In a recent decision in the Southern District of New York in Manhattan, in
Malibu Media v. Doe, 15 CV 4369 AKH, Judge Alvin K. Hellerstein has denied Malibu Media's
ex parte motion for permission to serve a subpoena on the internet service provider.
July 6, 2015, Decision of Hon. Alvin K. Hellerstein, denying ex parte motion for discovery
Judge Hellerstein reasoned as follows:
First, it is doubtful whether Malibu has in fact established a prima facie claim
here. A prima facie copyright infringement claim consists of two elements: (1) ownership of a
valid copyright, and (2) copying of constituent elements of the work that are original. See Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc. 499 U.S. 3400, 361 (1991). As Judge Marrero observed
in Next Phase Distribution, Inc. v. John Does 1-27, 284 F.R.D. 165, 171 (S.D.N.Y. 2012), “if the
Motion Picture is considered obscene, it may not be eligible for copyright protection.” Further,
even if Malibu’s copyrights are valid, Malibu has not established a violation by the individual to
whom the relevant IP address is registered. As Judge Oetken explains,
[t]he fact that a copyrighted work was illegally downloaded from a
certain IP address does not necessarily mean that the owner of that
IP address was the infringer. Indeed, the true infringer could just as
easily be a third party who had access to the internet connection,
such as a son or daughter, houseguest, neighbor, or customer of a
business offering internet connection.
Patrick Collin[s], Inc. v. Does 1-6, No. 12-cv-2964, 2012 WL 2001957, at *1 (S.D.N.Y. June 1,
2012) (internal citations omitted); see also In re BitTorrent Adult Film Copyright Infringement
Cases, 296 F.R.D. 80, 84 (E.D.N.Y. 2012) (“[T]he assumption that the person who pays for
Internet access at a given location is the same individual who allegedly downloaded a single
sexually explicit film is tenuous, and one that has grown more so over time.”); Digital Sin, Inc. v.
John Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (Judge Nathan finding that
approximately 30% of John Does identified by their internet service providers are not the
individuals who actually downloaded the allegedly infringing films). The risk of
misidentification is great in a world with ubiquitous Wi-Fi, and given courts’ concerns that these
sorts of allegations - especially by this plaintiff - are likely to coerce even innocent defendants
into settling, the risk of misidentification is important to protect against.
And even if Plaintiff could definitively trace the BitTorrent activity in question to
the IP-registrant, Malibu conspicuously fails to present any evidence that John Doe either
uploaded, downloaded, or even possessed a complete copyrighted video file. (See Compl. i1 24
("IPP International UG downloaded from Defendant one or more bits of each file hash listed on
Exhibit A.") (emphasis added); Fieser Deel. i115 ("Our software downloaded one or more bits of
each file hash listed on Exhibit A from the IP address referenced on Exhibit A.")). Another
district court has noted that
[i]ndividual BitTorrent file pieces are worthless ... 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. ... [T]he Court notes that Malibu's case is
weak if all it can prove is that the Doe Defendants transmitted only
part of all the BitT orrent pieces of the copyrighted work.
Malibu Media, LLC v. John Does 1-10, No. 12-cv-3623, 2012 WL 5382304, at *3 (C.D. Cal.
June 27, 2012).
Finally, Plaintiffs assertion that there is no alternative means of obtaining the
desired information is inadequate. The only support for it comes from the declaration of Patrick
Paige who, as Magistrate Judge Fox found in a different case, lacks personal knowledge of the
methodology used by ISPs to match the IP address with its registrant. Malibu Media, LLC v.
John Doe subscriber assigned IP address 207.38.208.137, 15-cv-1883, ECF Doc. No. 16 (Apr.
10, 2015). The Paige declaration that Judge Fox found deficient nearly three months ago is
identical to the Paige declaration submitted in support of this motion. It fares no better this time.
