Case 1:11-cv-01976-RWR Document 7 Filed 01/23/12 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`EXQUISITE MULTIMEDIA, INC.,
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`Plaintiff,
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`v.
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`DOES 1-336,
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`Defendants.
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`Civil Action No. 11-1976 (RWR/JMF)
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`MEMORANDUM OPINION
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`This case was referred to me for full case management. Currently pending and ready for
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`resolution is plaintiff’s Motion for Leave to Take Discovery Prior to Rule 26(f) Conference [#3].
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`Plaintiff, Exquisite Multimedia, Inc., is the owner of the copyright for the motion picture
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`“Supergirl XXX An Extreme Comixxx Parody”. Complaint for Copyright Infringement [#1] ¶8.
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`According to plaintiff, numerous individuals illegally downloaded and distributed its film over
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`the Internet, in violation of the Copyright Act of 1976, 17 U.S.C. § 101 et seq. Id. ¶¶1, 3. At the
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`time the law suit was filed, plaintiff did not know the identities of these individuals. Id. ¶7.
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`Plaintiff did, however, know the Internet Protocol (“IP”) address of the computers associated
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`with the alleged infringers. Id.
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`In its current motion, plaintiff seeks to conduct expedited discovery prior to the Rule
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`26(f) conference so that it may learn the identity of these individuals. [#3-1] at 2. Specifically,
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`plaintiff seeks leave to serve Rule 45 subpoenas on the various Internet Service Providers
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`(“ISP”) associated with the previously identified IP addresses, in order to obtain “the true name,
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` All references to the United States Code or the Code of Federal Regulations are to the
`lectronic versions that appear in Westlaw or Lexis.
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` Fed. R. Civ. P. 26(f).
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`Case 1:11-cv-01976-RWR Document 7 Filed 01/23/12 Page 2 of 6
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`address, telephone number, e-mail address and Media Access Control (“MAC”) address of the
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`Defendant to whom the ISP issued an IP address.” Id. In addition, if the ISP identifies an
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`intermediary ISP as the entity providing online services, plaintiff seeks leave to serve the
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`subpoena on that ISP. Id.
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`Plaintiff therefore seeks what is in essence jurisdictional discovery. Pursuant to Rule 26
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`of the Federal Rules of Civil Procedure, although “[a] party may not seek discovery from any
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`source before the parties have conferred as required by Rule 26(f),” they may do so “when
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`authorized . . . by court order.” Fed. R. Civ. P. 26(f). Such authorization, however, must be
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`based on a showing of “good cause”. Fed. R. Civ. P. 26(d)(1). “[I]n order to get jurisdictional
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`discovery[,] a plaintiff must have at least a good faith belief that such discovery will enable it to
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`show that the court has personal jurisdiction over the defendant.” Caribbean Broad. Sys. Ltd. v.
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`Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998). Furthermore, it is well within the
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`court’s purview under Rule 26 to impose reasonable limitations on discovery when “the burden
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`or expense of the proposed discovery outweighs its likely benefit”. Fed. R. Civ. P. 26(b)(2)(c).
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`See also Linder v. Dep’t of Def., 133 F.3d 17, 24 (D.C. Cir. 1998) (“Whether a burdensome
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`subpoena is reasonable ‘must be determined according to the facts of the case,’ such as the
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`party’s need for the documents and the nature and importance of the litigation.”) (internal
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`citation omitted); In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 9 (D.D.C. 2010) (“The
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`‘undue burden’ test requires district courts to be ‘generally sensitive’ to the costs imposed on
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`third parties . . .”) (internal quotations omitted); N.C. Right to Life, Inc. v. Leake, 231 F.R.D. 49,
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`51 (D.D.C. 2005) (“While quashing a subpoena goes against courts’ general preference for a
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`Case 1:11-cv-01976-RWR Document 7 Filed 01/23/12 Page 3 of 6
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`broad scope of discovery . . . limiting discovery is appropriate when the burden of providing the
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`documents outweighs the need for it.”).
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`Plaintiff’s cause of action, tortious copyright infringement, is brought under a federal
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`statute, the Copyright Act. The Copyright Act does not provide for the exercise of personal
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`jurisdiction over alleged infringers on a nationwide or other basis. Plaintiff must therefore
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`predicate the court’s jurisdiction over the infringers on the reach of District of Columbia law. It
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`first provides for the exercise of personal jurisdiction over a person domiciled in the District of
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`Columbia as to “any claim for relief.” D.C. Code § 13-422 (2001). The so-called “long arm”
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`provision of the personal jurisdiction statute provides, in pertinent part, as follows:
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`(a)
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`A District of Columbia court may exercise personal
`jurisdiction over a person, who acts directly or by an agent,
`as to a claim for relief arising from the person’s - -
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`* * *
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`(3)
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`causing tortious injury in the District of Columbia
`by an act or omission in the District of Columbia;
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`D.C. Code § 13-423 (2001).
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`Thus, unless the infringer is domiciled in the District of Columbia, the question presented
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`is where the infringement occurred and whether it occurred in the District of Columbia.
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`In Nu Image, Judge Wilkins considered this very question and followed the approach
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`taken by the D.C. Circuit in Helmer v. Dolestskaya, 393 F.3d. 201 (D.C. Cir. 2004). Nu Image,
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`2011 WL 3240562, at *3. In Helmer, plaintiff, a U.S. citizen, brought suit against his former
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` “It is well settled in this jurisdiction [the District of Columbia Circuit] that a claim for
`opyright infringement sounds in tort.” Nu Image, Inc. v. Does 1-23,322, — F. Supp. 2d —,
`2011 WL 3240562, at *8, n.3 (D.D.C. 2011) (citing Stabilisierungsfonds Fur Wein v. Kaiser,
`647 F.2d 200, 207 (D.C. Cir. 1981)).
