well go usa inc. v. swarm

8/2/2019 Well Go USA Inc. v. Swarm

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Case 1:11-cv-01946-ABJ Document 1 Filed 11/03/11 Page 1 of 6


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Case 1:11-cv-01946-ABJ Document 1-1 Filed 11/03/11 Page 1 of 3


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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WELL GO USA, INC.

1601 E. PLANO PKWY., STE. 110

PLANO, TX 75074 A TEXAS CORPORATION,

Plaintiff,

VS. C.A. NO.: 1:11-cv-01946-ABJ

GROUP OF PARTICIPANTS IN FILESHARING SWARM IDENTIFIED BY

HASH: B7FEC872874D0CC9B1372ECE- 5ED07AD7420A3BBB

Defendants.

MOTION FOR LEAVE TO TAKE DISCOVERY

Plaintiff, by counsel, respectfully moves this Court for leave to take discovery from the

nonparty internet service providers listed in Exhibit 1. See Exhibit 1, List of Service Providers.

This discovery shall be limited to the identifying information of service providers subscribers

whose accounts were witnessed being involved in the joint acts of copyright infringement

detailed in Plaintiffs Complaint. Discovery shall also be limited to the subscribers who appear

to be domiciled here in the District of Columbia, as per the location information listed publicly

on various geolocation databases and included here in Exhibit 3. See Exhibit 3, List of IP

Addresses Identifying the Accounts by Which the Infringement Occurred. Without this

information, Plaintiff has no means to pursue its infringement claims or otherwise seek redress

for the unlawful acts at issue.

Federal district courts throughout the country, including this Court, have granted



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expedited discovery in lawsuits similar to this one.1

In the cases cited and others like them,

plaintiffs have obtained the identities of persons from service providers through expedited

discovery using information similar to that gathered by Plaintiff in the instant case and they have

used that information as the basis for their subpoenas to the service providers. Plaintiff

respectfully requests that this Court grant this motion for discovery upon those service providers

listed in Exhibit 1.

Plaintiff specifically requests permission to serve a Rule 45 subpoena on these service

providers for the narrow purpose of obtaining the true name, address, telephone number, e-mail

address, and Media Access Control (MAC) address of each subscriber that it has identified to

date and those it identifies in the future during the course of this litigation. Plaintiff will only use

this information to prosecute the claims made in its Complaint. Without this information,

Plaintiff cannot pursue its lawsuit to protect its film from ongoing and repeated infringement.

Additionally, this information is very easily obtainable by the nonparty service providers.

Larger, more sophisticated service providers, such as Verizon, have even automated this lookup

process and used it for years to notify subscribers of infringement complaints within a mere 24

hours of Verizon receiving the complaint. See Exhibit 2, Verizon Infringement Notice with

receipt/notification timestamps highlighted.

If the Court grants this Motion, Plaintiff will serve necessary subpoenas requesting the

1West Coast Productions, Inc. v. Does, 1:11-cv-00057 (D.D.C.) (Kollar-Kottely, C.);Patrick Collins, Inc. v. Does,

1:11-cv-00058 (D.D.C.) (Kessler, G.); West Coast Productions, Inc. v. Does, 1:11-cv-00055 (D.D.C.) (Sullivan, E.);Imperial Enterprises, Inc. v. Does, 1:11-cv-00529 (D.D.C) (Walton, R.); G2 Productions, LLC v. Does 1-83, Case

No. 1:10-cv-00041 (D.D.C.) (Kollar-Kottely, C.);Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG v. Does1

- 4,577, Case No. 1:10-cv-00453 (D.D.C.) (Collyer, R.); Call of the Wild Movie, LLC v. Does 1-331 , 1:10-cv-00455

(D.D.C.) (Urbina, R.);Maverick Entertainment Group, Inc. v. Does 1 1,000, 1:10-cv-00569 (D.D.C.) (Leon, R.);Cornered, Inc. v. Does, 1:10-cv-01476 (D.D.C.);Donkeyball Movie, LLC v. Does 1 171, 1:10-cv-01520 (D.D.C.)

