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Can Cobbler Nevada help you win your Strike 3 Holdings movie sharing lawsuit?

Posted by Steve Vondran | May 12, 2022 | 0 Comments

Attorney Steve® Strike 3 BitTorrent Defense Case Law - Cobbler Nevada Case Law in 9th Circuit

Cobbler Pie

Introduction

When you are served with a subpoena in regard to an alleged file-sahring case (ex. Malibu Media or S3 Holdings) in the 9th Circuit, the Plaintiff will have one hurdle to get over called the Cobbler hurdle (or at least that's what I call it).  If the case cannot be settled amicably, and the parties are too far apart on the settlement amount, the final step to early settlement is to demand Cobbler "additional evidence" of infringement.  If they cannot show it, it might be wise to schedule a meet and confer call with Strike 33's copyright lawyers (often times the Bandlow Law Firm) and discuss the extra evidence they possess (which means they will get your identifying information of the subscriber from your internet service provider).  If they do not have any evidence, or speculative, or sometimes general evidence (ex. He likes Star Wars), this may force a lower settlement or sometimes a dismissal of the case.  This blog provides some general background on the Plaintiff's burden of proof and how the Cobbler Nevada case may help clients in California, Arizona, Utah, Nevada, Montana, Idaho, Oregon and State of Washington.

Issue

How has Cobbler Nevada, LLC v. Gonzalez, No. 17-35041 (9th Cir. 2018) been treated in subsequent 9th Circuit caselaw?

Conclusion

In Cobbler Nev., LLC v. Gonzales ("Cobbler Nevada"), the United States Court of Appeals for the Ninth Circuit held that a bare allegation that a defendant is the registered subscriber of an IP address associated with infringing activity is insufficient to state a claim for direct or contributory infringement.

To establish a claim of direct copyright infringement, a plaintiff must show that it owns the copyright and that the defendant themself violated one or more of the plaintiff's exclusive rights under the Copyright Act. (Cobbler Nev., LLC v. Gonzales)

With respect to contributory infringement, there are two strands of liability:

(1) actively encouraging or inducing infringement through specific acts; 

or,

(2) distributing a product that distributees use to infringe copyrights if the product is not capable of substantial or commercially significant non-infringing uses.

A failure to take affirmative steps to prevent infringement cannot alone trigger liability.

Private internet subscribers do not have a duty to monitor their internet service for infringement. (Cobbler Nev., LLC v. Gonzales)

Subsequent district court decisions from the Ninth Circuit have treated Cobbler Nevada as establishing a binding pleading standard for copyright infringement. A copyright infringement claim based merely on a defendant's status as the subscriber of an IP address associated with infringing activity does not cross the threshold of plausibility that federal court pleadings must satisfy. The plaintiff must plead something more about the subscriber other than their IP address. (Strike 3 Holdings, LLC v. Andaya, Venice Pl, LLC v. Huseby).  We refer to this as "Cobbler Evidence."

District courts within the Ninth Circuit have also relied on Cobbler Nevada to allow expedited discovery for the purpose of identifying the subscriber from an IP address. While copyright infringement plaintiffs cannot rely on a bare allegation that a person is the registered subscriber of an IP address, they can properly serve expedited discovery to determine the potential defendant's identity. (Eve Nevada, LLC v. Doe Defendant 1, Strike 3 Holdings, LLC v. Doe, Strike 3 Holdings, LLC v. Doe).

Cobbler Nevada allows plaintiffs to conduct certain fact-finding exercises to discover evidence about the defendant. (Strike 3 Holdings, LLC v. Doe)

Watch Attorney Steve® Explain the Subpoena Process (which is often used in a S3 case to obtain your name and address for further investigation of potential liability)

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No published decisions were identified that discussed Cobbler Nevada.

No Ninth Circuit decisions were identified that criticized or declined to follow Cobbler Nevada, though some district courts in other circuits have declined to follow the Cobbler Nevada approach regarding pleading standards.

