Opinion
CIVIL 1:19-cv-07189-JGK
07-06-2021
MALIBU MEDIA, LLC, Plaintiff, v. JOHN DOE subscriber assigned IP address 98.116.191.111, Defendant.
Kevin T. Conway, Esq. (KC-3347) Attorney for Plaintiff
Kevin T. Conway, Esq. (KC-3347) Attorney for Plaintiff
ORDER
Hon. John G. Koeltl, U.S.D.J.
THIS MATTER having been opened to the Court by a consolidated motion on behalf of defendant John Doe subscriber assigned IP address 98.116.191.111 (“defendant”), through counsel, Leslie A. Farber, LLC, Leslie A. Farber, Esq., appearing, seeking an order (1) redacting defendant's name and address permanently from certain documents, (2) entering a protective order permitting defendant to defend this matter pseudonymously, and enjoining plaintiff from revealing personal information about defendant absent permission from the Corn!; and the Court having considered the moving and opposing papers and any arguments of counsel, and good cause having been shown;
IT IS on this 2 day of, July 2021
ORDERED as follows:
1. The Motion to Seal Certain Materials [ECF No. 49] be and the same is hereby GRANTED;
2. Defendant's request for Consent Protective Order is GRANTED; and
3. John Doe subscriber assigned IP address 98.116.191.111 shall proceed anonymously, as a “John Doe” or “John Doe subscriber assigned IP address 98.116.191.111” in this matter;
4. Plaintiff will maintain confidential and not disclose publicly or in this Court (except if under seal) the identity and contact information of this John Doe or of his/her immediate family; and
5. Redacted versions of the following documents shall be substituted for the originally filed documents by the Clerk of the Court:
a. Amended Complaint. [ECF No. 14].
b. Plaintiffs request for Summons to be Issued. [ECF No. 15].
c. Summons Issued. [ECF No. 16].
d. Proposed Order on Second Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint. [ECF No. 17-1].
e. Order on Second Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint. [ECF No. 18],
f. Third Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint. [ECF No. 21-1 Proposed Form of Order].
g. Fourth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF 23-1 Proposed Form of Order],
h. Order on Plaintiffs Fourth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF 24].
i. Fifth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF 27-1 Proposed Form of Order].
j, Order on Plaintiffs Fifth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF No. 28].
k. Sixth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF No. 29-1 Proposed Form of Order],
1. Order on Plaintiffs Sixth Letter Motion for Extension of Time to Effectuate Service of Summons and Amended Complaint on Defendant. [ECF No. 30].
m. Motion for Alternative Service. [ECF No. 31 Motion, 31-1 Exhibit A, 31-2 Proposed Form of Order].
n. Memorandum of Law in Support of Motion for Alternate Service on Defendant. [ECF No. 32],
o. Order on Motion for Extension of Time and Alternative Service on Defendant. [ECF No. 34],
p. Affidavit of Service of Process of Summons and Amended Complaint. [ECF No. 3 5].
q. Sixth Motion to Adjourn Initial Pretrial Conference and Extend the Deadline to File a Joint Discovery/case Management Plan. [ECF No. 36-1 Proposed Form of Order].
r. Proposed Clerk's Certificate of Default [ECF No. 3 8], supporting Declaration [ECF No. 38-1],
s. Clerk's Certificate of Default (entered). [ECF No. 39].
t. Motion for Entry of Final Default Judgment. [ECF No. 40 Motion, 40-1 Proposed Default Judgment, 40-3 Proposed Order to Show Cause].
u. Memorandum of Law in Support of Motion for Entry of Final Default Judgment. [ECF No. 41],
v. Declaration in Support of Motion for Entry of Final Default Judgment. [ECF No. 42],
w. Notice of Filing. [ECF No. 43].
x. Statement of Damages. [ECF No. 44],
y. Order. [ECF No. 45].
z. Notice of Mailing. [ECF No. 46].
aa. Letter dated August 11, 2020. [ECF No. 47],
bb. Consent Order. [ECF No. 48],
cc. Plaintiffs Notice of Settlement. [ECF No. 49],
dd. Memo Endorsement on Plaintiffs Notice of Settlement. [ECF No. 50).
ee. AO 121 Form Copyright - Case Terminated. [ECF No.52],
ff. Motion to Seal and for Protective Order - Declaration of John Doe. [ECF No. 53-2].
