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Screen Media Ventures, LLC v. John Does 1-48

United States District Court, Sixth Circuit

September 23, 2013

Screen Media Ventures, LLC, Plaintiff,
John Does 1-48, Defendants.


TERENCE P. KEMP, Magistrate Judge.

This matter is before the Court on the motion for leave to take discovery prior to the Rule 26(f) conference filed by plaintiff Screen Media Ventures, LLC. For the following reasons, the motion for leave (#3) will be denied. Further, Screen Media will be directed to show cause why this case should not be dismissed for lack of subject matter jurisdiction.


This is a copyright infringement and contributory copyright infringement case involving the file transfer technology known as BitTorrent. The use of this technology, which allows peer-topeer file sharing, has resulted in much litigation as of late. See, e.g., Third Degree Films, Inc. v. John Does 1-72 , 2013 WL 1164024 (E.D. Michigan March 18, 2013)(provides detailed explanation of BitTorrent file-sharing protocol). The focus of the litigation has been the alleged use of this technology to unlawfully reproduce and distribute via the internet copyrighted motion pictures. The particular motion picture at issue in this case is "Infected."

In this case, Screen Media has identified 48 John Doe defendants by the internet protocol (IP) address assigned to them by their internet service providers (ISPs). Screen Media has attached to its complaint the ISP for each defendant, the torrent file copied and distributed by them, and their location at the time of the allegedly infringing download. Through its current motion, Screen Media seeks to serve a Rule 45 subpoena on the ISPs that issued the IP addresses to uncover the identity of the account holders of these IP addresses, including their names, current and permanent addresses, telephone numbers and email addresses. The identified ISPs include Clear Wireless, LLC, Com Net, Comcast Cable, Earthlink, Embarq Corporation (Embarq Communications, Inc.), Frontier Communications, Horizon Telcom, Hughes Network Systems, Viasat Comunications, WideOpenWest, and Wildblue Communications. Screen Media states that any information disclosed in response to the subpoena will be used only for the purpose of protecting its rights under the Copyright Act.


Fed.R.Civ.P. 26(d) provides generally that discovery may not begin prior to the Rule 26(f) conference. However, Rule 26(d) also provides that expedited discovery may be conducted prior to that conference when authorized by court order. Consequently, a district court has the discretion to permit discovery prior to a Rule 26(f) conference. See, e.g., Qwest Communs. Int'l Inc. v. Worldquest Networks, Inc. , 213 F.R.D. 418, 419 (D. Colo. 2003). Courts within the Sixth Circuit require a showing of good cause in order to authorize expedited discovery. Tesuco Holdings Ltd. v. Does 1-12 , 2012 WL 6607894 (E.D. Tenn. December 18, 2012).

Good cause may be found based upon "(1) allegations of copyright infringement, (2) the danger that the ISP will not preserve the information sought, (3) the narrow scope of the information sought, and (4) the conclusion that expedited discovery would substantially contribute to moving the case forward." Best v. Mobile Streams, Inc. , 2012 WL 5996222, *1 (S.D. Ohio November 30, 2012), citing Arista Records, LLC v. Does 1-9 , 2008 WL 2982265 (S.D. Ohio July 29, 2008). Courts also look to whether evidence would be lost or destroyed with time and whether the proposed discovery is narrowly tailored. Id .; see also Arista Records, LLC v. Does 1-15 , 2007 WL 5254326 (S.D. Ohio May 17, 2007).


Screen Media contends that it has demonstrated good cause under the standards described above. On this issue, Screen Media asserts that it can show irreparable harm from the infringement of the copyrighted motion picture. According to Screen Media, it has a valid copyright in the motion picture, defendants had access to the film, and substantial similarity exists between its copyrighted work and the alleged infringing work. Further, Screen Media argues that defendants will not be prejudiced by the proposed expedited discovery because it is narrowly tailored and sought for a very limited purpose. Finally, it contends that it has no other means for obtaining the identities of the Doe defendants.

Screen Media also argues that "courts throughout the country" have "consistently" granted motions for expedited discovery in actions against BitTorrent defendants. The Court's review of the authority cited by Screen Media indicates that this is generally true. Courts within the Sixth Circuit have found good cause and granted motions for expedited discovery in such actions as well. See, e.g., Vision Films, Inc. v. Does 1-16 , 2013 WL 1385206 (E.D. Tenn. April 3, 2013); Malibu Media, LLC v. John Does 1-9 , 2013 WL 142083 (E.D. Mich. January 11, 2013)(granting motion in part).

In granting expedited discovery in BitTorrent cases, courts have found several factors significant. One such factor is the specificity with which the defendants have been identified, including the assigned IP addresses, the date and time of the alleged illegal download, the hash identifier of the downloaded file, the ISP, and the location of the IP address. Also significant are the steps taken by the plaintiff to locate and identify the Doe defendants. Further, courts have looked to whether the elements of a copyright infringement claim have been pled. Courts also have considered whether the proposed discovery seeks information likely to lead to information which would allow a plaintiff to effectuate service on the defendants. Finally, courts have considered the likelihood of prejudice to any alleged infringers. See, e.g., Vision Films, 2013 WL 1385203, at *2.


The Court has reviewed Screen Media's complaint and current motion. Based on this review, the Court is not convinced that Screen Media owns an exclusive right under a copyright. Rather, based on the current state of the record, it may well be that Screen Media lacks standing ...

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