MALIBU MEDIA, LLC V. JOHN DOE, CIVIL NO. JKB-15-2359 (D. Md. Aug 14, 2015)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MALIBU MEDIA, LLC V. JOHN DOE
CIVIL NO. JKB-15-2359 (D. Md. Aug 14, 2015)
D. Md.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CIVIL NO. JKB-15-2359
08-14-2015
MALIBU MEDIA, LLC, Plaintiff v. JOHN
DOE, subscriber assigned IP address
69.250.127.23 Defendant
James K. Bredar United States District
Judge
MEMORANDUM AND ORDER
The Court has pending before it this lawsuit brought
by Plaintiff Malibu Media ("Malibu" or "Plaintiff") alleging copyright infringement and other claims
against a single "John Doe" defendant ("Doe Defendant"), who is alleged to have utilized the BitTorrent
file distribution network to download adult pornographic films subject to copyrights held by Malibu.
The Doe Defendant has been identified in the lawsuit
1
only by an Internet Protocol address ("IP Address")
assigned to a customer on a specific date by an Internet Service Provider ("ISP" or "Provider") and
through which the copyrighted work was allegedly
downloaded. Malibu has filed a motion for leave to
serve a third-party subpoena prior to a Federal Rule of
Civil Procedure 26(f) discovery conference (ECF No.
3), requesting permission to initiate discovery to identify the account subscriber ("Doe Subscriber") associated with the IP Address used to download its copy-

righted films, notwithstanding the provisions of Rule
26(d)(1), which preclude a party from *2seeking discovery from any source before the parties have conferred as required by Rule 26(f). Malibu contends that
it must be permitted to issue a Rule 45 subpoena to
Providers to identify the customer assigned the IP Address on the date or dates in question in order to learn
the identity of the person responsible for downloading the copyrighted works, and that there is no other
way for it to obtain this information.
1. An IP address is not really an "address" or
physical "place" in the usual sense of the
words, and therefore the term can be quite
misleading. In fact, it is only an electronic
"route" to the Internet assigned by a Provider
to a customer on a given date and hour to provide access to the Internet. The route can be
assigned to different customers on given dates
or given hours. If a customer accesses the Internet briefly and signs off, the IP address is assigned to another customer.

The Court is aware that in similar cases filed by plaintiffs in other jurisdictions against Doe Defendants,
concerns have been raised as to the sufficiency of the
allegations of complaints because association of an IP
address with a customer may be insufficient to state a
2
claim. There also have been reports of plaintiffs undertaking abusive settlement negotiations with Doe
Defendants due to the pornographic content in the
copyrighted works, the potential for embarrassment,
and the possibility of defendants paying settlements
even though they did not download the plaintiff's
3
copyrighted material.
2.

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See, e.g., Patrick Collins, Inc. v. Doe 1, 288 F.R.D.
233, 237-39 (E.D.N.Y. 2012) (noting many
courts' "skepticism of the use of IP addresses
to identify file sharing defendants in cases involving pornographic films," adopting a magistrate judge's finding that "an IP address alone
is insufficient to establish 'a reasonable likelihood [that] it will lead to the identity of defendants who could be sued,'" and observing that
"[d]ue to the prevalence of wireless routers,
the actual device that performed the allegedly
infringing activity could have been owned by
a relative or guest of the account owner, or
even an interloper without the knowledge of
the owner.").
3. See, e.g., Digital Sin, Inc. v. Does 1-176, 279
F.R.D. 239, 242 (S.D.N.Y. 2012) ("The Court
is concerned about the possibility that many of
the names and addresses produced in response
to Plaintiff's discovery request will not in fact
be those of the individuals who downloaded
[the copyrighted material]. The risk is not
purely speculative; Plaintiff's counsel estimated that 30% of the names turned over by ISPs
are not those of individuals who actually
downloaded or shared copyrighted material.
Counsel stated that the true offender is often
the 'teenaged son . . . or the boyfriend if it's a
lady.'"); K-Beech, Inc. v. Does 1-85, No.
3:11cv469-JAG, at 4 (E.D. Va. Oct. 5, 2011),
ECF No. 9 ("Some defendants have indicated
that the plaintiff has contacted them directly
with harassing telephone calls, demanding
$2,900 in compensation to end the litigation. .
. . This course of conduct indicates that the
plaintiffs have used the offices of the Court as
an inexpensive means to gain the Doe defendants' personal information and coerce payment from them. The plaintiffs seemingly
have no interest in actually litigating the cases,
but rather simply have used the Court and its
subpoena powers to obtain sufficient information to shake down the John Does.").--------

