Well Go USA Inc. v. Swarm

Case 1:11-cv-01946-ABJ Document 1 Filed 11/03/11 Page 1 of 6

Case 1:11-cv-01946-ABJ Document 1-1 Filed 11/03/11 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WELL GO USA, INC.
1601 E. PLANO PKWY., STE. 110
PLANO, TX 75074
A TEXAS CORPORATION,

Plaintiff,

VS. C.A. NO.: 1:11-cv-01946-ABJ

GROUP OF PARTICIPANTS IN
FILESHARING SWARM IDENTIFIED BY
HASH: B7FEC872874D0CC9B1372ECE-
5ED07AD7420A3BBB

Defendants.

MOTION FOR LEAVE TO TAKE DISCOVERY

Plaintiff, by counsel, respectfully moves this Court for leave to take discovery from the
nonparty internet service providers listed in Exhibit 1. See Exhibit 1, List of Service Providers.
This discovery shall be limited to the identifying information of service providers subscribers
whose accounts were witnessed being involved in the joint acts of copyright infringement
detailed in Plaintiffs Complaint. Discovery shall also be limited to the subscribers who appear
to be domiciled here in the District of Columbia, as per the location information listed publicly
on various geolocation databases and included here in Exhibit 3. See Exhibit 3, List of IP
Addresses Identifying the Accounts by Which the Infringement Occurred. Without this
information, Plaintiff has no means to pursue its infringement claims or otherwise seek redress
for the unlawful acts at issue.
Federal district courts throughout the country, including this Court, have granted
2
expedited discovery in lawsuits similar to this one.
1
In the cases cited and others like them,
plaintiffs have obtained the identities of persons from service providers through expedited
discovery using information similar to that gathered by Plaintiff in the instant case and they have
used that information as the basis for their subpoenas to the service providers. Plaintiff
respectfully requests that this Court grant this motion for discovery upon those service providers
listed in Exhibit 1.
Plaintiff specifically requests permission to serve a Rule 45 subpoena on these service
providers for the narrow purpose of obtaining the true name, address, telephone number, e-mail
address, and Media Access Control (MAC) address of each subscriber that it has identified to
date and those it identifies in the future during the course of this litigation. Plaintiff will only use
this information to prosecute the claims made in its Complaint. Without this information,
Plaintiff cannot pursue its lawsuit to protect its film from ongoing and repeated infringement.
Additionally, this information is very easily obtainable by the nonparty service providers.
Larger, more sophisticated service providers, such as Verizon, have even automated this lookup
process and used it for years to notify subscribers of infringement complaints within a mere 24
hours of Verizon receiving the complaint. See Exhibit 2, Verizon Infringement Notice with
receipt/notification timestamps highlighted.
If the Court grants this Motion, Plaintiff will serve necessary subpoenas requesting the

