Yesterday the Honorable James D. Whittemore of the United States District Court, Middle District of Florida, Tampa Division, granted a motion for copyright troll Malibu Media, but in part, denied the motion. Doc. 5 of Malibu Media, LLC v. Does 1-28, 8:12-cv-1167 (M.D. Fla.). His order is a little different from many of the other Malibu Media orders.
While Plaintiff has shown good cause for early discovery, its broad requst does not sufficiently protect against the likelihood that innocent Defendants may be publicly identified by having their identities associated with allegations of illegal downloading o[f] adult films. To quote from another court:
[T]he ISP subscriber to whom a certain IP address was assigned may not be the same person who used the Internet connection for illicit purposes … . By defining Doe Defendants as ISP subscribers who were assigned certain IP addresses, instead of the actual Internet users who allegedly engaged in infringing activity, Plaintiff’s sought-afer discovery has the potential to draw numerous innocent internet users into the litigaiton, placing a burden upon them that weighs against the discovery as designed.
(quoting SBO Pictures, Inc. v. Does 1-3036, No. 11-4220 SC, 2011 WL 6002620, at *3 (N.D. Cal. Nov. 30, 2011)).
Kudos to Judge Whittemore for recognizing that an IP address is not a person and for following the earlier-decided BitTorrent cases in sister courts across the country. In an effort to deter Malibu Media from using the subscriber’s information for an improper purpose, Judge Whittemore ordered a few safeguards:
1. Malibu Media can only obtain the names and addresses of the Does – not the email addresses, telephone numbers, or MAC addresses.
2. Within 10 days of receiving the subpoena, each ISP shall reasonably attempt to identify each Doe and provide him or her with the subpoena and order.
3. The ISPs have 21 days to move to quash or object, and the John Does have 14 days from their receipt of the subpoena in which to move to quash or object.
4. Abset a motion to quash or written objection being filed, the ISPs shall produce the information by filing it with the Clerk and under seal.
5. A status conference will be scheduled before the Magistrate during which the information filed under seal will be provided to Malibu Media’s attorney “with any such additional protective measures deemed appropriate by that judge.”
In all caps and in bold, Judge Whittemore concluded: “THE INFORMATION DISCLOSED SHALL BE USED BY PLAINTIFF ONLY FOR THE PURPOSE OF PROTECTION AND ENFORCING PLAINTIFF’S RIGHTS AS SET FORTH IN THE COMPLAINT.”
We can expect that the letters will probably trickle down to the Does sometime in September.
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