Watch Attorney Steve® Explain The Cobbler Case in this video

Law

In Cobbler Nev., LLC v. Gonzales, 901 F.3d 1142 (9th Cir. 2018) ("Cobbler Nevada"), the United States Court of Appeals for the Ninth Circuit held that a bare allegation that a defendant is the registered subscriber of an IP address associated with infringing activity is insufficient to state a claim for direct or contributory infringement (at 1145): 

The district court properly dismissed Cobbler Nevada's claims. The direct infringement claim fails because Gonzales's status as the registered subscriber of an infringing IP address, standing alone, does not create a reasonable inference that he is also the infringer. Because multiple devices and individuals may be able to connect via an IP address, simply identifying the IP subscriber solves only part of the puzzle. A plaintiff must allege something more to create a reasonable inference that a subscriber is also an infringer. Nor can Cobbler Nevada succeed on a contributory infringement theory because, without allegations of intentional encouragement or inducement of infringement, an individual's failure to take affirmative steps is internet connection is insufficient to state a claim.

The Court explained that to establish a claim of direct copyright infringement, a plaintiff must show that it owns the copyright and that the defendant themself violated one or more of the plaintiff's exclusive rights under the Copyright Act (at 1146-1147):

Although copyright owners can often trace infringement of copyrighted material to an IP address, it is not always easy to pinpoint the particular individual or device engaged in the infringement. Internet providers, such as Comcast or AT & T, can go so far as to identify the individual who is registered to a particular IP address (i.e., an account holder) and the physical address associated with the account, but that connection does not mean that the internet subscriber is also the infringer. The reasons are obvious—simply establishing an account does not mean the subscriber is even accessing the internet, and multiple devices can access the internet under the same IP address. Identifying an infringer becomes even more difficult in instances like this one, where numerous people live in and visit a facility that uses the same internet service. While we recognize this obstacle to naming the correct defendant, this complication does not change the plaintiff's burden to plead factual allegations that create a reasonable inference that the defendant is the infringer.

The only connection between Gonzales and the infringement was that he was the registered internet subscriber and that he was sent infringement notices. To establish a claim of copyright infringement, Cobbler Nevada "must show that [it] owns the copyright and that the defendant himself violated one or more of the plaintiff's exclusive rights under the Copyright Act." Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). Cobbler Nevada has not done so.

With respect to contributory infringement, the Court held that there are two strands of liability:

(1) actively encouraging or inducing infringement through specific acts; 

or,

(2) distributing a product that distributees use to infringe copyrights if the product is not capable of substantial or commercially significant non-infringing uses. A failure to take affirmative steps to prevent infringement cannot alone trigger liability. Private internet subscribers do not have a duty to monitor their internet service for infringement (at 1147-1149):

We have adopted the well-settled rule that "[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement." Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1170 (9th Cir. 2007) (alteration in original) (quoting Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005)). Stated differently, "liability exists if the defendant engages in personal conduct that encourages or assists the infringement." A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir. 2001) (internal quotation marks omitted). A claim for contributory infringement requires allegations that the defendant is "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." Fonovisa v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996) (brackets omitted) (quoting Gershwin Publishing Corp. v. Columbia Artists Management, 443 F.2d 1159, 1162 (2d Cir. 1971)). Cobbler Nevada's contributory infringement claim is premised on a bare allegation that Gonzales failed to police his internet service. This perfunctory allegation, without more, does not sufficiently link Gonzales to the alleged infringement.

At the outset, we recognize that Gonzales's position—a subscriber to internet service—does not fit cleanly within our typical contributory liability framework, which often involves consumer-facing internet platforms. See, e.g., Grokster, 545 U.S. at 919–20, 125 S.Ct. 2764 (computer software provider); Amazon, 508 F.3d at 1171 (search engine). Nevertheless, it is no leap to apply the framework of similar technology-based cases to our analysis of Gonzales's liability.

In Sony Corp. of America v. Universal City Studios, Inc., the Supreme Court held that liability for another's infringement cannot arise from the mere distribution of a product that is "widely used for legitimate, [non-infringing] purposes." 464 U.S. 417, 442, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). The Court later refined the standard for liability, holding that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." Grokster, 545 U.S. at 919, 125 S.Ct. 2764. In essence, the limitation of liability in Sony —premised on a refusal to impute intent to a defendant based solely on knowledge that a product might be used for infringement—does not apply "where evidence ... shows statements or actions directed to promoting infringement." Id. at 935, 125 S.Ct. 2764. The Court was clear, however, that "in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses." Id. at 939 n.12, 125 S.Ct. 2764; see also id. at 937, 125 S.Ct. 2764 ("[M]ere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability.").

