Malibu Media Defense Updates – Motion for Early Discovery [Subpoenas to ISP]
This blog discusses a federal court case from the Central District Court in California wherein Malibu asked the Court to subpoena the ISPs owning these 10 IP addresses, to uncover their subscriber logs to identify the names and addresses of the 10 Doe Defendants. See Malibu Media, LLC v. John Does 1 through 10, No. 2:12-CV-3623-ODW, (C.D. Cal. June 27, 2012).
Legal process in Bittorrent Legal Download Cases
We have talked about the process that happens when a movie company like London Has Fallen (LHF Productions, Inc.) or Malibu Media files a lawsuit alleging illegal movie download and sharing. Watch this video to learn more about the Torrent lawsuit phenomena.
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As noted in this video, the general process that occurs when you are caught downloading a movie (ex. an adult pornographic movie), that normally you should be paying for, but without paying for it, is the following:
- Your I.P. address is noted by their online digital investigators
- Having your I.P. address, (but not any other information) they need to go to your Internet Service Provider (ISP) to ascertain your true identity, including name and address.
- At this point, not having your true identity, or the identity of the downloader, a federal court lawsuit is filed alleging copyright infringement
- In order to be able to serve a subpoena request on your ISP, the Plaintiff (movie production company or an assignee of the rights) files a motion for “expedited discovery” requesting the judge to allow them to serve the subpoena on the ISP such as Cox, Verizon, or Comcast.
- If granted, a subpoena is served requesting the subscriber’s name and address (presumably to conduct an asset search and to potentially name this person on the lawsuit in place of the John Doe defendant.
- Your ISP will give you notice of the subpoena once they receive it. You will have a certain amount of time to file a motion to quash the subpoena or to seek a “protective order” from the court (or file another motion such as a rule 12b(6) motion to dismiss)
- At this time many potential defendants come to us to try to find a way to settle their torrent case for less than may be demanded.
This blog discusses whether or not the motion for expedited discovery (item #4 above) is a sure thing, or whether the court may deny the request to serve the subpoena. This is one Malibu Media case that discusses this.
Early Discovery (ISP Subpoenas) Court Analysis
Here is one federal court case that discussed whether or not the Court should grant Malibu Media’s request for early discovery. In this case, the Court noted:
A. Third party subpoenas
In lawsuits against Doe defendants, the plaintiff should ordinarily be allowed discovery to uncover their identities. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980). But discovery may be denied if it is:(1) clear that discovery would not uncover the identities,or(2) that the complaint would be dismissed on other grounds.
Under the first condition, Malibu represents that these ISP subscriber logs will lead to the individual infringers.a Assuming that is true, the subscriber may not be the actual infringer. For instance, a person may be the subscriber, but his roommate is the actual infringer. And the subscriber may have his home network configured to allow visitors, including strangers, to access the Internet—and use BitTorrent. Further, the subscriber may be a business (e.g., a coffee shop), and Internet access may be open to all employees and customers. In some situations, the identity of the subscriber may yield the identity of the infringer; in others, the infringer may never be known.
Although the Court is inclined to allow Malibu to conduct this discovery, the potential for abuse is very high. The infringed work is a pornographic film. To save himself from embarrassment, even if he is not the infringer, the subscriber will very likely pay the settlement price. And if the subscriber is a business, it will likely pay the settlement to save itself from the hassle and cost of complying with discovery—even though one of its customers or employees is the actual infringer.
As for the second Gillespie condition, Malibu has not shown sufficient facts to show that the complaint should not be dismissed. Malibu avers that the 10 Doe Defendants have each connected to the IPP server to “transmit a full copy, or a portion thereof” of “Blonde Ambition.” But Malibu does not show which Doe Defendants transmitted a full copy, and which transmitted just one piece of the file. As noted above, individual BitTorrent file pieces are worthless—by themselves they can never be reconstructed into the original file. Nor do the individual file pieces resemble a partial movie clip: if a 10–minute movie file was split into 60 pieces by BitTorrent, the resulting pieces are not playable 10–second clips of the movie. If it is the case that a Doe Defendant logged onto the BitTorrent swarm, downloaded and then uploaded a single piece to the IPP server, and then logged off, all he has done is transmit an unusable fragment of the copyrighted work. Without the remaining pieces, this Doe Defendant cannot do anything with this scrap of data.
At this stage, the Court declines to opine whether transmitting pieces of a copyrighted work using BitTorrent, without transmitting all of the pieces, constitutes copyright infringement. But the Court notes that Malibu’s case is weak if all it can prove is that the Doe Defendants transmitted only part of all the BitTorrent pieces of the copyrighted work. (note, this highlights a potential defense in torrent cases)
In sum, the Court finds that privacy concerns are balanced with the need for discovery by allowing Malibu to subpoena the ISP for John Doe 1. Though Malibu now has the keys to discovery, the Court warns Malibu that any abuses will be severely punished.”
Contact a Torrent Movie Download Defense Law Firm
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