EXHIBIT 1

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Voltage v. Does 1 – 50 (A): Dallas Buyers Club : SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 

EXHIBIT 1 

Page 1 of 2 

No IP HitDate UTC File Name File Hash City

1 98.246.58.231 3/1/14 03:20:44 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Salem

2 71.236.199.153 3/2/14 06:27:59 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Salem

3 50.137.175.241 3/2/14 05:07:28 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Eugene

4 67.171.218.49 3/2/14 03:50:49 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Eugene

5 71.193.161.214 3/2/14 02:29:31 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

6 67.171.241.250 3/2/14 02:00:30 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Eugene

7 50.139.45.191 3/2/14 01:49:09 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

8 24.20.194.39 3/2/14 01:17:21 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Gresham

9 24.20.51.61 3/2/14 01:07:39 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Sherwood

10 76.115.65.13 3/2/14 12:31:46 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

11 24.21.3.76 3/1/14 10:14:41 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Salem

12 71.237.211.196 3/1/14 08:16:54 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

13 24.21.201.25 3/1/14 12:02:55 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

14 24.20.217.135 3/1/14 10:46:16 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

15 67.160.186.216 3/1/14 06:15:27 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

16 50.186.14.245 3/1/14 05:04:37 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Eugene

17 67.189.91.91 3/1/14 04:45:53 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

18 71.59.128.169 3/1/14 03:39:48 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Beaverton

19 76.105.236.29 3/1/14 03:22:40 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

20 67.189.44.43 3/2/14 06:48:18 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Eugene

21 98.246.224.156 3/1/14 03:15:53 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Corvallis

22 50.139.65.104 3/1/14 02:12:59 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

23 50.137.32.40 2/28/14 03:47:37 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Beaverton

24 71.59.227.66 2/28/14 03:26:35 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Eugene

25 50.139.25.43 2/28/14 03:08:09 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

26 24.20.12.15 2/28/14 08:27:09 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Eugene

27 98.232.131.82 2/28/14 07:17:35 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Gresham

28 71.59.250.196 2/28/14 04:46:46 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

29 67.160.191.37 2/28/14 03:26:09 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 17 of 125
Voltage v. Does 1 – 50 (A): Dallas Buyers Club : SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 

EXHIBIT 1 

Page 2 of 2 

30 76.115.100.56 2/28/14 03:00:55 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Lake Oswego

31 76.105.209.134 2/28/14 02:39:43 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

32 76.105.248.188 2/28/14 01:48:30 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

33 76.115.129.44 2/28/14 12:47:02 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

34 24.20.47.88 2/27/14 11:59:25 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

35 24.20.19.0 2/27/14 08:43:58 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Corvallis

36 50.139.61.183 2/27/14 06:37:14 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

37 98.246.243.17 2/27/14 05:50:16 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

38 67.171.190.6 2/27/14 06:52:00 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

39 50.137.43.19 3/3/14 05:31:53 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Corvallis

40 67.189.65.237 3/3/14 04:04:43 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Salem

41 76.105.163.251 3/3/14 10:20:28 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Clackamas

42 98.246.3.145 3/3/14 08:56:31 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Tualatin

43 71.236.196.40 3/2/14 07:05:10 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Salem

44 76.115.231.103 3/2/14 05:58:42 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Salem

45 50.188.131.243 2/26/14 07:06:52 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Corvallis

46 50.137.150.50 3/2/14 07:45:56 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

47 50.139.72.151 2/27/14 06:15:40 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

48 50.139.99.56 2/27/14 05:03:58 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

49 24.20.194.105 2/27/14 12:12:50 AM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Gresham

50 50.139.46.209 2/26/14 07:32:42 PM Dallas Buyers Club (2013) SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 Portland

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 18 of 125
Voltage v. Does 1 – 50 (A) : Dallas Buyers Club : SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 

Exemplar Doe: IP Address 98.246.58.231 

EXHIBIT 2 

Page 1 of 5 

IP Torrentname Category FileHash Date ▾

1. 98.246.58.231 Volume.License.Windows.8..activator.rar Software 43ce7a74d5c787508a5f743acdc5102cd1ba5f17 2013/09/07

2. 98.246.58.231 0c12a7c0b934e9e3075ef02b6ac044cf00c2e571 2013/09/18-

2013/09/19

3. 98.246.58.231 f37c73a5a12ebf3732952e09f70419d1663f7081 2013/09/19

4. 98.246.58.231 Elysium 2013 R6 x264 AAC-JYK Video b167eae6045e36d6f0e0e586274a82f6756c78f3 2013/09/21

5. 98.246.58.231 The.Elder.Scrolls.V.Skyrim.Legendary.Edition-WaLMaRT Software 775c20956dd8a9f692879c24e89d9a0c0e913f6d 2013/09/22

6. 98.246.58.231 Sony Vegas Pro 11 0 Build 370 Patch 32 Bit Rh Software ef6a66b783bff59310951cb76b71588c75545351 2013/10/04-

2014/01/30

7. 98.246.58.231 Penn.And.Teller.Fool.Us TV Series 5d6dcd57e67b1bd49740df8d002060b2e2f3788c 2013/10/09

8. 98.246.58.231 Season 5 TV Series 91f0dcc5aeef32095441f5f0ff3d79c9717f3036 2013/10/10

9. 98.246.58.231 Season 4 TV Series e2e8e316164a7614e7cc4f95b125328586ed95f7 2013/10/10

10. 98.246.58.231 Augustana - Discography Audio 6b6251546c15476ecf6efabd1c7dfe33e68043c1 2013/10/10-

2013/10/11

11. 98.246.58.231 Sinfully Summer - Aimee Duffy.epub eBook 59d1b837251068eb0d7efbca3d7cbce6feb160df 2013/10/13

12. 98.246.58.231 Tiesto_-_Club_Life_197-CABLE-01-07-2011-TALiON www.0daymusic.org Audio eeb9d85c7a79b114064a68dea2a490d565c37cc5 2013/10/14

13. 98.246.58.231 Terraria v1.1.2 Final Software eeb9db07f8774d594240836f0f4f85fc5fa60f1b 2013/10/14

14. 98.246.58.231 Julie&Julia.2009_HDRip__[scarabey.org].avi Video 18071bb7987269285b8bb91976039031ca848b5a 2013/10/15

15. 98.246.58.231 The Reason I Jump - The Inner Voice of A Thirteen Year Old Boy With Autism - 

Naoki Higashida.epub

eBook 3d554514627627d7e140dc5c674700f7f7bfb97a 2013/10/17

16. 98.246.58.231 Riddick [2013] Dvd Full HD.avi Audio 59d35d5808b7d736545046f27bb73e2b6b6325a1 2013/10/18

17. 98.246.58.231 The.Mentalist.S06E05.HDTV.x264-LOL.mp4 TV Series 5b4768e7f9786ce5c6d7c0dcd1751e8a01f0ad61 2013/10/28

18. 98.246.58.231 Solaris (2002) 720p BRrip scOrp {~dude7001~} Video f7a3aba76e7a14f40963d11ed5865b73fab6c5b9 2013/10/28

19. 98.246.58.231 Steven Price - Gravity (2013) Audio 6322962b88506b93f388d2c209e7c0fe2603a65f 2013/11/01

20. 98.246.58.231 The.Mentalist.S06E06.HDTV.x264-LOL.mp4 TV Series 7c9c2fc35d7a14b494740eb30cc53c8c7f8fd4ba 2013/11/04-

2013/11/05

21. 98.246.58.231 QI.S11E09.HDTV.x264-C4TV.[VTV].mp4 TV Series deeda4622f4e2fb8a67ffe749452cd2ba630a346 2013/11/04-

2013/11/05

22. 98.246.58.231 [Underwater] KILL la KILL - 02 (720p) [C0DDB47F].mkv Video 3a64b87cfef9a1440d16bb9edb1a69812fe0d2f9 2013/11/06

23. 98.246.58.231 [Underwater] KILL la KILL - 05 (720p) [FBA0A5AB].mkv Video 7f3d15c7fbb483bc903d9e76f046624063a9813b 2013/11/06

24. 98.246.58.231 Un.castello.in.Italia.Movie.Italia.2013.BluRay 1080p x264-PRIM4L Video 62009bc914fedaa71b4488688e1b8a4714dbd466 2013/11/09

25. 98.246.58.231 The.Mentalist.S06E07.HDTV.x264-LOL.mp4 TV Series 8377cec616b80e9a57f498e6decec9f66d74d6e7 2013/11/19-

2013/11/23

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 19 of 125
Voltage v. Does 1 – 50 (A) : Dallas Buyers Club : SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 

Exemplar Doe: IP Address 98.246.58.231 

EXHIBIT 2 

Page 2 of 5 

26. 98.246.58.231 [ www.Torrenting.com ] - Live.At.The.Apollo.S09E01.720p.HDTV.x264-FTP TV Series 64132e86b8e6740188d640180b1f4a1716123a8f 2013/11/24-

2013/12/01

27. 98.246.58.231 [Underwater] KILL la KILL - 08 (720p) [F1CEE4AF].mkv Video c808fa11c24f88fd4d90ea972ebf282b88ab0b40 2013/11/24-

2013/12/02

28. 98.246.58.231 10 Chess Books eBook 28fa72a09dcc4768523d502d31828e5975055d8b 2013/12/02

29. 98.246.58.231 35 Chess Books eBook 4cca229bdfb9992affc5490cfeb6846cdd78965f 2013/12/02

30. 98.246.58.231 [Underwater] KILL la KILL - 09 (720p) [F07FE376].mkv Video 52db9a7b4d02e1baed3b85a359f4b289380790da 2013/12/02

31. 98.246.58.231 La.Piscine.1969.PROPER.720p.BluRay.x264-CiNEFiLE.mkv Video 6a1d8467f2b1f04936b771a6d05f4727056aea84 2013/12/02

32. 98.246.58.231 [Underwater] KILL la KILL - 06 (720p) [7E816CC0].mkv TV Series 1ffecaabfe668724a055dd2151c35120f2aaa1f7 2013/12/02-

2013/12/03

33. 98.246.58.231 The.Mentalist.S06E08.HDTV.x264-LOL.mp4 TV Series 58039983e0abc022865725601e25612421b6eff4 2013/12/02-

2013/12/03

34. 98.246.58.231 The.Mentalist.S06E09.HDTV.x264-LOL.mp4 TV Series 7069dee40347007e6c6ba08d4eca57873e12383a 2013/12/02-

2013/12/03

35. 98.246.58.231 [Underwater] KILL la KILL - 07 (720p) [5B5C3690].mkv Video 7bfd8f962d5a5833354932dee594c0afa463e20c 2013/12/02-

2013/12/03

36. 98.246.58.231 10 Chess Books on Combinatios & Tactics eBook 8c28e4a626fbdad0f10f0f28d8c6bb3e67a6e732 2013/12/02-

2013/12/03

37. 98.246.58.231 Complete Book of Chess Strategy (gnv64).pdf eBook dbf415124e8eac8b857abc77229a3372ec5276f6 2013/12/02-

