United States District Court, E.D. New York
MEMORANDUM AND ORDER
ORENSTEIN U.S. MAGISTRATE JUDGE.
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.
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. 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.
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").
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
(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.
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 18.104.22.168, 2016 WL 2894919, at *2
(S.D.N.Y. May 16, 2016) ("Malibu Media
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 ...