*1 On December 17, 2021, plaintiff MG Premium Ltd (“Plaintiff”) filed a Motion for Leave to Seek Early Discovery (“Motion”), seeking permission to serve third-party subpoenas on Cloudflare, Inc. and Tonic Corporation prior to a Rule 26(f) conference. ECF Docket No. (“Dkt.”) 14. Plaintiff's Motion is supported by the declaration of Jason Tucker (“Tucker Decl.”). The Court, having read all papers filed in connection with Plaintiff's Motion, considered the issues raised therein, including the requirements of the Cable Privacy Act, 47 U.S.C. § 551, and being otherwise fully advised, it is hereby ORDERED that the Motion is GRANTED with certain additional protective measures.

On October 17, 2021, Plaintiff filed a Complaint alleging defendants Does 1-20 d/b/a Goodporn.to (“Defendants”) infringed Plaintiff's copyrights in various “adult-oriented audiovisual content.” See dkt. 1. Plaintiff “operates websites on which it displays its content and also licenses its content for valuable consideration, including for display on various third party adult entertainment websites.” Id. at 5. Plaintiff registered copyrights in its content with the U.S. Copyright Office. Id. Does 1-20 are unknown persons and/or entities operating Goodporn.to. Plaintiff alleges Goodporn.to is a video streaming website targeting United States viewers, inducing them to view illegally displayed copyright protected materials, including copyrights owned by Plaintiff. Id. at 6. Plaintiff alleges Defendants' website allows any user, regardless of age or location, the ability to download Plaintiff's copyrighted adult entertainment content without authorization or license. Id.

Plaintiff alleges the owners and operators of Goodporn.to currently use Tonic Corporation, a privacy service and registrar operating as “tonic.to” and located in California, to hide their identities from standard public Internet listings. Tucker Decl., ¶ 32. In addition, Goodporn.to utilizes Content Delivery Network (CDN) services from Cloudflare, Inc., located in California. Tucker Decl., ¶ 33. In the experience of Plaintiff's consultant, who has approximately two decades of experience assisting rights holders in “leveraging, managing, licensing, and enforcing their intellectual property portfolios around the world,” subpoenas will be necessary to obtain information from Tonic Corporation and Cloudflare, Inc. under the circumstances of this case where it appears the owners and operators of Goodporn.to have gone to great lengths to maintain their privacy. Id., ¶¶ 3, 34.

On December 17, 2021, Plaintiff filed the instant Motion for leave to serve third-party subpoenas on Cloudflare, Inc. and Tonic Corporation.[1] Dkt. 14. The subpoenas would seek information pertinent to the identity of the owners, operators, and principals operating the Goodporn.to website, domain name, and relevant accounts for each. Id. at 9-10. This information includes, but is not limited to, names, addresses, billing address, email exchanges or other correspondence with the relevant party, and all IP address login information for the Goodporn.to domain name accounts. Id. In addition, while not entirely clear, it appears Plaintiff also seeks to serve subpoenas on any relevant Internet Service Providers (“ISPs”) it discovers from Tonic Corporation or Cloudflare, Inc. The subpoenas to the relevant ISPs would request the specific subscriber information necessary to confirm the identity of the ISP subscriber and to fully translate the identity of the doe defendants. Id. at 9. Finally, Plaintiff additionally requests permission to engage in additional “follow up” discovery by issuing interrogatories and/or deposing the individuals identified by above referenced discovery, in order to determine whether or not the Internet subscriber is a proper defendant in this action. Id. at 10.

A. CABLE PRIVACY ACT

*2 The Cable Privacy Act prohibits a cable operator from disclosing “personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned.” 47 U.S.C. § 551(c)(1). However, a cable operator may disclose this information “pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order.” 47 U.S.C. § 551(c)(2)(B). A cable operator is defined as “any person or group of persons (A) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through an arrangement, the management and operation of such a cable system.” 47 U.S.C. § 522(5).

Here, neither Cloudflare, Inc. nor Tonic Corporation appear to be a cable operator within the meaning of the Act. However, Plaintiff also seeks to serve subpoenas on the relevant ISPs discovered from Cloudflare, Inc. and Tonic Corporation. Plaintiff requests that “because some ISPs are also cable operators, ... that the Court's Order state clearly that the Court has contemplated the Cable Privacy Act, and that the order specifically complies with the Act's requirements.” Dkt. 14 at 10. Therefore, pursuant to this order, disclosure of the defendant's name and address is not prohibited so long as the subscriber is notified of the order. See Strike 3 Holdings, LLC v. Doe, 2018 WL1427002, at *2 (S.D. Cal. Mar. 22, 2018) (“Spectrum (Time Warner Cable) is a cable operator, and the [name and address] information requested by [plaintiff] falls within the exception to the Cable Privacy Act's disclosure prohibition.”) (citing 47 U.S.C. § 551(c)(2)(B)).

B. DISCOVERY BEFORE RULE 26(f) CONFERENCE

Generally, discovery is not permitted prior to the parties' Rule 26(f) conference. FED. R. CIV. P. 26(d)(1). However, a plaintiff can be given an opportunity through early discovery to “identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). District courts apply a multi-factor test in deciding whether to permit early discovery to identify doe defendants. See Strike 3 Holdings, LLC, 2018 WL 1427002, at *2 (citing Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999)). This test considers whether the plaintiff: (1) identifies the doe defendant with sufficient specificity that the court can determine the defendant is a real person who can be sued in federal court; (2) recounts the steps taken to locate and identify the defendant; (3) demonstrates the action can withstand a motion to dismiss; and (4) proves the discovery is likely to lead to identifying information that will permit service of process. Id.; Strike 3 Holdings, LLC v. Doe, 2017 WL6594008, at *2 (N.D. Cal. Dec. 21, 2017); Malibu Media, LLC v. Does, 2012 WL13019945, at *1 (C.D. Cal. May 10, 2012) (citing MCGIP, LLC v. Does 1-49, 2011 WL3607666, at *2 (N.D. Cal. Aug. 15, 2011)).