2013/12/03

38. 98.246.58.231 d0500dfc249b9b76ab442b0c8b8318353ac0424f 2013/12/04-

2013/12/12

39. 98.246.58.231 04791307229c784ede926cb6185215415e580c7e 2013/12/04-

2013/12/13

40. 98.246.58.231 2bb6694dab57d8595982d01d6612619ea3c0ead6 2013/12/04-

2013/12/13

41. 98.246.58.231 43d435adfa3a966ecab108c5f6de586be03dd509 2013/12/04-

2013/12/13

42. 98.246.58.231 e1b4b9ff6530384e11652de29dcff65b0962833d 2013/12/04-

2013/12/13

43. 98.246.58.231 Heroes VI.iso Software 3a32ac6c8647eeaf93561bb7697bc387d3542101 2013/12/10

44. 98.246.58.231 World of Warcraft - (2006) Cycle of Hatred - Keith R. A. DeCandido.pdf eBook 5970e8e7e863f6713dfb67c227077028aa5f58b2 2013/12/13

45. 98.246.58.231 CODBO2+12Tr-LNG_v1.3.rar Software 5970f57bfe8ea33a7119df759c6dd8af21d006e9 2013/12/13

46. 98.246.58.231 [Underwater] KILL la KILL - 10 (720p) [8D12E723].mkv Video a249740e55b9e1c88eaeacc738b7903ff0f6c332 2013/12/13

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 20 of 125
Voltage v. Does 1 – 50 (A) : Dallas Buyers Club : SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 

Exemplar Doe: IP Address 98.246.58.231 

EXHIBIT 2 

Page 3 of 5 

47. 98.246.58.231 [ www.Torrenting.com ] - Impractical.Jokers.S02E23.HDTV.x264-KILLERS TV Series 23c2a0b6b3703b7c649f94c784a3bba7f127c794 2013/12/15-

2013/12/20

48. 98.246.58.231 Impractical.Jokers.S02E27.720p.HDTV.x264-KILLERS [PublicHD] TV Series 2520dd30f8bed1ce1debf31c830842c4c3647242 2013/12/15-

2013/12/20

49. 98.246.58.231 Impractical.Jokers.S02E28.HDTV.x264-PLAYNOW.mp4 TV Series 715aac851e3da3a87db183ca9e7aa041ae788ec2 2013/12/15-

2013/12/20

50. 98.246.58.231 House and Leisure Magazine November 2013 eBook 715aa7de183149c16d7984aad193a873da133b7b 2013/12/20

51. 98.246.58.231 All In All Alaguraja (2013) - Lotus - Untouched - DVD5 - Uyirvani Video fdbec51a65df086d9fc6d4bd0f11add3e5905ca9 2013/12/22

52. 98.246.58.231 Fly Crypter 2.3.zip Software 08047340a3f0de2ec88fe2e84afc420d15fdb528 2014/01/10

53. 98.246.58.231 Acapella's Most Studio Audio 1d1b26d574a8702ebd72cc9fe5c240193a72d945 2014/01/10

54. 98.246.58.231 Sherlock Holmes - Jeremy Brett - Season 4 TV Series 23cfccec9e685e4ae8501da781c178d0fefe28f0 2014/01/10-

2014/01/11

55. 98.246.58.231 Sherlock Holmes - Jeremy Brett - Season 7 TV Series f6682ec47ec0739c992103220b6a8f0d23a916f2 2014/01/10-

2014/01/11

56. 98.246.58.231 Skyfall.2012.DVDRip.XviD-SPARKS Video f149e64db16602edec371743d662d90f2eeb97d8 2014/01/14-

2014/03/05

57. 98.246.58.231 Camtasia Studio FULL 8.1.2 + Serials-ThumperDC Software 59d92162ba09097ba9c68fe848c7cc6e24a338ff 2014/01/28-

2014/03/27

58. 98.246.58.231 Daemon Tools Ultra V1 1 0 Software 6a1d88c5851eac95512dc3c020da284db065a795 2014/01/29-

2014/02/15

59. 98.246.58.231 59d8b74e2df601bde9f3fa15d73f19498412dafc 2014/02/02

60. 98.246.58.231 Paranormal.Activity.The.Marked.Ones.DVDRIP[Jaybob] Video 5813a147cefe04acb66fc92d2f5878e8713117f4 2014/02/07

61. 98.246.58.231 Linda Castillo - Duistere vlucht + Sprong in het duister, NL Ebook eBook 58b86750a778abd42659597db93071f8442aef4e 2014/02/07

62. 98.246.58.231 Corel Draw Graphics Suite X4 14 0 0 Full M8 Software 58d9d3b9e9a752549fc87132ea08df032c3cc8a1 2014/02/07

63. 98.246.58.231 598626728be2099492e18119d6edd4b25ac01735 2014/02/07

64. 98.246.58.231 Gramatik - The Age of Reason Audio 109c54db8f62125c843b8ec0affb0df1844fe0ba 2014/02/27

65. 98.246.58.231 American Hustle (2013) [1080p] Video 10ab9cad41f545893af00993cbfa168fabd46395 2014/03/01

66. 98.246.58.231 Philomena 2013 DVDSCR XViD-NiNJA Video 42221f6aa6776c723e1d3f3b2154d5522146a869 2014/03/01

67. 98.246.58.231 Blue Jasmine (2013) [1080p] Video 44ec61297d65c408b6638d2b6702af63b50a1e7e 2014/03/01

68. 98.246.58.231 20.Feet.from.Stardom.2013.HDRip.X264.AC3-PLAYNOW.mkv Video 4c324e362a5582877905fc803c2b5306f35f28f7 2014/03/01

69. 98.246.58.231 Captain Phillips (2013) [1080p] Video 6041818de2d64fea82405bba08b52d3f10b0f89c 2014/03/01

70. 98.246.58.231 Gravity (2013) [1080p] Video 95731ce3c5ea065766f6eb92c9a426a58ada56fe 2014/03/01

71. 98.246.58.231 12 Years a Slave (2013) [1080p] Video aad050ee1bb22e196939547b134535824dabf0ce 2014/03/01

72. 98.246.58.231 Nebraska (2013) Video d1f87a13f66909dcb58ec23ee2db8bf1e9bf4186 2014/03/01

73. 98.246.58.231 Dallas Buyers Club (2013) Video f18a60db02ec3b55c18924f47955de766dacc537 2014/03/01

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 21 of 125
Voltage v. Does 1 – 50 (A) : Dallas Buyers Club : SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 

Exemplar Doe: IP Address 98.246.58.231 

EXHIBIT 2 

Page 4 of 5 

74. 98.246.58.231 Inside.Llewyn.Davis.2013.DVDScr.XVID.AC3.HQ.Hive-CM8 Video f61c05416fe4fbbb5021ff2d9237f56ff4edafea 2014/03/01

75. 98.246.58.231 The.Girl.Who.Played.With.Fire.2009.PROPER.720p.BluRay.x264-NODLABS 

[PublicHD].mkv

Video 18d3b1b824856cd192caca07225dbcfee1405459 2014/03/02

76. 98.246.58.231 The.Girl.With.The.Dragon.Tattoo.2009.PROPER.720p.BluRay.x264-NODLABS 

[PublicHD].mkv

Video bc0c2b86e03fd977c36993eb534f98d3685bdb86 2014/03/02

77. 98.246.58.231 The.Girl.Who.Kicked.The.Hornet's.Nest.2009.PROPER.720p.BluRay.x264-

NODLABS [PublicHD].mkv

Video bdeba0c52663e7ebcf2b26fe37810a815eaafb21 2014/03/02

78. 98.246.58.231 6c6aa64cdc64ce53474b442657dbbaf4a6c9d148 2014/03/03

79. 98.246.58.231 3a0b38c178834a1da86022400ceda8772f2bfde3 2014/03/08-

2014/03/10

80. 98.246.58.231 9c02ba3e90b7be9fcec58d33788df1d3f61fa52f 2014/03/08-

2014/03/10

81. 98.246.58.231 True Detective S01E05 HDTV x264-KILLERS[ettv] TV Series 05076833cdfd0e3afde675148082e3becf677cb9 2014/03/10

82. 98.246.58.231 True Detective S01E06 HDTV x264-2HD[ettv] TV Series 7211426c34f38ef6dc93b62545f8f23f159071f9 2014/03/10

83. 98.246.58.231 True Detective S01E08 HDTV x264-2HD[ettv] TV Series a94d84388856dc6186a2081e6619de17ff57e6f7 2014/03/10

84. 98.246.58.231 True.Detective.S01E02.HDTV.x264-2HD.mp4 TV Series d4a80c4dce3b08e38f26d21a71a02fe6f121dec5 2014/03/10

85. 98.246.58.231 Despicable Me 2 2013 BluRay 720p DTS x264-MgB Video ecbdbaa90ff43644afeccfc9a55ff6e72a4acc18 2014/03/10

86. 98.246.58.231 Ender's Game 2013 BluRay 720p DTS x264-MgB [ETRG] Video f1625ebc655f9079716b4b8616fccd7dc8d8e7e2 2014/03/10

87. 98.246.58.231 555b6ba7e079ab026ba307637f5879413f78ede8 2014/03/13-

2014/03/16

88. 98.246.58.231 Veronica.Mars.2014.WEBRIP.x264.AC3-MiLLENiUM Video 52aa00ced20f0e80bda75a6070b1d5a4b60da48a 2014/03/15

89. 98.246.58.231 40e982e99383b435b2db6db8e425eef01787e4f1 2014/03/16-

2014/03/17

90. 98.246.58.231 9645cd5c25fd1e785c85381d9a9db0cce5efa0d5 2014/03/16-

2014/03/17

91. 98.246.58.231 Psych.S08E06.HDTV.x264-KILLERS.mp4 TV Series 224931239a4f45872ba654608c4edc775478a5dc 2014/03/17

92. 98.246.58.231 5ee43016fe138919bacf78f6edcd46decb0021f9 2014/03/20-

2014/03/21

93. 98.246.58.231 cca33ff8cd911f1522b87b54fb1b9469b2f395f3 2014/03/20-

2014/03/21

94. 98.246.58.231 e71d7fd8655ff5d60367dcbcf233ded69af28655 2014/03/20-

2014/03/21

95. 98.246.58.231 302f205e6d34c05cb83892a4b2764b39d30d3c4d 2014/03/21

96. 98.246.58.231 30eb092f13d94eb0a263c638e1c9a3ab26edd798 2014/03/21

97. 98.246.58.231 f2c8064472558a7e75ea2996bfe81448760017b6 2014/03/21

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 22 of 125
Voltage v. Does 1 – 50 (A) : Dallas Buyers Club : SHA1: F18A60DB02EC3B55C18924F47955DE766DACC537 

Exemplar Doe: IP Address 98.246.58.231 

EXHIBIT 2 

Page 5 of 5 

98. 98.246.58.231 Ride.Along.2014.DVDRip.XviD-XraY Video afa339c1dbb5b4a855c302a8f8b46e3af586a3b0 2014/03/22

99. 98.246.58.231 995fb1c725d4ba9071769aebbc40cfeaddac85a5 2014/03/27

100. 98.246.58.231 Frozen.2013.720p.BluRay.DTS.x264-PublicHD Video 654eaa94a55cd46bc578a7c3a14813e16cfacc85 2014/03/28

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 23 of 125
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Movie Name Dallas Buyers Club 2013 720p BRRip x264 AAC-ViSiON

Description

Vol age v. Does EXHIBIT 3 

Page 1

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 24 of 125
Dallas Buyers Club 2013 720p BRRip x264 AAC-ViSiON

 Dallas Buyers Club (2013)

117 min - Biography | Drama | History - 22 November 2013 (USA)

IMDB rating: 8.1

In 1985 Dallas, electrician and hustler Ron Woodroof works around the system to help AIDS

patients get the medication they need after he is himself diagnosed with the disease.

