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Flava Works, Inc. v. John Does 1 To 293

United States District Court, Seventh Circuit

January 21, 2014

FLAVA WORKS, INC., Plaintiff,
v.
JOHN DOES 1 TO 293, Defendants.

MEMORANDUM OPINION AND ORDER

JOAN H. LEFKOW, District Judge.

This is one of many recent Internet copyright infringement cases filed in this district and in districts across the country. Courts have described the typical trajectory of these cases as follows: The plaintiff, who owns a copyright in the infringed media (often pornographic), claims that the unnamed defendants illegally downloaded the media using software called "BitTorrent." Although the plaintiff does not have access to the identity of the defendants, it is able to obtain the internet protocol addresses ("IP addresses") of the alleged infringers, and it uses these IP addresses to identify the unnamed defendants in its suit. The plaintiff then seeks discovery from the internet service providers ("ISPs") for these IP addresses to identify the defendants. After the defendants are identified, they are served with the complaint. See Malibu Media, LLC v. Does 1-68, Nos. 12 C 6675, 12 C 6677, 2013 WL 5423872, at *1 (N.D. Ill. Sept. 27, 2013).

The putative defendants and the subpoenaed ISPs have developed several theories in an attempt to dismiss or curtail these actions, several of which are evident in the motions pending before the court in this case. "While numerous district court judges have ruled on such motions, these disputes have yet to percolate up to the Seventh Circuit, leaving each district court to plot its own course in handling this influx of litigation." Id.

The following motions are currently pending in this case:

(1) Motion of Flava Works, Inc. ("Flava") to compel Comcast Cable Communications, LLC, as amended (dkts. 19, 20);
(2) Flava's motion to compel Universal Cable Holdings, Inc. (d/b/a Suddenlink Communications) (dkt. 21); and
(3) a putative defendant's motion to dismiss complaint and issue protective order (dkt. 29).

Because the motions raise common issues, the court considers them together. For the reasons set forth below, the court grants plaintiff's motion to compel Comcast, denies plaintiff's motion to compel Suddenlink, and denies the putative defendant's motion to dismiss but grants its request for anonymity. In addition, the court denies discovery from ISPs (or if already completed, bars use of information discovered) with respect to IP addresses located outside of Illinois.

BACKGROUND[1]

Flava is a corporation incorporated under the laws of the State of Florida with offices located in Miami, Florida and Chicago, Illinois. Flava produces adult entertainment, including pictures and video, and distributes its media through various distributors and its own websites. Flava holds the copyright to the video, "Thugboy V.11-Running from the Dick, " and alleges that defendants illegally downloaded and shared the video using BitTorrent. A recent opinion in this district describes BitTorrent as follows:

[T]he BitTorrent protocol breaks up large digital files into smaller pieces. Participants in a BitTorrent file-sharing instance (a "swarm") download these individual pieces from other peer participants. When an individual piece has been downloaded, the protocol permits a participant to make that piece available for peers to download. When a participant has downloaded copies of all the pieces that made up the original file, the software assembles a copy of the file from the constituent pieces. After his or her own copy is assembled, the user may elect to leave the BitTorrent software running, which makes pieces of the file available for new peers to download. A BitTorrent user may leave the swarm at any time, before or after completing her download, ending her participation in both downloading and sharing. A user may also rejoin the swarm at a later time to complete her download or to continue sharing pieces with other peers. Thus, while a participant in the swarm is downloading the file, and possibly even afterwards, that participant may also be acting as a source for the download of portions of the file by other peers in the swarm.

Purzel Video GmbH v. Does 1-108, No. 13 C 0792, 2013 WL 6797364, at *2 (N.D. Ill.Dec. 19, 2013).

Flava used BitTorrent application software to determine the IP addresses of participants involved in an August 30, 2012 swarm that distributed the Thugboy video.[2] (Dkt. 3 at 4.) Attached as Exhibit B to the complaint is a list of IP addresses, the date and time of the alleged file sharing by each IP address, the ISP for each IP address, and the location (by city, state and country) of each IP address.[3] ( Id., Ex. B.) Eleven of the 293 John Doe defendants have IP addresses within Illinois.[4] ( See Dkt. 44, Ex. C.) Flava asserts claims of copyright infringement and civil conspiracy against the defendants. (Dkt. 3 at 4-5.)

After filing its complaint, Flava filed a motion for leave to take limited and expedited discovery from ISPs to determine the identities of the John Doe defendants. (Dkt. 7.) The motion was granted (dkt. 9) and Flava issued subpoenas to several ISPs for records relating to the identified IP addresses. Comcast and Suddenlink (the "Objecting ISPs") objected to the subpoenas and the court ordered Flava to move to compel them to comply with the subpoenas. (Dkt. 18.) Flava's motions to compel Comcast and Suddenlink are similar (dkts. 20, 21), and Comcast and Suddenlink responded with similar oppositions (dkts. 33, 34).[5] The Objecting ISPs argue that the subpoenas impose an undue burden on them and are not reasonably calculated to lead to discovery of evidence relevant to the pending claims. Specifically, they argue that (1) Flava's subpoenas impermissibly seek personal information of subscribers who reside outside of this district and the subscribers should not be subject to Flava's arbitrarily selected forum; (2) the defendants are ...


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