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In Re Bittorrent Copyright Infringement Cases v. Does 1-34

February 11, 2013

IN RE BITTORRENT COPYRIGHT INFRINGEMENT CASES,
MALIBU MEDIA
v.
DOES 1-34
MALIBU MEDIA
v.
DOES 1-7
AF HOLDINGS
v.
JOHN DOE
INGENUITY 13
v.
JOHN DOE
INGENUITY 13
v.
JOHN DOE
MALIBU MEDIA
v.
DOES 1-9
PATRICK COLLINS
v.
DOES 1-7
THIRD DEGREE FILMS
v.
DOES 1-24
MALIBU MEDIA
v.
JOHN DOES 1-12
AF HOLDINGS
v.
JOHN DOE
MALIBU MEDIA
v.
DOES 1-4



The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

E-FILED

Monday, 11 February, 2013 04:11:25 PM Clerk, U.S. District Court, ILCD

ORDER AND OPINION AND REPORT and RECOMMENDATION

These cases are but a few of the thousands of mass copyright infringement cases filed across the country by purveyors of pornographic films. These actions are filed against "John Doe" defendants accused of using peer-to-peer technology to illegally download copyrighted files from the Internet.

This Order addresses two issues that are presented in all or many of the cases captioned above. First, the Plaintiffs have joined multiple John Doe defendants, some of whom have moved to dismiss or sever for improper joinder. Second,in many of these cases, certain subpoenas were authorized and issued, and there are challenges to the scope of those subpoenas.

I. JOINDER

A. Generally

A number of the John Does have raised the issue of whether it is legally proper for the Plaintiffs to have joined multiple defendants in a single case. The basics of joinder are governed by the Federal Rules of Civil Procedure. Defendants may be joined in a single action if: "(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action." FRCP 20(a)(2). This essentially requires claims asserted against joined parties to be "logically related." Benitez v American Standard Circuits Inc., 678 FSupp2d 745, 769 (ND Ill 2010); Disparte v Corporate Executive Bd., 223 FRD 7, 10 (DDC 2004). This is a flexible test, and courts seek the "broadest possible scope of action." Lane v Tschetter, 2007 WL 2007493 at *7 (DDC) (quoting UMW v Gibbs, 383 US 715, 724 (1966)).

The purpose of joinder under Rule 20 is "to promote trial convenience and expedite the final resolution of disputes, thereby preventing multiple lawsuits, extra expense to the parties, and loss of time to the court as well as the litigants appearing before it." West Coast Productions, Inc. v Does 1--5,829, 275 FRD 9, 15 (DDC 2011) (quoting M.K. v Tenet, 216 FRD 133, 137 (DDC 2002)). The two prongs of Rule 20(a) are thus "liberally construed in the interest of convenience and judicial economy . in a manner that will secure the just, speedy, and inexpensive determination of the action." Spaeth v Michigan State University College of Law, 845 FSupp2d 48, 53 (DDC 2012) (quoting Davidson v District of Columbia, 736 FSupp2d 115, 119 (DDC 2010)). Indeed, "the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; [and] joinder of claims, parties, and remedies is strongly encouraged." United Mine Workers of America v Gibbs, 383 US 715, 724 (1966).

The breadth of permissive joinder is not unlimited. For example, the fact that defendants allegedly violated the same trademark does not mean that the plaintiff's claim against them arose out of the same transaction or occurrence. SB Designs v Reebok International Ltd., 305 FSupp23d 888 (ND ILL 2004). Compare, Androphy v Smith & Nephew Inc., 31 FSupp2d 620 623 (ND Ill 1998)(same, patent infringement); Direct TV Inc v Collins, 244 FRD 408 (SD Ohio 2007)(downloading same encrypted satellite signal not justify joinder where defendants did not act in concert with each other); Bridgeport Music Inc. v 11C Music, 202 FRD 229 (DC Tenn 2001)(infringement of copyrighted music); Golden Scorpio Corp. v Steel Horse Bar & Grill, 596 FSupp2d 1282 (D Ariz 2009)(joinder not allowed against 12 restaurants using trademark "Steel Horse" in businesses across the country in trademark infringement case, because the acts of infringement were separate and distinct). These cases make clear that alleging the same type of harm is not enough to justify joinder, because each act of infringement is a separate occurrence. There must be more.