Having considered the concerns raised by other courts
that have addressed similar cases, and Malibu's motion
requesting permission to initiate discovery to identify
the John Doe Subscriber, the Court GRANTS the motion, subject to the following conditions and limitations:
1. Malibu may obtain from the clerk a
Subpoena to be served on the ISP through
which the Doe Subscriber allegedly
downloaded the copyrighted work, and it may
serve the ISP in accordance with Federal Rule
of Civil Procedure 45. The Subpoena may
command production of documents and/or
electronically stored information (collectively,
"Information") identifying the Doe Subscriber.
The Subpoena shall have as an attachment a
copy of the complaint filed in this lawsuit, and a
copy of this Order.2. After having been served
with the Subpoena, the ISP will delay
producing to Malibu the subpoenaed
Information until after it has provided the Doe
Subscriber with
a. Notice that this suit has been
filed naming the Doe Subscriber
as the one that allegedly
downloaded copyright protected
work;b. A copy of the Subpoena,
the complaint filed in this lawsuit,
and this Order;c. Notice that the
ISP will comply with the
Subpoena and produce to Malibu
the Information sought in the
Subpoena unless, within 30 days
of service of the Subpoena, the
Doe Subscriber files a motion to
quash the Subpoena or for other
appropriate relief in this Court. If
a timely motion to quash is filed,
the ISP shall not produce the
subpoenaed Information until the
Court acts on the motion.
*43. The Doe Subscriber may move to quash

*3

the Subpoena anonymously, but MUST
PROVIDE his or her name and current address

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 MALIBU MEDIA, LLC V. JOHN DOE, CIVIL NO. JKB-15-2359 (D. Md. Aug 14, 2015)
to the Clerk of the Court so that the Court may
provide notice of the filings to the Subscriber.
This may be accomplished by completing and
mailing to the Clerk of the Court the attached
form. This contact information will not be
disclosed to the Plaintiff and will be used solely
for the purposes stated above. The Court will
not decide any motions until the Doe
Subscriber has provided all required
information. If the Doe Subscriber fails to file
a motion to quash the Subpoena or for other
appropriate relief within 30 days, the ISP shall
provide to Malibu the Information requested in
the Subpoena within 14 days. Malibu's use of
this Information shall be restricted as further
provided in this Order. Pursuant to Rule 45(c),
Malibu shall reimburse the ISP for its
reasonable costs and expenses, including
attorney's fees, associated with complying with
the Subpoena and this Order.4. On receipt of
the Information from the ISP, Malibu must
mark it as "Highly Confidential," and, in the
absence of further order of the Court, may only
use it to determine whether, pursuant to Rule
11(b), it has sufficient information to amend
the complaint to name as an individual
defendant the Subscriber. Unless otherwise
ordered by the Court, Malibu, its agents,
representatives, and attorneys may not disclose
the Information received from the ISP to any
person not directly involved as an attorney in
representing Malibu in this copyright
infringement action relating to the
Information received, except as provided
below. Any person to whom the Information
or its contents is disclosed shall be required
to sign an agreement to be bound by the
provisions of this Order, enforceable by an
action for contempt, prior to being informed
of the Information or its contents. Any
*5amended complaint filed by Malibu naming
an individual defendant shall be filed so that
the name and any specifically identifying
information is redacted from the publicly
available court docket, to be replaced by first
and last initials only, with an unredacted copy
of the amended complaint filed under seal. If

Malibu determines that the Information
received pursuant to the Subpoena is
insufficient to support the filing of an amended
complaint, it may
a. Serve a subpoena pursuant to
Rule 45(a)(1)(B) commanding the
Subscriber to appear and attend a
deposition to answer questions
regarding whether the Subscriber
was responsible for downloading
the copyrighted work alleged in
the original complaint.b. Pursuant
to
Rule
26(b)(2)(C),
the
deposition permitted pursuant to
paragraph 4.a of this Order shall
not last more than one hour in
duration. Pursuant to Rule
37(a)(4), the Subscriber shall
answer questions fully and
unevasively, but may refuse to
answer questions that would
require
the
disclosure
of
privileged
(including
the
5Amendment privilege against
self-incrimination)
or work
product protected information, as
described in Rule 26(b)(1), (3),
and (5).c. No further discovery
will
be
permitted
unless
authorized by the Court.
5. Malibu is prohibited from initiating, directly
or indirectly, any settlement communications
with any unrepresented Doe Defendant whose
identity has been revealed pursuant to the
Subpoena or deposition described in paragraph
4 above. Any settlement communications with
an unrepresented Doe Defendant shall be
initiated only as approved by the Court. On
request submitted to the Court at any time by
Malibu or the Doe Subscriber, whether
represented or unrepresented, *6settlement
shall be conducted under supervision of one
or more Magistrate Judges designated by the
Court for this purpose. Unless otherwise
ordered by the Court, any settlement
negotiations shall be subject to the

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confidentiality provisions of Local Rule 607.4.
This paragraph shall not prevent Malibu from
initiating or responding to a request for
settlement communications with a Doe
Defendant who is represented by counsel.6.
Within five (5) business days of this
Order—and in any event, before it may serve
any subpoena on the Doe Defendant's
ISP—both Malibu and its counsel shall file
certifications substantially identical to the
forms attached as Exhibits A and B,
respectively. If any additional attorneys wish
to appear on behalf of Malibu in this action,
they shall execute an identical certification and
attach it to their appearance or motion for
admission pro hac vice, as appropriate.

