10 " 12 13 4 8 16 17 18 19 20 at 2 23 24 25 26 ar 28 Case3:10-cv-03647-WHA DocumentS Filed10/01/10 Paget of 7 D. GILL SPERLEIN (SBN 172887) THE LAW OFFICE OF D. GILL SPERLEIN 584 Castro Street, Suite 879 San Francisco, California 94114 Telephone: (415) 404-6615 Facsimile: (415) 404-6616 ill @sperleinlaw.com Attomey for plaintiff 10 GROUP, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 10 GROUP, INC. d/b/a TITAN ) CASE NO.: C-10-3647 (MEJ) MEDIA, a California corporation, } ) PLAINTIFF'S MISC Us Plaintiff, ) ADMINISTRATIVE REQUEST PURSUANT TO LOCAL RULE 7-11 FOR LEAVE TO vs. } TAKE DISCOVERY PRIOR TO RULE 26 DOES 1-244, individuals, ) CONFERENCE Defendants. Pursuant to Local Rule 7-11, Plaintiff seeks leave to take limited discovery prior to the scheduled Rule 26 conference for the reasons set forth herein, and in the concurrently filed Declaration of Michael Eichner in support of this motion. Plaintiff could not obtain stipulation for this motion because Plaintiff cannot identify the Doe Defendants until the requested discovery takes place. PLAINTIFF'S REQUEST FOR LEAVE TO TAKE EARLY DISCOVERY C-10-3647(MED)10 " 12 13 4 8 16 17 18 19 20 at 2 23 24 25 26 ar 28 Case3:10-cv-03647-WHA DocumentS Filed10/01/10 Page2 of 7 INTRODUCTION AND FACTUAL BACKGROUND o Group, Inc. is a California corporation doing business as “Titan Media,” with its principal place of business located at 69 Converse Street, San Francisco, California 94103. Titan Media produces, market and distributes adult entertainment products, including Internet website content, videos, DVDs, photographs, etc. Plaintiff operates and maintains a website by and through which individuals who pay a monthly subscription fee can view its photographic and audiovisual works. (Complaint at 2.) Defendant DOES 1-244 are individuals whose true names and addresses are unknown to Plaintiff. (Jd. at 3.) DOE Defendants 1 through 244 distributed unauthorized and infringing copies of Plaintiff's audiovisual works. (Jd., passim.) Io Group, Inc, engaged Media Protector Intemational GmbH (Media Protector International) to locate and document infringing copies of its copyright protected works on the P2P Network eDonkey2000, (Decl. of Michael Kichner at 2.) Media Protector International identified locations from which individuals distributed files previously verified to be Io Group movies. (Jd. at $9.) Media Protector Intemational then recorded the IP address and the exact time and date at which it witnessed the infringing files. (Jd.) Plaintiff can only identify the inftingers by way of further investigation. Specifically, in order to determine the identity of the subscribers, Plaintiff must now subpoena AT&T Internet Services, the Internet service provider (ISP) that provided Intemet access to the infringers, Internet s providers only maintain subscriber activity logs for a short period before destroying the information contained in the logs. (Jd. at 10.) Accordingly, Plaintiff secks leave from the Court to serve a Rule 45 third-party 2 PLAINTIFF'S REQUEST FOR LEAVE TO TAKE EARLY DISCOVERY C-10-3647(MED)10 " 12 13 4 8 16 17 18 19 20 at 2 23 24 25 26 ar 28 Case3:10-cv-03647-WHA DocumentS Filed10/01/10 Page3 of 7 subpoena on AT&T Internet Services prior to the Rule 26 Case Management Conference in this matter. Federal law provides for the relief Plaintiff secks. ARGUMENT Federal Rules Allow for Early Discovery ‘The Federal Rules of Civil Procedure provide that, generally, a party may not initiate discovery before the parties have met and conferred pursuant to Rule 26(f). However, Rule 26(d) provides that a court may authorize earlier discovery “for the convenience of parties and witnesses and in the interests of justice.” Fed. R. Civ. Pro. 26(@). A court may grant a request to take discovery prior the parties’ meeting under Rule 26(f) where the requesting party demonstrates ‘good cause. See Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” Id. Good cause is frequently found in cases involving claims of infringement and unfair competition. Id. Courts have recognized that, “[s]ervice of process can pose a special dilemma for plaintiffs in cases like this in which the tortuous activity occurred entirely on-line.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N. Cal, 1999). Accordingly, courts have developed the following factors to consider when granting motions for expedited discovery to identify anonymous Internet users: (1) whether the plaintiff can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court; (2) all previous steps taken by the plaintiff to identify the Doe defendant; and (3) whether the plaintiff's suit could withstand a motion to dismiss. Id. at 578-80. Each of these factors resolves in favor of granting Plaintiff's requested relief, * PLAINTIFF'S REQUEST FOR LEAVE TO TAKE EARLY DISCOVERY C-10-3647(MED)10 " 12 13 4 8 16 17 18 19 20 at 2 23 24 25 26 ar 28 Case3:10-cv-03647-WHA DocumentS Filed10/01/10 Paged of 7 First, Plaintiff has sufficiently identified individuals who are real persons Plaintiff could sue in Federal Court, Plaintiff observed and documented infringement of its registered works by the individuals identified as DOES in the Complaint. (Eichner Decl. at 9.) The requested discovery is necessary for Plaintiff to determine the true name and address of the individuals who performed the infringing acts. (/d. at 11 and 13.) Second, there are no other practical measures Plaintiff could take to identify the DOE Defendants. (Jd. at 11.) Plaintiff is aware of no available information that would identify the infringing users, other than information maintained by AT&T (the name and address of account holders assigned the IP addresses identified by Media Protector International). Due to the nature of on-line transactions, Plaintiff has no way of determining Defendants’ identities except through a third-party subpoena. Id. Third, Plaintiff has asserted a prima facia claim for copyright infringement in its Complaint that can withstand a motion to dismiss. Specifically, Plaintiff has alleged that a) it owns and has registered the copyrights in the works at issue and b) the Defendants made unauthorized reproductions of those works and distributed them without Plaintiff's authorization, These allegations state a claim for copyright infringement. 