Director: Jean-Marc Vall?e

Writers: Craig Borten (screenplay), Melisa Wallack (screenplay) 

Jared Leto ... Rayon

Matthew McConaughey ... Ron Woodroof

Jennifer Garner ... Dr. Eve Saks

Steve Zahn ... Tucker

Denis O'Hare ... Dr. Sevard

Kevin Rankin ... T.j

Steffie Grote ... The Girl With The Snake Tattoo (as Stephanie Grote)

Dallas Roberts ... David Wayne

Griffin Dunne ... Dr. Vass

Jeanine Hill ... Rodeo girl 

Vol age v. Does EXHIBIT 3 

Page 2

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 25 of 125
Jeanine Hill ... Rodeo girl 

Vol age v. Does EXHIBIT 3 

Page 3

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 26 of 125
Vol age v. Does EXHIBIT 3 

Page 4

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 27 of 125
VIDEO: 2500 Kbps 

ENCODER: DjDayV

AUDIO: AAC 5.1 {448Kbps} 

SIZE: 2.34 GB

FRAMERATE: 23.976 

NTSC FILES: 1x MP4

SOURCE: 1080p BluRay SPARKS 

RESOLUTION: 1280x536

LANGUAGE: English 

SUBTITLES: English

IMDb: http://www.imdb.com/title/tt0790636/

Mind-blowing

8/10

Mathew Mc. obviously deserves a bit of a salute. His efforts to slim way down brings to

mind, obviously, Christian Bale. Not bad company to be in!

But the REAL STAR is Jared Leto. I know his other work and kept reminding myself that

he/she was really a transvestite. And so sad to see the drug use (shh). And he/she was

truly pretty. Of course, in real life, he's s a gorgeous guy. So,I hope the Academy will take

note!

Also interesting to hear of the Interferon drugs talked about. Now THAT'S something I know

about. I have M.S. and inject myself once a week with it. It slows the progression of the

disease Too bad the movie doesn't mention the other druga now available. Perhaps they

weren't around then.

I'm not a doctor, just more familiar with some of the drugs - would be great if I weren't! 

 

We need your help to keep Torrenting.com alive

Type XviD Movies

Uploaded 67d 10:10:51 ago

Size 2 367 GB (2,541,421,648 bytes)

Added 2014-01-24 12:28:07

Vol age v. Does EXHIBIT 3 

Page 5

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 28 of 125
Num files

[See full list]

4 files

Peers 77 seeder(s) 2 leecher(s) = 13 peer(s) connected

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#541404 by ihleonevr (Power User) at 2014-01-24 17:59:07 GMT

thanks for sharing

#541994 by justsofly (User) at 2014-01-25 10:19:39 GMT

thanks for upload great copy

#542308 by almackem (Power User) at 2014-01-25 17:51:53 GMT

thanks

#542655 by blade27240 (User) at 2014-01-26 01:40:33 GMT

Vol age v. Does

thanks

EXHIBIT 3 

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Voltage Pictures v. Does EXHIBIT 4

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 30 of 125
THIRD JUDICIAL DISTRICT 


MARION COUNTY CIRCUIT COURT 


Read carefully. Ifyou do not comply with the following. your case will be dismissed. 

\JD\±~.U\Q.; v. ~f,.~ 

Case Number: \4 cJ '0 L.<?:> Date: tJ· 3- \ vi 

THIS CASE HAS BEEN ASSIGNED TO: 

D Judge Donald D. Abar D Judge David E. Leith 

(503) 588-5135 (503) 588-5160 

D Judge Claudia M. Burton D Judicial Position #3 

(503) 584-7713 (503) 588-5028 

D Judge Vance D. Day D Judge Lindsay R. Partridge 

(503) 588-5026 (503) 588-5030 l~ Judge Courtland Geyer D Judge Dale W. Penn 

___ (503) 373-4445 (503) 588-5492 

D Judge Dennis J. Graves D Judge Tracy A. Prall 

(503) 585-4939 (503) 566-2974 

D Judge Thomas M. Hart D Judge Jamese 1. Rhoades 

(503) 584-7749 (503) 588-7950 

D Judge Mary M. James D Judge Susan M. Tripp 

(503) 373-4303 (503) 373-4361 

Ifa nar~ served with a summons intends to contest this matter, that nar~ 

must file a resnonse, or other annearance, as instructed in the summons. 

A status conference will be set after the party served has filed an appearance. All attorneys must appear at the 

status conference with their calendars. If parties do not have legal representation, they are to appear at the status 

conference. 

If the Plaintiff has not filed a Return or Acceptance of Service by the 63rd day after the filing of the complaint, the 

case may be dismissed for want of prosecution 28 days later. If proof of service is filed by the 91st day from the 

filing ofthe complaint, and no default is later filed, the case will be dismissed 119 days from the date of the filing of 

the complaint. 

Follow these instructions carefully and refer to the Uniform Trial Court Rules for further information or 

clarification. 

All correspondence or other communication shall be directed to the assigned Judge at the following address: 

Marion County Circuit Court, PO Box 12869, Salem, Oregon 97309-0869. 

D Assignment following standard procedure. 


Random assignment/allowing the standard procedure. 


~ Random assign . ';the request of ____--,--_~ 

CASE ASSIGNMENT NOTICE Page 1 of1 FC(2/27/14) 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 31 of 125
MOTION – DISCOVERY ORDER 

Page 1 of 7

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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Carl D. Crowell, OSB No. 982049

email: crowell@kite.com

CROWELL LAW

P.O. Box 923

Salem, OR 97308

(503) 581-1240

Of attorneys for plaintiff

IN THE CIRCUIT COURT OF THE STATE OF OREGON 

FOR THE COUNTY OF MARION

VOLTAGE PICTURES, LLC

Plaintiff,

v.

DOES 1 - 50

Defendants.

Case No.: 14C13823

PLAINTIFF’S EX PARTE MOTION 

FOR DISCOVERY ORDER; 

MEMORANDUM; PROPOSED 

DISCOVERY ORDER 

ORS 647.105 – State Trademark

PLAINTIFF’S EX PARTE MOTION FOR DISCOVERY ORDER

On April 3, 2014, plaintiff filed the instant action against a number of Doe defendants (Does 

1 – 50) known to plaintiff only through the Internet Protocol (“IP”) used by each defendant to 

infringe on plaintiff’s rights, as identified in Exhibit 1 to the complaint.

1 Prior to issuing subpoenas 

pursuant to ORCP 55 for such further information needed to ascertain the identity of the various 

defendants, plaintiff requests a Discovery Order from this court to govern ex parte discovery. 

 

1 Also filed on April 3, 2014 is the related proceeding of Voltage v. Does 1 – 50, Marion Co. 

Circuit Court 14C13824. 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 32 of 125
MOTION – DISCOVERY ORDER 

Page 2 of 7

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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Plaintiff submits with its motion a proposed form of Discovery Order that provides 

specific notice and reference to the obligations of parties in compliance with 47 U.S.C. 

§551(c)(2)(C) and provides for limits on plaintiff’s use of any information obtained. 

Plaintiff believes the submitted proposed Discovery Order, narrowing and focusing 

plaintiff’s subpoena power and providing notice to parties of rights and duties is in the interest 

of efficiency and justice.

WHEREFORE for the reasons stated in the below Memorandum, plaintiff moves this court 

for entry of the proposed Discovery Order presented herewith. 

DATED: April 4, 2014.

Respectfully submitted,

CROWELL LAW

Carl D. Crowell, OSB No. 982049

P.O. Box 923

Salem, OR 97308

Tel: 503-581-1240

Email: crowell@kite.com

Of attorneys for the plaintiff

///

///

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 33 of 125
MOTION – DISCOVERY ORDER 

Page 3 of 7

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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MEMORANDUM

I. INTRODUCTION 

As more specifically outlined in the Complaint, plaintiff Voltage Pictures, LLC, is in the 

business of producing, marketing and distributing motion pictures, including the subject 

motion picture in this case Dallas Buyers Club. Defendants are BitTorrent users, or “peers,” 

whose computers are interconnected with others and used for illegally copying and distributing 

plaintiffs’ motion picture to others. Plaintiff is suing the several Doe defendants seeking 

equitable injunctive relief to prohibit them from their continuing infringement of plaintiff’s 

rights. 

As the defendants used the Internet to commit infringement, plaintiff only knows the 

defendants by their Internet Protocol (“IP”) address, and the time of the infringement as stated 

in Exhibit 1 to the Complaint. Defendants’ IP addresses were assigned by their Internet 

Service Provider (“ISP”), Comcast. Comcast uses the IP address to specifically identify each 

subscriber using the Internet though Comcast to transmit and receive data similar to the address 

on a house, namely it is the location to which it sends data requested and from which it 

receives data. Publicly available data allows plaintiff to identify the specific ISP defendants

used, and other information such as the city or area associated with the IP address. Publicly 

available data generally does not permit plaintiff to ascertain the identity of the defendants. 

But as Comcast controls defendants’ access to the Internet, so too does Comcast have the 

records which tie the IP addresses identified as infringing plaintiff’s rights to the specific 

parties who contracted with Comcast for service. Without this information, plaintiff cannot 

ascertain the identity of the defendants nor pursue this lawsuit to protect its rights. 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 34 of 125
MOTION – DISCOVERY ORDER 

Page 4 of 7

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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ORCP 55 permits plaintiff to issue subpoenas to Comcast sua sponte. In the management 

of related cases, plaintiff observes many parties may be unfamiliar with their respective rights 

and duties and the general sensitivity many parties may have to such discovery. For instance, 

not all Internet Service Providers (“ISPs”) may be fully aware of their obligations and 

responsibilities under the Cable Communications Act of 1984, 47 U.S.C. § 521, et seq. and The 

Stored Communications Act, 18 U.S.C. § 2701, et seq.. As well, some individual parties may 

be unsure as to their privacy rights, though courts have generally found there is no privacy 

right in the information sought by plaintiff. United States v. Forrester, 495 F.3d 1041, 1049 

(9th Cir. 2007), citing Smith v. Maryland, 442 U.S. 735, (1979).

With the sensitivities of this matter in mind, plaintiff would like to avoid complications 

and any unnecessary or excessive burden on the courts or any party who may attempt to 

comply with a subpoena in good faith. To that end, plaintiff requests the court adopt an order 

to govern the subpoenas issued in this case and the discovery received. 

