United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Matrtin Reidinger, United States District Judge
MATTER is before the Court on the Plaintiff's Motion for
Leave to Take Discovery Prior to Rule 26(f) Conference. [Doc.
Venice PI, LLC, (“Plaintiff”) filed a Complaint
for copyright infringement on June 29, 2017, alleging that
unknown individuals named as Defendants Does 1-10
(“Does 1-10”) committed violations of the
Copyright Act of 1976, 17 U.S.C. §§ 101 et seq.
(the “Copyright Act”) and seeking injunctive
relief, statutory damages, and attorney's fees and costs.
On the same day, the Plaintiff filed the instant motion for
leave to issue third-party subpoenas prior to a Rule 26(f)
conference on one or more Internet Service Providers
(“ISPs”) of Does 1-10 in order to obtain
information sufficient to identify each Doe Defendant so that
Plaintiff can serve Does 1-10 with Plaintiff's Complaint.
Specifically, the Plaintiff seeks by way of these subpoenas
“the name and address of the account holders; current
and permanent addresses; telephone numbers; email addresses;
and, the Media Access Control (“MAC”)
address.” [Doc. 5 at 4].
the factual allegations of the Plaintiff's Complaint as
true, the following is a recitation of the relevant facts.
Plaintiff is the claimant and holder of a copyright in the
motion picture Once Upon a Time in Venice (the “motion
picture”), [Doc. 1 at 2; Doc. 1-1], which is protected
by the Copyright Act and registrations, including
TXu001968528, and a pending application dated January 23,
2017. [Id. at ¶¶ 6, 7; Doc. 1-1].
BitTorrent is a peer-to-peer file sharing system and
“has become one of the most common systems for users to
illegally dispense and share huge amounts of data in digital
format, including motion pictures.” [Id. at
¶ 16]. The Plaintiff has traced to North Carolina
“many confirmed instances” of illegal downloading
and distributing of the motion picture in the BitTorrent
network, [Id. at ¶ 10], and “has brought
this action as a result of the unauthorized copying and
transferring of this motion picture by ten unknown defendants
who are believed to reside in this District.” [Doc. 5
Plaintiff has employed an investigator, Maverickeye, to use
geolocation technology to identify instances of copyright
infringement. [Complaint, Doc. 1 at ¶ 12; Doc. 5 at 3].
Due to the nature of the infringement, however, Maverickeye
is only able to identify the Doe Defendants in relation to
each defendant's Internet Protocol (“IP”)
address, the ISP who provided service to each defendant,
the city and county in which the alleged infringement
occurred. [Ex. 2 to Complaint, Doc. 1-2; Doc. 5 at 3]. As
such, the only way the Plaintiff may identify Does 1-10 is to
subpoena the ISP pursuant to Federal Rule of Civil Procedure
plaintiff's right to issue Rule 45 subpoenas on third
parties in order to identify unknown defendants under these
circumstances is well-established. The five-factor test set
forth in Sony Music Entertainment v. Does 1-40, 326
F.Supp.2d 556 (S.D.N.Y. 2004), a copyright infringement case
with substantially similar facts, determines whether an
anonymous defendant's identity is shielded from
disclosure by the First Amendment. These factors include:
“(1) a concrete showing of a prima facie claim of
actionable harm; (2) specificity of the discovery request;
(3) the absence of alternative means to obtain the subpoenaed
information; (4) a central need for the subpoenaed
information to advance the claim; and (5) the party's
expectation of privacy.” 326 F.Supp.2d at 564-65
(internal citations omitted); Arista Records, LLC v. Doe
3, 604 F.3d 110 (2nd Cir. 2010) (upholding application
of the Sony factors as “an appropriate general
standard for determining whether a motion to quash, to
preserve the objecting party's anonymity, should be
granted” in anonymous defendant's appeal in
copyright infringement case). Here, all five factors weigh in
favor of allowing the Plaintiff to issue Rule 45 subpoenas
prior to the Rule 26(f) conference.
the Plaintiff's Complaint states a prima facie
claim of copyright infringement. “Copyright
infringement occurs when a person ‘violates any of the
exclusive rights of the copyright owner.' 17 U.S.C.