Although circuit courts approach contributory liability through varying lenses, our circuit has identified two strands of liability following Sony and Grokster: "actively encouraging (or inducing) infringement through specific acts" or "distributing a product distributees use to infringe copyrights, if the product is not capable of ‘substantial' or ‘commercially significant' noninfringing uses." Amazon, 508 F.3d at 1170 (quoting Grokster, 545 U.S. at 942, 125 S.Ct. 2764 (Ginsburg, J., concurring)). We analyze contributory liability "in light of ‘rules of fault-based liability derived from the common law,' and common law principles establish that intent may be imputed." Id. at 1170–71 (quoting Grokster, 545 U.S. at 934–35, 125 S.Ct. 2764 ).

Turning to the first strand, Cobbler Nevada's complaint lacks any allegations that Gonzales "actively encourage[ed] (or induc[ed]) infringement through specific acts." Id. at 1170. Nothing in Cobbler Nevada's complaint alleges, or even suggests, that Gonzales actively induced or materially contributed to the infringement through "purposeful, culpable expression and conduct." Grokster, 545 U.S. at 937, 125 S.Ct. 2764. No allegations suggest that Gonzales made any "clear expression" or took "affirmative steps" to foster the infringement—Gonzales's only action was his failure to "secure, police and protect" the connection. Id. at 919, 125 S.Ct. 2764; see also 3 Nimmer on Copyright § 12.04 ("Inducement liability ... rests [ ] on the defendant's ‘active steps to encourage infringement' leading to actual infringement taking place.") (quoting Grokster, 545 U.S. at 936, 125 S.Ct. 2764 ). Because a "failure to take affirmative steps to prevent infringement" alone cannot trigger liability, Grokster, 545 U.S. at 939 n.12, 125 S.Ct. 2764, Cobbler Nevada failed to "state a claim to relief that is plausible on its face," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

Nor does the second strand implicate Gonzales. Providing internet access can hardly be said to be distributing a product or service that is not "capable of substantial" or "commercially significant noninfringing uses." Sony, 464 U.S. at 442, 104 S.Ct. 774.

We note that Cobbler Nevada's theory both strays from precedent and effectively creates an affirmative duty for private internet subscribers to actively monitor their internet service for infringement. Imposing such a duty would put at risk any purchaser of internet service who shares access with a family member or roommate, or who is not technologically savvy enough to secure the connection to block access by a frugal neighbor. This situation hardly seems to be one of "the circumstances in which it is just to hold one individual accountable for the actions of another." Id. at 435, 104 S.Ct. 774.

In the unpublished opinion of Venice Pl, LLC v. Huseby, LLC v. Huseby, No. C17-1160 TSZ, 2019 WL 1572894 (W.D. Wash. Apr. 11, 2019), the United States District Court for the Western District of Washington stated that Cobbler Nevada established a binding pleading standard for copyright infringement. The Court explained that a copyright infringement claim based merely on a defendant's status as the subscriber of an IP address associated with infringing activity does not cross the threshold of plausibility that federal court pleadings must satisfy. The plaintiff must plead something more about the subscriber other than their IP address (at 2-4):

From the outset, plaintiff's claims against Huseby have been premised solely on an IP address as to which she has been identified as the subscriber. In Cobbler Nevada, which was issued almost ten months after plaintiff commenced this action, the Ninth Circuit made clear that a copyright infringement claim based merely on a defendant's status as the subscriber of an IP address associated with infringing activity does not cross the threshold of "plausibility" that pleadings in federal court must satisfy. See 901 F.3d at 1145, 1147 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Malibu Media, LLC v. Doe, 2018 WL6446404 (N.D. Ill. Dec. 10, 2018) (citing Cobbler Nevada to support the dismissal of a plaintiff's copyright infringement claim). Plaintiff contends that it has pleaded the "something more" required by Cobbler Nevada to "create a reasonable inference that a subscriber is also an infringer." See 901 F.3d at 1145. Plaintiff's allegations, however, involve just the activity associated with the IP address, for example, the persistent use of the IP address for infringing conduct, the bandwidth devoted to infringing conduct via the IP address, and the "mature" nature of the films that the IP address downloaded or uploaded. See Am. Compl. at ¶ 12 (docket no. 13).