1
West Coast Productions, Inc. v. Does, 1:11-cv-00057 (D.D.C.) (Kollar-Kottely, C.); Patrick Collins, Inc. v. Does,
1:11-cv-00058 (D.D.C.) (Kessler, G.); West Coast Productions, Inc. v. Does, 1:11-cv-00055 (D.D.C.) (Sullivan, E.);
Imperial Enterprises, Inc. v. Does, 1:11-cv-00529 (D.D.C) (Walton, R.); G2 Productions, LLC v. Does 1-83, Case
No. 1:10-cv-00041 (D.D.C.) (Kollar-Kottely, C.); Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG v. Does 1
- 4,577, Case No. 1:10-cv-00453 (D.D.C.) (Collyer, R.); Call of the Wild Movie, LLC v. Does 1-331, 1:10-cv-00455
(D.D.C.) (Urbina, R.); Maverick Entertainment Group, Inc. v. Does 1 1,000, 1:10-cv-00569 (D.D.C.) (Leon, R.);
Cornered, Inc. v. Does, 1:10-cv-01476 (D.D.C.); Donkeyball Movie, LLC v. Does 1 171, 1:10-cv-01520 (D.D.C.)
(Kollar-Kottely, C.); Twentieth Century Fox Film Corporation, et al. v. Does 1-9, Case No. 1:04-cv-02006 (D.D.C.)
(Sullivan, E.); Disney Enterprises, Inc., et al. v. Does 1-18, Case No. 1:05-cv-00339 (D. Colo.) (Shaffer, C.);
Paramount Pictures Corporation, et al. v. Does 1-8, Case No. 1:05-cv-00535 (D.N.J.) (Wolfson, F.); Warner Bros.
Entertainment Inc., et al. v. Does 1-7, Case No. 1:05-cv-00883 (S.D.N.Y.) (Cote, D.).
3
identifying information in a timely manner. If a service provider cannot identify one or more of
the subscribers but does identify an intermediary provider as the entity providing internet access
to the responsible subscriber, Plaintiff will then serve a subpoena on that provider requesting the
identifying information for the relevant subscriber within a reasonable timeframe. In either case,
these service providers will be able to notify their subscribers that this information is being
sought, and each subscriber will have the opportunity to raise any objections before this Court
prior to the return date of the subpoena. Thus, to the extent that any subscriber wishes to object,
he or she will be able to do so.
Courts consider the following factors when granting motions for 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 plaintiffs suit could withstand a motion to dismiss. Columbia
Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999); see also Rocker Mgmt.
LLC v. John Does, No. 03-MC-33 2003 WL 22149380, *1-2, (N.D. Cal. 2003) (applying
Seescandy.com standard to identify persons who posted libelous statements on Yahoo! message
board; denying request for expedited discovery where the postings in question were not libelous).
Plaintiff here is able to demonstrate each one of these factors.
First, Plaintiff has identified the defendants as closely as possible through the unique IP
address of the internet account each defendant used at the time of the unauthorized distribution
of the copyrighted film. See Seescandy.com, 185 F.R.D. at 578-80; see also Exhibit 3; see also
Declaration of Scott Armstrong. These persons gained access to the internet through connections
provided by the listed service providers. Only said service providers can identify the persons
4
responsible for the internet accounts at issue. They do this by matching listed IP addresses with
subscriber accounts found in their internal activity logs. Thus, Plaintiff can show that all of the
internet subscribers or persons accessing their accounts are real persons, the former of whose
names are known to the service provider and who can be sued in federal court.
Second, Plaintiff has specifically identified the steps taken to identify the defendants true
identities. Exhibit 3. Plaintiff has obtained each subscribers IP address and the date and time of
the infringing activities that occurred via the subscribers accounts and has traced each IP
address to specific service providers. Id. Therefore, Plaintiff has obtained all the information it
possibly can without discovery from the service providers.
Third, Plaintiff has asserted a prima facie claim for direct copyright infringement in its
Complaint that can withstand a motion to dismiss. Specifically, Plaintiff has alleged that: (a) it is
the copyright owner of the work in question, and (b) the defendants reproduced and/or
distributed the copyrighted work without Plaintiffs authorization using the internet subscriber
accounts described by the listed IP addresses. See Complaint. These allegations state a claim for
copyright infringement. See 17 U.S.C. 106(1)(3); In re Aimster Copyright Litig., 334 F.3d 643,
645 (7th Cir. 2003), cert. denied, 124 S. Ct. 1069 (U.S. Jan. 12, 2004) (Teenagers and young
adults who have access to the Internet like to swap computer files containing popular music. If
the music is copyrighted, such swapping, which involves making and transmitting a digital copy
of the music, infringes copyright.); A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014-
15 (9th Cir. 2001) (Napster users who upload file names to the search index for others to copy
violate plaintiffs distribution rights. Napster users who download files containing copyrighted
music violate plaintiffs reproduction rights.).
Courts have wide discretion in discovery matters and have allowed expedited discovery when
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good cause is shown. See Warner Bros. Records, Inc. v. Does 1-6, 527 F.Supp.2d 1, 2 (D.D.C.
2007); Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002);
Qwest Comm. Intl, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003);
Entertainment Tech. Corp. v. Walt Disney Imagineering, No. Civ. A. 03-3546, 2003 WL 22519440,
at 4 (E.D. Pa. 2003) (applying a reasonableness standard; a district court should decide a motion for
expedited discovery on the entirety of the record to date and the reasonableness of the request in
light of all of the surrounding circumstances) (quotations omitted); Yokohama Tire Corp. v. Dealers
Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D. Ariz. 2001) (applying a good cause standard).
Good cause exists here because service providers typically retain activity logs containing the
information sought for only a limited period of time before erasing the data. If that information is
erased, Plaintiff will have no ability to identify the Defendants, and thus will be unable to pursue its
lawsuit to protect its copyrighted work. Id. Where physical evidence may be consumed or
destroyed with the passage of time, thereby disadvantaging one or more parties to the litigation,
good cause for discovery before the Rule 26 conference exists. Qwest Comm., 213 F.R.D. at 419;
see also Pod-Ners, LLC v. Northern Feed & Bean of Lucerne LLC, 204 F.R.D. 675, 676 (D. Colo.
2002) (allowing discovery prior to Rule 26 conference to inspect items in defendants possession
because items might no longer be available for inspection if discovery proceeded in the normal
course).
For the foregoing reasons, Plaintiff respectfully submits that the Court should grant the
Motion for Leave to Take Discovery and enter an Order requiring the nonparty internet service
providers to respond in a timely manner to Rule 45 subpoenas that are narrowly tailored to seek
information to identify the internet subscribers whose accounts were used in the infringement of
Plaintiffs copyrighted works.
6
Respectfully Submitted,

