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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

MALIBU MEDIA, LLC, )

)

Plaintiff, ) Civil Case No. 1:12-cv-04676

)

v. )

)

JOHN DOES 1-50, )

)

Defendants. )

)

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO MOTION TO

QUASH OR MODIFY SUBPOENA [DKT. #12]

I. INTRODUCTION

Plaintiff respectfully requests the Court deny Defendant’s Motion because Defendant has

not demonstrated a proper basis to quash the subpoena and joinder is proper. “While we would

like to think that everyone obeys the law simply because it is the law and out of a sense of

obligation, we also know that laws without penalties may be widely ignored.”1 Plaintiff has

suffered great harm due to infringements committed by thousands of residents in this District and

has no option but to file these suits to prevent the further widespread theft of its copyright.

The Honorable Magistrate Judge Cudmore of the Central District recently denied a

similar motion sever and quash. See Patrick Collins, Inc. v. John Does 1-9, No. 12-CV-3161

(C.D. Ill. Sept. 18, 2012). Additionally, this Court has issued six opinions addressing the same

issues in BitTorrent copyright infringement actions holding that similar motions should be

denied because joinder is proper at this stage of the litigation proceedings. See First Time

Videos, LLC v. Does 1-76, 276 F.R.D. 254, 257 (N.D. Ill. 2011) (“At this stage, joinder is

1

 Pornography, Technology, and Process: Problems and Solutions on Peer-to-Peer Networks Statement of

Marybeth Peters The Register of Copyrights before the Committee on the Judiciary 108th Cong. (2003)

available at http://www.copyright.gov/docs/regstat090903.html

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appropriate.”); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 252 (N.D. Ill. 2011)

(“An examination of each of these requirements shows that joinder is proper at this time.”);

MGCIP v. Does 1-316, 10 C 6677, 2011 WL 2292958 (N.D. Ill. June 9, 2011) (“The Court also

finds that the putative defendants's arguments that they were improperly joined are premature.”);

Hard Drive Productions, Inc. v. Does 1-55, 11 C 2798, 2011 WL 4889094 (N.D. Ill. Oct. 12,

2011) (“At this pleading stage, Hard Drive's allegation that Does 1–55 have infringed Hard

Drive's copyright through BitTorrent—the nature of which necessitates a concerted action by

many people in order to disseminate files—is sufficient to satisfy Rule 20(a).”); Pac. Century

Int'l v. Does 1-31, 11 C 9064, 2012 WL 2129003 (N.D. Ill. June 12, 2012) (“at least at this stage,

Plaintiff's allegations that the anonymous defendants participated in the same “swarm” (at

varying times spanning just over one month) sufficiently alleges that they were involved in “a

series of transactions” to warrant joinder under Rule 20.”); Sunlust Pictures, LLC v. Does 1-75,

12 C 1546, 2012 WL 3717768 (N.D. Ill. Aug. 27, 2012) (“joinder is appropriate in this case

because Sunlust has alleged sufficient facts to provide a basis for joinder of all of the

defendants.”)

Both the Eighth and Second Circuits, the only circuits to rule on the issue, have approved

the use of Rule 45 subpoenas in on-line infringement cases to identify anonymous Doe

Defendants. The Eight Circuit held “organizations such as the RIAA can file a John Doe suit,

along with a motion for third-party discovery of the identity of the otherwise anonymous ‘John

Doe’ defendant.” In re Charter Communications, Inc., Subpoena Enforcement Matter, 393 F.3d

771, FN3 (8th Cir. 2005). Similarly, in Arista Records, LLC. v. Doe 3, 604 F.3d 110 (2d Cir.

2010) the Second Circuit upheld the District Court’s denial of a motion to quash after Arista

obtained leave “to serve a subpoena on defendants’ common ISP, the State University of New

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York at Albany.” By so holding, the Second Circuit approved the process of issuing a Rule 45

subpoena to an ISP to identify anonymous Doe Defendants.

At this stage of the litigation process, Plaintiff has no other option but to file suit against

the owners of these IP addresses to obtain the infringers identity. If this Court were to follow

Defendant’s rationale, Plaintiff would have no recourse against the mass copyright infringement

it suffers on a daily basis. Accordingly, this Court should deny the subject motion.

