Filed: Jul. 13, 2012
Latest Update: Jul. 13, 2012
Summary: ORDER AND FINDINGS AND RECOMMENDATIONS CAROLYN K. DELANEY, Magistrate Judge. In this action, plaintiff alleges copyright infringement of pornographic motion pictures against Doe defendants. In the course of monitoring Internet-based infringement of its copyrighted content, plaintiff's agents allegedly observed unlawful reproduction and distribution of the subject motion pictures by the Doe defendants via the Bit Torrent file transfer protocol. Although plaintiff does not know the actual names
Summary: ORDER AND FINDINGS AND RECOMMENDATIONS CAROLYN K. DELANEY, Magistrate Judge. In this action, plaintiff alleges copyright infringement of pornographic motion pictures against Doe defendants. In the course of monitoring Internet-based infringement of its copyrighted content, plaintiff's agents allegedly observed unlawful reproduction and distribution of the subject motion pictures by the Doe defendants via the Bit Torrent file transfer protocol. Although plaintiff does not know the actual names o..
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ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
In this action, plaintiff alleges copyright infringement of pornographic motion pictures against Doe defendants. In the course of monitoring Internet-based infringement of its copyrighted content, plaintiff's agents allegedly observed unlawful reproduction and distribution of the subject motion pictures by the Doe defendants via the Bit Torrent file transfer protocol. Although plaintiff does not know the actual names of the Doe defendants, plaintiff's agents created a log identifying the Doe defendants by their IP addresses and the dates and times of their alleged unlawful activity. The IP addresses, internet service providers ("ISPs"), and dates and times of the alleged unlawful activity by the Doe defendants are identified in an exhibit to plaintiff's complaint.
Plaintiff has filed an ex parte application for expedited discovery to serve Rule 45 subpoenas on the ISPs to obtain the names, addresses, telephone numbers, and e-mail addresses of the Doe defendants. With respect to the requested expedited discovery as to Doe 1, the court finds plaintiff has shown good cause and the request will be granted. With respect to the remaining Doe defendants, however, it appears that plaintiff's joinder of unrelated defendants is improper under Federal Rule of Civil Procedure 20. Given the technical complexities of BitTorrent swarm functions,1 it appears unlikely that the Doe defendants engaged in any coordinated effort or concerted activity. See, e.g. Boy Racer, Inc. v. Does 1-60, 2001 WL 3652521 (N.D. Cal. Aug. 19, 2011). Under these circumstances, permissive joinder under Federal Rule of Civil Procedure 20(a)(2) is not warranted.2 Accordingly, the court will authorize expedited discovery only as to Doe 1 and recommend that the remaining Doe defendants be dismissed without prejudice under Federal Rule of Civil Procedure 21.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's ex parte application and motion for leave to take expedited discovery (dkt. no. 4) is granted in part;
2. Plaintiff may immediately serve a Rule 45 subpoena on the ISP Charter Communications to obtain the following information about the subscriber (defendant John Doe 1) corresponding to the IP address 75.128.68.154: name, address, telephone number, and e-mail address. The subpoena shall have a copy of this order attached.
3. The ISP, in turn, shall serve a copy of the subpoena and a copy of this order upon its relevant subscriber within 30 days from the date of service upon it. The ISP may serve the subscriber using any reasonable means, including written notice sent to the subscriber's last known address, transmitted either by first-class mail or via overnight service, or by e-mail notice.
4. The subscriber and the ISP shall each have 30 days from the respective dates of service upon them to file any motions contesting the subpoena (including a motion to quash or modify the subpoena). If that period elapses without the filing of a contesting motion, the ISP shall have ten (10) days thereafter to produce the information responsive to the subpoena to plaintiff.
5. The subpoenaed ISP shall preserve any subpoenaed information pending the production of the information to plaintiff and/or the resolution of any timely-filed motion contesting the subpoena.
6. The ISP that receives a subpoena pursuant to this order shall confer with plaintiff before assessing any charge in advance of providing the information requested in the subpoena. If the ISP elects to charge for the costs of production, it shall provide plaintiff with a billing summary and cost reports.
7. Any information disclosed to plaintiff in response to a Rule 45 subpoena may not be used for any improper purpose and may only be used for protecting plaintiff's rights as set forth in the Complaint; and
IT IS HEREBY RECOMMENDED that Does 2-7 be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