s/
E.F. Stone
United States District Court Bar No. TX0087
624 W. University Dr., #386
Denton, Texas 76201
Phone: 469-248-5238
Fax: 310-756-1201
E-mail: lawoffice@wolfe-stone.com

CERTIFICATE OF SERVICE

Because neither the identities nor the contact information of the John Defendants are
known at this time, service could not be made on said Defendants.

s/
E.F. Stone

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WELL GO USA, INC.
1601 E. PLANO PKWY., STE. 110
PLANO, TX 75074
A TEXAS CORPORATION,

Plaintiff,

VS. C.A. NO.: 1:11-cv-01946-ABJ

HASH: B7FEC872874D0CC9B1372ECE-
5ED07AD7420A3BBB

Defendants.

DECLARATION OF SCOTT ARMSTRONG IN SUPPORT OF
PLAINTIFFS MOTION FOR LEAVE TO TAKE DISCOVERY

I, Scott Armstrong, declare:
1. I submit this declaration in support of Plaintiff, Well Go USAs, Motion for
Leave to Take Discovery. This declaration is based on my personal knowledge, and if called
upon to do so, I would be prepared to testify as to its truth and accuracy.
2. On or about May 3, 2011, using a popular and freely available BitTorrent
application, I connected to a BitTorrent swarm purported to be sharing unauthorized copies of
Plaintiffs film, Ip Man 2., This swarm was identified by the title Ip.Man.2.2010.DVDRip
.XviD-GiNJi and the following unique hash identifier:
B7FEC872874D0CC9B1372ECE5ED07AD7420A3BBB.
3. After connecting to the swarm, my BitTorrent software began downloading the
film immediately, piece by piece, from multiple members of the swarm simultaneously. In turn,
as per the default settings of the software, I also began uploading pieces of the film to any
member of the swarm determined as suitable by the software and its related processes.
4. The numerous other persons in the swarm were each represented by the IP
address of the internet account being used by each person to connect to the internet. This
information was readily visible via my BitTorrent software. Various other data related to this
filesharing process was listed alongside each IP address. Using proprietary software, I began
logging the IP addresses and other data as well as taking timed screenshots of the filesharing
activity. I continued this process, on Plaintiffs behalf, off and on through July 15, 2011.
5. After my BitTorrent software completed downloading the film, in the form of a
digital video file, I carefully reviewed the file and compared it to the original film provided by
the Plaintiff. The downloaded file was a complete and accurate embodiment of Plaintiffs film.
6. The attached exhibit comprises a list of IP addresses and related data
corresponding to a portion of the District of Columbia-based internet accounts witnessed by me
and/or recorded by me as having been involved in the unauthorized reproduction and distribution
of Plaintiffs film described above.