Contrary to plaintiff's assertions, these "facts" do not indicate that the subscriber of the IP address engaged in and/or was aware of the alleged infringement. Continual or prolonged use of an IP address is not synonymous with a subscriber's activity or knowledge; the same pattern would exist if a tenant, roommate, child, or hacker engaged in the alleged infringement without the subscriber realizing it, or if the Internet access was not password protected and strangers could connect via the IP address. The Court interprets Cobbler Nevada as requiring plaintiff to plead "something more" about the subscriber, not about his or her IP address. Although plaintiff has attempted to do so by alleging that it had investigated the ownership or rental status of the property associated with the IP address "to anticipate possible claims that a wireless signal was high jacked by someone outside of the residence," Am. Compl. at ¶ 14 (docket no. 13), plaintiff failed to recite the results of such investigation, and its own pleading shows that Huseby lives in an apartment complex, see id. at ¶ 21, thereby undermining plaintiff's theory that no one other than Huseby could be responsible for the infringing behavior. Under Cobbler

Nevada, plaintiff's Amended Complaint must be dismissed, but without prejudice and with leave to amend.

In the unpublished opinion of Strike 3 Holdings, LLC v. Andaya, No. 21-CV-00760-VKD (N.D. Cal. 2021), report and recommendation adopted, Strike 3 Holdings, LLC v. Andaya, No. 21-CV-00760-LHK (N.D. Cal. 2021), the United States District Court for the Northern District of California applied the pleading requirements under Cobbler Nevada in deciding to grant a motion for default judgment. The Court found that the plaintiff had alleged sufficient additional facts beyond the defendant's status as the subscriber of the IP address at issue to support a plausible claim for relief (at 4-6): 

Once Strike 3 learns the defendant's identity, it cannot rely on a bare allegation that a defendant is the registered subscriber of an IP address associated with infringing activity to state a plausible claim for direct or contributory copyright infringement. Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018). “Because multiple devices and individuals may be able to connect via an IP address, simply identifying the IP subscriber solves only part of the puzzle. A plaintiff must allege something more to create a reasonable inference that a subscriber is also an infringer.Id. at 1145. Courts have denied motions for default judgment where the plaintiff failed to allege any facts beyond the defendant's status as the subscriber associated with the IP address at issue. See, e.g., Malibu Media, LLC v. Causa, No. 1:19-CV-963 (NAM/ML), 2020 WL 5408994, at *2 (N.D.N.Y. Sept. 9, 2020) (concluding that the complaint failed to state a plausible claim “because the only allegation that connects [defendant] to the infringing activity is that he is the internet subscriber associated with the IP address which was used to download and share Plaintiff's copyrighted films.”); Malibu Media, LLC v. Doe, No. 3:18-cv-01369 (JAM), 2020 WL 4719219, at *1 (D. Conn. Aug. 13, 2020) (finding that plaintiff failed to allege plausible ground for relief because it “d[id] not allege any additional facts beyond Doe's subscriber status to show that he engaged in the unlawful downloading of Malibu Media films[.]”); Malibu Media, LLC v. Peled, No. 2:18-cv-00141-KSH-CLW, 2020 WL 831072, at *3 (D.N.J. Feb. 20, 2020) (concluding that defendant's “status as the subscriber of the IP address is insufficient to prove that he was in fact the infringer of the copyrighted materials.”).

When Plaintiff might be able to satisfy Cobblerm (factors the courts will find good cause to move the lawsuit forward)

This Court is satisfied that Strike 3 has alleged sufficient additional facts, beyond Mr. Andaya's status as the subscriber of the IP address at issue, to support a plausible claim for relief.

Strike 3 alleges that Mr. Andaya is the infringer based on its investigation of social media and other publicly available information indicating a connection between his professional interests (criminal justice and information technology) and other materials downloaded and distributed using the same IP address. Dkt. No. 10 ¶¶ 12, 47-54.

ATTORNEY STEVE TIP:  This is a common approach we see from the Bandlow Law Firm in California.  They will try to find a social media connection.  

