The opinion of the court was delivered by: Otis D. Wright, II United States District Judge
This case concerns the alleged BitTorrent transfer of the pornographic film "Blonde Ambition." Plaintiff Malibu Media, LLC filed suit for copyright infringement against ten Doe Defendants. Now, Malibu seeks leave to serve third party subpoenas prior to the Rule 26(f) conference. (ECF No. 5.) Generally, parties may not seek discovery from any source prior to the Rule 26(f) conference. Fed. R. Civ. P. 26(d). But exceptions are allowed by court order. Id. Malibu seeks an exception, contending that the anonymity afforded by the Internet cloaks all information about the infringers, save their IP addresses. (Mot. 2.) Without subpoenaing these infringers' internet service providers ("ISP"), Malibu asserts there is no other way to reveal the infringers' identities. (Mot. 5.) For the reasons discussed below, the Court GRANTS IN PART Malibu's motion.*fn1
The BitTorrent protocol allows users to transfer files over the Internet. Like other file-sharing technology, BitTorrent may be used to legally upload or download computer files-and it may also be used to pirate copyrighted software, movies, music, and anything else that may exist on computer-readable media. But unlike other file-sharing technology, where users connect to each other or to a central repository to transfer files, files shared via BitTorrent exist in a swarm, with pieces of the whole file distributed among the users.
The following example illustrates this technology: The original user posts a 100MB movie file on a BitTorrent tracker website.
The file exists only on that user's computer-the file is not uploaded to the tracker website; Other users discover this movie file through the tracker website and log onto the
BitTorrent swarm to download this file; On the original user's computer, BitTorrent software divides the 100MB movie file into 10,000 pieces, each representing a 10kB chunk; As downloaders log onto the BitTorrent swarm, these 10kB pieces are randomly distributed-the first piece to the first downloader, the fifth piece to the second downloader, etc.; After the initial pieces are transferred, additional pieces are randomly transferred to the downloaders-the first downloader may now have the first and 500th pieces; the second downloader may now have the second and 900th pieces, etc.; Once sufficient pieces have been distributed to downloaders in the swarm, the
BitTorrent protocol will automatically transfer pieces between downloaders- the first downloader may receive the 900th piece from the second downloader, the second downloader may receive the first piece from the first downloader, etc.;
The BitTorrent swarm becomes larger as more users log on and more pieces are distributed;
Once every piece of the original file has been uploaded to the collective swarm, the original uploader may log off-the entire movie exists in pieces in the swarm;
When a downloader has received all 10,000 pieces of the 100MB movie file, his
BitTorrent software reassembles the pieces to reconstruct the original file on his computer; These completed downloaders may then log off, or may remain online to continue seeding the pieces of the file to other downloaders.
There are several nuances about the BitTorrent protocol. First, every participant may upload and download pieces of the file. Second, these individual pieces are useless until a user has all of them; the user cannot reassemble the original file with even 99% of the pieces. Third, a user may log on and download just one piece (e.g., a 10kb piece) of the file and then log off, waiting to download the other pieces later or discarding the ...