Case 1:13-cv-00515-WDQ Document 8 Filed 03/01/13 Page 1 of 3
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`ROGER W. TITUS
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`UNITED STATES DISTRICT JUDGE
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MARYLAND
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`M E M O R A N D U M
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`6500 CHERRYWOOD LANE
`GREENBELT, MARYLAND 20770
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`301-344-0052
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`TO:
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`FROM:
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`RE:
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`DATE:
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`Counsel of Record
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`Judge Roger W. Titus
`Judge Paul W. Grimm
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`Malibu Media, LLC v. John Doe Cases in the District of Maryland
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`March 1, 2013
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`* * * * * * * * *
`Malibu Media, LLC (“Malibu Media”) is the Plaintiff in thirty-two (32) open cases in the
`United States District Court for the District of Maryland, as listed in the Appendix attached
`hereto. Malibu Media’s litigation activity has been substantially the same in these matters, as
`described below.
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`The complaint in each case asserts a claim of copyright infringement against a single,
`unnamed “John Doe” Defendant. The Defendant is identified as the subscriber to a listed
`Internet Protocol address (“IP address”). Malibu Media alleges in the complaint that the John
`Doe Defendant infringed Malibu Media’s copyrights by using the BitTorrent file distribution
`network (“BitTorrent”). Malibu Media claims that the John Doe Defendant used BitTorrent to
`illegally download movies for which Malibu Media has copyrights.
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`Malibu Media has moved pursuant to Rule 26(d) of the Federal Rules of Civil Procedure
`for leave to serve a third-party subpoena prior to a Rule 26(f) conference. Malibu Media asserts
`that it only knows the John Doe Defendant by its IP address, and requests that the Court issue a
`Rule 45 subpoena for service on the John Doe Defendant’s Internet Service Provider (“ISP”) so
`that it may learn the Defendant’s true identity.
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`Malibu Media has also filed a “Memorandum Explaining Why It Has a Clear and
`Undeniable Right to Issue a Rule 45 Subpoena.” See, e.g., Malibu Media, LLC v. Doe,
`No. 13-cv-508-RWT, ECF No. 6. Malibu Media asserts in this Memorandum that in similar
`cases, “federal courts have consistently permitted copyright owners to identify Doe Defendants
`through a Rule 45 subpoena, and two Federal Circuit Courts have held that Rule 45 subpoenas
`are permissible.” Id. at 6, citing Exhibit A, ECF No. 6-1 (captioned, “Courts That Have
`Permitted a Copyright Plaintiff to Subpoena the Identity of At Least One John Doe Defendant in
`an Online Infringement Case”). Malibu Media argues that “a ruling to the contrary [in this
`Court] would catastrophically undermine the rights of copyright owners by denying them the
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`Case 1:13-cv-00515-WDQ Document 8 Filed 03/01/13 Page 2 of 3
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`tools necessary to identify on-line infringers.” Id. Malibu Media most recently filed a
`Declaration by one of its principals to further support its request for a subpoena to an ISP.
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`The Judges of this Court have requested that Judge Roger W. Titus and Judge Paul W.
`Grimm jointly preside over a hearing on all cases listed in the Appendix to this Memorandum for
`the purpose of addressing the pending discovery motions. Judge Titus and Judge Grimm will
`hold the hearing on Tuesday, March 19, 2013, at 9:00 a.m., to last no longer than two hours.
`At this hearing, counsel for Malibu Media should be prepared to address the following questions:
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`• What is Malibu Media’s affiliation, if any, with Patrick Collins, Inc., Third Degree Films,
`Inc., K-Beech, Inc., Hard Drive Productions, Inc., Raw Films, Ltd., and/or AF Holdings,
`LLC?
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`Is there any method other than using full discovery to determine if a John Doe Defendant
`identified as the subscriber to a particular IP address is the same person who allegedly used
`that IP address to download the copyrighted work(s)?