July 2, 2021.
MALIBU MEDIA, LLC, Plaintiff, v.
REDACTED, Defendant.
AMENDED COMPLAINT-ACTION FOR DAMAGES FOR PROPERTY RIGHTS INFRINGEMENT
Plaintiff, Malibu Media, LLC, sues Defendant REDACTED, and alleges:
Introduction
1. This matter arises under the United States Copyright Act of 1976, as amended, 17 U.S.C. §§ 101 et seq. (the “Copyright Act”).
2, Defendant is a persistent online infringer of Plaintiffs copyrights. Indeed, Defendant's IP address as set forth on Exhibit A was used to illegally distribute each of the copyrighted movies set forth on Exhibit B, 3. Plaintiff is the registered owner of the copyrights set forth on Exhibit B (the “Copyrights-in-Suit”).
Jurisdiction And Venue
4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question); and 28 U.S.C. § 1338 (patents, copyrights, trademarks and unfair competition).
5. Plaintiff used proven IP address geolocation technology which has consistently worked in similar cases to ensure that the Defendant's acts of copyright infringement occurred using an Internet Protocol address (“IP address”) traced to a physical address located within this District, and therefore this Court has personal jurisdiction over the Defendant because (i) Defendant committed the tortious conduct alleged in this Amended Complaint in this State, and (ii) Defendant resides in this State and/or (iii) Defendant has engaged in substantial and not isolated business activity in this State.
6. Based upon experience filing over 1, 000 cases the geolocation technology used by Plaintiff has proven to be accurate to the District level in over 99% of the cases.
7. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c), because: (i) a substantial part of the events or omissions giving rise to the claims occurred in this District; and, (ii) the Defendant resides (and therefore can be found) in this District and resides in this State; additionally, venue is proper in this District pursuant 28 U.S.C. § 1400(a) (venue for copyright cases) because Defendant or Defendant's agent resides or may be found in this District.
Parties
8. Plaintiff, Malibu Media, LLC, (d/b/a “X-Art.com”) is a limited liability company organized and existing under the laws of the State of California and has its principal place of business located at 30700 Russell Ranch Road, Suite 250, Westlake Village, CA 91362.
9. Defendant, REDACTED is an individual residing at REDACTED, REDACTED.
Factual Background
I. Defendant Used the BitTorrent File Distribution Network To Infringe Plaintiffs Copyrights
10. The BitTorrent file distribution network (“BitTorrent”) is one of the most common peer-to-peer file sharing systems used for distributing large amounts of data, including, but not limited to, digital movie files.
11. BitTorrent's popularity stems from the ability of users to directly interact with each other in order to distribute a large file without creating a heavy load on any individual source computer and/or network. The methodology of BitTorrent allows users to interact directly with each other, thus avoiding the need for intermediary host websites which are subject to DMCA take down notices and potential regulatory enforcement actions.
12. In order to distribute a large file, the BitTorrent protocol breaks a file into many small pieces. Users then exchange these small pieces among each other instead of attempting to distribute a much larger digital file.
13. After the infringer receives all of the pieces of a digital media file, the infringer's BitTorrent client software reassembles the pieces so that the file may be opened and utilized.
14. Each piece of a BitTorrent file is assigned a unique cryptographic hash value.
15. The cryptographic hash value of the piece (“piece hash”) acts as that piece's unique digital fingerprint. Every digital file has one single possible cryptographic hash value correlating to it. The BitTorrent protocol utilizes cryptographic hash values to ensure each piece is properly routed amongst BitTorrent users as they engage in file sharing.
16. The entirety of the digital media file also has a unique cryptographic hash value (“file hash”), which acts as a digital fingerprint identifying the digital media file (which contains a video or series of videos). Once infringers complete downloading all pieces which comprise a digital media file, the BitTorrent software uses the file hash to determine that the file is complete and accurate.
17. Plaintiffs investigator, IPP International UG established a direct TCP/IP connection with the Defendant's IP address as set forth on Exhibit A.
18. Plaintiffs investigator downloaded from Defendant one or more pieces of each of the digital media files identified by the file hashes listed on Exhibit A.