1. Identification of Defendants

A plaintiff must identify the doe defendant “with sufficient specificity such that the Court can determine defendant is a real person who can be sued in federal court.” Columbia Ins. Co., 185 F.R.D. at 578. Here, given the facts shown, Plaintiff has identified the missing party(s) with as much clarity as possible. Plaintiff has stated that these missing parties are persons or entities, and that these person/entities have been observed and documented as infringing on its copyrights. Thus, as real persons/entities, these doe defendants can be sued in federal court.

2. Previous Steps Taken to Locate Defendants

*3 A plaintiff must also recount the steps taken to locate and identify the defendant. Columbia Ins. Co., 185 F.R.D. at 579. Here, the only information Plaintiff has regarding Defendants are that they use Tonic Corporation to hide their identity and Cloudflare, Inc. to for CDN services. Therefore, it does not appear there are any other measures Plaintiff could take to identify the Defendants other than to obtain their identifying information from Tonic Corporation and Cloudflare, Inc. Consequently, Plaintiff must serve subpoenas on Tonic Corporation and Cloudflare, Inc. to obtain the information it seeks.

3. Ability to Withstand Motion to Dismiss

A plaintiff must also prove its suit against Defendants could withstand a motion to dismiss. Columbia Ins. Co., 185 F.R.D. at 579. For copyright infringement, a plaintiff must establish: “(1) ownership of a valid copyright; and (2) that the defendant violated the copyright owner's exclusive rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citations omitted). To prove a direct copyright infringement claim, a plaintiff must show it owns the copyright and the defendant himself violated one or more of the plaintiff's exclusive rights under the Copyright Act. Id.

Here, Plaintiff has alleged a prima facie claim of copyright infringement. 17 U.S.C. § 106(1)(3). Specifically, Plaintiff claims: (1) it owns and has registered the copyrighted work at issue in this case; (2) the Defendants reproduced and distributed those works without authorization; and (3) Plaintiff was damaged by Defendants' actions. Accordingly, since Plaintiff has alleged all the elements of copyright infringement in the Complaint (Dkt. 1), its suit against Defendants could withstand a motion to dismiss.

Plaintiff has also alleged a prima facie case of contributory copyright infringement. Plaintiff claims (1) it owns and has registered the copyrighted work at issue in this case; (2) Defendants knew of the infringing activity and were conscious of their infringement; and (3) Defendants actively participated in this infringement by inducing, causing and contributing to the infringement of Plaintiff's copyright work. As each element has properly been alleged by the Plaintiff in its Complaint (Dkt. 1), this cause of action could withstand a motion to dismiss.

4. Likelihood Discovery Will Lead to Identification

Lastly, a plaintiff must prove the early discovery process is likely to lead to identifying information about the doe defendants that would make service of process possible. Columbia Ins. Co., 185 F.R.D. at 580. Here, Plaintiff states Tonic Corporation and Cloudflare, Inc. are vendors providing privacy services to the owners and operators of Goodporn.to. These services will most likely have these persons' or entities' names, addresses, billing information, and likely other information that will make it possible to reliably identify the proper party in this case. Therefore, the discovery sought should at least allow Plaintiff to identify the IP addresses for the owners and/or operators of the website Goodporn.to.

Accordingly, Plaintiff has established good cause for early discovery. This good cause, however, is limited to the requested primary discovery. The Court is unwilling to grant pre-authorization to conduct “follow-up” discovery at this time.

IT IS THEREFORE ORDERED:

1. Plaintiff's Motion for Early Discovery is GRANTED.

2. Plaintiff may immediately serve subpoenas pursuant to FED. R. CIV. P. 45 upon Tonic Corporation and Cloudflare, Inc. to obtain the identities of the owners and operators of defendant Goodporn.to.

*4 3. Plaintiff may immediately serve subpoenas pursuant to FED. R. CIV. P. 45 upon relevant ISPs discovered from Tonic Corporation and Cloudflare, Inc. to obtain the identities of the owners and operators of defendant Goodporn.to. The subpoena must include a copy of this Order.

4. Any ISPs so served will have fourteen (14) days from the date of service upon it to serve the subscriber with a copy of the subpoena and a copy of this Order. The ISP may serve the subscriber using any reasonable means, including written notice sent to his or her last known address, transmitted either by first-class mail or via overnight service.

5. The ISP subscriber so served will have fourteen (14) days from the date of service upon him or her to file any motions contesting the subpoena (including a motion to quash or modify the subpoena) with this Court. The ISP may not turn over the subscriber's identifying information to Plaintiff before the expiration of this fourteen-day period. If the subscriber files a motion to quash the subpoena, he or she shall at the same time as the filing serve the ISP with a copy, as well as Plaintiff. If such motion is filed, the ISP may not turn over any information to Plaintiff until the Court rules on the motion or otherwise issues an order instructing it to proceed.

6. If the fourteen-day period lapses without the subscriber contesting the subpoena, the ISP shall have ten days to produce the information responsive to the subpoena to Plaintiff.

7. The ISP shall preserve any subpoenaed information upon receipt of the subpoena and pending the resolution of any timely-filed motion to quash.

8. Any information disclosed to Plaintiff in response to a subpoena may be used by Plaintiff solely for the purpose of protecting and enforcing its rights as set forth in the Complaint.

IT IS SO ORDERED.