United States District Court, D. Oregon, Portland Division
VOLTAGE PICTURES, LLC a California Limited Liability Company; and DALLAS BUYERS CLUB, LLC, a Texas Limited Liability Company, Plaintiff,
OPINION AND ORDER
JOHN V. ACOSTA, Magistrate Judge.
Plaintiffs Voltage Pictures, LLC, ("Voltage") and Dallas Buyers Club, LLC ("DBC")(collectively "Plaintiffs") bring this copyright action against an individual who allegedly copied and published the motion picture Dallas Buyers Club (the "Movie") through the BitTorrent network. Voltage is a producer and DBC is the registered copyright holder of the Movie. Plaintiffs initiated this case against a doe defendant identified only by the internet protocol address of 18.104.22.168 (the "IP Address"). On November 24, 2014, the court granted an ex parte motion to expedite discovery filed by Plaintiffs to determine the identity of the account holder assigned the IP Address used by the doe defendant. The discovery successfully identified the account holder as a singular subscriber in an individual residence (the "Subscriber"). However, evidence currently available to Plaintiffs makes it likely the Subscriber is not the actual infringer.
Plaintiffs' investigators observed activity for over 1, 300 BitTorrent files associated with the IP Address from August 2014 through January 2015. From this activity Plaintiffs concluded the actual infringer is a "permissive user of the subscriber's Internet service and likely a long-term resident of the household." (Pls.' Mot. for Leave to Issue FRCP 45 Subpoena ("Pls.' Rule 45 Mot.") at 2.) The activity included items from the rapper "2 Chains" and the Hip-Hop title "Kendrick Lamar ft. Drake - Poetic Justice." (Pls.' Rule 45 Mot. at 3.) Additionally, after obtaining his identity, Plaintiffs obtained additional information about the Subscriber and the stand-alone residence:
[T]he residence appears to be a 4-bedroom 3-bath residence occupied by what appears to be the subscriber, a male in his 60's, and the subscriber's spouse, a female in her 50's. The subscriber's address also appears to be affiliated with a second couple which appears to be in their 30's and have ties to the subscriber. Plaintiffs have also identified what appears to be at least one adult son of the subscriber who lives in the area, if not in the residence.
(Pls.' Rule 45 Mot. at 3.)
Based on the content of the infringing activity, the age of the Subscriber, and the access others likely had to the Subscriber's internet access, Plaintiffs are not convinced the Subscriber is the actual infringer. Consequently, Plaintiffs contacted the Subscriber to request his cooperation in determining the identity of the infringing party.
In a letter dated January 21, 2015, Plaintiffs advised the Subscriber of the filing of this action and his identification as the individual responsible for the IP Address. (Pietz Decl. Ex. 2 at 1.) Plaintiffs then provided the Subscriber with information about the infringing activity, as well as the downloading of numerous other titles, associated with the IP Address. Plaintiffs explained:
[w]ith the observed activity associated with your IP address, this type of material is likely tied to a single person at the address who was a permissive user and not likely material that would be viewed by young children. The enclosed list of some of the observed content may be useful to assist us both in identifying the actual infringer. You are requested to review the list and contact me.
If after review of the enclosed list of activity you are unable to identify the infringer, I will request your further assistance in identifying the infringer and responsible party, including possible forensic examination of any computers used at your residence. Please contact me as soon as possible to discuss how we might proceed. I would like to avoid burdensome interference and your cooperation will facilitate the identification of the party that exploited your Internet service to violate my clients' rights.
We strongly encourage you to consult with an attorney to review your rights in connection with this matter. If you obtain an attorney, please have them contact us.
(Pietz Decl. Ex. 2 at 1-2.) The attached list identified over 264 files downloaded on the IP Address from December 1, 2014, to January 21, 2015, some of which were identified as pornographic material. (Pietz Decl. Ex. 2 at 3-8.)
The Subscriber did, in fact, retain counsel, who filed a notice of appearance in this action on January 22, 2015. On January 26, 2015, Plaintiffs asked the Subscriber's counsel by email for confirmation of their representation of the actual defendant, and not merely the Subscriber, in this case.
If your client is... simply a subscriber, I do not object to you maintaining a third party status to permit you to monitor the docket via ECM notice, but I ask that you clarify the record with the court. As well, we request the cooperation of the subscriber in identifying the infringer/defendant. Please let me know if this ...