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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ) ) ) ) ) CIVIL ACTION NO.: 11-245-SS ) ) ) ) ) )

IO GROUP, INC. d/b/a TITAN MEDIA, a California corporation, Plaintiff, vs. JOHN DOE , an individual, Defendant. ________________________________

MOTION FOR LEAVE TO TAKE DISCOVERY PRIOR TO RULE 26 CONFERENCE

TO THE HONORABLE UNITED STATES DISTRICT JUDGE: Plaintiff hereby moves the Court for leave to take discovery prior to the Rule 26 conference in order to identify the proper Defendant and subsequently amend the Complaint. 1. Plaintiff seeks leave to take limited discovery prior to the scheduled Rule 26

conference for the reasons set forth herein, and in the concurrently filed affidavit in support of this motion. Plaintiff could not obtain stipulation for this motion because Plaintiff cannot identify the Doe Defendant until the requested discovery takes place and therefore no defendant has been named.

1.

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I. INTRODUCTION AND FACTUAL BACKGROUND 2. Io Group, Inc. is a California corporation doing business as “Titan Media,” with its

principal place of business located at 69 Converse Street, San Francisco, California 94103. Titan Media produces, markets, and distributes adult entertainment products, including Internet website content, videos, DVDs, photographs, etc. Plaintiff operates and maintains a website by and through which individuals who pay a monthly subscription fee can view its photographic and audiovisual works. (Complaint at ¶5.) 3. Defendant DOE is an individual whose true name and address are unknown to

Plaintiff. (Id. at ¶6.) DOE distributed an unauthorized and infringing copy of Plaintiff’s audiovisual work Campus Pizza by and through the eDonkey2000 peer-to-peer Network. (Id., passim.) 4. Io Group, Inc. engaged Media Protector International GmbH (Media Protector

International) to locate and document infringing copies of its copyright protected works on the P2P Network eDonkey2000. (Affidavit of D. Gill Sperlein at ¶2.) Media Protector International identified the IP address from which the individual distributed the infringing file and recorded the IP address and the exact time and date at which it witnessed the infringing files. (Id. at ¶3.) 5. Plaintiff previously filed an action in the Northern District of California against

Defendant DOE and eighteen other Defendants who had similarly infringed Plaintiff’s works. (Id. at ¶4.) Through Court authorized early discovery, Plaintiff identified the account holder whose IP address was used to access the Internet and engage in the infringing activity. (Id. at ¶¶ 4 and 5.) The account holder, identified by EarthLink as a resident of Austin,

2.

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Texas, denies he is responsible for the infringing activity. (Id. at ¶¶ 4 and 5.) He claims that someone resides in his home with him and had access to his Internet account. (Id. at ¶6.) He also claims he made his wireless Internet connection available to his neighbors by failing to password protect his network. (Id.) He refuses to provide information to help identify the infringer, and refuses to allow a computer forensics expert to examine his computer. (Id.) 6. Plaintiff can only identify the actual infringer by way of further investigation.

Specifically, in order to determine to whom the Subscriber1 allowed access to his wireless network, Plaintiff must depose him as a non-party witness and examine his computer and his router. Plaintiff must also identify the individual living with the Subscriber and examine that individual’s computer. Once Plaintiff has determined if the actual infringer is the Subscriber, the individual with whom he lives, or a neighbor, Plaintiff will amend the Complaint to name that individual and will proceed against him. Accordingly, Plaintiff seeks leave from the Court to serve a Rule 45 third-party subpoena on Subscriber prior to the Rule 26 Case Management Conference in this matter. 7. Federal law provides for the relief Plaintiff seeks. II. ARGUMENT Federal Rules Allow for Early Discovery 8. Federal Rules allow for discovery prior to a Rule 26 conference upon a showing of

good cause. See Semitool, Inc. v. Tokyo Electronic America, Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002).

1

The Subscriber has expressed concerns about being publicly identified. Thus, to protect his identiy, at this stage, Plaintiff refers to him only as Subscriber. However, if Plaintiff determines that the Subscriber is the infringer, Plaintiff will identify him by name in the Amended Complaint.

3.

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9.

More specifically, courts have recognized that, “[s]ervice of process can pose a

special dilemma for plaintiffs in cases like this in which the tortuous activity occurred entirely on-line.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999). Accordingly, courts have developed the following factors to consider when granting motions for expedited discovery to identify anonymous Internet users: (1) whether the plaintiff can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court; (2) all previous steps taken by the plaintiff to identify the Doe defendant; and (3) whether the plaintiff’s suit could withstand a motion to dismiss. Id. at 578-80. Each of these factors resolves in favor of granting Plaintiff’s requested relief. 10. First, Plaintiff has sufficiently identified individuals who are real persons Plaintiff Plaintiff’s investigator, Media Protector, observed and

could sue in Federal Court.

documented infringement of its registered work by the individual identified as DOE in the Complaint. (Sperlein Affidavit at ¶¶ 2 and 3.) The requested discovery is necessary for Plaintiff to determine the true name and address of the individual who performed the infringing acts. (Id. at ¶10.) 11. Second, there are no other practical measures Plaintiff could take to identify the DOE Plaintiff is aware of no available information that would identify the

Defendant. (Id.)

infringing user, other than information available from the non-party subscriber. Due to the nature of on-line transactions, Plaintiff has no way of determining Defendant’s identity except through a third-party subpoena. (Id.)