II. SUBPOENAS

ORCP 55 permits a party to issue subpoenas to third parties for the production of 

documents and things, including the identity of the subscriber information related to IP 

addresses, such as those identified in Exhibit 1 to the Complaint. Pursuant to ORCP 55 D(1) all 

“parties” to a case are to be served with a copy of any subpoena on a third party seven days 

prior to service on the third party. However, in this case there are no known parties, thus the 

necessity of the ex parte subpoenas. 

Rather than proceed pursuant to a strict reading of ORCP 55, plaintiff prefers to proceed 

under judicial order to ensure that rights and interests of all parties are protected and submits

the presented proposed Discovery Order.

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 35 of 125
MOTION – DISCOVERY ORDER 

Page 5 of 7

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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A. Doe Defendants

This is an action under state trademark law, ORS 647.105. In matters of trademark, 

Oregon courts generally look to federal law for guidance. See CollegeNet, Inc. v. Embark 

Com., Inc., 230 F.Supp.2d 1167, 1177 (D.Or. 2001)(citing Classic Instruments, Inc., v. VDOArgo Instruments, 73 Or.App. 732, 745, 700 P.2d 677 (1985), review denied, 300 Or. 111, 707 

P.2d 583 (1985)).

Federal courts routinely allow discovery to identify “Doe” defendants operating through 

the Internet. Voltage v. Does 1 – 371, et al., 3:13-cv-00295-AA (D. Or. Jun. 7, 2013) (Order 

releasing subpoenaed information of severed Doe #1.); Matot v. Does 1-5, 6:13-cv-00153-TC 

(D. Or. Feb. 12, 2013) (leave granted to subpoena any email service or internet service 

providers for such further information as may be needed to specifically identify the Doe 

defendants); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (“where the identity of 

alleged defendants [are not] known prior to the filing of a complaint . . . the plaintiff should be 

given an opportunity through discovery to identify the unknown defendants”); Cottrell v. 

Unknown Correctional Officers, 1-10, 230 F .3rd 1366 (9th Cir. 2000); Wakefield v. 

Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (error to dismiss unnamed defendants given 

possibility that identity could be ascertained through discovery); Murphy v. Goord, 445 

F.Supp.2d 261, 266 (W.D. New York 2006) (in situations where the identity of alleged 

defendants may not be known prior to the filing of a complaint, the plaintiff should have an 

opportunity to pursue discovery to identify the unknown defendants); Equidyne Corp. v. Does 

1-21, 279 F.Supp.2d 481, 483 (D. Del. 2003) (allowing discovery from ISPs to obtain identities 

of users anonymously posting messages on message boards).

///

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 36 of 125
MOTION – DISCOVERY ORDER 

Page 6 of 7

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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A. Good Cause for Discovery

Good cause clearly exists in this case to proceed because the ISP used to commit the acts 

of infringement is the only source that can supply the information necessary to identify the 

defendant. A further basis for good cause is that in a claim for infringement there is a 

presumption of irreparable harm to the rights owner. See UMG Recordings, Inc. v. Doe, 2008 

WL 4104214 (N.D. Cal. 2008) (Finding good cause for expedited discovery exists in Internet 

infringement cases, where a plaintiff makes a prima facie showing of infringement, there is no 

other way to identify the Doe defendant, and there is a risk an ISP will destroy its records after 

delay.) 

Absent a subpoena of Comcast records, the identity of the infringers will remain hidden, 

and defendants will be able to continue to freely infringe plaintiff’s rights and commit other 

acts of theft with impunity. 

B. Privacy Interests

While some parties may be unsure as to their privacy rights, courts have generally found 

there is no privacy right in the information sought by plaintiff. In the 9th Circuit, an IP 

address and even the “to/from” fields for email do not carry an expectation of privacy as these 

are the same as the address on a public package. United States v. Forrester, 495 F.3d 1041, 

1049 (9th Cir. 2007), citing Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577 (1979). Indeed, all 

parties subscribing to the related IP addresses of Exhibit 1 have already caused his or her IP 

address to be broadcast repeatedly in communications and requests for data and has through 

their ISP designated where the deliveries of requested data are to be made. “[T]here is no 

expectation of privacy in Internet subscriber information because it has already been exposed 

to a third party, the Internet Service Provider.” Courtright v. Madigan, 2009 WL 3713654 at *2 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 37 of 125
MOTION – DISCOVERY ORDER 

Page 7 of 7

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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(S.D. Ill., 2009); see also Guest v. Leis, 255 F.3d 325 (6th Cir. 2001); United States v. Simons, 

206 F.3d 392 (4th Cir. 2000).

Regardless, plaintiff proposes terms in the proposed Discovery Order to permit 

subpoenaed parties to remain anonymous for cause, at least through initial proceedings. 

Plaintiff further proposes terms to limit the use of any discovery obtained by ex parte

subpoenas to the enforcement of plaintiff’s rights and the rights in the motion picture Dallas 

Buyers Club.

CONCLUSION

For the foregoing reasons, plaintiff respectfully requests the Court grant the proposed 

Discovery Order governing initial ex parte discovery in this matter. 

DATED: April 4, 2014.

Respectfully submitted,

CROWELL LAW

Carl D. Crowell, OSB No. 982049

P.O. Box 923

Salem, OR 97308

Tel: 503-581-1240

Email: crowell@kite.com

Of attorneys for the plaintiff

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 38 of 125
DISCOVERY ORDER (Proposed)

Page 1 of 3

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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Carl D. Crowell, OSB No. 982049

email: crowell@kite.com

CROWELL LAW

P.O. Box 923

Salem, OR 97308

(503) 581-1240

Of attorneys for plaintiff

IN THE CIRCUIT COURT OF THE STATE OF OREGON 

FOR THE COUNTY OF MARION

VOLTAGE PICTURES, LLC

Plaintiff,

v.

DOES 1 - 50

Defendants.

Case No.: 14C13823

(Proposed)

DISCOVERY ORDER

ORS 647.105 – State Trademark

DISCOVERY ORDER

This matter came before the Court on plaintiff’s ex parte Motion related to plaintiff’s

issuance of ORCP 55 subpoenas to third parties in an effort to ascertain the identity of the 

several Doe defendants currently known only by their IP address as identified in Exhibit 1 to the 

Complaint. 

The Court being duly advised does hereby FIND AND ORDER:

1. Plaintiff has established “good cause” for it to serve third party subpoenas on the 

Internet Service Providers (“ISPs”) for the Internet Protocol (“IP”) addresses listed in Exhibit 1 

of the complaint in order to identify and specifically name the several Doe defendants.

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 39 of 125
DISCOVERY ORDER (Proposed)

Page 2 of 3

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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2. Plaintiff may serve the ISP Comcast with an ex parte ORCP 55 subpoena 

commanding the ISP to provide plaintiff with all subscriber identifying information, which shall 

include the true names, addresses, telephone numbers, contact information and e-mail addresses 

of all parties to whom the ISPs assigned the IP addresses set forth on Exhibit 1 of the complaint, 

together with other relevant information related to each subscriber.

3. Plaintiff may also serve ex parte ORCP 55 subpoenas in the same manner as 

above on any party that is identified in response to a subpoena as a provider of internet services, 

namely should any IP address identified be sub-licensed to another ISP or user or the like, 

plaintiff may serve subpoenas until a specific Doe defendant party is identified.

4. Subscriber identifying information to be provided to plaintiff shall not include 

photographs, emails, or content which may be subject to The Stored Communications Act, 18 

U.S.C. § 2701, et seq., but shall be limited to information that may assist plaintiff in identifying 

the Doe defendants.

NOTICE TO CABLE OPERATORS

(Cable Communications Act of 1984)

5. If any ISP subpoenaed qualifies as a “cable operator,” as defined by 47 U.S.C. § 

522(5), such ISP is notified that 47 U.S.C. § 551(c)(2)(C) contains a requirement that any 

cable operator provide the subscriber the opportunity to prohibit or limit such disclosure. 

Such requirement may be met by:

a. By mailing the subscriber a copy of the subpoena and a copy of this Order; and

b. Giving the subscriber twenty one (21) days to file a motion to quash the issued 

subpoena; or

c. Any other manner established by the ISP to comply with 47 U.S.C. §551(c)(2)(C).

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 40 of 125
DISCOVERY ORDER (Proposed)

Page 3 of 3

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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6. Absent a filed motion to quash, received by the ISP within twenty one (21) days 

of mailing or otherwise notifying the subscriber, subscriber identifying information shall be 

promptly submitted to plaintiff. 

7. ISP’s may invoice plaintiff for reasonable costs for responses to subpoenas issued 

pursuant to this order and plaintiff is directed to pay all such reasonable costs.

8. Any defendant or party identified in response to a subpoena issued pursuant to 

this order shall have 21 days to petition the Court to remain anonymous and plaintiff shall not 

name or publicly disclose the identity of any such party within such time period. 

9. Information disclosed in response to a subpoena issued pursuant to this order may 

only be used for protecting and enforcing rights in the motion picture Dallas Buyers Club and the 

rights of plaintiff.

ORDERED this ___ day of ________________, 2014.

 By: ____________________________________

Circuit Court Judge

Prepared by:

Carl D. Crowell, OSB No. 982049

email: crowell@kite.com

Crowell Law

P.O. Box 923

Salem, OR 97308

(503) 581-1240

Of counsel for plaintiff

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 41 of 125
DISCOVERY ORDER 

Page 1 of 3 

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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Carl D. Crowell, OSB No. 982049 

email: crowell@kite.com 

CROWELL LAW

P.O. Box 923 

Salem, OR 97308 

(503) 581-1240 

Of attorneys for plaintiff 

IN THE CIRCUIT COURT OF THE STATE OF OREGON 

FOR THE COUNTY OF MARION 

VOLTAGE PICTURES, LLC 

 Plaintiff, 

v. 

DOES 1 - 50 

 Defendants. 

Case No.: 14C13823 

DISCOVERY ORDER 

ORS 647.105 – State Trademark 

DISCOVERY ORDER 

This matter came before the Court on plaintiff’s ex parte Motion related to plaintiff’s 

issuance of ORCP 55 subpoenas to third parties in an effort to ascertain the identity of the 

several Doe defendants currently known only by their IP address as identified in Exhibit 1 to the 

Complaint. 

The Court being duly advised does hereby FIND AND ORDER:

1. Plaintiff has established “good cause” for it to serve third party subpoenas on the 

Internet Service Providers (“ISPs”) for the Internet Protocol (“IP”) addresses listed in Exhibit 1 

of the complaint in order to identify and specifically name the several Doe defendants. 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 42 of 125
DISCOVERY ORDER 

Page 2 of 3 

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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2. Plaintiff may serve the ISP Comcast with an ex parte ORCP 55 subpoena 

commanding the ISP to provide plaintiff with all subscriber identifying information, which shall 

include the true names, addresses, telephone numbers, contact information and e-mail addresses 

of all parties to whom the ISPs assigned the IP addresses set forth on Exhibit 1 of the complaint, 

together with other relevant information related to each subscriber. 