To the extent that the provisions herein, and particularly those in paragraphs four and five, limit the ways
that Malibu may use any Information that it receives,
those limitations are the conditions upon which Malibu is permitted to seek and receive expedited discovery. Accordingly, those limitations remain in effect
until and unless modified by an order of this Court
and do not expire at the conclusion of this litigation,
irrespective of whether by entry of judgment, stipulation of dismissal, voluntary dismissal by Plaintiff, or
other resolution.DATED this 14 day of August, 2015.
BY THE COURT:
/s/_________
James K. Bredar
United States District Judge

*7

Exhibit A
*8CERTIFICATION OF MALIBU MEDIA , LLC

Pursuant to the Order entered on [ ] (the "Expedited
Discovery Order"), ECF No. [ ], Malibu Media, LLC

("Malibu"), hereby certifies as follows under penalty of
perjury, pursuant to 28 U.S.C. § 1746:
1) Malibu understands that the Expedited
Discovery Order sets forth conditions under
which expedited discovery may be sought from
the internet service provider ("ISP") serving
the Doe Defendant in this case (the
"Conditions");2) Malibu further understands
that the Conditions in the Expedited Discovery
Order include, but are not limited to:
a. A requirement that any
identifying Information obtained
be maintained as "Highly
Confidential" and not be disclosed
except as expressly permitted in
the Expedited Discovery Order;
andb. A prohibition on contacting
an unrepresented Doe Defendant
for the purposes of settlement;
*93) Malibu understands that the Conditions

are intrinsic to the grant of Malibu's motion for
expedited discovery and do not depend upon
the continued existence of a pending case; to
the contrary, the Conditions remain in effect
until and unless they expressly are removed or
altered by this Court;4) Malibu will continue
to abide by the Conditions even if this case is
terminated or dismissed, and will not disclose
the Doe Defendant's information or attempt
to contact an unrepresented Doe Defendant
unless expressly authorized to do so by this
Court; and5) In the event that Malibu should
bring any future actions against this Doe
Defendant, or any party reasonably believed to
be this Doe Defendant, in this or any other
jurisdiction, it will ensure that a copy of the
Expedited Discovery Order and this
Certification are attached to the complaint or
the first document filed after it becomes
apparent that the defendant may be this Doe
Defendant.

I certify the foregoing to be true under
penalty of perjury.Executed on this ___ day
of __________, 2015.

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 MALIBU MEDIA, LLC V. JOHN DOE, CIVIL NO. JKB-15-2359 (D. Md. Aug 14, 2015)
MALIBU MEDIA, LLC, by:
__________
Signature
__________
Printed Name
__________
Title

*10

Exhibit B
*11 CERTIFICATION OF COUNSEL

Pursuant to the Order entered on [ ] (the "Expedited
Discovery Order"), ECF No. [ ], __________ hereby
certifies as follows under penalty of perjury, pursuant
to 28 U.S.C. § 1746:
1) I understand that the Expedited Discovery
Order sets forth conditions under which
expedited discovery may be sought from the
internet service provider ("ISP") serving the
Doe Defendant in this case (the
"Conditions");2) I understand that the
Conditions in the Expedited Discovery Order
include, but are not limited to:

the contrary, the Conditions remain in effect
until and unless they expressly are removed or
altered by this Court;4) I will continue to abide
by the Conditions even if this case is
terminated or dismissed, and I will not disclose
the Doe Defendant's information or attempt
to contact an unrepresented Doe Defendant
unless expressly authorized to do so by this
Court; and5) In the event that I represent
Malibu in any future actions against this Doe
Defendant, or any party reasonably believed to
be this Doe Defendant, in this or any other
jurisdiction, I will ensure that a copy of the
Expedited Discovery Order and this
Certification is attached to the complaint, the
first document filed after it becomes apparent
that the defendant may be this Doe Defendant,
or the first document filed after I appear in that
action, as appropriate.

I certify the foregoing to be true under
penalty of perjury.Executed on this ___ day
of __________, 2015.
/s/_________

Counsel for Plaintiff Malibu Media, LLC

a. A requirement that any
identifying Information obtained
be maintained as "Highly
Confidential" and not be disclosed
except as expressly permitted in
the Expedited Discovery Order;
andb. A prohibition on contacting
an unrepresented Doe Defendant
for the purposes of settlement;
*123) I understand that the Conditions are

intrinsic to the grant of Malibu's motion for
expedited discovery, and do not depend upon
the continued existence of a pending case; to

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