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Patrick Collins, Inc v. John Does 1-9

September 18, 2012

PATRICK COLLINS, INC., PLAINTIFF,
v.
JOHN DOES 1-9, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

Tuesday, 18 September, 2012 04:02:46 PM Clerk, U.S. District Court, ILCD

OPINION

This matter comes before the Court on Defendant John Doe No. 4's (Doe/4)*fn1 Omnibus Motion to Sever Defendants for Improper Joinder and to Vacate the Order Granting Leave to Serve Third-Party Subpoenas and to Quash the Subpoena (d/e 4) (Motion). For the reasons set forth below, the Motion is DENIED.

BACKGROUND

On June 14, 2012, Plaintiff Patrick Collins, Inc., filed a two-count complaint against unknown plaintiffs John Does 1-9. Complaint-Action for Damages for Property Rights Infringement (d/e 1) (Complaint). The Complaint alleges that the Plaintiff Patrick Collins, Inc. (Collins), owns the registered copyright to a motion picture entitled "Busty Construction Girls" (the "Work"). The Complaint alleges that the Defendants infringed on that copyright by copying, reproducing, and redistributing portions of the Work through a peer-to-peer file sharing protocol known as BitTorrent. Complaint ¶¶46-49.

Under the BitTorrent protocol, the person who starts the distribution process is known as the "seeder." The seeder uses the BitTorrent software to divide a digital file, such as a digital copy of the Work, into equal portions known as "pieces" and assigns a unique alphanumeric sequence called a hash value (Unique Hash Number) to each piece of the digital file. The Unique Hash Numbers are then recorded on another computer file called a torrent file. Other users of the BitTorrent protocol download the torrent file and a piece of the digital file through torrent websites. A tracker computer keeps track of the users that have downloaded portions of a file listed on a particular torrent file. Through the BitTorrent protocol and the tracker computer, the user then makes that downloaded piece available to other users who have part of the file. The users simultaneously upload and download pieces of the digital file to and from each other and the seeder. The seeder and the other users are collectively called a "swarm." At the point that a user has copied enough pieces of the file, the BitTorrent software reassembles the file. In this case, the user can then view the entire Work. The user also becomes an additional seeder that distributes the torrent file and the digital file. Complaint ¶¶ 19-35.

Collins alleges that the Defendants were customers of Internet Service Providers (ISPs) through which the Defendants participated in the peer-to-peer file sharing. ISPs assign Internet protocol (IP) addresses to customers who are connected to the ISP, and thereby, to the Internet. Collins alleges that it retained an investigator to locate the IP addresses used to infringe on the Work through the BitTorrent protocol. Collins alleges that its investigators have identified nine IP Addresses in this District through which the Defendants infringed on the Work through the BitTorrent protocol (the Alleged IP Addresses). Collins alleges that each Defendant illegally downloaded and uploaded portions of the same copy of the Work because the investigator determined that each Alleged IP Address was used to copy and redistribute a portion of the Work that had the same Unique Hash Number. Collins alleges each of the Alleged IP Addresses was traced to an address in a city located within the District. Collins alleges the city that is associated with each Alleged IP Address, and the date and time on which the download or upload of the Work occurred. Collins alleges that its investigator has identified the Alleged IP Addresses and traced the locations, but does not have the name of any Defendant customer associated with any of the Alleged IP Addresses. Complaint ¶¶ 4, 21-22, 36-42, and Exhibit A.

Based on these allegations, Collins alleges two claims against the Defendants, Infringement (Count I), and Contributory Infringement (Count II). Collins alleges in each Count that the Defendants acted willfully. Complaint ¶¶ 50, 60. Collins seeks the greater of $150,000.00 in statutory damages or actual damages, plus attorney fees in each Count. Complaint, at 9 and 11. The Copyright Act authorizes statutory damages of $750.00 to $30,000.00 for infringement, but increases the possible statutory damages to a maximum of $150,000.00 if the infringement was willful. 17 U.S.C. § 504(a) and (c).

On June 23, 2012, Collins filed a Motion for Leave to Serve Third Party Subpoenas Prior to Rule 26(f) Conference (d/e 2) (Motion for Leave). Collins sought to serve subpoenas on the ISPs to determine the identity of the customers associated with the Alleged IP Addresses listed in the Complaint in order to ascertain the identity of Defendant Does 1-9. Collins wanted to ascertain the identity of the Defendants to effect service. Collins attached to the Motion the declaration of the investigator who located the nine Alleged ISP Addresses. Motion for Leave, attached Declaration of Tobias Fieser in Support of Plaintiff's Motion for Leave to Take Discovery Prior to a rule 26(f) Conference. The Court allowed the Motion on June 25, 2012. Order on Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference (d/e 3) (Order). Doe/4 filed the instant Motion on August 16, 2012.

ANALYSIS

Doe/4 asks the Court to sever the Defendants, vacate the Order, and quash the subpoenas. The Court will address the severance issue first and then the discovery issue.

1. Motion to Sever

The Defendants are properly joined if: (1) Collins asserts a right to relief against them jointly, severally, or in the alternative, with respect to or arising out of the same transaction, occurrence, or series of transactions; and (2) a question of law or fact common to all will arise in the action. Fed. R. Civ. P. 20(a)(2). Permissive joinder under Rule 20 are to be liberally construed to promote convenience and judicial economy. See First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 251-52 (N.D. Ill. 2011); Donkeyball Movie, LLC v. Does 1-171, 810 F.Supp.2d 20, 27 (D.D.C. 2011). The Supreme Court ...


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