(Kollar-Kottely, C.); Twentieth Century Fox Film Corporation, et al. v. Does 1-9 , Case No. 1:04-cv-02006 (D.D.C.)

(Sullivan, E.);Disney Enterprises, Inc., et al. v. Does 1-18, Case No. 1:05-cv-00339 (D. Colo.) (Shaffer, C.);

Paramount Pictures Corporation, et al. v. Does 1-8, Case No. 1:05-cv-00535 (D.N.J.) (Wolfson, F.); Warner Bros.

Entertainment Inc., et al. v. Does 1-7, Case No. 1:05-cv-00883 (S.D.N.Y.) (Cote, D.).



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identifying information in a timely manner. If a service provider cannot identify one or more of

the subscribers but does identify an intermediary provider as the entity providing internet access

to the responsible subscriber, Plaintiff will then serve a subpoena on that provider requesting the

identifying information for the relevant subscriber within a reasonable timeframe. In either case,

these service providers will be able to notify their subscribers that this information is being

sought, and each subscriber will have the opportunity to raise any objections before this Court

prior to the return date of the subpoena. Thus, to the extent that any subscriber wishes to object,

he or she will be able to do so.

Courts consider the following factors when granting motions for 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 plaintiffs suit could withstand a motion to dismiss. Columbia

Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999);see also Rocker Mgmt.

LLC v. John Does, No. 03-MC-33 2003 WL 22149380, *1-2, (N.D. Cal. 2003) (applying

Seescandy.com standard to identify persons who posted libelous statements on Yahoo! message

board; denying request for expedited discovery where the postings in question were not libelous).

Plaintiff here is able to demonstrate each one of these factors.

First, Plaintiff has identified the defendants as closely as possible through the unique IP

address of the internet account each defendant used at the time of the unauthorized distribution

of the copyrighted film. SeeSeescandy.com, 185 F.R.D. at 578-80; see also Exhibit 3;see also

Declaration of Scott Armstrong. These persons gained access to the internet through connections

provided by the listed service providers. Only said service providers can identify the persons



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responsible for the internet accounts at issue. They do this by matching listed IP addresses with

subscriber accounts found in their internal activity logs. Thus, Plaintiff can show that all of the

internet subscribers or persons accessing their accounts are real persons, the former of whose

names are known to the service provider and who can be sued in federal court.

Second, Plaintiff has specifically identified the steps taken to identify the defendants true

identities. Exhibit 3. Plaintiff has obtained each subscribers IP address and the date and time of

the infringing activities that occurred via the subscribers accounts and has traced each IP

address to specific service providers. Id. Therefore, Plaintiff has obtained all the information it

possibly can without discovery from the service providers.

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

Complaint that can withstand a motion to dismiss. Specifically, Plaintiff has alleged that: (a) it is

the copyright owner of the work in question, and (b) the defendants reproduced and/or

distributed the copyrighted work without Plaintiffs authorization using the internet subscriber

accounts described by the listed IP addresses. SeeComplaint. These allegations state a claim for

copyright infringement. See 17 U.S.C. 106(1)(3);In re Aimster Copyright Litig., 334 F.3d 643,

645 (7th Cir. 2003), cert. denied, 124 S. Ct. 1069 (U.S. Jan. 12, 2004) (Teenagers and young

adults who have access to the Internet like to swap computer files containing popular music. If

the music is copyrighted, such swapping, which involves making and transmitting a digital copy

of the music, infringes copyright.);A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014-

15 (9th Cir. 2001) (Napster users who upload file names to the search index for others to copy

violate plaintiffs distribution rights. Napster users who download files containing copyrighted

music violate plaintiffs reproduction rights.).

Courts have wide discretion in discovery matters and have allowed expedited discovery when



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good cause is shown. See Warner Bros. Records, Inc. v. Does 1-6, 527 F.Supp.2d 1, 2 (D.D.C.