Additionally, in supplemental briefing, Strike 3 has submitted the declaration of Jessica Fernandez, the senior in-house counsel for Strike's 3's parent company, who attests to the following facts revealed by Strike 3's investigation:

(1) the subscriber and location information Strike 3 received in response to its court-authorized subpoena to the ISP confirmed the information Strike 3 obtained in its geolocation investigation;

(2) during an 18-month period, Strike 3's software determined that a single BitTorrent client (with only one change reflecting updated uTorrent software) was used to download and distribute all works through the IP address in question, suggesting that an individual using one computer downloaded and distributed Strike 3's films using the BitTorrent protocol;

(3) during the same 18-month period, the same IP address was used to download and distribute 1,696 mainstream media, suggesting that the infringer likely is a permanent resident at the identified address;

(4) approximately 15 days after Strike 3 served the court-authorized subpoena on the relevant ISP (i.e., after the subscriber would have received notice from the ISP of the infringing activity), the substantial BitTorrent activity associated with the subject IP address came to an abrupt and complete halt;

(5) while Mr. Andaya apparently lives at the residence with his wife and teenage daughter, he is the lone male occupant of the home; and, Strike 3's customer demographics indicate that its films are generally more popular with males than females; and

(6) after Mr. Andaya was personally served with the complaint and summons, his social media pages were taken down. Dkt. No. 25, Ex. A. Courts have granted motions for default judgment based on a similar showing by the plaintiff. See, e.g., Malibu Media, LLC v. Mantilla, No. 3:18-cv-01369 (JAM), 2020 WL 6866678 (D. Conn. Nov. 20, 2020) (granting motion for default judgment); Malibu Media v. Flanagan, No. 2:13-CV-5890, 2014 WL 2957701 (E.D. Pa. July 1, 2014) (granting motion for default judgment); see also, e.g., Malibu Media, LLC v. Doe, No. 18 C 450, 2019 WL 8301066 (N.D. Ill. June 5, 2019) (denying motion to dismiss).

Subpoenas to your ISP are used to uncover name and address (Courts in California Federal don't go for the quash of the subpoena)

District courts within the Ninth Circuit have also relied on Cobbler Nevada to allow expedited discovery for the purpose of identifying the subscriber from an IP address. In one of many Ninth Circuit suits filed by Strike 3 Holdings, LLC (an adult movie producer), the United States District Court for the Southern District of California in the unpublished opinion of Strike 3 Holdings, LLC v. Doe, Case No.: 18-CV-2720-GPC(WVG) (S.D. Cal. 2018) stated that, while Strike 3 could not rely on a bare allegation that a person is the registered subscriber of an IP address, it could properly serve expedited discovery to determine the potential defendant's identity (at 4-5):

Once Strike 3 learns the subscriber's identity, it cannot rely on a bare allegation that he or she is the registered subscriber of an IP address associated with infringing activity to state a plausible claim for direct or contributory copyright infringement. Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018). However, at this stage of these proceedings, and upon the record presented, Strike 3 properly may serve discovery to ascertain the potential defendant's identity. See generally Glacier Films (USA), Inc. v. Turchin, 896 F.3d 1033, 1036, 1038 (9th Cir. 2018) (observing that the district court's case management order permitting "limited discovery from an Internet Service Provider to establish a potential infringer's identity" was "a sensible way to manage its dockets . . . .").

In the unpublished decision of Strike 3 Holdings, LLC v. Doe, No. 4:18-CV-04993-KAW, 2019 WL 468816 (N.D. Cal. Feb. 6, 2019), the United States District Court for the Northern District of California denied a defendant's motion to quash a subpoena based on the Ninth Circuit's holding in Cobbler Nevada, holding that Cobbler Nevada allows plaintiffs to conduct certain fact-finding exercises to discover evidence about the defendant (at 4):

In the motion, Defendant contends that the subscriber's router is not secure, that there was a "false positive" on the IP address, and that the device with the subject IP address cannot be found at the subscriber's location. (Def.'s Mot. at 2-4.) In sum, Defendant claims innocence. While any of these defenses may prove to be true, at this juncture, Plaintiff is simply attempting to ascertain the subscriber's identity. Thus, Defendant's reliance on Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142 (9th Cir. 2018) to preclude discovery based on factual innocence is misplaced. (Def.'s Mot. at 4.) Indeed, in Cobbler, the district court permitted the plaintiff to subpoena the ISP for the defendant's identifying information, conduct an initial investigation into the defendant, and even depose the defendant. 901 F.3d at 1145.