3. Plaintiff may also serve ex parte ORCP 55 subpoenas in the same manner as 

above on any party that is identified in response to a subpoena as a provider of internet services, 

namely should any IP address identified be sub-licensed to another ISP or user or the like, 

plaintiff may serve subpoenas until a specific Doe defendant party is identified. 

4. Subscriber identifying information to be provided to plaintiff shall not include 

photographs, emails, or content which may be subject to The Stored Communications Act, 18 

U.S.C. § 2701, et seq., but shall be limited to information that may assist plaintiff in identifying 

the Doe defendants. 

NOTICE TO CABLE OPERATORS 

(Cable Communications Act of 1984) 

5. If any ISP subpoenaed qualifies as a “cable operator,” as defined by 47 U.S.C. § 

522(5), such ISP is notified that 47 U.S.C. § 551(c)(2)(C) contains a requirement that any 

cable operator provide the subscriber the opportunity to prohibit or limit such disclosure. 

Such requirement may be met by: 

a. By mailing the subscriber a copy of the subpoena and a copy of this Order; and 

b. Giving the subscriber twenty one (21) days to file a motion to quash the issued 

subpoena; or

c. Any other manner established by the ISP to comply with 47 U.S.C. §551(c)(2)(C). 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 43 of 125
DISCOVERY ORDER 

Page 3 of 3 

Voltage v. Does 1 – 50 (A)

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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6. Absent a filed motion to quash, received by the ISP within twenty one (21) days 

of mailing or otherwise notifying the subscriber, subscriber identifying information shall be 

promptly submitted to plaintiff. 

7. ISP’s may invoice plaintiff for reasonable costs for responses to subpoenas issued 

pursuant to this order and plaintiff is directed to pay all such reasonable costs. 

8. Any defendant or party identified in response to a subpoena issued pursuant to 

this order shall have 21 days to petition the Court to remain anonymous and plaintiff shall not 

name or publicly disclose the identity of any such party within such time period. 

9. Information disclosed in response to a subpoena issued pursuant to this order may 

only be used for protecting and enforcing rights in the motion picture Dallas Buyers Club and the 

rights of plaintiff. 

ORDERED this ___ day of ________________, 2014. 

 

 By: ____________________________________ 

 Circuit Court Judge 

Prepared by: 

Carl D. Crowell, OSB No. 982049 

email: crowell@kite.com 

Crowell Law 

P.O. Box 923 

Salem, OR 97308 

(503) 581-1240 

Of counsel for plaintiff 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 44 of 125
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ORDER TO SEVER DOE NO. 29 (Proposed)

Page 1 of 2 

Voltage v. Does 1 – 50 : 14C13823

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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Carl D. Crowell, OSB No. 982049 

email: crowell@kite.com 

CROWELL LAW

P.O. Box 923 

Salem, OR 97308 

(503) 581-1240 

Of attorneys for plaintiff 

IN THE CIRCUIT COURT OF THE STATE OF OREGON 

FOR THE COUNTY OF MARION 

VOLTAGE PICTURES, LLC 

 Plaintiff, 

v. 

DOES 1 – 50, 

 Defendants. 

Case No.: 14C13823 

Judge Geyer 

(PROPOSED)

ORDER TO SEVER DOE NO. 29 

ORS 647.105 – State Trademark 

This matter came before the Court on plaintiff’s Motion to Sever Doe No. 29. 

The Court being duly advised does hereby FIND AND ORDER:

1. Defendant Doe No. 29, identified by IP address 67.160.191.37 observed infringing 

plaintiff’s motion picture at 2/28/14 03:26:09 AM, is hereby severed from this action 

pursuant to ORCP 30. 

2. Plaintiff shall have 14 days from receipt of this order to re-file its complaint against the 

individual Doe No. 29 and such case shall be a continuance of this case under a new 

docket number. 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 61 of 125
ORDER TO SEVER DOE NO. 29 (Proposed)

Page 2 of 2 

Voltage v. Does 1 – 50 : 14C13823

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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3. Discovery in the severed case shall relate back to this case in all manners, including 

obligations and duties of parties and any pending subpoenas and all discovery orders 

shall remain in effect. 

4. Defendant Doe 29, identified by IP address 67.160.191.37 observed infringing plaintiff’s 

motion picture at 2/28/14 03:26:09 AM, shall be deemed served in the severed case by 

service on counsel of a summons and complaint pursuant to ORCP 9. 

ORDERED this ___ day of ________________, 2014. 

 

 By: ____________________________________ 

 Circuit Court Judge 

Prepared by: 

Carl D. Crowell, OSB No. 982049 

email: crowell@kite.com 

Crowell Law 

P.O. Box 923 

Salem, OR 97308 

(503) 581-1240 

Of counsel for plaintiff 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 62 of 125
COS: MOTION TO SEVER DOE. 29 

Page 1 of 2 

Voltage v. Does 1 – 50 : 14C13823

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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Carl D. Crowell, OSB No. 982049 

email: crowell@kite.com 

CROWELL LAW

P.O. Box 923 

Salem, OR 97308 

(503) 581-1240 

Of attorneys for plaintiff 

IN THE CIRCUIT COURT OF THE STATE OF OREGON 

FOR THE COUNTY OF MARION 

VOLTAGE PICTURES, LLC 

 Plaintiff, 

v. 

DOES 1 - 50, 

 Defendants. 

Case No.: 14C13823 

Judge Geyer 

CERTIFICATE OF SERVICE: 

PLAINTIFF’S MOTION TO SEVER 

DOE NO. 29; MEMORANDUM; 

PROPOSED ORDER 

ORS 647.105 – State Trademark 

I hereby certify that I served the following documents: 

1. Plaintiff’s Motion to Sever with Memorandum; and 

2. Proposed Order to Sever; 

on the attorney for Defendant Doe 29: 

 Garrett Maass, Esq. 

 5245 NE 31st Ave 

 Portland OR 97211 

 

 Email: garrettmaass@csi.com 

 garrettmaass@gmail.com 

by mailing a full, true, and correct copy thereof in a sealed postage-prepaid envelope, addressed 

to the attorney for plaintiff as shown above together with documents in PDF form to the listed 

emails on the date set forth below. 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 63 of 125
COS: MOTION TO SEVER DOE. 29 

Page 2 of 2 

Voltage v. Does 1 – 50 : 14C13823

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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DATED: April 29, 2014. 

 Respectfully submitted, 

 CROWELL LAW

 Carl D. Crowell, OSB No. 982049 

P.O. Box 923 

Salem, OR 97308 

Tel: 503-581-1240 

Email: crowell@kite.com 

Of attorneys for the plaintiff 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 64 of 125
MOTION – SEVER DOE NO. 29 

Page 1 of 3 

Voltage v. Does 1 – 50 : 14C13823

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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Carl D. Crowell, OSB No. 982049 

email: crowell@kite.com 

CROWELL LAW

P.O. Box 923 

Salem, OR 97308 

(503) 581-1240 

Of attorneys for plaintiff 

IN THE CIRCUIT COURT OF THE STATE OF OREGON 

FOR THE COUNTY OF MARION 

VOLTAGE PICTURES, LLC 

 Plaintiff, 

v. 

DOES 1 – 50, 

 Defendants. 

Case No.: 14C13823 

Judge Geyer 

PLAINTIFF’S MOTION TO ABATE 

PLAINTIFF’S PENDING MOTION TO 

SEVER DOE NO. 29; 

MEMORANDUM 

ORS 647.105 – State Trademark 

PLAINTIFF’S MOTION TO ABATE 

PLAINTIFF’S PENDING MOTION TO SEVER DOE NO. 29 

Preliminary Statement 

 Plaintiff does not request oral argument. 

 Counsel for party served: Garrett Maass, Esq. 

 5245 NE 31st Ave 

 Portland OR 97211 

 Tel: 503-313-1980 

 Email: garrettmaass@csi.com 

 garrettmaass@gmail.com 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 65 of 125
MOTION – SEVER DOE NO. 29 

Page 2 of 3 

Voltage v. Does 1 – 50 : 14C13823

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P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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MOTION 

Plaintiff moves to abate its pending motion to sever the party now known as Doe 29, 

observed infringing plaintiff’s motion picture using IP address 67.160.191.37 on 2/28/14 at 

03:26:09 AM UTC or in the alternative moves to withdraw the motion with leave to re-file. This 

motion is supported by the record of this case and the below memorandum. Plaintiff requests 

such abatement continue until such time as the actual Doe 29 (or relevant party) requests such 

directly or though counsel in a request submitted to the court, such as by letter. 

POINTS AND AUTHORITIES / MEMORANDUM 

Plaintiff was initially contacted in this matter by attorney Garrett Maass who objected to his 

client being joined with the other defendants. Attorney Garratt Maass affirmatively identified his 

client as: “My client's IP is 67.160.191.37.” Internet Protocol (“IP”) address 67.160.191.37 

corresponds with Doe 29 in the pending complaint. In a subsequent telephone conferral, attorney 

Garrett Maass maintained this position and the objection claiming improper joinder. 

To resolve this point of dispute, and pursuant to a telephone conferral with defendant’s 

attorney, plaintiff agreed to sever Doe 29, with IP address 67.160.191.37. 

After filing plaintiff’s now pending motion to sever, plaintiff received an email from Garrett 

Maass stating, “Feel free to move to sever the IP address I gave you. It does not belong to anyone I 

represent-I got it courtesy of Comcast.” As such, it would appear Doe 29 is NOT represented by 

Garrett Maass and the relevant Doe 29 may not object to being joined in this case. 

In an attempt to resolve this apparent disparity, an explanation was requested with a response 

that included “Lawyers are not obligated to be honest with other lawyers except concerning 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 66 of 125
MOTION – SEVER DOE NO. 29 

Page 3 of 3 

Voltage v. Does 1 – 50 : 14C13823

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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matters of representation to the Court.” This was together with further demands and settlement 

terms followed by the conflicting affirmative statement from defense counsel: “...you were foolish 

to assume that my representations to you on [the identity of my client] (or really any topic not 

directly before a tribunal) must be accurate.” 

As such, while it may be reasonable to assume attorney Garratt Maass has a client that 

objected to being joined, and plaintiff agreed to sever that party as evidenced by the pending 

motion, at this time plaintiff is without a good faith belief that Doe 29 was ever represented by 

Garret Maass. As such, plaintiff believes the pending motion should be abated until such time as 

the identity of Mr. Maass’ client is ascertained. 

WHEREFORE for the reasons stated herein, plaintiff moves this court to abate plaintiff’s 

pending motion to sever Doe 29. 

DATED: May 5, 2014. 

 Respectfully submitted, 

 CROWELL LAW

 Carl D. Crowell, OSB No. 982049 

P.O. Box 923 

Salem, OR 97308 

Tel: 503-581-1240 

Email: crowell@kite.com 

Of attorneys for the plaintiff 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 67 of 125
COS: MOTION TO ABATE - DOE. 29 

Page 1 of 2 

Voltage v. Does 1 – 50 : 14C13823

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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Carl D. Crowell, OSB No. 982049 

email: crowell@kite.com 

CROWELL LAW

P.O. Box 923 

Salem, OR 97308 

(503) 581-1240 

Of attorneys for plaintiff 

IN THE CIRCUIT COURT OF THE STATE OF OREGON 

FOR THE COUNTY OF MARION 

VOLTAGE PICTURES, LLC 

 Plaintiff, 

v. 

