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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

 RIDING FILMS, Inc., : 

 : Case No. 2:13-CV-00046 

 Plaintiff, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge King 

WADE WHITE, et al., : 

 : 

 Defendants. :

OPINION & ORDER 

I. INTRODUCTION

 This matter is before the Court on Plaintiff Riding Films, Inc.’s Motion to Dismiss 

Defendants’ Counterclaims pursuant to Federal Rule of Civil Procedure 12 (b)(6). (Doc. 

40). Plaintiff asks this Court to dismiss all three counterclaims for failure to state a claim upon 

which relief may be granted. For the reasons set forth herein, Plaintiff’s Motion is GRANTED 

IN PART AND DENIED IN PART. 

II. BACKGROUND 

 On January 16, 2013, Plaintiff filed suit against 64 unnamed “Doe” Defendants, who are 

identified in the Complaint by their alleged internet protocol (“IP”) addresses. Plaintiff seeks 

damages and injunctive relief related to Defendants’ wrongful copying and distribution of 

unauthorized copies of the film “Dawn Ride,” in violation of Plaintiff’s copyrights. Defendants 

allegedly used a peer-to-peer (“P2P”) network called “BitTorrent protocol” or “torrent” to share 

and download a small piece of data from other peers. Peers who have any part in the entire file 

(a “seed”) that he or she is downloading can be the source of the download and consequently be 

the distributor of the file. 

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 Plaintiff moved this Court for leave to take discovery prior to Rule 26(f) conference, 

asserting that it needed to subpoena records of various Internet Service Providers in order to 

name properly the alleged Defendants. (Doc. 2). The Court granted Plaintiff’s Motion, finding 

that good cause for expedited discovery is “easily established in copyright infringement 

cases.” (Doc. 4). Once leave was granted by the Court, Plaintiff served the ISP’s with a 

subpoena “requesting the names, addresses, telephone numbers, email addresses and Media 

Access Control Addresses” for each individual or entity that accessed the certain Internet 

Protocol Address (“IP Address”) that was listed. (Doc. 40 at 3). Plaintiff contends that the 

information sought was limited to the discovery of the identities of the Defendants in compliance 

with the Court order. (Id.). 

 On September 6, 2013, Plaintiff filed its Amended Complaint for copyright infringement, 

naming seven individuals, two of whom were Shawn Denham and Brenda Wintle. Defendants 

filed separate motions to dismiss, which they withdrew at the preliminary pretrial conference on 

November 7, 2013. On November 29, 2013, Defendants filed separate, identical, counterclaims 

along with their answers and affirmative defenses. (Doc. 34; Doc. 35). Defendants allege that 

Plaintiff hired “Crystal Bay Corporation,” a corporation organized under the laws of South 

Dakota and currently listed in delinquent status, to provide private investigative services which 

led to the production of evidence to be used against Defendants, including IP addresses and other 

evidence which Plaintiff plans to use at trial. (Doc. 34 at 10). According to Defendants, Crystal 

Bay is not licensed by the State of Ohio to engage in private investigation services and therefore 

has violated O.R.C. § 4749.99 in its investigation. (Id.). Defendants assert three counterclaims 

against Plaintiff: (1) declaratory judgment for non-infringement; (2) invasion of privacy and 

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tortious violation of Ohio’s Private Investigator Licensing Statutes; and (3) computer fraud and 

abuse. Plaintiff now moves to dismiss Defendants’ counterclaims for failure to state a claim. 

III. STANDARD OF REVIEW 

 A case may be dismissed if the complaint does not state a claim on which relief can be 

granted. Fed. R. Civ. P. 12(b)(6). “A motion to dismiss for failure to state a claim is a test of the 

plaintiff’s cause of action as stated in the complaint, not a challenge to the plaintiff’s factual 

allegations.” Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). Consequently, 

the Court must construe the complaint in the light most favorable to the non-moving party, 

accept all factual allegations as true, and make reasonable inferences in favor of the non-moving 

party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 

434 (6th Cir. 2008); Murphy v. Sofamor Danek Gp., Inc., 123 F.3d 394, 400 (6th Cir. 

1997). However, the Court is not required to accept as true mere legal conclusions unsupported 

by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). 