II. JOINDER IS PROPER

“‘With the advent of industrialization, high-speed transportation, and urbanization, more

intricate disputes appeared with greater frequency,’ requiring greater use of the more liberal

joinder procedures.” Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1094 (2d Cir. 1992)

(quoting 6A Wright, Miller & Kane § 1581). Fed.R.Civ.P. 20(a) permits joinder when: (1) there

is the “same transaction or occurrence” or (2) a “series of transactions or occurrences” or (3)

claims upon which the plaintiff asserts the right to relief jointly or “severally” against the

defendants. Rule 20(a) not only permits permissive joinder when there is the same transaction or

occurrence, it also permits joinder when a Plaintiff has pled (a) “series of transactions or

occurrences” or (b) joint or several liability. Plaintiff has done both here.

“Here, the nature of the technology compels the conclusion that defendants’ alleged

transactions were part of the same “series of transactions or occurrences.” Accordingly, we find

that the Rule 20(a)(2) criteria for joinder are satisfied.” Malibu Media, LLC v. John Does 1-5,

12 CIV. 2954 NRB, 2012 WL 3641291 (S.D.N.Y. Aug. 24, 2012) (memorandum and order

denying motion to sever and dismiss) (internal citation omitted).

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A. The Infringement Occurred Through a Series of Transactions

Under Fed. R. Civ. P. 20(a) “series” has been interpreted by Circuit Courts to mean a

“logically related” fact pattern.

[A]ll ‘logically related’ events entitling a person to institute a legal action against

another generally are regarded as comprising a transaction or occurrence. The

analogous interpretation of the terms as used in Rule 20 would permit all

reasonably related claims for relief by or against different parties to be tried in a

single proceeding. Absolute identity of all events is unnecessary.

Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974).

While the logical relationship test does not require it, should this matter go to trial,

Plaintiff will prove that the Defendants’ infringement was committed through the same

transaction or through a series of transactions with mathematical certainty by demonstrating,

inter alia, that the algorithm used by BitTorrent Trackers would have caused the entire series of

transactions to be different but for each of the Defendants’ infringements.

i. Here, Plaintiff Properly Pled a Series of Transactions

Plaintiff alleges that its investigator, IPP Limited, was able to receive a piece of

Plaintiff’s copyrighted movie from each Defendant. In order for Plaintiff’s investigator to have

received this piece, each alleged infringer must have had part of Plaintiff’s movie on his or her

computer and allowed others to download it.

There are four possible ways that each Defendant may have received the piece of the

movie that was sent to IPP Limited. First, the Defendant may have directly connected with the

initial seeder and downloaded a piece of the file directly from the initial seeder’s computer.

Second, the Defendant may have directly connected to and received a piece of the movie from a

seeder who downloaded the movie from the initial seeder or other infringers. Third, the

Defendant may have connected to or received a piece of the movie from other Defendants that

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received the movie from the initial seeder or other infringers. Fourth, the Defendant may have

connected to or received a piece of the movie from other infringers who downloaded from other

Defendants, other infringers, other seeders, or the initial seeder.

“In other words . . . at some point, each Defendant downloaded a piece of the Movie,

which had been transferred through a series of uploads and downloads from the Initial Seeder,

through other users or directly, to each Defendant, and finally to IPP.” Patrick Collins, Inc. v.

John Does 1-21, 2012 WL 1190840, at *5 (E.D. Mich. Apr. 5, 2012). Each defendant

participated in the same series of transactions. These transactions are all reasonably related, not

just because Defendants used BitTorrent, but also because Defendants utilized the computers of

others to download the same file, and allowed others to access their computer to receive it.

ii. The Supreme Court Allows Joinder When the Defendants Do Not

Directly Interact With Each Other

In United States v. Mississippi, 380 U.S. 128 (1965) the Supreme Court found that the

joinder of six defendants, election registrars of six different counties, was proper because the

allegations were all based on the same state-wide system designed to enforce the voter

registration laws in a way that would deprive African Americans of the right to vote. Although

the complaint did not allege that the registrars directly interacted with each other, or even that

they knew of each other’s actions, or that each other’s actions directly affected each other in any

way, the Supreme Court interpreted Rule 20 to hold a right to relief severally because the series

of transactions were related and contained a common law and fact. Id. at 142-143.