4.

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12.

Third, Plaintiff has asserted a prima facia claim for copyright infringement in its

Complaint that can withstand a motion to dismiss. Specifically, Plaintiff has alleged that a) it owns and has registered the copyright in the work at issue; and b) the Defendant made unauthorized reproductions of the work and distributed it without Plaintiff’s authorization. These allegations state a claim for copyright infringement. 17 U.S.C. § 106(1)(3). 13. When outlining the above factors, the court in Columbia noted that in cases where

injured parties are likely to find themselves chasing unidentified tortfeasors from ISP to ISP, the traditional enforcement of strict compliance with service requirements should be tempered by the need to provide injured parties with a forum in which they may seek redress for grievances. Columbia, 185 F.R.D. at 579. An analysis of the factors clearly demonstrates Plaintiff’s legitimate interest in identifying the name and address of the individual who infringed upon its copyrighted work. Explanation of Specific Requests 14. In addition to the three factors discussed above, courts have indicated that a plaintiff

requesting early discovery to identify defendants should justify specific requests and explain how such requests “will lead to identifying information about defendant that would make service of process possible.” See Columbia 185 F.R.D. at 580; Gillespie v. Civiletti, 629 F. 2d 637, 642 (9th Cir.1980). 15. The infringement at issue in this action occurred through a distribution method

commonly referred to as Peer-to-Peer (P2P). Users download software to their computers that allows them to locate and transfer files to and from other users. In order to use the software to locate and exchange files, a user must connect to the Internet.

5.

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16.

Individuals gain access to the Internet through an Internet service provider (ISP).

When an ISP such as EarthLink, Inc. provides Internet access to a subscriber, it does so through a modem located at the subscriber’s home or office. (Sperlein Affidavit at ¶7.) Each time the subscriber accesses the Internet, EarthLink provides a unique number to the subscriber called an Internet protocol (IP) address. This is somewhat akin to a telephone number. (Id.) The IP address for a subscriber may stay the same (a static IP address) or it may change from time to time (a dynamic IP address). (Id.) ISPs generally record the times and dates it assigns each IP address to a subscriber. (Id.) 17. P2P technology used to locate and exchange files relies on the ability to identify the

computers to and from which users search and exchange files. The technology identifies those computers through the IP address from which the computer connects to the Internet. In this manner, Media Protector International identified the IP addresses from which individual connected to the Internet for the purpose of distributing unauthorized copies of Plaintiff’s work to others by and through P2P technology. (Id. at ¶3.) Media Protector International recorded the exact date and time an individual used the IP address to access the Internet to make the files available. (Id.) At the time and date in question, EarthLink had assigned the IP address to the subscriber Plaintiff now seeks to question. 18. In some cases, identifying the subscriber assigned the IP address might provide the

information necessary to identify the defendant infringer. However, here the Subscriber claims he is not the infringer, but rather that he provided access to his Internet account to the actual infringer. Plaintiff seeks to determine the veracity of the Subscriber’s claims and to question the Subscriber in order to determine to whom he provided access. At least on

6.

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District Court has allowed a copyright holder plaintiff to take such follow-up discovery after initially identifying the Subscriber. Liberty Media Holdings, LLC v. Doe, 2011 U.S. Dist. LEXIS 23046 (S.D. Cal. Mar. 8, 2011). 19. Specifically, Plaintiff seeks to serve a third party subpoena in order to 1) examine the

computer of the Subscriber, as well as the computers of the other residents of his household in order to determine if those computers currently or at sometime in the past contained the software necessary to communicate with the eDonkey Network; and 2) to question the Subscriber as to whom he allowed access to his Internet connection at the time and date of the infringing activity. This information will allow Plaintiff to pinpoint who actually

accessed the Subscriber’s Internet connection to infringe Plaintiff’s works. Once Plaintiff has this information it will amend its Complaint to name the proper defendant. III. CONCLUSION 20. For the forgoing reasons, Plaintiff respectfully requests that the Court grant Plaintiff’s

request to serve a non-party subpoena on the individual previously identified by EarthLink as the Subscriber whose account was used to access the Internet for the purpose of reproducing and distributing its copyright registered movie. Dated: March 28, 2011 Respectfully submitted, /s/ D. Gill Sperlein ______________________________ D. GILL SPERLEIN (CA Bar 172887), pro hac vice pending THE LAW OFFICE OF D. GILL SPERLEIN Gill@SperleinLaw.com 584 Castro Street, Suite 879 San Francisco, CA 94114 Tel: 415-404-6615 Fax: 415-404-6616

7.

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/s/James O. Deegear III DEEGEAR & MATTHEWS, PLLC Texas Bar No. 05713500 Jim@DeegearMatthewsLaw.com 5945 Broadway San Antonio, TX 78209 Tel: 210-930-5557 Fax: 210-930-3607

8.

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