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`• Does a complaint alleging copyright infringement state a plausible claim under federal
`pleading standards when it identifies the Defendant only by an IP address, and not a name,
`address, or other identifying information?
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`• A number of federal courts have been reluctant to grant a subpoena to an ISP when
`confronted with a request similar to that made by Malibu Media in these cases. See, e.g.,
`Patrick Collins, Inc. v. Doe 1, No. 12-cv-1154 (ADS) (GRB), __ F.R.D. __ , 2012 WL
`5879120, at *4-*5 (E.D.N.Y. Nov. 20, 2012) (noting some courts’ “skepticism of the use of
`IP addresses to identify file sharing defendants in cases involving pornographic films,” and
`finding that an IP address alone is insufficient to establish a reasonable likelihood that it will
`lead to the identity of the defendants who could be sued). Malibu Media does not cite this
`case, or similar ones, which conflict with cases cited by Malibu Media for the proposition
`that the Court should issue a third-party subpoena to an ISP. How does Malibu Media
`distinguish such contrary authority? Cf. Massey v. Prince George’s Cnty., 907 F. Supp. 138,
`142 (D. Md. 1995) (“Failure to pursue applicable legal authority in [a] timely fashion may
`well constitute a violation of” the Rules of Professional Conduct. “Particularly disturbing is
`[where] . . . a litigant who was an unsuccessful party to a directly relevant adverse precedent .
`. . has failed to cite that precedent to the court.”); Noohi v. Toll Bros., Inc., No. 12-1261, at
`14 n.3 (4th Cir. Feb. 26, 2013) (describing failure to cite an applicable case as
`“inexplicabl[e]” and “glaring”).
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`If Malibu Media is granted a subpoena to serve on an ISP and determines the name and
`address of the IP subscriber, what does Malibu Media intend to do with that information?
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`• Some plaintiffs who, like Malibu Media, have requested that the Court approve subpoenas to
`identify IP subscribers, thereafter have demanded settlement by threatening that the
`subscriber will be named in a case alleging that the subscriber illegally downloaded
`pornographic material if he or she does not make the settlement payment. See, e.g., Media
`Products, Inc. v. John Does 1-26, Nos. 12 Civ. 3719 (HB), 12 Civ. 3630 (HB), 12 Civ. 2962
`(HB), 2012 WL 3866492, at *1 (S.D.N.Y. Sept. 4, 2012) (“The relatively small group of
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`•
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`Case 1:13-cv-00515-WDQ Document 8 Filed 03/01/13 Page 3 of 3
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`lawyers who police copyright infringement on BitTorrent have customized the concept of
`extracting quick settlements without any intention of taking the case to trial.*** Particularly
`troubling for courts is the high probability of misidentified Doe defendants (who may be the
`bill-payer for the IP address but not the actual infringer) settling a case for fear of the
`disclosure of the allegations against them or of the high costs of litigation.”) (citations
`omitted). Please explain how issuing a third-party subpoena in these cases, which allege that
`defendants illegally downloaded pornographic material, could be limited so as to avoid any
`potential for exploitation.
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`A two-hour hearing before both of the undersigned to address the questions identified
`above and pending motions is hereby SCHEDULED for Tuesday, March 19, 2013, at
`9:00 a.m., in Courtroom 2C, located at 6500 Cherrywood Lane, Greenbelt, Maryland 20770.
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`Because of the importance of the issues, counsel who have previously appeared in cases
`of this nature will also be notified and will be permitted, should they choose to do so, to
`participate as amicus curiae. Any attorney desiring to do so may submit a single-spaced letter
`not exceeding three (3) pages in length by March 12, 2013. If an oral presentation is desired, the
`letter shall so state.
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`Despite the informal nature of this ruling, it shall constitute an Order of the Court, and the
`Clerk is directed to docket it accordingly in all cases listed in the Appendix hereto.
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` /s/
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`Roger W. Titus
`United States District Judge
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`Paul W. Grimm
`United States District Judge