19. Each digital media file as identified by the file hash listed on Exhibit A correlates to a copyrighted film owned by Plaintiff, as set forth on Exhibit B., 20. A full copy of each digital media file was downloaded from the BitTorrent file distribution network, and it was confirmed through independent calculation that the file hash correlating to each file matched what is listed on Exhibit A. At no point was Plaintiff s copyrighted content uploaded to any other BitTorrent user.
21. Further, each digital media file as identified by the file hash listed on Exhibit A has been verified to contain a digital copy of a movie that is identical (or alternatively, strikingly similar or substantially similar) to Plaintiffs corresponding original copyrighted work listed on Exhibit B.
22. Plaintiff owns the copyrights to the original works (the “Copyrights-in-Suit”). An overview of the Copyrights-in-Suit, including each hit date, date of first publication, registration date, and registration number issued by the United States Copyright Office is set forth on Exhibit B.
23. Defendant downloaded, copied, and distributed a complete copy of Plaintiffs works without authorization as enumerated on Exhibits A and B.
24. Plaintiffs investigator connected, over a course of time, with Defendant's IP address for each digital media file identified by the hash value as listed on Exhibit A. The most recent TCP/IP connection between IPP and the Defendant's IP address for each file hash value listed on Exhibit. A is included within the column labeled Hit Date UTC. UTC refers to Universal Time which is utilized for air traffic control as well as for computer forensic purposes.
25. Plaintiffs evidence establishes that Defendant is a habitual and persistent BitTorrent user and copyright infringer.
Miscellaneous
26. All conditions precedent to bringing this action have occurred or been waived.
27. Plaintiff has retained counsel and is obligated to pay said counsel a reasonable fee for its services.
COUNT I
Direct Infringement Against Defendant
28. The allegations contained in paragraphs 1-27 are hereby re-alleged as if fully set forth herein.
29. Plaintiff is the owner of the Copyrights-in-Suit, as outlined in Exhibit B, each of which covers an original work of authorship.
30. By using BitTorrent, Defendant copied and distributed the constituent elements of each of the original works covered by the Copyrights-in-Suit.
31. Plaintiff did not authorize, permit or consent to Defendant's distribution of its works.
32. As a result of the foregoing, Defendant violated Plaintiff s exclusive right to:
(A) Reproduce the works in copies, in violation of 17 U.S .C. § § 106(1) and 501;
(B) Redistribute copies of the works to the public by sale or other transfer of ownership, or by rental, lease or lending, in violation of 17 U.S.C. §§ 106(3) and 501;
(C) Perform the copyrighted works, in violation of 17 U.S.C. §§ 106(4) and 501, by showing the works' images in any sequence and/or by making the sounds accompanying the works audible and transmitting said performance of the works, by means of a device or process, to members of the public capable of receiving the display (as set forth in 17 U.S.C. § 101's definitions
of “perform” and “publically” perform); and
(D) Display the copyrighted works, in violation of 17 U.S.C. §§ 106(5) and 501, by showing individual images of the works non-sequentially and transmitting said display of the works by means of a device or process to members of the public capable of receiving the display (as set forth in 17 U.S.C. § 101's definition of “publically” display).
33. Defendant's infringements were committed “willfully” within the meaning of 17 U.S.C. § 504(c)(2).
WHEREFORE, Plaintiff respectfully requests that the Court:
(A) Permanently enjoin Defendant and all other persons who are in active concert or participation with Defendant from continuing to infringe Plaintiff s copyrighted works;
(B) Order that Defendant delete and permanently remove the digital media files relating to Plaintiffs works from each of the computers under Defendant's possession, custody or control;
(C) Order that Defendant delete and permanently remove the infringing copies of the works Defendant has on computers under Defendant's possession, custody or control;
(D) Award Plaintiff statutory damages per infringed work pursuant to 17 U.S.C. § 504-(a) and (c);
(E) Award Plaintiff its reasonable attorneys' fees and costs pursuant to 17 U.S.C. § 505; and
(F) Grant Plaintiff any other and farther relief this Court deems just and proper.
DEMAND FOR A JURY TRIAL
Plaintiff hereby demands a trial by jury on all issues so triable.
Dated: December 15, 2019.
Respectfully submitted, (Image Omitted)