 Although liberal, the Rule 12(b)(6) standard requires more than the bare assertion of legal 

conclusions to survive a motion to dismiss. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 

1993) (citation omitted). The complaint must “‘give the defendant fair notice of what the claim 

is, and the grounds upon which it rests.’” Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) 

(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). While a complaint need not contain 

“detailed factual allegations,” its “[f]actual allegations must be enough to raise a right to relief 

above the speculative level.” Twombly, 550 U.S. 544, 545. A complaint that suggests “the mere 

possibility of misconduct” is insufficient; rather, the complaint must state “a plausible claim for 

relief.” Iqbal, 556 U.S. 662, 678 (citing Twombly, 550 U.S. at 556). 

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IV. LAW AND ANALYSIS 

A. Declaratory Judgment 

 Plaintiff argues that the Defendants’ declaratory judgment counterclaims for noninfringement are nothing more than “mirror-images” of Plaintiff’s claims for copyright 

infringement and therefore should be dismissed. An adjudication of Plaintiff’s claims would 

render the counterclaims moot, Plaintiff insists, as both the factual and legal issues surrounding 

the Complaint and counterclaims are identical. (Doc. 40 at 4). Plaintiff claims Defendants have 

failed to identify a single factual or legal issue that is not mentioned in the Complaint, and 

therefore there is no purpose for the Court to retain Defendants’ counterclaims for declaratory 

judgment. (Id.). Plaintiff points out that the only difference in Defendants’ counterclaims is 

invalid copyright, which is, it argues, an affirmative defense to a copyright infringement 

allegation, not a separate claim. (Id.). 

 Defendants respond that they are entitled to a declaratory judgment of non-infringement 

because they did not commit any of the alleged acts of downloading or file sharing and, even if 

they did, they did not infringe, because Plaintiff’s copyright is invalid. (Doc. 43 at 

3). Defendants maintain that case law recognizes that mirror-image counterclaims should not 

always be dismissed, and argue that the declaratory judgment is necessary because the Court 

needs to determine whether Plaintiff has a valid copyright, given that it currently has at least 

fifteen other identical suits pending around the country. (Id. at 4). Defendants claim that 

Plaintiff’s copyright is invalid and states the following facts in their affirmative defense: (1) 

Plaintiff’s movie appears to be a remake of an earlier film; (2) Plaintiff does not seem to have 

paid for any rights in the earlier version, as the Copyright Office shows that the copyrights of the 

earlier film was assigned to Melange Pictures, LLC; (4) Melange Pictures, LLC, is a division of 

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Paramount Pictures, not an affiliate of Plaintiff. (Doc. 34 at 7). Defendants contend that a 

declaratory judgment of non-infringement is crucial because a ruling in favor of Defendants 

based solely on affirmative defenses will not sufficiently protect Defendants from future 

actions. (Doc. 43 at 4-5). 

 Plaintiff retorts that the case law cited by Defendants pertains to patent infringement and 

is not comparable to copyright infringement. (Doc. 45 at 7). Further, Plaintiff maintains that 

while in the past, mirror-image declaratory judgment counterclaims served the purpose of 

preventing tactical dismissals by plaintiffs, they are no longer necessary as Fed. R. Civ. P. 41(a) 

protects against this when both claims by the Plaintiff and Defendant are the same. (Id.). 

Plaintiff adds that, even if the counterclaims were not deemed to be mirror-images of the 

Complaint, they should still be dismissed for failure to state a claim for relief under the 

Declaratory Judgment Act, 28 U.S.C. § 2201, which affords district courts the discretion to 

determine whether and when to entertain an action for declaratory judgment. See Wilton v. 

Seven Falls Co., 515 U.S. 277, 282 (1995). Plaintiff claims that Defendants have failed to state a 

claim for relief, since they cannot demonstrate that Plaintiff is not the exclusive copyright 

holder. 

 A counterclaim for declaratory judgment in the copyright context is appropriate if a court 

could find non-infringement without adjudicating the validity of the underlying intellectual 

property, thus leaving the Defendant in fear of future actions. Dominion Elec. Mfg. Co. v. Edwin 

L. Wiegand Co., 126 F.2d 172, 175 (6th Cir. 1942). Defendants argue that a verdict of noninfringement is not sufficient because the Court could find non-infringement without 

adjudicating the validity of their invalid copyright counterclaim. (Doc. 43 at 4-5). Defendants 

want themselves and others to be free from future actions, which is particularly relevant in light 

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of the fact that Plaintiff has fifteen other identical suits pending around the country. (Id.). The 

Court recognizes that should Defendants achieve a verdict of non-infringement, their 

counterclaim for invalid copyright against the Plaintiff would not necessarily be adjudicated, and 

therefore finds a useful purpose in retaining Defendants’ counterclaims for declaratory judgment. 