[T]he complaint charged that the registrars had acted and were continuing to act

as part of a state-wide system designed to enforce the registration laws in a way

that would inevitably deprive colored people of the right to vote solely because of

their color. On such an allegation the joinder of all the registrars as defendants in

a single suit is authorized by Rule 20(a) of the Federal Rules of Civil Procedure.

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Id. at 142. Indeed, the Supreme Court held all of the defendants were joined properly because

they were all acting on the basis of the same system which created a transactional relatedness.

Likewise, in the case at hand, it is not necessary for each of the Defendants to have

directly interacted with each other Defendant, or have shared a piece of the file with each and

every Defendant when downloading the movie. Defendant’s argument that joinder is improper

because the infringement occurred from different locations at different times is therefore

unavailing. The defendants are properly joined because their actions directly relate back to the

same initial seed of the swarm, and their alleged infringement further advances the series of

infringements that began with that initial seed and continued through other infringers. The

Defendants all acted under the same exact system. Just as it was not alleged in United States v.

Mississippi that the registrars shared with each other their efforts to prevent African Americans

from voting, it is not necessary for the Defendants to have shared the pieces of the movie with

each other. It is sufficient that the Defendants shared pieces that originated from the same exact

file, and opened their computer to allow others to connect and receive these pieces.

B. The Time Period For Infringement

The nature of the BitTorrent protocol provides for continuous seeding and distributing of

the movie long after it has downloaded. Without stopping the program by physically unchecking the automatic seeding, an alleged infringer likely will seed and distribute a movie for

an extended period of time. As the Eastern District of Michigan explained the technology, even

after an infringer has completed a download of the movie, he or she may distribute the movie for

weeks after having received the download.

[I]t is not that an infringer would wait six weeks to receive the Movie, it is that the

infringer receives the Movie in a few hours and then leaves his or her computer

on with the Client Program uploading the Movie to other peers for six weeks.

Because the Client Program's default setting (unless disabled) is to begin

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uploading a piece as soon as it is received and verified against the expected Hash,

it is not difficult to believe that a Defendant who downloaded the Movie on day

one, would have uploaded the Movie to another Defendant or peer six weeks

later. This consideration, however, is irrelevant since concerted action is not

required for joinder.

Patrick Collins, Inc. v. John Does 1-21, 2012 WL 1190840 (E.D. Mich. Apr. 5, 2012) (emphasis

added). Here, Plaintiff’s investigator received a piece of the movie from the defendants when

they were allegedly distributing it to others.

The Southern District of New York, in recognizing that the concept of joinder is

adaptable to changing technological landscapes impacting the complexity of lawsuits stated,

“[w]hile the period at issue may therefore appear protracted by ordinary standards, the doctrine

of joinder must be able to adapt to the technologies of our time.” Malibu Media, LLC v. John

Does 1-5, 12 CIV. 2954 NRB, 2012 WL 3641291 (S.D.N.Y. Aug. 24, 2012). The Michigan

Court further explained that time constraints should not impact that the infringements occurred

through a series of transactions. “[T]he law of joinder does not have as a precondition that there

be temporal distance or temporal overlap; it is enough that the alleged BitTorrent infringers

participated in the same series of uploads and downloads in the same swarm.” Patrick Collins,

Inc. v. John Does 1-21, 2012 WL 1190840 (E.D. Mich. Apr. 5, 2012.)

C. There Are Common Issues of Fact and Law

Rule 20(a)(2)(B) requires the plaintiffs' claims against the putative defendants to contain

a common question of law or fact. “The Plaintiff meets this requirement. In each case, the

Plaintiff will have to establish against each putative defendant the same legal claims concerning

the validity of the copyrights in the movies at issue and the infringement of the exclusive rights

reserved to the plaintiffs as copyright holders.” Nu Image, Inc. v. Does 1-3, 932, 2:11-CV-545-

FTM-29, 2012 WL 1255189 (M.D. Fla. Apr. 12, 2012). The “factual issues related to how

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BitTorrent works and the methods used by plaintiffs to investigate, uncover and collect evidence

about the infringing activity will be essentially identical for each putative defendant.” Call of the

Wild Movie v. Does 1-1,062, 770 F. Supp. 2d 332, 344-345 (D.D.C. 2011).

