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Zambezia Film Pty, Ltd. v. Does 1-65

United States District Court, Seventh Circuit

August 29, 2013

ZAMBEZIA FILM PTY, LTD., Plaintiff,
v.
DOES 1-65, Defendants.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

On February 19, 2013, Plaintiff Zambezia Film Pty Ltd. ("Zambezia") filed the present copyright infringement action against Defendant John Does 1-65 pursuant to the United States Copyright Act of 1976. See 17 U.S.C. § 101, et seq. This lawsuit involves Zambezia's effort to protect its copyrighted, animated motion picture, "Adventures in Zambezia, "[1] from numerous unknown individuals who are allegedly copying and distributing the movie on the Internet using the BitTorrent protocol. Zambezia maintains that thus far it has only been able to identify the Doe Defendants by their Internet Protocol ("IP") addresses. As such, the Court granted Zambezia's motion for expedited discovery to serve subpoenas on the Doe Defendants' Internet Service Providers ("ISPs"). Before the Court is Defendant John Doe #55's motion to vacate the Court's April 4, 2013, order granting Zambezia's motion for expedited discovery and to quash the subpoena served on his ISP. See Fed.R.Civ.P. 45(c)(3)(A). Also, Defendant Doe # 55 moves to sever for improper joinder pursuant to Federal Rules of Civil Procedure 20 and 21. For the following reasons, the Court, in its discretion, denies Defendant's motion to vacate and quash. Further, the Court, in its discretion, denies Defendant Doe #55's motion to sever for improper joinder.

BACKGROUND

In its Complaint, Zambezia alleges that Defendants, whose true identities are unknown at this time, acted in a collective and interdependent manner via the Internet in the unlawful reproduction and distribution of its copyrighted motion picture, "Adventures in Zambezia, " by means of the interactive "peer-to-peer" file transfer technology protocol called BitTorrent. (R. 1, Compl. ¶ 4.) Zambezia further alleges that this present lawsuit involves one "swarm" in which numerous Defendants engaged in mass copyright infringement of "Adventures in Zambezia." ( Id. ¶ 5.) According to Zambezia, each Defendant illegally uploaded and shared the motion picture within this swarm. ( Id. ) In addition, Zambezia contends that each Defendant was a willing and knowing participant in the swarm and engaged in such participation for the purpose of infringing Zambezia's copyrighted work. ( Id. ¶ 6.) Also, Zambezia alleges that by participating in the swarm, each Defendant participated in the same transaction, occurrence, or series of transactions or occurrences as the other Defendants in the same swarm. ( Id. ¶ 7.)

Before turning to Defendant Doe #55's motion, a description of the BitTorrent protocol is in order:

BitTorrent is a software protocol that facilitates the practice of peer-to-peer file sharing used to distribute large amounts of data over the internet. To share information using BitTorrent, an initial file-provider (the "seeder") elects to share an initial file, called a "seed, " with a torrent network. The file to be distributed is divided into segments called "pieces." Other users ("peers") intentionally connect to the seed file to download it. As each peer receives a new piece of the file, the peer also immediately becomes a source of that piece for other peers, relieving the original seeder from having to send that piece to every peer requesting a copy. This is the key difference between BitTorrent and earlier peer-to-peer file sharing systems: "BitTorrent makes file sharing a cooperative endeavor."
...
After a peer completely downloads the file, it continues to transmit pieces of the file to other users until it disconnects from BitTorrent. As additional peers request and receive pieces of the same file, each user becomes a part of the network from which the file can be downloaded. As more users join the network, the speed and efficiency of downloads increases. The group of seeders and peers uploading and downloading the identical file are called a "swarm." While connected to the swarm, users continuously download pieces of the file until they have obtained a complete file and continuously upload pieces of the file to other users in the swarm. Even after a user exits the swarm, the identical file pieces that the user downloaded from other users and then shared with peers continue to circulate throughout the swarm. BitTorrent swarms can survive continuously for months or even years.

Osiris Entm't, LLC v. Does 1-38, No. 13 C 4901, 2013 WL 4478908, at *1 (N.D. Ill. Aug. 20, 2013) (citation omitted); see also Malibu Media, LLC v. John Does 1 -6, ___F.R.D. ___, 2013 WL 2150679, at *1-2 (N.D. Ill. May 17, 2013).

I. Motion to Vacate and Quash

First, the Court addresses Defendant Doe #55's motion to vacate and quash. Federal Rule of Civil Procedure 45 provides that a court shall quash or modify a subpoena if it requires disclosure of privileged or protected information or subjects a person to undue burden. See Fed.R.Civ.P. 45(c)(3)(A); Northwestern Mem'l Hosp. v. Ashcroft, 362 F.3d 923, 935 (7th Cir. 2004). "A party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests." United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982). The party seeking to quash a subpoena has the burden of establishing Rule 45(c)(3)(A)'s requirements. See Pacific Century Int'l, Ltd. v. Does 1-37, 282 F.R.D. 189, 193 (N.D. Ill. 2012). Motions to quash are within the sound discretion of the district court. See Griffin v. Foley, 542 F.3d 209, 223 (7th Cir. 2008).

In his motion, Defendant Doe #55, who is represented by counsel, argues that the Court should vacate its April 4, 2013, order granting Zambezia's request to serve third-party subpoenas upon the unidentified Defendants' ISPs because Zambezia failed to establish good cause to conduct this expedited discovery. See Deckers Outdoor Corp. v. P'ships and Unincorporated Assoc., No. 13 C 2167, 2013 WL 1337616, at *10 (N.D. Ill. Mar. 27, 2013) ("To determine whether to authorize expedited discovery in a particular case, courts generally apply a good cause' standard."). In particular, Defendant Doe #55 argues that the Court should vacate its order because Zambezia is a "copyright troll" who has filed "multitudes of copyright suits solely to extort quick settlements." Needless to say, calling Zambezia a copyright troll and alleging that it is trying to extort a settlement does little to support Defendant's argument that Zambezia did not establish good cause for the expedited discovery. See Hard Drive Prods., Inc. v. Doe, 283 F.R.D. 409, 410 (N.D. Ill. 2012) ("In deciding a motion for expedited discovery, the Court evaluates the entirety of the record to date and the reasonableness of the request in light of all the surrounding circumstances.'") (citation omitted).

Next, Defendant Doe #55 argues that Zambezia did not establish that it had good cause to conduct expedited discovery because in a similar lawsuit, Zambezia Film Pty Ltd. v. Does 1-45, 13 C 1747, Zambezia presented the same declaration in support of its expedited discovery request, and in that case, Judge Tharp denied Zambezia's motion because he determined that he could not rely on the declaration. When granting Zambezia's expedited discovery motion in the present action, the Court, exercising its discretion, not only relied on the declaration - but also Zambezia's detailed legal memorandum, counsel's statements made in open court, and the breadth and purpose of the discovery request - in concluding that Zambezia had good cause to issue third-party subpoenas to the ISPs before the parties' Rule 26(f) conference. See Ibarra v. City of Chicago, 816 F.Supp.2d 541, 554 (N.D. Ill. 2011). Therefore, Defendant Doe #55's argument is unavailing and the Court denies his motion to vacate the April 4, 2013, order.

In addition, Defendant Doe #55 moves to quash the subpoena issued to his ISP because the information it seeks is not relevant under Rule 26(b)(1). In particular, he argues that the subpoena is not relevant because it seeks the person paying for the Internet service, namely, the subscriber, who may not necessarily be the purported ...


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