Jul. 11, 2012) ("the federal courts are not flexible enough to be shaped into cogs in a plaintiffs copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that [Plaintiffs have] no intention of bringing to trial.'"); Malibu Media, LLC v. Does 1-5, 2012 WL 2001968, at * 1 (S.D.N.Y. June 1, 2012) ("This Court shares the growing concern about unscrupulous tactics used by certain plaintiffs, especially in the adult films industry, to shake down the owners of specific IP addresses from which copyrighted adult films were allegedly downloaded."); Digital Sins, Inc. v. John Does 1-245, No. 11-cv-8170, 2012 WL 1744838, at *3 (S.D.N.Y. May 15, 2012) ("In these BitTorrent cases, numerous courts have already chronicled abusive litigation practices...."); SEO Pictures, Inc. v. Does 1-20, No. 12-cv-3925, 2012 WL 2034631, at * 1 (S.D.N.Y. June 5, 2012) ("Finally, early discovery has been used repeatedly in cases such as this one to harass and demand of defendants quick settlement payments, regardless of their liability."); Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) ("This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants' personal information and coerce payment from them. The Plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does.").
These tactics, warned Judge Baer, "could tum copyright protection on its head." Media Prods., Inc., DEA Devil's Film v. John Does 1-26, 12-cv-3719, at 4 (S.D.N.Y. June 18, 2012). In order to prevent that from happening, judges began attaching conditions to the various ...