D. Joinder Promotes Judicial Efficiency and is Beneficial to Putative Defendant

Joinder of the Defendants creates judicial efficiency, particularly at this stage of the

litigation process and is beneficial to the Doe Defendants. “The Court finds that joinder, at this

stage of the litigation, will not prejudice any party and will promote judicial efficiency.” Patrick

Collins, Inc. v. John Does 1-33, 11-CV-02163-CMA-MJW, 2012 WL 415424 (D. Colo. Feb. 8,

2012). “[C]ourts have opined that requiring aggrieved parties to file hundreds or even thousands

of separate copyright infringement actions would neither be cost efficient for the plaintiffs nor

promote convenience or judicial economy for the courts.” Digital Sin, Inc. v. Does 1-176, 279

F.R.D. 239 at FN 6 (S.D.N.Y. 2012). This is especially true in cases where a limited number of

Doe Defendants have been joined together as here.

Doe/4 also asks the Court to exercise its discretion to sever the cases because

joinder does not promote judicial economy. Doe/4 again cites a number of courts

that have done so. Most of those cases involved hundreds of defendant Does only

known by IP addresses. In those cases, joinder might have been too cumbersome.

The Court sees no such problem in this case. Collins has named nine defendants,

not hundreds. The nine Alleged IP Addresses all are located in this District.

Joinder at the discovery phase would be more efficient than conducting the same

discovery in nine separate cases.

Patrick Collins, Inc. v. John Does 1-9, 3:12-cv-03161-RM-BGC, DKT. #7 (C.D. Ill. Sept. 18,

2012) (emphasis added).

Although Doe Defendants may later assert different factual and legal defenses, this does

not defeat joinder at this stage of the litigation. “The Court recognizes that each Defendant may

later present different factual and substantive legal defenses, but that does not defeat, at this stage

of the proceedings, the commonality in facts and legal claims that support joinder under Rule

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20(a)(2)(B).” K-Beech Inc., v. John Does 1-57, Case 2:11-cv-00358-CEH-SPC, at *12 (M.D.

Fla. 2011). See also Patrick Collins, Inc. v. John Does 1-15, 11-CV-02164-CMA-MJW, 2012

WL 415436 (D. Colo. Feb. 8, 2012) (same) (quoting Call of the Wild Movie, 770 F.Supp.2d at

343).

E. The Cases Relied Upon by Defendant Have Been Distinguished in Such a

Way as Would Make Joinder Proper Here

Defendant cites various cases in an effort to avoid joinder. Some of the cases cited by

Defendant, unlike this case, involve multiple Plaintiffs and infringement of multiple copyrights

in the same lawsuit. See (1) Twentieth Century Fox Film Corp. et. al. v. Does 1-12, Case No.

3:04-cv-04862-WHA, (N.D. Cal. 2004), (6 Plaintiffs – 13 songs, see the Complaint at ¶¶ 4-11

and Exhibit A to the Complaint); (2) Interscope Records, et. al. v. Does 1-25, 2004 U.S. Dist.

LEXIS, Case No. 6:04-cv-197 – ACC- DAB (M.D. Fla. 2004), (16 Plaintiffs and dozens if not

hundreds of songs, see the Complaint at ¶¶ 4-19 and Exhibit A to the Complaint); and (3) BMG

Music v. Does 1-203, Case No. 2:04-cv-00650-CN (E.D.P.A. 2004) (17 Plaintiffs and numerous

works, see the Complaint at ¶¶ 4-19 & 23). Since multiple works were at issue in these

copyright cases, the Plaintiffs in those cases did not plead that the online infringements were part

of the same transaction or series of transactions or that the defendants in those cases were

contributorily liable for each others’ infringement.