§ 501(a). Therefore, the two elements of an infringement
claim are (1) ownership of a valid copyright and (2)
encroachment upon one of the exclusive rights afforded by the
copyright.” Elektra Entertainment Group, Inc. v.
Doe, No. 5:08-cv-1159-FL, 2008 WL 5111886 (E.D. N.C.
Dec. 4, 2008) (Flanagan, J.) (citing Avtec Systems, Inc.
v. Peiffer, 21 F.3d 568, 571 (4th Cir. 1994)). The
Plaintiff has sufficiently alleged both ownership of the
copyrights at issue and encroachment. The Plaintiff has
specifically identified the motion picture the rights to
which Does 1-10 have allegedly infringed. [Complaint, Doc. 1
at ¶ 5]. Plaintiff is the holder of a validly registered
copyright in that motion picture. [Complaint, Doc. 1 at
¶ 7, 8; Ex. 1 to Complaint, Doc. 1-1]. The “motion
picture contains wholly original material that is
copyrightable subject matter under the laws of the United
States, ” and “Defendants had notice of
Plaintiff's rights through general publication and
advertising and more specifically identified in the content
of the motion picture, advertising associated with the motion
picture, and copies, each of which bore a proper copyright
notice.” [Complaint, Doc. 1 at ¶¶ 8, 9].
“Defendants, without the permission or consent of
Plaintiff, copied and distributed Plaintiff's motion
picture through a public BitTorrent network, ” which
“infringed Plaintiff's exclusive rights under the
Copyright Act.” [Id. at ¶¶ 31, 32].
The Plaintiff has also specified the date and time at which
Does 1-10's allegedly infringing activity occurred and
the IP address assigned to each unknown defendant at that
time. [Ex. 2 to Complaint, Doc. 1-2]. As such, the Plaintiff
has made a concrete showing of a prima facie claim
of copyright infringement, satisfying the first Sony
the discovery request is sufficiently specific to establish a
reasonable likelihood that the identities of Does 1-10 can be
ascertained so that they can be properly served. See
Rotten Records, Inc. v. Doe, 108 F.Supp.3d 132, 134
(W.D.N.Y. 2015) (“Plaintiff has also met the
specificity requirement, insofar as Plaintiff seeks the name
and address of the individual assigned IP address [ ] for the
limited purpose of enabling Plaintiff to serve process on
the Plaintiff has shown that there are no alternative means
to obtain the information as to the identities of Does 1-10.
Plaintiff provides, “only ISPs maintain the records
that show the individual contact information for the
subscribers with the IP address.” [Doc. 5 at 7].
Further, ISPs are prohibited from disclosing this identifying
information without a court order. 47 U.S.C. § 551(c).
the Plaintiff has shown that the information it seeks to
subpoena is centrally needed to advance the Plaintiff's
copyright infringement claim. The Plaintiff simply cannot
identify the Doe Defendants and serve process on them without
the information sought.
consideration of the fifth factor in the Sony
analysis, the Doe Defendants' expectation of privacy,
also supports disclosure. Courts having examined this issue
have universally held an unknown defendant's
“expectation of privacy for sharing copyrighted
[materials] through an online file-sharing network are simply
insufficient to permit him to avoid having to defend against
a claim of copyright infringement.” Arista
Records, 604 F.3d at 124; see also, Virgin
Records America, Inc. v. Doe, No. 5:08-cv-389-D; 2009 WL
700207, at *3 (E.D. N.C. March 16, 2009) (Daniel, J.)
(“A defendant has little expectation of privacy in
allegedly distributing music over the internet without the
permission of the copyright holder”). As such, any
minimal expectation of privacy of Does 1-10 is insufficient
under the ...