I declare under penalty of perjury that the foregoing is true and correct.
Executed on January 14, 2012 at my office in Houston, Texas.

Scott Armstrong

PEOPLE PICTURES, LLC.
A CALIFORNIA COMPANY,
6223 FRANKLIN AVE., #308,
LOS ANGELES, CA 90028

PLAINTIFF,

VS. C.A. NO.: 1:11-cv-01968-JEB-JMF

HASH: 43F4CFD05C115EE5887F680B0-
CA73B1BA18B434A

DEFENDANTS.

ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE
TO TAKE EXPEDITED DISCOVERY

The Court has read all the papers filed in connection with the Plaintiffs Motion for Leave to
Take Expedited Discovery (Motion), and considered the issues raised therein, including the unique
aspects of BitTorrent infringement.
ORDERED that Plaintiffs Motion for Leave to Take Expedited Discovery is granted.
ORDERED that Plaintiff is allowed to serve immediate discovery on the internet service
providers included in Exhibit 1 of this Order to obtain the identity of each account holder by which
each defendant accessed the internet to infringe Plaintiffs copyrights. Such discovery shall occur by
serving each affected internet service provider a Rule 45 subpoena that seeks information sufficient
to identify each listed account holder, including name, current (and permanent) addresses, telephone
numbers, email addresses, and Media Access Control addresses; it is further
ORDERED that the Plaintiff may serve immediate discovery on any service provider
identified by the same means detailed in the Motion, or identified as providing internet access to one
or more defendants, by a provider upon whom a Rule 45 subpoena is served, for which an infringing
download has been identified by individual IP address together with the date and time the infringing
activity through that IP address occurred. Such Rule 45 subpoena shall seek information sufficient
to identify each defendant, including his or her name, address, telephone number, e-mail address,
and Media Access Control Address.
ORDERED that Plaintiff is allowed to serve a Rule 45 subpoena in the same manner as
above to any service provider that is identified in response to a subpoena as a provider of internet
services to one of the listed account holders; it is further
ORDERED that any information disclosed to Plaintiff in response to a Rule 45 subpoena
may be used by Plaintiff solely for the purpose of protecting Plaintiffs rights as set forth in its
Complaint; it is further
ORDERED that service may be made on the internet service providers Agent to Receive
Notification of Claims of Infringement on file with the U.S. Copyright Office or any agent
designated in a subpoena compliance information page on that service providers website; it is
further
ORDERED that any service provider that receives a subpoena shall provide Plaintiff with the
requested records in a timely manner and shall not assess production fees, if any, to Plaintiff until
delivery of said records; it is further
ORDERED that if the number of records requested in a single subpoena exceeds one-
hundred, the service provider must nonetheless begin production of such records within two months
of service of the subpoena and must continue producing the records in monthly batches over a period
of months, as needed, with the final batch to be delivered not more than six months from the date of
service of the subpoena; it is further
ORDERED that any service provider demanding fees for production of records shall assess a
reduced fee, if any, for IP addresses for which the service provider does not have records or for
multiple IP addresses in the subpoena that resolve to the same individual; and it is further
ORDERED that any service provider which receives a subpoena and elects to charge for the
costs of production shall provide a billing summary and any cost reports that serve as a basis for
such billing summary and any costs claimed by such provider; it is further
ORDERED that the service provider shall preserve any subpoenaed information pending the
resolution of any timely filed motion to quash; and it is further
ORDERED that Plaintiff shall provide each service provider with a copy of this Order.

Dated:
AMY JACKSON
United States District Judge
Exhibit 1

List of Service Providers

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