 In their affirmative defense, Defendants allege that the Plaintiff’s movie appears to be a 

remake of a 1935 film and that the Plaintiff has not paid for any of the rights to the earlier 

version. (Doc. 34 at 7). Defendants also argue that although Plaintiff claims the earlier version 

was in the public domain, according to a September 1, 2006 filing found at the Copyright Office, 

Republic Pictures was the holder of the rights to the 1935 film and assigned their rights to 

Melange Pictures, LLC, which is not an affiliate of the Plaintiff. (Id.). Defendants have 

provided factual allegations to support a plausible claim that Plaintiff’s copyright is invalid. 

B. Invasion of Privacy and Tortious Violation of Ohio’s Private Investigator Licensing Statutes 

 Plaintiff next argues that Defendants’ counterclaims for invasion of privacy and tortious 

violation fail as no private information has been obtained. (Doc. 40). Plaintiff asserts that all 

information used to identify the Defendants was obtained through “Defendants’ own conduct on 

the peer to peer network, containing shared files, and any member of the public could have 

accessed that information.” (Id. at 7). Plaintiff insists that none of the factual allegations made 

by the Defendants refer to any private information that would be the basis for an Invasion of 

Privacy claim or support an “unwarranted appropriation or exploitation of Defendants’ 

personalities, publicizing of Defendant’s private affairs with which the public has no legitimate 

concern or wrongful intrusion into Defendant’s private activities in such a manner as to outrage 

or cause mental suffering, shame or humiliation to the Defendants.” (Id.). Additionally, Plaintiff 

asserts that Defendants’ claim for tortious violation also fails because any violation of this is 

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“subject to criminal penalty, a misdemeanor which cannot be brought as a civil claim.” (Id. at 

8.). Further, even a counterclaim for negligence per se should be dismissed because Defendants 

lack evidence that there has been a violation. (Doc. 43 at 6). Lastly, Plaintiff claims that the 

Defendants failed to allege what private information was or could have been obtained by the 

Plaintiff using private investigation and accordingly fail to state a claim for relief that is plausible 

on its face. Plaintiff adds that Defendants cannot demonstrate proximate cause by the Plaintiff or 

any damages cause by an act of the Plaintiff. (Id.). 

 Defendants acknowledge that they are unsure what information was acquired by Darren 

M. Griffin, the expert hired by Plaintiff to identify Defendants, but intend to remedy this problem 

by deposing him in future discovery. (Id.). Defendants suggest that if, after discovery is 

completed, they are unable to support their claims, they will withdrawal them at that time. (Id.). 

 Defendants may not rely on unsupported allegations with the hope that subsequent 

discovery will support their claims. Sorg Paper Co. v. Murphy, 111 F.R.D. 363, 367 (S.D. Ohio 

1986). This Court has rejected the request to make an allegation with such a hope, reasoning 

that, “[i]f parties were allowed discovery under the statute for the purpose of ‘happening on’ or 

‘finding’ a cause of action, the potential for abuse would be inordinate.” Id. Defendants 

concede that they are “unsure” what information was accessed by Plaintiff or Plaintiff’s hired 

expert, but state they intend to gather more information upon further discovery. (Doc. 43 at 

6). But this is insufficient. Defendants’ counterclaims for invasion of privacy fail to state a 

claim upon which relief can be granted because they have not identified which information was 

accessed, and that it was accessed illegally. Defendants maintain they are entitled to bring their 

tortious violation counterclaim as a counterclaim for negligence per se, pursuant to Schell v. Du 

Bois, where the Ohio Supreme Court held that the violation of a statutory duty passed for the 

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protection of the “public at large” is negligence per se. 113 N.E. at 664 (1916). Defendants fail 

to provide any plausible allegations that O.R.C. § 4749.99, was aimed to protect the “public at 

large,” or is a statutory duty. Regardless, even assuming Defendants properly brought their civil 

claim under a criminal statute, Defendants fail to allege that they suffered an injury, proximately 

caused by the Plaintiff. Accordingly, Defendants’ counterclaims for invasion of privacy and 

tortious violation are dismissed. 