Even if joinder is appropriate, Rule 20(b) provides that "[t]he court may issue orders-including an order for separate trials-to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party." FRCP 20(b).

Misjoinder occurs when the "preconditions of permissive joinder set forth in Rule 20(a) have not been satisfied." Walgreen Co. v Networks -- USA V, Inc., 2012 WL 6591810 at *1 (ND Ill); Disparte, 223 FRD at 12 (citations omitted); Malibu Media LLC v John Does 1-14, 2012 WL 6115653 at *6 (ND Ind). The trial court has broad discretion under the Rules governing joinder and severance. Chavez v Illinois State Police, 251 F3d 612, 632 (7th Cir 2001); Otis Clapp & Son, Inc. v Filmore Vitamin Co., 754 F2d 738, 743 (7th Cir 1985). The focus is on judicial economy and avoiding prejudice to the litigants. Id.

Federal Rule of Civil Procedure 21 states that "[m]isjoinder of parties is not a ground for dismissing an action" and the court may remedy improper joinder by "drop[ping]" a party and severing the claim against that party. FRCP 21. The remedy for misjoinder therefore creates separate actions containing the same claims against the dropped defendant. See Bailey v Fulwood, 780 FSupp2d 20, 26 (DDC 2011); In re Brand--Name Prescription Drugs Antitrust Litigation, 264 FSupp2d 1372, 1376 (JPML 2003) ("[S]everance of claims under Rule 21 results in the creation of separate actions.").

Given that joinder and severance are interrelated, courts have read Rule 21 in conjunction with Rule 42(b), which allows the court to sever claims in order to avoid prejudice to any party. Tenet, 216 FRD at 138; see also FRCP 42(b) ("For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, cross claims, counterclaims, or third-party claims."). Consequently, in addition to the two requirements of Rule 20(a)(2), courts also consider whether joinder would prejudice any party or result in needless delay. See Lane v Tschetter, 2007 WL 2007493, at *7 (DDC); Tenet, 216 FRD at 138.

B. BitTorrent Generally

A better understanding of BitTorrent is needed in order to assess the joinder question.*fn1 The BitTorrent protocol was developed by the Department of Defense as a means of communication in the event normal communications were disrupted. If Person A wants to communicate with Person B, but the direct link between them has been broken, BitTorrent allows A to communicate with B over the internet by going through others who have their own links to B, so the disrupted direct link does not prevent communication between A and B.

Obviously, BitTorrent has many legitimate purposes. In recent years, however, it has been used for nefarious purposes such as sharing of music and movies and other copyrighted material without regard for copyright laws. Such is the situation in the cases now before the Court, wherein each John Doe defendant is alleged to have used BitTorrent to infringe on the Plaintiffs' copyrights to various adult movies.

As is pertinent here, the process begins with one person who has obtained a copy of a copyrighted movie and wishes to share it. Instead of sharing it directly, this first person -- known as the "seeder" -- downloads the movie into BitTorrent. In turn, BitTorrent breaks the movie into smaller pieces, often thousands of them. A "tracker," which is a permanent server on the internet that coordinates file distribution, assigns to the movie itself and to each different piece of the movie a unique identifying number, consisting of dozens of randomly-generated letters and numbers, known as a Hash identifier. The tracker distributes the pieces of the movie to BitTorrent "clients," the term used for BitTorrent once installed on a specific computer. Once this is done, the "seeder" is no longer necessary for the sharing process.

Information about the tracker and the movie is maintained on a "torrent" file. A user who wants to obtain the movie must have BitTorrent installed on his computer. He accesses the torrent file, and BitTorrent automatically connects to the tracker. The tracker responds by providing to the BitTorrent client a list of "peers" who have the various pieces of the movie. The BitTorrent client then connects to those peers and begins downloading pieces of the movie from them. Soon, an entire movie is assembled. Using the Hash identifiers, BitTorrent compares this newly-assembled movie to the original movie to make certain that all the ...


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