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Tcyk, LLC v. Does

United States District Court, Fifth Circuit

December 10, 2013

TCYK, LLC, Plaintiff,
v.
DOES 1-20, Defendants.

MEMORANDUM OPINION AND ORDER

DAVID L. HORAN, Magistrate Judge.

Plaintiff TCYK, LLC ("TCYK" or "Plaintiff") has filed a Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference. See Dkt. No. 4. This motion has been referred to the undersigned magistrate judge for determination pursuant to 28 U.S.C. § 636(b) and an order of reference. See Dkt. No. 6. For the reasons set forth herein, Plaintiff's Motion for Leave [Dkt. No. 4] is GRANTED, pursuant to the Protective Order incorporated into this Memorandum Opinion and Order.

Background

Plaintiff owns the copyright and/or permanent exclusive rights under copyright in the United States to the movie "The Company You Keep" (the "Movie"). Plaintiff contends that 20 Doe Defendants transferred and copied the Movie through a network called a "BitTorrent protocol" or "torrent." Using the BitTorrent protocol, an initial fileprovider intentionally shares a file, referred to as a "seed, " with a torrent network. Other users on the same network connect to the seed file to download the movie. As more users request the same file, each additional user becomes a part of the network from which the file can be downloaded. Each new file downloader receives a different piece of the data from each user who has already downloaded the file that together comprises the whole. This piecemeal system with multiple pieces of data coming from users is normally referred to as a "swarm."

Plaintiff has allegedly obtained the internet protocol ("IP") address assigned to each Doe Defendant who allegedly participated in a swarm involving the Movie, but Plaintiff claims to be unable to further identify each Doe Defendant without subpoenaing their internet service providers ("ISPs"). Thus, Plaintiff moves the Court to issue an order allowing it to subpoena the ISPs - identified by Plaintiff as Road Runner and Time Warner Cable, see Dkt. No. 1-2 at 1 - for the names, addresses, and, to the extent available, e-mail addresses of each Doe Defendant.

Analysis

I. Propriety of a Subpoena for Identifying Doe Defendants

This motion is not the first of its kind - it is one of many filed nationwide and in this district by copyright holders seeking to identify and properly serve BitTorrent swarm participants. See, e.g., Combat Zone Corp. v. John/Jane Does 1-5, No. 3:12-cv-4005-M, 2012 WL 5289736, at *1 (N.D. Tex. Oct. 26, 2012) (citing Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 240 (S.D.N.Y. 2012)). Courts have weighed several factors in determining whether such early discovery is appropriate, including: (1) whether the plaintiff makes a prima facie showing of harm; (2) the specificity of the discovery request; (3) the absence of alternative means for the plaintiff to obtain the subpoenaed information; (4) the necessity of the subpoenaed information to advance the plaintiff's claim; and (5) the user's expectation of privacy. See Well Go USA, Inc. v. Unknown Participants in File sharing Swarm Identified by Hash B7FEC872874D0CC9B1372ECE5ED07AD7420A3BB, No. 4:12-cv-963, 2012 WL 4387420, at *1 (S.D. Tex. Sept. 25, 2012) (citing cases).

As to the first factor, Plaintiff has made a prima facie showing of copyright infringement by alleging that it owns the copyright at issue and that Defendants made unauthorized reproductions of those works and distributed them without Plaintiff's authorization. See Dkt. No. 1 at ¶ 13; Dkt. No. 5 at 5. Plaintiff also provided the copyright certificate of registration, see Dkt. No. 1-1, and the IP addresses associated with the alleged infringers, see Dkt. No. 1-2. Thus, factor one weighs in favor of allowing Plaintiff to subpoena the ISPs. See Well Go, 2012 WL 4387420, at *2 (finding plaintiff made a prima facie showing of infringement on similar facts); Digital Sin, Inc., 279 F.R.D. at 241-42 (same); Combat Zone, 2012 WL 5289736 at *1 (same); Hard Drive Prods., Inc. v. Does 1-59, Civ. A. H12-0699, 2012 WL 109611, at *1 (S.D.Tex. Mar. 30, 2012) (same).

The information sought is specific. Plaintiff identified the 20 IP addresses that allegedly participated in the swarm and seeks only the names, addresses, and, to the extent available, e-mail addresses of each Doe Defendant. Courts in other cases have held that plaintiffs seeking more information sought sufficiently specific information. See Combat Zone, 2012 WL 5289736 at *1. Factor two also favors early discovery.

Plaintiff alleges that it has obtained all the information that it can through informal discovery. The Cable Privacy Act prohibits cable operators, which includes the ISPs identified here, from disclosing subscribers' personal information without their consent or a court order. See 47 U.S.C. § 551(c).

Finally, the privacy factor favors early discovery as well. Unlike the apparent circumstances in many of the more recent cases involving this issue, the movie at issue is not pornographic in nature. See Combat Zone, 2012 WL 5289736 at *1; W. Coast Prods., Inc. v. Does 1-351, No. 4:12-cv-00504, 2012 WL 2577551, at *1 (S.D. Tex. July 3, 2012); Combat Zone Corp. v. Does 1-2, No. 2:12-cv-00509, 2012 WL 6684711, at *1 (E.D. Tex. Dec. 21, 2012). Additionally, the users' expectations of privacy will be protected by the Protective Order, detailed below, which will allow subscribers an opportunity to object to the information transfer to Plaintiff before it happens.

II. Joinder

Many courts analyzing similar motions have also identified the potential impropriety of joining unknown defendants into a single action under Federal Rule of Civil Procedure 20(a). The concern is that, with as little identifying information as plaintiffs and courts have before them at this stage, it is difficult to conclude that the claims against the many defendants arise out of the same transaction or occurrence and that they share a common question of ...


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