C. Computer Fraud and Abuse 

 Finally, Plaintiff argues that Defendants’ third counterclaim, alleging a violation of 

Computer Fraud and Abuse Act (“CFAA”), fails because Defendants cannot satisfy an essential 

element to a CFAA claim: “access to Defendants’ computers by the Plaintiff.” (Doc. 40 at 

9). Plaintiff points out that Defendants accessed a public peer-to-peer sharing network, which 

allowed Plaintiff to access their IP address. (Id. at 9-10). All information collected by Plaintiff 

was available to any member of the public because of Defendants’ use of the public sharing 

network and thus, Plaintiff did not “access” Defendant’s computer, and the CFAA does not 

apply. (Id.). Plaintiff contends that Defendants’ CFAA counterclaim should also fail because 

there are no facts to support their conclusory allegation that Plaintiff accessed their computer or 

that Defendants were subject to any damage or loss caused by the Plaintiff, as required by the 

CFAA. (Id.). 

 Defendants respond that, while it is not entirely clear, they believe that Darren M. Griffin, 

hired by Plaintiff, may have accessed their computer without authorization and in violation of 10 

U.S.C. § 1030. (Doc. 43 at 7). Defendants claim that Plaintiff’s unauthorized access to their 

protected computers caused “the transmission of the program, information code or command and 

intentionally or recklessly caused damage.” (Doc. 34 at 12; Doc. 35 at 12). Defendants point to 

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Paragraphs eleven through twenty-eight of Darren M. Griffin’s Affidavit, where he details a 

“forensic process” and “software” used to identify alleged infringers and Defendants believe this 

process may violate 10 U.S.C. § 1030. (Id.). Defendants maintain that they intend to depose Mr. 

Griffin to discover more information on this subject and after discovery is complete, they will 

amend or dismiss their counterclaims at that time. (Id.). 

 An individual does not have a reasonable expectation of privacy over information that is 

made publically available for download by peer-to-peer file sharing programs. United States v. 

Conner, 521 F.App’x 493, 497 (6th Cir. 2011). Defendants claim that Plaintiff knowingly and 

with intent to defraud accessed their “protected” computer without authorization and obtained 

information from that computer system in violation of 18 U.S.C. § 1030(a)(2)(c). The files that 

Plaintiff allegedly accessed were contained in the publically-available “share” folder, which calls 

into question any assertion that Defendants’ computers should be considered private or 

“protected.” Further, no authorization is needed to access files which are available to the general 

public. Motown Record Co., L.P. v. Kovalcik, No. 07-CV-4702, 2009 WL 455137 at *3 (E.D.Pa. 

Feb. 23, 2009). According to the Griffin Affidavit, all of the information collected by the 

Plaintiff was done so “publicly, based on Defendants’ access to publicly-shared folders.” (Doc. 

2). Griffin used “forensic software” to identify the IP addresses in use by people who use 

BitTorrent protocol to share, copy and distribute files, information which is available to any 

member of the public. (Id. at 19). The fact that the accessed files were in a publically-available 

folder negates the second element of a CFAA claim, that Plaintiff acted “without authorization,” 

because Plaintiff did not need authorization to access files that were made public through 

Defendants’ use of publicly-shared folders. 

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 Additionally, Defendants fail to allege any facts to support a claim of damage or loss 

caused by Plaintiff. Although the CFAA is mainly a criminal statute, the CFAA permits a person 

who suffers damage or loss by reason of a violation of this section to maintain a civil action 

against the violator. Jedson Engineering, Inc. v. Spirit Construction Services, Inc., 720 

F.Supp.2d 904, 228 (S.D. Ohio 2010). In their counterclaim, Defendants’ merely assert that the 

Plaintiff “intentionally or recklessly caused damage,” without stating any facts to support their 

claim. (Doc. 34 at 12; Doc. 35 at 12). While Defendants believe they can gather more 

information to support their claims upon further discovery, Defendants have failed to provide 

any factual allegations to support their claim and accordingly failed to “plead enough facts to 

state a claim to relief that is plausible on its face” or rise above the speculative level. Twombly,

550 U.S. 544, 570. Accordingly, Defendants’ counterclaims for violation of the CFAA are 

dismissed. 

V. CONCLUSION

 For the reasons above, Plaintiff’s Motion to Dismiss (Doc. 40) is GRANTED IN PART 

AND DENIED IN PART. Defendants’ counterclaims for violation of the CFAA and invasion 

of privacy and tortious violation are DISMISSED. Plaintiff’s Motion to Dismiss is DENIED 

with respect to Defendants’ counterclaim for declaratory judgment. 

 IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

 

DATED: August 11, 2014 

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