In Strike 3 Holdings, LLC v. Doe, Case No.: 19cv2452-JAH (LL) (S.D. Cal. 2020), the United States District Court for the Southern District of California rejected the defendant's argument that the Court should quash a subpoena on the basis of the Cobbler Nevada pleading requirements because discovery had not yet occurred. The Court explained that although an IP address and a subscriber's name alone may be insufficient to state a claim of infringement, Cobbler Nevada does not stand for the proposition that subpoenas may not be used to determine a subscriber's name (at 4-5, 6):

Lastly, Defendant argues the Court should quash the subpoena because Plaintiff's complaint is subject to dismissal. Doc. No. 11-1 at 3. Specifically, Defendant alleges Plaintiff cannot satisfy the high-bar standards set by Cobbler Nevada LLC v. Gonzalez, 901 F.3d 1142 (9th Cir. 2018). Doc. No. 11-1 at 16. In Cobbler, the Ninth Circuit decided "whether a bare allegation that a defendant is the registered subscriber of an [IP] address associated with infringed activity is sufficient to state a claim for direct contributory infringement." Id. at 1144. The court concluded "[a] plaintiff must allege something more to create a reasonable inference that a subscriber is also an infringer." Id. Defendant argues Plaintiff has failed to allege "something more" in the complaint to bypass the standard set by Cobbler. However, as Plaintiff highlights, Defendant's interpretation of Cobbler is incorrect as the case was decided after early discovery occurred. The plaintiff in that case was unable to plead "anything more" than the subscriber's identity, even after obtaining early discovery from the ISP. Id. at 1145-46. To have the Court now address some future amended complaint that may be insufficient to overcome the Cobbler threshold is premature.

Here, Plaintiff has yet to obtain the subscriber's information, and it is premature to assume that the only fact Plaintiff will have after some discovery is conducted is the subscriber's identity. See Cobbler, 901 F.3d at 1145. District courts examining this exact issue have held that "although an IP address and a subscriber's name alone may be insufficient to state a claim of infringement, Cobbler does not stand for the proposition that subpoenas may not be used to determine a subscriber's name." Strike 3 Holdings, LLC v. Doe, No. CV 19-00723 (JCS), 2019 WL 2996428, at *3 (N.D. Cal. July 9, 2019); see also Strike 3 Holdings. LLC v. Does, No. 2:18-cv-0237-MCE-CKD, 2019 WL 935390, at *2-3 (E.D. Cal. Feb. 26, 2019); Strike 3 Holdings, LLC v. Doe, No. 4:18-cv-04993-KAW, 2019 WL 468816, at *2 (N.D. Cal. Feb. 6, 2019). Lastly, a dismissal at this juncture would prevent Plaintiff from protecting its copyright works, in that it would be prevented from unveiling who is illegally downloading and distributing its content. Therefore, Defendant's motion for dismissal pursuant to a Rule 8 violation is DENIED.

In the unpublished decision of Eve Nevada, LLC v. Doe Defendant 1, No. CV 20-00435 DKW-WRP, 2020 WL 12881052 (D. Haw. Oct. 16, 2020), the United States District Court for the District of Hawaii likewise acknowledged the Cobbler Nevada pleading requirements while granting the plaintiff's request to engage in limited early discovery (at 2):  

First, Plaintiff has made a prima facie showing of copyright infringement. Plaintiff has alleged that:

(1) it owns and has registered the copyrighted work at issue;

(2) the Doe Defendants reproduced and distributed that work without authorization;

and

(3) Plaintiff was damaged by the Doe Defendants' actions. See ECF No. 1 ¶¶ 70-85.

These allegations are minimally sufficient to state a claim for copyright infringement at this stage of the proceedings. See Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). However, the Court notes that Plaintiff cannot rely on its bare allegations that the Doe Defendants are the registered subscribers of IP addresses associated with infringing activity to state a plausible claim for direct or contributory copyright infringement on the merits. See Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142, 1144 (9th Cir. 2018) (holding that the plaintiff had to “allege something more to create a reasonable inference that [the] subscriber is also [the] infringer” to survive a motion to dismiss). For purposes of conducting limited early discovery, however, Plaintiff's claims are sufficient. See, e.g., Strike 3 Holdings, LLC v. Doe, 2019 WL 591459, at *3 (N.D. Cal. Feb. 13, 2019) (finding similar allegations sufficient for purposes of conducting early discovery).

Second, Plaintiff has identified the Doe Defendants with as much specificity as possible. Plaintiff states that each of the Doe Defendants is a person or entity and that this person or entity has been observed and documented as infringing on its copyrighted work. See ECF No. 1 ¶ 10, 18-55. Plaintiff alleges that the IP addresses associated with the infringing activity are located in the State of Hawaii, which indicates that the Court likely has jurisdiction over the Doe Defendants. See ECF No. 1-1 at 4-5. It does not appear that there are any other measures Plaintiff could have taken to identify the Doe Defendants other than to obtain the IP subscriber's identifying information from the ISPs.