Defendant’s citation to LaFace Records v. Does 1-38, 2008 WL 544992 (E.D.N.C. 2008)

is also misplaced. Def.’s Mot. at p. 5. In LaFace, eleven recording studios sued over dozens of

copyrights. The only commonality supporting joinder was that the Defendants used Gnutella, a

peer-to-peer file sharing protocol. Significantly, Gnutella works through one peer to one peer

transactions; i.e., a user connects to one computer and gets the whole file. Here, Plaintiff only

sued on one copy of one movie which was broken up into pieces by BitTorrent. And, Plaintiff

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alleged that the Defendants were distributing the pieces to each other. Indeed, BitTorrent works

differently than Gnutella insofar as it causes all participants in a swarm to upload pieces of the

movie to each other. Consequently, here, Plaintiff pled that each of the Defendants is

contributorily liable for the infringement of each of the other Defendants. This is yet another

basis to hold that joinder is proper.

F. Defendant’s Argument Concerning Filing Fees Has Been Rejected

Recently, the District Court for the District of Columbia examined the issue of filing fees in

copyright infringement cases in an evidentiary hearing on the issue of joinder. “The Movant

ISPs acknowledged that the plaintiff would not be able to protect its copyright if the Court were

to sever the unknown defendants in this action due to the cost of filing an individual lawsuit for

each of the thousands of IP addresses identified as being used for allegedly online infringing

activity. Hearing Tr. at 127–28 (Apr. 27, 2012).” AF Holdings LLC v. Does 1-1,058, CIV.A.

12-0048 BAH, 2012 WL 3204917 (D.D.C. 2012). Judge Howell expressly found that individual

filing fees would impossibly burden plaintiff’s Petition Clause right.

Severing the Doe defendants would essentially require the plaintiff to file 1,058

separate cases, pay separate filing fees, and obtain 1,058 separate subpoenas for

each of the Listed IP Addresses. This burden for the plaintiff—not to mention the

judicial system—would significantly frustrate the plaintiff's efforts to identify and

seek a remedy from those engaging in the alleged infringing activity. Moreover,

such an outcome would certainly not be in the “interest of convenience and

judicial economy,” or “secure the just, speedy, and inexpensive determination of

th[e] action.” Lane, 2007 WL 2007493, at *7 (declining to sever defendants

where “parties joined for the time being promotes more efficient case

management and discovery” and no party was prejudiced by joinder).

Id. at *13. (Emphasis added).

The District Court of Colorado also addressed the issue of filing fees in copyright

infringement actions and noted that requiring a plaintiff to pay the filing fees for each defendant

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limited its ability to protect its rights, contrary to Fed. R. Civ. P. 1. See Patrick Collins, Inc. v.

John Does 1-15, 11-CV-02164-CMA-MJW, 2012 WL 415436 (D. Colo. 2012).

If the Court were to sever the Doe Defendants at this juncture, Plaintiff would

face significant obstacles in its efforts to protect the Work from copyright

infringement, which would only needlessly delay the suit. Furthermore, Plaintiff

would need to file individual cases, which would require Plaintiff to pay the Court

separate filing fees in each case, further limiting its ability to protect its legal

rights. See Fed.R.Civ.P. 1 (providing that the Federal Rules of Civil Procedure

should be construed “to secure the just, speedy, and inexpensive determination of

every action and proceeding.”). Thus, Plaintiff would be substantially prejudiced

by severance.

Id. at *3.

Requiring copyright holders to pay a filing fee for each individual infringement

impermissibly burdens Plaintiff because it would be unable to bring the petitions that need to be

brought. Here, Plaintiff would simply be unable to afford even 1% of the individual actions

against infringers each month. Plaintiff would not be able to effectively deter infringement.

III. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court deny the subject

motion.

Dated: October 29, 2012

Respectfully submitted,

NICOLETTI & ASSOCIATES, PLLC

By: /s/ Paul J. Nicoletti

Paul J. Nicoletti, Esq. (P44419)

36880 Woodward Ave, Suite 100

Bloomfield Hills, MI 48304

Tel: (248) 203-7800

Fax: (248) 203-7801

E-Fax: (248) 928-7051

Email: paul@nicoletti-associates.com

Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on October 29, 2012, I electronically filed the foregoing document

with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of

record and interested parties through this system.

By: /s/ Paul J. Nicoletti

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