DOES 1 - 50, 

 Defendants. 

Case No.: 14C13823 

Judge Geyer 

CERTIFICATE OF SERVICE: 

PLAINTIFF’S MOTION TO ABATE 

PLAINTIFF’S MOTION TO SEVER 

DOE NO. 29 

ORS 647.105 – State Trademark 

I hereby certify that I served the following documents: 

1. Plaintiff’s Motion to Abate Plaintiff’s Motion to Sever with Memorandum 

on: 

 Garrett Maass, Esq. 

 5245 NE 31st Ave 

 Portland OR 97211 

 

 Email: garrettmaass@csi.com 

 garrettmaass@gmail.com 

by mailing a full, true, and correct copy thereof in a sealed postage-prepaid envelope, addressed 

to the attorney for plaintiff as shown above together with documents in PDF form to the listed 

emails on the date set forth below. 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 68 of 125
COS: MOTION TO ABATE - DOE. 29 

Page 2 of 2 

Voltage v. Does 1 – 50 : 14C13823

Crowell Law

P.O. Box 923

Salem, OR 97308-0923

Tel: 503-581-1240

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DATED: May 5, 2014. 

 Respectfully submitted, 

 CROWELL LAW

 Carl D. Crowell, OSB No. 982049 

P.O. Box 923 

Salem, OR 97308 

Tel: 503-581-1240 

Email: crowell@kite.com 

Of attorneys for the plaintiff 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 69 of 125
Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 70 of 125
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14C13823, 13824

Page 1/15

Defendants’ Motions to Dismiss and to Quash or Modify Subpoenas

Mersenne Law LLP

9600 S.W. Oak Street, Suite 500 / Tigard, Oregon 97221 US 

info@mersenne.com ............................ (503)679-1671 

David H. Madden, OSB #080396 

Mersenne Law LLP

9600 S.W. Oak Street 

Suite 500 

Tigard, Oregon 97223 

dhm@mersenne.com 

(503)679-1671 

IN THE CIRCUIT COURT OF THE STATE OF OREGON

MARION COUNTY

VOLTAGE PICTURES, LLC

Plaintiff, 

v.

DOEs 1–50, 

Defendants 

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Case No. 14C13823- 

 14C13824- 

Motion to Dismiss; 

Motion Quash or Modify 

Subpoena 

(Oral Argument Requested)

UTCR Compliance 

Pursuant to UTCR 5.050(1), DOES A–D (four 

unidentified defendants represented by undersigned 

counsel, two of whom are involved in 14C13823 and 

two of whom are involved in 14C13824) request oral 

argument. Court reporting services are not requested. 

Defendants estimate that oral argument (applicable to 

both cases) will take 30 minutes. 

DOEs A–D appear by and through their undersigned counsel to request that 

the Court dismiss the present action without prejudice for lack of jurisdiction, 

or in the alternative, that the Court quash or modify the subpoenas served by 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 71 of 125
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14C13823, 13824

Page 2/15

Defendants’ Motions to Dismiss and to Quash or Modify Subpoenas

Mersenne Law LLP

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Plaintiff’s counsel on non-party Internet Service Providers (“ISPs”) pursuant to 

the Court’s April 4, 2014 grant of early discovery. These motions are 

submitted to the Court under ORCP Rules 21A(1), 21F and 55B and are 

supported by the attached Memorandum of Points and Authorities. 

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MEMORANDUM IN SUPPORT OF MOTIONS TO DISMISS AND

AND TO QUASH OR MODIFY SUBPOENA

Summary of Relief Requested 

 The Court should QUASH the subpoenas Plaintiff has issued pursuant 

to the Court’s April 4th Order granting early discovery because the Court is 

WITHOUT JURISDICTION over the underlying subject matter. Because an order 

entered without jurisdiction is void, the discovery subpoenas have been 

issued without valid authority and are themselves invalid. Furthermore, the 

Court should DISMISS the current action without prejudice for lack of subjectmatter jurisdiction. 

 Should the Court determine that its exercise of jurisdiction is 

appropriate, then Defendants ask the Court to MODIFY the subpoenas by 

limiting the uses Plaintiff may make of the information disclosed thereby. The 

details of the requested modification and the reasons therefor are explained 

below. 

Lack of Jurisdiction 

 As an initial matter, Defendants observe that actions seeking relief under 

the Copyright Act, 17 U.S.C. § 101 et seq., are explicitly, solely and exclusively 

within the jurisdiction of the federal courts. 28 U.S.C. § 1338(a) provides: 

The district courts shall have original jurisdiction of any 

civil action arising under any Act of Congress relating to 

patents, plant variety protection, copyrights and 

trademarks. No State court shall have jurisdiction 

over any claim for relief arising under any Act of 

Congress relating to patents, plant variety protection, 

or copyrights. 

 Plaintiff VOLTAGE PICTURES LLC (“VOLTAGE”) has styled the present 

action as one seeking only equitable relief under a purported claim of state 

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trademark infringement (Complaint at ¶¶ 1, 10). However, the only allegation 

of misuse or infringement of the trademark is in the “copy[ing], 

reproduc[ing] and distribut[ing of a] motion picture that bear[s]” the mark 

(Complaint at ¶ 12). The bulk of the complaint alleges wrongs that sound in 

copyright, and indeed, most of the text is cribbed directly from VOLTAGE’s 

prior copyright-infringement suits (discussed below). 

 A state law claim is preempted by the Copyright Act, and therefore not 

within a state court’s jurisdiction, when (1) the subject matter of the state-law 

claim falls within the subject matter of the copyright act, and (2) when the 

rights asserted under state law are equivalent to the rights contained in 17 

U.S.C. § 106, which articulates the exclusive rights of copyright holders. Laws 

v. Sony Music Entertainment, Inc., 448 F.3d 1134, 1137-38 (9th Cir. 2006). 

(1) According to the Complaint, the subject matter of the state law claim is 

the illegal copying, reproducing and distributing of a motion picture, Dallas 

Buyers Club, which allegedly happens to bear Plaintiff’s trademark. Plaintiff 

does not allege that the DOE defendants affixed Plaintiff’s mark to the movie 

themselves, only that they copied and distributed a movie bearing the mark. 

If they had not copied and distributed the movie, then no trademark 

infringement would have been committed. 

The alleged trademark infringement is inseparable from the 

copying and distributing, and would not exist but for those alleged acts. 

(2) 17 U.S.C. § 106 secures to the copyright owner the exclusive rights to do 

and to authorize: 

(1) to reproduce the copyrighted work in copies or 

phonorecords; 

[...] 

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(3) to distribute copies or phonorecords of the 

copyrighted work to the public by sale or other transfer of 

ownership, or by rental, lease, or lending; 

 Plaintiff’s state law trademark claim concerns alleged conduct that is 

exactly coextensive with a copyright holder’s rights under 17 U.S.C. § 106. 

There is not even a suggestion of a right of Plaintiff that is distinguishable 

from one of the § 106 rights. Thus, there is no question that Plaintiff’s 

trademark claims are preempted by the Copyright Act, and by operation of 28 

U.S.C. § 1338(a) (quoted above) this Court is without jurisdiction in this 

matter. 

 “An order or judgment entered by a court that lacks subject matter 

jurisdiction is void and not merely voidable.” Polygon Northwest v. NSP 

Development, 96 P.3d 837 (Or. App., 2004). Because the Court lacks 

jurisdiction over the subject matter of the present suit, it MUST QUASH the 

subpoenas because the order purporting to grant authority to issue them is 

void. 

 If the Court fails to quash the subpoenas (and to notify the respondents 

of this decision), then it will countenance and acquiesce in the issuance of 

subpoenas bearing its imprimatur and supported by its invalid, void order. A 

party’s issuance of rogue, unauthorized subpoenas would be a matter of 

serious concern to the Court, and the presently-challenged subpoenas should 

be treated exactly the same. 

/// 

/// 

/// 

/// 

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Introduction to the Merits 

 Plaintiff VOLTAGE PICTURES LLC alleges that it is a producer, marketer 

and distributor1

 of motion pictures, including of 2013 Academy Award winner 

Dallas Buyers Club2

. Indeed, VOLTAGE appears to be a busy and trusted 

distributor of Oscar-winners like Dallas Buyers Club (2013) and Hurt Locker

(2008), as well as star vehicles like Steven Segal’s Maximum Conviction

(2012) and David-and-Goliath law drama Puncture (2011). 

 Regrettably, even a legitimate business such as VOLTAGE must 

occasionally turn to the courts for assistance against those who would 

disregard its rights and commercial prerogatives. Sadly, the enforcement of 

legitimate rights by an apparently bona fide business like VOLTAGE is often 

confused (by an ignorant public) with superficially-similar litigation tactics 

adopted by so-called “copyright trolls” – “movie” companies whose breadand-butter is in shaking down unrepresented parties for settlements of 

dubious or outright invalid claims. 

 Predictably, VOLTAGE will be called a troll for pursuing the present 

action, although it is perhaps distinguishable from a typical case. However, 

because of the serious risk to the Court’s credibility and appearance of 

fairness, it is important that the Court understand what a copyright troll 

action is, important that safeguards be put in place to reassure a skeptical 

public that the Court’s authority is not being abused, and important to show 

that the public’s trust in the Court is not misplaced. 

 

1

 but not, critically, an author or copyright holder 2

 Curiously, VOLTAGE’s website reports that Dallas Buyers Club was released in the U.S. through 

Focus Features, which is apparently a Delaware limited-liability company unrelated to Plaintiff 

VOLTAGE PICTURES, LLC. 

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Copyright Trolling 

 As an initial matter, Defendants note that “trolling” is an offensive and 

prejudicial term for a litigation strategy that, while questionable, is not prima 

facie vexatious nor invariably pursued in bad faith. The practice is described 

and analyzed in a recent paper by Professor Matthew Sag of Loyola University 

Chicago School of Law and Associate Director for Intellectual Property at the 

Institute for Consumer Antitrust Studies (Copyright Trolling, An Empirical 

Study (March 21, 2014); Iowa Law Review, Forthcoming; available at SSRN: 

http://ssrn.com/abstract=2404950M; copy attached as Appendix A). Professor 

Sag’s label for a copyright troll, ‘systematically opportunistic plaintiff,’ is 

somewhat unwieldy, so in the following description, the simpler and neutral 

phrase “rightsholder action” will be adopted. Professor Sag describes the 

economic motivations of a rightsholder-action plaintiff and analyzes recent 

data relating to numbers of cases and numbers of Doe defendants, but 

Defendants believe the Court’s understanding may be aided by a shorter 

description that focuses on the ‘view from the bench.’ 

Rightsholder Action 

In a rightsholder action, a plaintiff files a lawsuit alleging infringement 

of an intellectual property right through the concerted action of a large 

number of defendants, whom the plaintiff can only identify by a computer 

address (an “IP address”). Immediately thereafter, the plaintiff files an ex 

parte motion to permit it to take early discovery, and most courts grant such 

motions as a matter of course. 

