IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
December 21, 2012
INGENUITY 13 LLC, PLAINTIFF,
The opinion of the court was delivered by: Richard Seeborg United States District Judge
United States District Court For the Northern District of California
ORDER GRANTING LEAVE TO TAKE LIMITED EX PARTE DISCOVERY AND CONTINUING CASE MANAGEMENT CONFERENCE
Plaintiff Ingenuity 13 LLC brings this action for copyright infringement, alleging that a copy 20 of its motion picture "Teen Sex: First Anal" was illegally downloaded by an unknown person via a 21
BitTorrent file transfer to a specified IP address. The complaint uses the fictional name "John Doe" 22 to identify the person who used that IP address to carry out the download. 23
Ingenuity now seeks leave to serve a subpoena on Comcast Cable Communications LLC, the Internet Service Provider ("ISP") identified as providing the service associated with the specified IP 25 address. Ingenuity also proposes that it be given blanket permission to serve such additional 26 subpoenas as it may deem appropriate on "any other entity identified as a provider of Internet 27 services to John Doe in response to a subpoena or as a result of ongoing BitTorrent activity 28 monitoring." Ingenuity requests that the subpoena, or subpoenas, direct production of "information sufficient to identify John Doe associated with the IP address listed in the Complaint, including 2 name, current (and permanent) address, telephone number, e-mail address, and Media Access 3
Control address." Ingenuity's motion, however, does not explain the term "Media Access Control 4 address" or establish why obtaining it would be necessary. Nor has Ingenuity shown that the broad 5 language "information sufficient to identify . . . . including . . . ." is appropriate, as opposed to 6 simply listing the specific information to be produced. 7
Ingenuity's motion, and to some extent its complaint, also conflates the identity of "John Doe" with the person to whom the specific ISP address was assigned at the time of the alleged 9 downloading. While the two very well could be one and the same individual, there are numerous 10 circumstances under which the individual who engaged in the allegedly infringing activity ("John Doe") may not be the person whose identity would be uncovered through production of information responsive to the subpoena (hereinafter, "the Account Holder"). For example, the Account Holder 13 could easily be one member of a household, who was entirely unaware that another member of the household-"John Doe"-was downloading BitTorrent files. If the Account Holder utilized an 15 unsecured wireless network, John Doe could even be a complete stranger. 16
This potential disconnect between the identity of the Account Holder and the identity of John Doe to some degree undercuts many of the arguments Ingenuity makes as to why discovery 18 into the identity of John Doe through a subpoena directed to the ISP of the Account Holder does not 19 unduly infringe on privacy or other rights. Nevertheless, even though the Account Holder and John 20
Doe could be separate persons, discovery into the Account Holder's identity is reasonably calculated 21 to lead to the discovery of admissible evidence, and under all the circumstances, will be allowed. 22
Accordingly, Ingenuity's motion is granted to the extent ordered below. In any 23 communications Ingenuity may subsequently have with the person identified as the Account Holder, 24 it shall clearly state that contact is being made in light of its belief that an allegedly infringing 25 download was undertaken through that ISP address, and shall not misleadingly suggest the Account 26
Holder is automatically legally responsible for any such downloading activity.
1. Plaintiff may immediately serve a Rule 45 subpoena to Comcast Cable Communications LLC to identify the person associated with the Internet Protocol ("IP") address listed in the 5 Complaint ("the Account Holder"), limited to that person's name, current (and permanent) address, 6 telephone number, and e-mail address. 7
2. Any information disclosed to the Plaintiff in response to said subpoena may be used by 8 the Plaintiff only in connection with this litigation. 9
3. Plaintiff and Comcast Cable Communications LLC shall confer, if necessary, with 10 respect to the issue of payment for the information requested in the subpoena or for resolution of IP addresses which are not controlled by Comcast, duplicate IP addresses that resolve to the same individual, other IP addresses that do not provide the name and other information requested of a 13 unique individual, or for Comcast's internal costs to notify its customers.
4. In the event Comcast elects to charge for the costs of production, it shall provide a billing 15 summary and any cost reports that serve as a basis for such billing summary and any costs claimed. 16
5. Plaintiff shall serve a copy of this order along with the subpoenas.
6. Any person wishing to move to quash the subpoena must do so before the return date of 18 the subpoena, which shall be 30 days from the date of service. 19
7. Comcast shall preserve any subpoenaed information pending the resolution of any timely- 20 filed motion to quash. 21 22
The initial Case Management Conference is continued to May 2, 2013 at 10:00 a.m.
IT IS SO ORDERED. 25
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