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Inc. v. Doe-67.245.46.234

United States District Court, E.D. New York

June 22, 2017

ME2 PRODUCTIONS, INC., Plaintiff,
v.
DOE-67.245.46.234, Defendants.

          MEMORANDUM AND ORDER

          JAMES ORENSTEIN U.S. MAGISTRATE JUDGE.

         Plaintiff ME2 Productions, Inc. ("MPI") seeks leave to serve subpoenas, prior to the start of general discovery, on certain Internet Service Providers ("ISPs") so that it can identify the otherwise unknown defendants associated with certain Internet Protocol ("IP") addresses. For the reasons explained below, I grant the request to the extent MPI seeks information about the names and current postal addresses associated with the IP addresses, and deny the request to secure the associated email addresses.

         I. Background

         On June 8, 2017, MPI filed a Complaint against 15 defendants whom it identified only by the IP addresses that they used to access the peer-to-peer file-sharing protocol known as BitTorrent.[1] MPI claims that each defendant infringed its copyright by making unauthorized use of the motion picture titled Mechanic: Resurrection (the "Motion Picture"). See Docket Entry ("DE"1) (Complaint); 17 U.S.C. §§ 101, et seq. (the Copyright Act of 1976). Specifically, MPI alleges that each defendant used BitTorrent to search for, reproduce, and distribute over the Internet copies of the Motion Picture. Complaint ¶ 30.

         Lacking information about the defendants' true identities, MPI has thus far been unable to serve process, and as a result any discovery requests would normally be premature (and also, obviously, impractical). See Fed. R. Civ. P. 26(d)(1). On June 12, 2017, MPI filed a motion seeking leave to serve subpoenas on three ISPs for information the latter entities maintain that will associate the defendants' IP addresses with their users names, and postal and email addresses. DE 5("Motion").[2]

         II. Discussion

         A litigant may not seek discovery "from any source" prior to the parties' discovery planning conference except as "authorized … by court order." Fed.R.Civ.P. 26(d)(1). A court must have "good cause" to grant such an order. See In re Malibu Media Adult Film Copyright Infringement Cases, 2015 WL 3605834, at *2 (E.D.N.Y. June 8, 2015); In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 86-87 (E.D.N.Y. 2012). Courts in this circuit consider several factors in deciding whether good cause exists:

(1) [the] concrete[ness of the plaintiff's] 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) (alteration in original) (quoting Sony Music Entm't Inc. v. Does 1-40, 326 F.Supp.2d 556, 564-65 (S.D.N.Y. 2004)); see In re BitTorrent, 296 F.R.D. at 87; Malibu Media, LLC v. Doe, 2015 WL 4092417, at *1 (S.D.N.Y. July 6, 2015); Rotten Records, Inc. v. Doe, 108 F.Supp.3d 132, 133 (W.D.N.Y. 2015). I discuss each factor in turn below.

         A. Concreteness

         To establish a prima facie claim of copyright infringement, MPI must allege both ownership of a valid copyright and the defendants' infringement of that copyright. In re Malibu Media, 2015 WL 3605834, at *4. MPI sufficiently alleges that it is the registered owner of the exclusive rights in the Motion Picture. Complaint ¶¶ 14-15 & Ex. B. MPI also alleges that the defendants employed BitTorrent to "search for, reproduce and distribute Infringing Copies of the Subject Motion Picture to the public, thereby violating Plaintiff's exclusive rights protected by the Copyright Act." Id. ¶ 30. MPI submitted with its Complaint a list of ISPs for each of the defendant IP addresses, as well as a date and time that the allegedly infringing action occurred with regard to each IP address. Id. Ex. A. MPI asserts that its investigator was able to ascertain to a "reasonable degree of certainty" that the defendants' IP addresses were assigned to individuals located in this district, and that the allegedly infringing acts occurred within this district. Id. ¶ 6, Ex. A. The allegations, together with the exhibits attached to the Complaint, set forth a sufficiently concrete showing that each defendant infringed MPI's copyright in the Motion Picture. See Malibu Media, LLC v. John Doe Subscriber Assigned IP Address 173.68.5.86, 2016 WL 2894919, at *2 (S.D.N.Y. May 16, 2016) ("Malibu Media II").

         B. Specificity

         To demonstrate specificity, MPI's request must be "sufficiently specific to establish a reasonable likelihood that the discovery request would lead to identifying information that would make possible service upon particular defendants who could be sued in federal court." In re BitTorrent, 296 F.R.D. at 88 (quoting Sony Music, 326 F.Supp.2d at 566). Some of the information MPI seeks is so specific: providing MPI with the names and postal addresses associated with each defendant's IP address will allow MPI to serve process on a specific individual or entity. However, an email address, like an IP address, is not necessarily associated with one user, and cannot be used to effect service of process. See In re BitTorrent, 296 F.R.D. at 84-85, 93; Media Malibu, LLC v. Doe, 2016 WL 4154275, at ...


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