Subpoenas are issued to the Internet Service Providers (“ISPs”) 

associated with the IP addresses, since those companies have the information 

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to connect an IP address with the name and address of the person who pays 

the bill for Internet service3. The ISPs send letters to their customers, 

notifying them of the lawsuit and alerting them that the ISP will disclose their 

identifying information to the plaintiff unless the customer takes action (e.g., 

by filing a motion to quash the subpoena). 

Sometimes motions to quash are filed, on the grounds that releasing 

the identifying information would be a violation of the subscriber’s privacy 

interests, but these are routinely (and properly) denied, since a putative 

privacy interest cannot properly trump a legitimate allegation of infringement. 

When a rightsholder-action plaintiff obtains the identifying 

information for an Internet subscriber, its counsel contacts the unrepresented 

party, informs him that he is liable for infringement (being sure to note the 

maximum statutory penalties for infringement4

), and offers the target the 

opportunity to settle the matter for a modest – but immediate – payment. 

Individuals who protest their innocence are usually told that they must 

cooperate in the plaintiff’s investigations by allowing inspection of their 

computers or by subjecting themselves to polygraph interrogations, and that 

failure to cooperate will result in an adverse litigated outcome. 

A final hallmark of a rightsholder action that ignorant laymen consider 

a “copyright troll” suit is the lack of further proceedings before the judge who 

granted early discovery. Apart from occasional motions to quash or dismiss, 

 

3

 Although this point is invariably glossed over in a rightsholder complaint, the IP address cannot 

identify a person. Thus, the early discovery sought is like trying to find the person who made a 

prank call, by identifying the person who pays the phone bill. 4

 Statutory damages for copyright infringement range from $750 to $30,000 per instance, with 

enhancements up to $150,000 if the copyright owner can prove willful infringement. 17 U.S.C. § 

504(c). 

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the allegations of the complaint will never be proven or contested, no 

defenses will be presented, and no final judgment on the merits will ever be 

rendered. The case will simply be dismissed without prejudice, on plaintiff’s 

motion or by the court’s own action. 

It is almost as if the rightsholder plaintiff’s sole objective is to obtain a 

list of names and addresses of Internet subscribers under the pretext of 

tracking down infringers, though it is difficult to imagine what legitimate use 

such a list could be, if not to name and serve defendants to the lawsuit. 

Rightsholder plaintiffs even present facially invalid complaints to courts 

whose lack of jurisdiction is not subject to any dispute5

, in pursuit of early 

discovery. Further, even after obtaining discovery via subpoenas issued 

pursuant to an order of a court lacking jurisdiction, rightsholder plaintiffs do 

not substitute identified individuals into the pending suit, or file new separate 

actions against such individuals. 

VOLTAGE’s Suits 

 Defendants’ counsel recently conducted a survey of VOLTAGE’s cases 

since 2010. Plaintiff has filed 78 actions in district courts across the country, 

alleging copyright infringement by just over 30,000 Doe defendants (an 

average of approximately 392 Does per case). After obtaining and reviewing 

the dockets in these cases, it appears that none of them have been litigated – 

not a single Doe has answered and then been found liable for the alleged 

infringement (or exonerated therefrom). A small number of default 

judgments have been obtained, but the overwhelming majority of the cases 

 

5

 For example, plaintiffs present copyright-infringement claims to state courts, despite 28 U.S.C. § 

1338(a) (discussed above) 

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were simply dismissed without prejudice, on VOLTAGE’s motion or by the 

court, shortly after the grant of early discovery. 

 In Oregon, VOLTAGE has filed eight suits: four against multiple 

defendants (total 619 Does), and four individual suits after the multi-Doe 

suits foundered when Chief Judge Ann Aiken expressed concern that 

VOLTAGE was exploiting misjoinder to deprive the court of filing fees. 

Judge Aiken dismissed all Does except Doe #1 from each of the multiDoe suits, and it seems fairly clear that the Oregon federal courts will not be 

receptive to VOLTAGE’s further attempts to avoid fees by suing many 

defendants in one case. 

The Present Lawsuits 

 Only time will tell whether VOLTAGE intends to use the information 

sought by the challenged subpoenas for the legitimate purpose of naming and 

serving the Internet subscribers to this suit. However, in view of VOLTAGE’s 

questionable conduct in its large number of previous actions, the possibility 

that it is merely seeking to obtain information on the cheap from the state 

court, and the burden to each of the hundred Does who will be

inconvenienced and may be improperly intimidated, Defendants respectfully 

submit that the Court should modify the subpoenas as follows. 

The Court Should Oversee These Cases Closely 

 At the present stage, and until the individuals identified in response to 

the subpoenas are named and served in the present action, these cases are 

indistinguishable from VOLTAGE’s earlier suits (which exactly fit the 

“systematically opportunistic plantiff” mold). Judging by its past actions, 

there is a substantial probability that VOLTAGE will send false or misleading 

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settlement demands, or attempt to trick unrepresented parties into executing 

a “free” settlement of one claim, only to have the settlement presented as 

conclusive evidence of a different claim, by a completely different party. 

 Once such demands or offers are sent, the damage cannot be undone. 

In fact, once the Internet subscribers are identified, if VOLTAGE is not 

restricted from using the information for purposes beyond those authorized 

by this Court, the Court’s subpoena power will have been applied to support 

a fishing expedition by parties not before the Court – parties seeking a cheap 

license to take trophies neither considered nor acknowledged, let alone 

approved by the Court. 

 To maintain its integrity and – as important – the appearance of 

impartiality in this matter, the Court should modify Plaintiff’s subpoenas as 

explained below. 

Subpoena Modifications 

 First, Defendants respectfully request that the Court modify its order 

granting early discovery to provide that any identifications obtained in 

response to the subpoenas shall be for the sole and exclusive use of VOLTAGE 

and for the sole and exclusive purpose of naming and serving those 

individuals as parties in the present suit. All other use of this information 

should be foreclosed. 

 Second, Defendants respectfully request that the Court review and (if 

necessary) amend all documents and communications Plaintiff proposes to 

make to unrepresented individuals identified in response to the subpoenas, 

to prevent VOLTAGE from disseminating false or misleading information. 

 Third, Defendants respectfully request that the Court require that 

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VOLTAGE file copies of all documents it transmits to individuals identified in 

response to the subpoenas, and submit records of all telephonic or in-person 

interactions with those individuals. 

 Finally, Defendants respectfully request that the Court appoint a 

guardian ad litem to represent the interests of DOEs in the present action for 

all purposes, until such time as the DOE is named and personally served. 

Conclusion 

 Federal copyright law provides remedies – and they are substantial, 

statutory remedies – to content owners whose rights have been infringed. 

But those remedies are only available to injured plaintiffs who are able to 

establish, to the court’s or jury’s satisfaction, that the defendant actually 

committed the acts complained of. They are not mere threats provided for 

the convenience of litigants proceeding in bad faith who would coerce 

extrajudicial payments from Internet subscribers who may have no 

connection to any alleged misdeeds. 

 The Court should quash or modify the subpoenas as described above to 

avoid becoming a mere cog in a plaintiff’s extortion scheme, and to avoid the 

appearance of having been duped into that role. The requested limitations 

will not impair any exercise of any of Plaintiff’s legitimate rights, but they will 

protect the Court from potential abuse of its subpoena power and any from 

any suggestion that it is failing to fully and fairly protect the rights of all who 

might come before it. In fact, Plaintiff can obtain the injunctive relief that it 

claims to be seeking without any judicial action. Federal law allows Plaintiff 

to enjoin the alleged infringement via a DMCA Notice. (17 U.S.C. § 512(j)) 

By lodging such a notice with each ISP to which it has instead issued 

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subpoenas, VOLTAGE could have obtained the relief it seeks, without 

consuming any judicial resources. 

 Sunshine is the best disinfectant, and by requiring VOLTAGE to 

proceed in full sunlight, the Court can fulfill its obligations to all the citizens 

of this State. 

Respectfully submitted, 

 

Date David H. Madden, OSB #080396

Attorney for Defendants A–D 

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APPENDIX A

Copyright Trolling, An Empirical Study

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 84 of 125
Electronic copy available at: http://ssrn.com/abstract=2404950

Copyright Trolling, An Empirical Study

Matthew Sag∗

ABSTRACT

This detailed empirical and doctrinal study of copyright trolling presents new 

data showing the astonishing rate of growth of multi-defendant John Doe litigation in 

United States district courts over the past decade. It also presents new evidence of the 

association between this form of litigation and allegations of infringement concerning 

pornographic films. Multi-defendant John Doe lawsuits have become the most common 

form of copyright litigation in several U.S. districts, and in districts such as the Northern 

District of Illinois, copyright litigation involving pornography accounts for more than 

half of new cases filed.

This Article highlights a fundamental oversight in the extant literature on 

copyright trolls. Paralleling discussions in patent law, scholars addressing the troll issue 

in copyright have applied status-based definitions to determine who is, and is not, a troll. 

This Article argues that the definition should be conduct-based. Multi-defendant John 

Doe litigation should be counted as part of copyright trolling whenever these suits are 

motivated by a desire to turn litigation into an independent revenue stream. Such 

litigation, when initiated with the aim of turning a profit in the courthouse as opposed to 

seeking compensation or deterring illegal activity, reflects a kind of systematic 

opportunism that fits squarely within the concept of litigation trolling. This Article shows 

that existing status-based definitions of copyright trolls are inapt because they do not 

account for what is now the most widely practiced from of trolling. 

In addition to these empirical and theoretical contributions, this Article explores 

the features of copyright doctrine that have facilitated the recent explosion in trolling 

litigation in the form of litigation against John Does. In particular, it shows how 

statutory damages and permissive joinder make multi-defendant John Doe litigation 

possible and why allegations of infringement concerning pornographic films are 

particularly well-suited to this model. 

 

∗ Professor, Loyola University Chicago School of Law and Associate Director for Intellectual 

Property of the Institute for Consumer Antitrust Studies. Thanks to Tonja Jacobi, Glynn Lunney, David 

Schwartz and Spencer Waller for their comments and suggestions. Draft dated March 21, 2014. Please 

send all comments msag@luc.edu. Accepted for publication in Volume 100 of the Iowa Law Review. Raw 

data available soon at http://matthewsag.com/publications-2/data-sets/

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 85 of 125
Electronic copy available at: http://ssrn.com/abstract=2404950

2

TABLE OF CONTENTS

Introduction............................................................................................................. 2

I – The Rise of the Copyright Troll ....................................................................... 6

A. Copyright Trolls and Copyright Trolling................................................... 6

B. MDJD Litigation and Copyright Trolling ................................................... 9

C. The Economics of MDJD Lawsuits.......................................................... 10

D. The Rise of MDJD Lawsuits.................................................................... 11

II. Statutory Damages, Joinder & Pornography................................................ 15

A. Statutory Damages................................................................................... 15

B. Joinder...................................................................................................... 17

C. The Copyright Trolling-Pornography Nexus........................................... 23

III. Reforms....................................................................................................... 30

A. The Normative Foundations for Reform.................................................. 30

B. Reform Proposals...................................................................................... 31

IV. Conclusion ................................................................................................... 40

INTRODUCTION

Patent trolls are in the news1 and they have been high on the agenda of intellectual 

property policy makers and academics for over a decade now.2 In 2012, those targeted by 

patent aggregators and patent holding companies accounted for 56% of all patent 

defendants;3 depending on one’s definition of a patent troll, the incidence of patent troll 

litigation may or may not be increasing;4 patent trolls have been condemned by the 

 1 See e.g., Edgar Walters, “Tech Companies Fight Back Against Patent Lawsuits” N.Y. TIMES

January 24, 2014. (http://www.nytimes.com/2014/01/24/us/tech-companies-fight-back-against-patentlawsuits.html) 

2 See e.g., FTC, To Promote Innovation: The Proper Balance of Competition and Patent Law and 

Policy, (2003), available at http://www.ftc.gov/os/2003/10/innovationrpt.pdf; FTC, The Evolving IP 

Marketplace: Aligning Patent Notice and Remedies with Competition (2011), available at 

http://www.ftc.gov/os/2011/03/110307patentieport.pdf. See generally, Mark A. Lemley & A. Douglas 

Melamed, Missing the Forest for the Trolls, 113 Colum. L. Rev. 2117 (2013).