2007); Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002);

Qwest Comm. Intl, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003);

Entertainment Tech. Corp. v. Walt Disney Imagineering, No. Civ. A. 03-3546, 2003 WL 22519440,

at 4 (E.D. Pa. 2003) (applying a reasonableness standard; a district court should decide a motion for

expedited discovery on the entirety of the record to date and the reasonableness of the request in

light of all of the surrounding circumstances) (quotations omitted); Yokohama Tire Corp. v. Dealers

Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D. Ariz. 2001) (applying a good cause standard).

Good cause exists here because service providers typically retain activity logs containing the

information sought for only a limited period of time before erasing the data. If that information is

erased, Plaintiff will have no ability to identify the Defendants, and thus will be unable to pursue its

lawsuit to protect its copyrighted work. Id. Where physical evidence may be consumed or

destroyed with the passage of time, thereby disadvantaging one or more parties to the litigation,

good cause for discovery before the Rule 26 conference exists. Qwest Comm., 213 F.R.D. at 419;

see alsoPod-Ners, LLC v. Northern Feed & Bean of Lucerne LLC, 204 F.R.D. 675, 676 (D. Colo.

2002) (allowing discovery prior to Rule 26 conference to inspect items in defendants possession

because items might no longer be available for inspection if discovery proceeded in the normal

course).

For the foregoing reasons, Plaintiff respectfully submits that the Court should grant the

Motion for Leave to Take Discovery and enter an Order requiring the nonparty internet service

providers to respond in a timely manner to Rule 45 subpoenas that are narrowly tailored to seek

information to identify the internet subscribers whose accounts were used in the infringement of

Plaintiffs copyrighted works.



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Respectfully Submitted,

s/E.F. Stone

United States District Court Bar No. TX0087

624 W. University Dr., #386Denton, Texas 76201Phone: 469-248-5238

Fax: 310-756-1201E-mail: [email protected]

CERTIFICATE OF SERVICE

Because neither the identities nor the contact information of the John Defendants are

known at this time, service could not be made on said Defendants.

s/E.F. Stone



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WELL GO USA, INC.

1601 E. PLANO PKWY., STE. 110

PLANO, TX 75074 A TEXAS CORPORATION,

Plaintiff,

VS. C.A. NO.: 1:11-cv-01946-ABJ


HASH: B7FEC872874D0CC9B1372ECE- 5ED07AD7420A3BBB

Defendants.

DECLARATION OF SCOTT ARMSTRONG IN SUPPORT OF

PLAINTIFFS MOTION FOR LEAVE TO TAKE DISCOVERY

I, Scott Armstrong, declare:

1. I submit this declaration in support of Plaintiff, Well Go USAs, Motion forLeave to Take Discovery. This declaration is based on my personal knowledge, and if called

upon to do so, I would be prepared to testify as to its truth and accuracy.

2. On or about May 3, 2011, using a popular and freely available BitTorrentapplication, I connected to a BitTorrent swarm purported to be sharing unauthorized copies of

Plaintiffs film, Ip Man 2., This swarm was identified by the title Ip.Man.2.2010.DVDRip

.XviD-GiNJi and the following unique hash identifier:

B7FEC872874D0CC9B1372ECE5ED07AD7420A3BBB.

3. After connecting to the swarm, my BitTorrent software began downloading thefilm immediately, piece by piece, from multiple members of the swarm simultaneously. In turn,

as per the default settings of the software, I also began uploading pieces of the film to any



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member of the swarm determined as suitable by the software and its related processes.

4. The numerous other persons in the swarm were each represented by the IPaddress of the internet account being used by each person to connect to the internet. This

information was readily visible via my BitTorrent software. Various other data related to this

filesharing process was listed alongside each IP address. Using proprietary software, I began

logging the IP addresses and other data as well as taking timed screenshots of the filesharing

activity. I continued this process, on Plaintiffs behalf, off and on through July 15, 2011.