17 U.S.C. § 106(1)(3). As further proof of copyright ownership, Plaintiff submits concurrently with this request, Keith Ruoff's declaration attaching copies of the relevant copyright registration certificates issued by the United States Copyright Office. See Ruoff Application Exhibit A. When outlining the above factors, the court in Columbia noted that in cases where injured parties are likely to find themselves chasing unidentified tortfeasors from ISP to ISP, the traditional enforcement of strict compliance with service requirements should be tempered by the need to provide injured parties with a forum in which they may seek redress for grievances. PLAINTIFF'S REQUEST FOR LEAVE TO TAKE EARLY DISCOVERY C-10-3647(MED)10 " 12 13 4 8 16 17 18 19 20 at 2 23 24 25 26 ar 28 Case3:10-cv-03647-WHA DocumentS Filed10/01/10 PageS of 7 Columbia, 185 F.R.D. at 579. An analysis of the factors clearly demonstrates Plaintiff's legitimate interest in identifying the name and address of the individuals who infringed upon its copyrighted works Explanation of Specific Requests In addition to the three factors discussed above, courts have indicated that a plaintiff requesting early discovery to identify defendants should justify specific requests and explain how such requests “will lead to identifying information about defendant that would make service of process possible. See Columbia 185 F.R.D. at $80; Gillespie v, Civiletti, 629 P. 2d 637, 642 (9" Cir.1980). The infringement at issue in this action occurred through a distribution method commonly referred to as peer-to-peer (P2P). Users download software to their computers that allows them to locate and transfer files to and from other users, In order to use the software to locate and exchange files, a user must connect to the Internet. (Bichner Decl.at $5.) Individuals gain access to the Internet through an Internet service provider (ISP). When an ISP such as AT&T Internet Services provides Intemet access to a subscriber, it does so through a modem located at the subscriber's home or office. (Id. at $6.) Each time the subscriber accesses the Intemet, AT&T provides a unique number to the subscriber called an Internet protocol (IP) address. This is somewhat akin to a telephone number, (Jd.) The IP address for a subscriber may stay the same (a static ip address) or it may change from time to time (a dynamic ip address). (Id.) ISPs generally record the times and dates it assigns each IP address to a subscriber. (Id) P2P technology used to locate and exchange files relies on the ability to identify the computers to and from which users search and exchange files. The technology identifies those computers through the IP address from which the computer connects to the Intemet. In this PLAINTIFF'S REQUEST FOR LEAVE TO TAKE EARLY DISCOVERY C-10-3647(MED)10 " 12 13 4 8 16 17 18 19 20 at 2 23 24 25 26 ar 28 Case3:10-cv-03647-WHA DocumentS Filed10/01/10 Page6 of 7 manner, Media Protector Intemational identified the IP addresses from which individuals connected to the Internet for the purpose of distributing unauthorized copies of Plaintiff's works to others by and through P2P technology. (Jd. at 47.) Media Protector Intemational recorded the exact date and time individuals used various IP addresses to access the Internet to make these files available. (Jd.) In all cases, Media Protector International also conducted test downloads in order to provide conclusive evidence of the fact that the logged IP addresses uploaded copyrighted works of the Io Group to others by and through the eD2K network. (Id.) Anyone can perform a simple search on public databases to determine which Internet access provider controls a specific ip address. (Id. at 912.) Alll of the Internet connections used to distribute Plaintiff's works as alleged in this action originated from IP addresses controlled by ATAT. (id. at $13.) Plaintiff now seeks to subpoena AT&T to determine the name and address of the subscribers to whom AT&T assigned the various IP addresses recorded by Media Protector Intemational. Plaintiff requests that the Court issue an order allowing Plaintiff to serve a subpoena on AT&T in substantially the same form as the example attached hereto as Exhibit A. Judges of this District have issued similar orders, See, UMG Recordings, Inc. v. Does, 2006 U.S. Dist LEXIS 32821, *6 (N.D. Cal. Mar. 6, 2006). Judge Susan Illston recently sued such an order in a case identical in every detail to the one now before the Court except that all the infringers used a different ISP to access the Internet. See, Declaration of D. Gill Sperlein, Exhibit A. Since 47 U.S.C. §551 (The Cable Privacy Act) prohibits cable operators from disclosing personally identifiable information concerning subscribers without the prior written or electronic consent of the subscriber or a court order, and since some Internet service providers, including AT&T, are also cable operators, Plaintiff requests that the Court order state clearly that the Court PLAINTIFF'S REQUEST FOR LEAVE TO TAKE EARLY DISCOVERY C-10-3647(MED)10 " 12 13 4 8 16 17 18 19 20 at 2 23 24 25 26 ar 28 Case3:10-cv-03647-WHA DocumentS Filed10/01/10 Page7 of 7 contemplated the Cable Privacy Act and that the order specifically complies with the Act’s requirements. See, 47 U.S.C. §551. CONCLUSION For the forgoing reasons, Plaintiff respectfully asks that the Court grant Plaintiff's request and enter an order substantially in the form of the attached Proposed Order. Dated: October 1, 2010 Respectfully submitted, /s/ D. Gill Sperlein GILL SPERLEIN Attorney for Plaintiff IO GROUP, INC. PLAINTIFF'S REQUEST FOR LEAVE TO TAKE EARLY DISCOVERY C-10-3647(MED)