United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
Plaintiff Malibu Media LLC has filed a copyright infringement suit against defendant John Doe,  who is identified only by his use of the IP address 22.214.171.124. Doe has asserted nineteen affirmative defenses and a counterclaim for declaratory relief. Malibu Media has moved to dismiss the counterclaim and to strike eight of the affirmative defenses. For the reasons stated below, the Court dismisses Doe's counterclaim and strikes all but two of the disputed defenses.
The Court takes the following facts from Malibu's complaint, indicating which facts are and are not disputed. Malibu is a California-based company that creates and distributes adult films. Doe contends that the company also creates and distributes child pornography as that term is defined in certain federal statutes, or at least that it fails to comply with certain federal statutory requirements geared toward preventing the production and distribution of child pornography.
BitTorrent is an online venue for peer-to-peer sharing of large amounts of data, including digital video files. According to Malibu, "[e]ach bit of a BitTorrent file is assigned a unique cryptographic hash value" which "acts as that bit's unique digital fingerprint." Compl. ¶ 14. Doe disagrees, stating that "[i]t is possible (although rare) for two unrelated pieces to have an identical cryptographic hash value, as a matter of pure coincidence." Answer ¶ 15.
Malibu says that at a date not identified in the complaint, its retained investigator, IPP Limited, established a TCP/IP connection with Doe and downloaded one or more bits of various digital media files from him. All of the bits, Malibu alleges, belong to copyrighted films that it owns. Malibu alleges that IPP was able to confirm that it had downloaded Malibu's copyrighted content from Doe. Malibu further alleges that "[a]t no time did IPP Limited upload Plaintiff's copyrighted content to any other BitTorrent user." Compl. ¶ 20.
Malibu has sued Doe for direct copyright infringement. It requests statutory damages of $150, 000 per infringed work pursuant to 17 U.S.C. § 504(a) and (c). Malibu also alleges that Doe is distributing its copyrighted films via BitTorrent. Malibu bases this allegation on the fact that Doe pays the bill for Internet service associated with an IP address that is being used to distribute the movies.
As indicated earlier, Doe's answer to Malibu's complaint includes nineteen affirmative defenses, and he has also asserted a counterclaim for declaratory relief. In his counterclaim, Doe seeks a determination that his affirmative defenses are meritorious and that he is not liable to Malibu for copyright infringement. He does not seek damages. Malibu has moved to dismiss the counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike eight of Doe's affirmative defenses pursuant to Rule 12(f), specifically, defenses 1, 2, 3, 4, 5, 8, 17, and 19.
In considering Malibu's motion to dismiss Doe's counterclaim, the court "accept[s] all well pleaded allegations in the counterclaim as true and draw[s] all reasonable inferences in favor of the counterclaim plaintiff." Cozzi Iron & Metal, Inc. v. U.S. Office Equip., Inc., 250 F.3d 570, 574 (7th Cir. 2001). "If the allegations in a complaint do not 'state a claim to relief that is plausible on its face, ' the claim cannot survive a motion to dismiss." Carmody v. Bd. of Trs. of Univ. of Ill., 747 F.3d 470, 480 (7th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
A court may strike an affirmative defense if it is legally insufficient on its face. See Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989). The standard for deciding a motion to strike an affirmative defense is effectively the same as the standard for a motion to dismiss a complaint for failure to state a claim. See, e.g., Renalds v. S.R.G. Restaurant Grp., Chicago, LLC, 119 F.Supp.2d 800, 802-03 (N.D. Ill. 2000). Doe therefore must make factual allegations sufficient to raise the asserted defenses above the "speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court accepts the allegations in the affirmative defenses as true and considers them in the light most favorable to Doe. Id. at 572.
The Court addresses Doe's counterclaim first and then addresses each of the disputed affirmative defenses.
Doe's counterclaim seeks no affirmative relief other than a determination that his affirmative defenses are meritorious and that he is not liable to Malibu for copyright infringement. As such, it is not appropriately a counterclaim. See Rayman v. Peoples Sav. Corp., 735 F.Supp. 842, 852 (N.D. Ill. 1990) (citing Tenneco Inc. v. Saxony Bar & Tube, Inc., 776 F.2d 1375, 1379 (7th Cir. 1985), and Green Bay Packaging, Inc. v. Hoganson & Assocs., Inc., 362 F.Supp. 78 (N.D. Ill. 1973), for the proposition that what is ...