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808 Holdings, LLC, A California Limited v. Collective of December 29

May 4, 2012



On January 24, 2012, Plaintiff filed a Motion for Leave to Take Early Discovery, along with a Memorandum of Points and Authorities and an exhibit [ECF No. 3]. Because no Defendant has been named or served, no opposition or reply briefs have been filed. On March 1, 2012, the Court issued a minute order indicating that the Plaintiff failed to comply with the local rules and obtain a hearing date before filing its Motion for Leave to Take Early Discovery [ECF No. 4]. The Court sua sponte set a motion hearing for April 23, 2012, at 10:00 a.m. (Mins. 1, Mar. 1, 2012, ECF No. 4.)

The Court finds the Plaintiff's Motion for Leave to Take Early Discovery suitable for resolution on the papers. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons discussed below, the Motion is GRANTED in part and DENIED in part.



On January 23, 2012, Plaintiff 808 Holdings, LLC ("808 Holdings") filed a Complaint against Collective of December 29, 2011 Sharing Hash E37917C8EEB4585E6421358FF32F29CD63C23C91, and DOES one through eighty-three ("Defendants") [ECF No. 1]. Plaintiff does business under the names "Cody Media" and "," and it purports to be the registered owner of, and hold the exclusive rights to, the copyright of the motion picture, "Brandon & Pierce Unwrapped." (Compl. 1, 3, ECF No. 1.) First, 808 Holdings alleges a claim for copyright infringement, stating that Defendants reproduced and distributed Plaintiff's copyrighted material through the Internet without authorization of the Plaintiff. (Id. at 36-37.) Second, 808 Holdings pleads contributory copyright infringement, alleging that Defendants illegally obtained the copyrighted motion picture and assisted others in doing the same. (Id. at 37-39.) Third, Plaintiff argues that the Defendants were negligent in failing to adequately secure their Internet access to prevent its unlawful use by others. (Id. at 39-40.)

One day after filing the Complaint, on January 24, 2012, 808 Holdings filed this Motion for Leave to Take Early Discovery to learn the identities of the Doe Defendants from their respective Internet Service Providers ("ISPs"). (Mot. Leave Take Early Disc. 1, ECF No. 3.)*fn1 Specifically, 808 Holdings seeks an order directing the ISPs to release the subscriber's identifying information. (Id.) The Plaintiff also seeks leave to serve interrogatories on, and take the depositions of, the individuals identified by the ISPs to determine whether the actual Internet subscriber is the proper defendant. (Id.) Plaintiff attached to its Motion a list of the Internet Protocol ("IP") addresses associated with subscribers it hopes to identify as defendants. (Id. Attach. #2 Ex. A, at 2-4.)


FACTUAL ALLEGATIONS In the Complaint, Plaintiff 808 Holdings alleges that the eighty-three Doe Defendants collectively infringed its copyrighted work using a BitTorrent file transfer protocol. (Compl. 2, ECF No. 1.) In general, the Plaintiff asserts that each time a Defendant distributes the motion picture to others, those individuals can distribute that infringing copy to other people in "an interconnected collective," which builds on prior infringements. (Id.) The Defendants are purportedly a collection of "BitTorrent users" or "peers" whose computers are connected for the purpose of sharing a file, otherwise known as a "swarm." (Id. at 3.) Plaintiff alleges that each BitTorrent swarm is associated with a particular "hash," which has a specific identifier for the file. (Id.) The sharing hash associated with the motion picture is E37917C8EEB4585E6421358FF32F29CD63C23C91 ("E379 Hash"). (Id. at 4.)

A. BitTorrent Protocol

According to 808 Holdings, the BitTorrent protocol is distinguishable from previously used peer-to-peer file sharing technology, utilized by Napster or Limewire, because it "allows for higher transfer speeds by locating pieces (or 'bits') of the file already present on other users' computers and downloading them simultaneously." (Id. at 32.) "This is done by joining into the 'swarm,' or collective, of peers to download and upload from each other simultaneously." (Id.) This process results in faster downloads than peer-to-peer file sharing technology. (Id.)

Plaintiff describes the process of downloading and uploading files through a BitTorrent protocol as "quick and efficient." (Id. at 33.) When a user downloads a media file, he or she opens the file on a BitTorrent client application; the user then extracts a list with tracker locations that connect to IP addresses that are currently running the BitTorrent software and offering to distribute the file. (Id.) The downloader's BitTorrent program then begins to download the media file automatically. (Id.)

B. Forming a Swarm

In the Complaint, 808 Holdings maintains that a swarm begins with an initial user called the "seeder" who begins to share a file with a torrent swarm. (Id.) New members of the swarm connect to the seeder to download the media file, which creates a digital copy of the file; the process repeats as new members join the swarm, increasing the number of users in the swarm. (Id.) Each member both acquires and redistributes the media file by simultaneously uploading and downloading portions of the same digital copy with the other members. (Id. at 33-34.) Therefore, Plaintiff contends that even if the original seeder leaves the swarm, the media file can continue to be downloaded by old and new members. (Id. at 33.)

C. The December 29, 2011 Sharing Hash

Plaintiff claims that on December 29, 2011, each of the Defendants "republished, duplicated, and replicated the exact same copy and exact same hash file." (Id. at 4.) Because all the Defendants are associated with the E379 hash, 808 Holdings alleges that each was a member of the same collective swarm. (Id. at 35.) Accordingly, Plaintiff asserts that they "acted collectively, and in concert, in effectuating the illegal and unauthorized sharing of Plaintiff's copyrighted work." (Id.) 808 Holdings contends that the Doe Defendants acted in unison:

Defendants engaged in their copyright infringement scheme together. They all used the same torrent-sharing technology to coordinate their collective copyright theft; they were all members of the same exact swarm on the same exact date; they all used the same exact tracker file; they all shared and republished the same exact motion picture; and they all shared the same exact hash file of the Motion Picture with each other and other individuals on the same exact date, December 29, 2011. (Id. at 4.)



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