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`Case 1:11-cv-01976-RWR Document 7 Filed 01/23/12 Page 4 of 6
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`girlfriend, a Russian citizen, for fraud and breach of contract. Helmer, 393 F.3d. at 203.
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`Specifically, plaintiff claimed that the defendant failed to reimburse him for real and personal
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`property acquired while they were living together in Moscow. Id. The court of appeals upheld
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`the lower court’s finding that the injury occurred outside of the District of Columbia:
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`The district court ruled that although [defendant] fraudulently
`concealed her personal background during her visit to the District
`of Columbia, the fraud did not cause injury here because [plaintiff]
`was not “physically present” in the District of Columbia when
`[defendant] incurred the credit card charges, when [plaintiff] paid
`the credit card charges, when [plaintiff] purchased the apartment,
`or when [defendant] registered the apartment in her own name.
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`Id. at 208.
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`As a result, the court of appeals held that, because plaintiff failed to demonstrate that
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`defendant’s fraud caused him injury in the District of Columbia, the court could not exercise
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`personal jurisdiction over her as to that count. Id. at 209.
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`In Nu Image, Judge Wilkins ultimately concluded that it was difficult to see how
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`defendants living outside of the District of Columbia could have caused plaintiff tortious injury
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`within the District of Columbia when they downloaded plaintiff’s film. Nu Image, 2011 WL
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`3240562, at *4. To that end, Judge Wilkins therefore held that discovery prior to the Rule 26(f)
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`conference was warranted if “the Court finds that the Plaintiff has a good faith basis to believe a
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`putative defendant may be a District of Columbia resident if a geolocation service places his/her
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`IP address within the District of Columbia, or within a city located within 30 miles of the
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`District of Columbia.” Id. Thus, Judge Wilkins denied the plaintiff’s motion for expedited
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`discovery as to all defendants and indicated instead that he would only entertain a motion for
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`expedited discovery on the ISPs to “obtain identifying information only for IP addresses that
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`Case 1:11-cv-01976-RWR Document 7 Filed 01/23/12 Page 5 of 6
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`Plaintiff has a good faith basis to believe are reasonably likely to correspond to internet accounts
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`located in the District of Columbia.” Id. at *6.
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`In the case at bar, the issue is where the situs of the injury is with respect to the
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`simultaneous uploading and downloading of copyrighted material from the Internet. According
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`to plaintiff, the illegal infringement took place as follows:
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`The torrent protocol makes home computers with low bandwidth
`capable of participating in large data transfers across so-called
`“Peer-to-Peer” (P2P) networks. The first file-provider decides to
`share a file (“seed”) with a torrent network. Then other users
`(“peers”) within the network connect to the seed file for
`downloading. As additional peers request the same file, they
`become part of the same network. Unlike a traditional P2P
`network, each new peer receives a different piece of the data from
`each peer who has already downloaded the file. This system of
`multiple pieces of data coming from peers is called a “swarm.” As
`a result, every downloader is also an uploader of the illegally
`transferred file and is simultaneously taking copyrighted material
`through many ISPs in numerous jurisdictions around the country.
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`[#1] ¶9.
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`Irrespective of whether the injury is viewed to be the uploading of the movie, the
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`downloading of the movie, or both, the focus would be on the physical location of the computers
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`bearing the unique IP addresses plaintiff claims were involved in the unauthorized distribution of
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`its film. For non-resident defendants, that would most likely be outside of the District of
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`Columbia, unless it were shown that they were visiting the District of Columbia at the time of
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`the alleged infringement.
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`In this case, plaintiff claims that “[b]y using geo-location techonology, [it] has attempted
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`to assure that the IP addresses are likely within the geographic location of the Court.” [#1] ¶14.
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`Case 1:11-cv-01976-RWR Document 7 Filed 01/23/12 Page 6 of 6
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`Although plaintiff supports this claim with a Verification from plaintiff’s counsel and a
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`Declaration from Jon Nicolini, the Vice President of Technology for Copyright Enforcement
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`Group, LLC (“CEG”), plaintiff fails to state with specificity what it believes to be the
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`“geographic location of the Court” nor does it provide any information as to the geographic
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`regions served by the various ISPs (Verizon Internet Services, Comcast Cable, and Cox
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`Communications) identified in its pleadings as having provided service to the alleged infringers.
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`The Court, therefore, will order plaintiff to briefly supplement its showing regarding its good
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`faith belief that the IP addresses identified by plaintiff belong to persons who are domiciled in
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`the District of Columbia and that the ISPs identified by plaintiff serve the District of Columbia.
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`Finally, the statutory requirements as to venue under the Copyright Act provide
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`additional and equally insurmountable obstacles to this lawsuit remaining in this Court. Venue
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`is governed exclusively by 28 U.S.C. § 1400, which states the following: “Civil actions, suits, or
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`proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask
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`works or designs may be instituted in the district in which the defendant or his agent resides or
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`may be found.” 28 U.S.C. § 1400(a). Thus, plaintiff will also have to convince me that venue
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`would be proper in this Court.
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`An Order accompanies this Memorandum Opinion.
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`SO ORDERED.
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`_____________________________
`JOHN M. FACCIOLA
`UNITED STATES MAGISTRATE JUDGE
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` [#1] at 12-14.
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`5
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` [#1-2].
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