Malibu Media, LLC v. Doe

          ORDER STAYING COMPLIANCE WITH THIRD-PARTY SUBPOENA

          WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this copyright infringement action, plaintiff has identified defendant based on his Internet Protocol address. An order granted plaintiff leave to serve a third-party subpoena on defendant's Internet provider in order to receive his identifying information for the purpose of effecting service. Defendant moves to quash the subpoena. For the reasons stated below, this order Stays compliance with the subpoena pending submission of certain sworn evidence.

         STATEMENT

         Since September 2015, plaintiff Malibu Media, LLC, has filed 178 copyright infringement actions in this district. The complaints in all such actions are virtually identical. In this action, Malibu Media accuses defendant, an Internet subscriber assigned IP address 67.180.85.215 by his Internet service provider, Comcast Communications, Inc., of copying and distributing 131 of Malibu Media's copyrighted pornographic films between April 2014 and December 2015. As with each of Malibu Media's actions, it accuses defendant of using a digital file-sharing protocol known as BitTorrent to download, copy, and distribute these works.

         The BitTorrent protocol called for splitting large files, such as Malibu Media's videos, into many smaller pieces. Once a file was broken down into those pieces, users of the protocol could then copy and share the pieces of the larger file with each other, and once a user received all of the pieces of a given file, each of which may have come from a different user, software on the user's computer called a BitTorrent "client" reassembled the pieces into a complete file. This scheme facilitated an efficient and decentralized distribution scheme as compared to sharing a single large file from a single host site.

         Malibu Media hired Excipio GmbH, which utilized the BitTorrent protocol to download several of Malibu Media's files from the Internet. Excipio monitored the IP addresses of the distributors of each piece of each file it received. Malibu Media alleges that Excipio received at least one piece of each of 131 individual videos from the above-captioned IP address.

         When it commenced this action in February 2016, Malibu Media could only identify defendant by his Internet Protocol address, which is a numerical identifier assigned to each Internet service subscriber by Comcast. The complaint alleged that Malibu Media "used proven IP address geolocation technology which has consistently worked in similar cases" to trace the accused infringer's IP address to within this district (Compl. ¶ 6). In March 2016, Malibu Media sought leave to serve a third-party subpoena on Comcast for defendant's name and address for the purpose of effecting service (Dkt. No. 6). Malibu Media filed a sworn declaration describing Excipio's work detecting the accused infringer's IP address and another declaration explaining that serving a subpoena on an Internet provider is the only means to discover the identity of a subscriber assigned to a given IP address. It provided no declaration explaining the use of geolocation technology to ascertain the approximate location of the IP address.

         Leave to serve the subpoena was granted, subject to a protective order, which required Malibu Media to file any and all documents including defendant's identifying information under seal, with all such information redacted on the public docket (Dkt. No. 7).

         Defendant, who is represented by Attorney Thomas A. Pedreira, moves to quash the subpoena. This order follows full briefing and oral argument at which counsel for Malibu Media did not appear.^[1]

         ANALYSIS

         Rule 45(d)(3) provides the conditions for quashing a subpoena:

(A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or ...