5. After my BitTorrent software completed downloading the film, in the form of adigital video file, I carefully reviewed the file and compared it to the original film provided by

the Plaintiff. The downloaded file was a complete and accurate embodiment of Plaintiffs film.

6. The attached exhibit comprises a list of IP addresses and related datacorresponding to a portion of the District of Columbia-based internet accounts witnessed by me

and/or recorded by me as having been involved in the unauthorized reproduction and distribution

of Plaintiffs film described above.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on January 14, 2012 at my office in Houston, Texas.

Scott Armstrong



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PEOPLE PICTURES, LLC.

A CALIFORNIA COMPANY,

6223 FRANKLIN AVE., #308, LOS ANGELES, CA 90028

PLAINTIFF,

VS. C.A. NO.: 1:11-cv-01968-JEB-JMF


HASH: 43F4CFD05C115EE5887F680B0- CA73B1BA18B434A

DEFENDANTS.

ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE

TO TAKE EXPEDITED DISCOVERY

The Court has read all the papers filed in connection with the Plaintiffs Motion for Leave to

Take Expedited Discovery (Motion), and considered the issues raised therein, including the unique

aspects of BitTorrent infringement.

ORDERED that Plaintiffs Motion for Leave to Take Expedited Discovery is granted.

ORDERED that Plaintiff is allowed to serve immediate discovery on the internet service

providers included in Exhibit 1 of this Order to obtain the identity of each account holder by which

each defendant accessed the internet to infringe Plaintiffs copyrights. Such discovery shall occur by

serving each affected internet service provider a Rule 45 subpoena that seeks information sufficient

to identify each listed account holder, including name, current (and permanent) addresses, telephone

numbers, email addresses, and Media Access Control addresses; it is further

ORDERED that the Plaintiff may serve immediate discovery on any service provider

identified by the same means detailed in the Motion, or identified as providing internet access to one



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or more defendants, by a provider upon whom a Rule 45 subpoena is served, for which an infringing

download has been identified by individual IP address together with the date and time the infringing

activity through that IP address occurred. Such Rule 45 subpoena shall seek information sufficient

to identify each defendant, including his or her name, address, telephone number, e-mail address,

and Media Access Control Address.

ORDERED that Plaintiff is allowed to serve a Rule 45 subpoena in the same manner as

above to any service provider that is identified in response to a subpoena as a provider of internet

services to one of the listed account holders; it is further

ORDERED that any information disclosed to Plaintiff in response to a Rule 45 subpoena

may be used by Plaintiff solely for the purpose of protecting Plaintiffs rights as set forth in its

Complaint; it is further

ORDERED that service may be made on the internet service providers Agent to Receive

Notification of Claims of Infringement on file with the U.S. Copyright Office or any agent

designated in a subpoena compliance information page on that service providers website; it is

further

ORDERED that any service provider that receives a subpoena shall provide Plaintiff with the

requested records in a timely manner and shall not assess production fees, if any, to Plaintiff until

delivery of said records; it is further

ORDERED that if the number of records requested in a single subpoena exceeds one-

hundred, the service provider must nonetheless begin production of such records within two months

of service of the subpoena and must continue producing the records in monthly batches over a period

of months, as needed, with the final batch to be delivered not more than six months from the date of

service of the subpoena; it is further



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ORDERED that any service provider demanding fees for production of records shall assess a

reduced fee, if any, for IP addresses for which the service provider does not have records or for

multiple IP addresses in the subpoena that resolve to the same individual; and it is further

ORDERED that any service provider which receives a subpoena and elects to charge for the

costs of production shall provide a billing summary and any cost reports that serve as a basis for

such billing summary and any costs claimed by such provider; it is further

ORDERED that the service provider shall preserve any subpoenaed information pending the

resolution of any timely filed motion to quash; and it is further

ORDERED that Plaintiff shall provide each service provider with a copy of this Order.

Dated:AMY JACKSON

United States District Judge



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Exhibit 1

List of Service Providers

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well go usa inc. v. swarm

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