Third, because the subpoenas seek the names and address of the IP subscribers associated with the alleged infringing activity, Plaintiff has demonstrated that the proposed subpoena seeks information likely to lead to identifying information that will allow Plaintiff to effect service of process on the Doe Defendants. Based on the foregoing, the Court finds that Plaintiff has demonstrated good cause to grant Plaintiff leave to conduct early discovery.

No Cobbler in Illinois

For example, in Malibu Media, LLC v. Palella, 18 C 3041 (N.D. Ill. 2019) the United States District Court for the Northern District of Illinois declined to follow the Cobbler Nevada approach to pleading standards, instead preferring Seventh Circuit caselaw holding that a plaintiff's burden at the pleading stage is minimal (at 4):

To state a copyright infringement claim, Malibu Media must allege:

(1) ownership of a valid copyright,

and

(2) copying of constituent elements of the work that are original. Feist Publ'n, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991); JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007).

Palella's arguments speak to a split in the federal courts concerning whether a defendant's status as the registered subscriber of an IP address used to infringe a copyright supports a plausible inference that the defendant himself engaged in infringing activity. The Ninth Circuit recently has answered this question in the negative, holding that "[b]ecause multiple devices and individuals may be able to connect via an IP address, simply identifying the IP subscriber solves only part of the puzzle." Cobbler Nev., LLC v. Gonzales, 901 F.3d 1142, 1145 (9th Cir. 2018).

At least one court in this district has taken the Ninth Circuit's approach and held that, to state a claim of online copyright infringement, a plaintiff must allege "something more" than the mere subscription to an infringing IP address. See Malibu Media, LLC v. Doe, No. 18 C 450, 2018 WL 6446404, at *2-3 (N.D. Ill. Dec. 10, 2018) (collecting cases).

But this Court respectfully declines to follow the approach taken in Cobbler Nevada. At the pleading stage, the plaintiff's burden is minimal. See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). The plaintiff need allege only those facts that are necessary to give the defendant "fair notice of what the . . . claim is and the grounds upon which it rests," as well as to raise a plausible inference that the defendant may, in fact, be found liable upon further investigation. Twombly, 550 U.S. at 555. And while Rule 11 requires an attorney to conduct a reasonable investigation before filing a complaint, see Harlyn Sales Corp. Profit Sharing Plan v. Kemper Fin. Servs., Inc., 9 F.3d 1263, 1269 (7th Cir. 1993), it does not require counsel to do everything within his or her power to verify the validity of the claim pre-suit.

Contact a Strike Three Copyright Defense Law Firm

We are the clear leader among California Copyright Law FIrm handling Strike 3 Holdings p2p cases in California.  We have handled hundreds of cases and in 2020 was identified by Unicourt.com as the #1 copyright defense law firm in the UNITED STATES in terms of number of cases handled.  We understand the Cobbler Nevada case and how and when it might be available to help have a case dismissed, or have the settlement offer substantially reduced.  Call us for a free consultation if you are facing a federal court lawsuit in California Eastern, Southern, Northern District, or Central District courts.  We are also licensed in Arizona.

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Legal Authorities

Cobbler Nev., LLC v. Gonzales, 901 F.3d 1142 (9th Cir. 2018)

Venice Pl, LLC v. Huseby, C17-1160 TSZ (W.D. Wash. 2019)

Strike 3 Holdings, LLC v. Andaya, No. 21-CV-00760-VKD (N.D. Cal. 2021)

Strike 3 Holdings, LLC v. Andaya, No. 21-CV-00760-LHK (N.D. Cal. 2021)

Strike 3 Holdings, LLC v. Doe, Case No.: 18-CV-2720-GPC(WVG) (S.D. Cal. 2018)

Strike 3 Holdings, LLC v. Doe, No. 4:18-cv-04993-KAW (N.D. Cal. 2019)

Strike 3 Holdings, LLC v. Doe, Case No.: 19cv2452-JAH (LL) (S.D. Cal. 2020)

Eve Nevada, LLC v. Doe Defendant 1, No. CV 20-00435 DKW-WRP, 2020 WL 12881052 (D. Haw. Oct. 16, 2020)

Malibu Media, LLC v. Palella, 18 C 3041 (N.D. Ill. 2019)

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