3 Christopher A. Cotropia, Jay P. Kesan & David L. Schwartz, Unpacking Patent Assertion 

Entities (PAEs) (working paper), see Figure 3. 

4 Colleen Chien reports that patent trolls 29% filed in 2010 of patent lawsuits and 62% in 2012. 

Colleen Chien, Patent Trolls by the Numbers (available at http://www.patentlyo.com/patent/2013/03/chienpatent-trolls.html). However, new research using more transparent data finds that, based on the total 

number of patent litigants, there is almost no difference between 2010 and 2012. Christopher A. Cotropia, 

Jay P. Kesan & David L. Schwartz, Unpacking Patent Assertion Entities (PAEs) (working paper).

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 86 of 125
3

President;5 and targeted by new legislation.6 While patent trolls hog the limelight, a 

particular type of copyright troll has been taking over the dockets of several United States 

District Courts, and yet copyright trolls have received comparatively little attention in 

policy and academic circles. District court judges have certainly commented on how the 

nature of copyright litigation is changing,7 but until now there has been no systematic indepth analysis of the data.8 This Article remedies this deficiency. 

This empirical study of copyright trolling presents new data revealing the 

astonishing growth of a particular kind of copyright trolling — the Multi-Defendant John 

Doe (“MDJD”) lawsuit alleging copyright violation through the file sharing software 

known as BitTorrent. Generally, these suits take the form of “Copyright Owner v. John 

Does 1 – N” where N is a large number.9 MDJD suits are not just a form of copyright 

trolling; they are the dominant form. In 2013, these MDJD suits were the majority of 

copyright cases filed in 19 out of 92 federal districts.10 

 5 President Obama recently stated “They don’t actually produce anything themselves...They are 

essentially trying to leverage and hijack somebody else’s idea and see if they can extort some money out of 

them.” http://www.whitehouse.gov/blog/2013/06/04/taking-patent-trolls-protect-american-innovation. See 

also, Executive Office of the President, Patent Assertion and U.S. Innovation (June 2013).

6 Leahy-Smith America Invents Act (AIA), Pub. L. No. 112-29, 125 Stat. 284 (2011) (codified in 

scattered sections of 35 U.S.C.). The AIA included a revision to the joinder rules for patent litigation, 

which required lawsuits filed against multiple unrelated parties to be filed separately, a provision squarely 

aimed at patent trolls. The Saving High-Tech Innovators from Egregious Legal Disputes Act of 2013 

(SHIELD Act), H.R. 845, 113th Cong. (2013) is a sweeping bill aimed at “stopping patent troll lawsuits” 

likely to consider by the Senate in early 2014.

7 See, e.g., In re BitTorrent Adult Film Copyright Infringement Cases, 2012 U.S. Dist. LEXIS 

61447,1 (E.D.N.Y. May 1, 2012) (“These actions are part of a nationwide blizzard of civil actions brought 

by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer 

protocol known as BitTorrent.”)

8 The Copyright Office has never addressed the issue of copyright trolls, nor does Copyright 

Office’s recent report on Copyright Small Claims even mention them. COPYRIGHT OFFICE, Copyright Small 

Claims, A Report to the Register of Copyrights, September 2013 (available at 

http://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf.) For non-empirical discussions 

of the MDJD phenomenon see e.g., James DeBriyn, Shedding Light on Copyright Trolls: An Analysis of 

Mass Copyright Litigation in the Age of Statutory Damages, 19 UCLA ENT. L. REV. 79 (2012); Sean B. 

Karunaratne, The Case Against Combating BitTorrent Piracy Through Mass John Doe Copyright 

Infringement Lawsuits, 111 MICH. L. REV. 283 (2012); Patience Ren, The Fate of BitTorrent John Does: A 

Civil Procedure Analysis of Copyright Litigation, 64 HASTINGS L.J. 1343 (2013); Gregory S. Mortenson, 

BitTorrent Copyright Trolling: A Pragmatic Proposal for a Systemic Problem, 43 SETON HALL L. REV. 

1105 (2013).

9 Not all plaintiffs in such suits are trolls in the sense that this term is invoked in the patent 

literature – i.e., they are not all non-practicing entities – but the conclusion of this Article is that these 

massive multi-party john doe (“MDJD”) suits are by and large instances of trolling.

10 Alabama (SD), Colorado, Delaware, District Of Columbia, Florida (MD), Georgia (ND), 

Georgia (SD), Illinois (CD), Illinois (ND), Indiana (ND), Maryland, Michigan (ED), Ohio (SD), 

Pennsylvania (ED), Tennessee (ED), Tennessee (WD), Washington (WD), Wisconsin (ED) and Wisconsin 

(WD). In 2013, pornography MDJD suits accounted for over of suits filed in 11 federal districts: Alabama 

(SD), District Of Columbia, Illinois (CD), Illinois (ND), Indiana (ND), Maryland, Michigan (ED) 

Pennsylvania (ED), Tennessee (ED), Tennessee (WD) and Wisconsin (ED).

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Defining exactly what makes an individual or an organization a troll is inevitably 

controversial.11 The essence of trolling is that the plaintiff is more focused on the business 

of litigation than on selling a product or service or licensing their IP to third parties to sell 

a product or a service. The paradigmatic troll plays a numbers game in which it targets 

hundreds or thousands of defendants, seeking quick settlements priced just low enough 

that it is easier for the defendant to pay the troll directly rather than pay his lawyers to 

defend the claim. This is a familiar pattern in patent law where trolls thrive by 

opportunistically taking advantage of the uncertain scope of patent claims, the poor 

quality of patent examination, the high cost of litigation and the asymmetry of stakes 

faced by the patent assertion entities and the businesses they target.12

As this Article demonstrates, a similar numbers game is increasingly dominating 

copyright litigation. Copyright suits against John Does comprised over 43% copyright 

claims filed in 2013. The economic viability of MDJD litigation depends on suing as 

many defendants as possible in a single action to keep costs low and leveraging the threat 

of statutory damages in order to maximize the flow of settlement dollars. As discussed in 

more detail in Part I, it is fair to regard theses suits as a form of copyright trolling. 

Copyright trolls may draw inspiration from their patent counterparts, but they are 

a product of two unique features of copyright law: the first is the incentives created by 

statutory damages; the second is the permissive approach to joinder taken by many 

district courts in file-sharing cases.13 The theory behind these MDJD lawsuits is that 

individuals who share the same movies and other copyrighted works via BitTorrent are 

can be joined together in a single copyright lawsuit.14 Litigating a case all the way to trial 

against thousands of individuals in the same suit would be ridiculous and unwieldy,

15 but 

these suits are not filed with an actual hearing in mind. MDJD lawsuits are filed to take 

advantage of court ordered discovery to break the veil of anonymity that separates IP 

addresses from the account information of actual human beings.16 They are means to 

compel Internet Service Providers such as Comcast and AT&T to give plaintiff copyright 

owners names and addresses to match the IP addresses that they already have.

 11 See generally, Lemley & Melamed, Missing The Forest For The Trolls, 113 COLUM. L. REV. 

2117 (2013).

12 Id.

13 See infra Part II-A on statutory damages and Part II-B on joinder. 

14 See infra Part II-B.

15 Just imagine how long a scheduling conference would take.

16 Parties generally may not initiate discovery prior to satisfying the meet and confer requirement 

of FED. R. CIV. P. 26(f), however this is not possible where the defendant is identified by their IP address 

and has not been served. Thus plaintiffs in MDJD suits must apply for earlier discovery under FED. R. CIV.

P. 26(d). See, Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y. 2012). Note also that without 

a Court-ordered subpoena, many of the ISPs, who qualify as “cable operators” for purposes of 47 U.S.C. § 

522(5), are effectively prohibited by 47 U.S.C. § 551(c) from disclosing the identities of the putative 

defendants to Plaintiff. Id.

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After obtaining the names and addresses of account holders suspected of 

participating in a BitTorrent swarm, the plaintiff can set to work negotiating settlements.17

An account holder accused of infringement is almost invariably threatened with statutory 

damages and the prospect of paying the plaintiff’s attorneys fees if he is unable to 

establish his innocence.18 Reports indicate that settlements are usually in the range of 

$2000 to $4000 – this is a lot to pay for any movie, but a small fraction of the potential 

statutory damages for willful copyright infringement, which can be as high as $150,000 

per work infringed.19 The $4000 figure is also evidently “a sum calculated to be just 

below the cost of a bare-bones defense.”20 This does not prove that the plaintiffs are 

simply pursuing nuisance value settlements, but it is consistent with that theory.

In addition to relying on statutory damages and permissive joinder, Part II of this 

Article shows that the majority of MDJD suits also feature an additional ingredient—

pornography.21 Not all MDJD lawsuits relate to pornography, but the association with 

pornography is far from coincidental. The MDJD model works especially well for 

pornography because the potential embarrassment of being accused (accurately or not) of 

downloading such material is a great motivation to settle.

This Article proceeds as follows: Part I locates MDJD suits within the broader 

context of the IP troll debate. It explains why attempts to define copyright trolls in terms 

status – i.e., in terms of the plaintiff’s relationship to the underlying IP – are ultimately 

flawed and suggests a conduct focused approach based on identifying systematic 

opportunism. Part I explains why MDJD lawsuits should typically be regarded as 

copyright trolling and it explores the basic economics of MDJD litigation. Part I then 

presents empirical data documenting the astonishing rise of MDJD lawsuits over the past 

decade. Part II explores the role of statutory damages and permissive joinder in MDJD 

lawsuits in terms of the economic model developed in Part I. Part II also explains why the 

economics of in this type of litigation is so well-suited to allegations of infringement 

concerning pornography and presents new data on the prevalence of pornography related 

MDJD lawsuits. Part III presents concrete proposals for copyright reform designed to 

make copyright trolling less attractive. This Part explains how, even in the absence of 

legislative reform, district court judges can exercise their discretion over joinder and 

early discovery to ensure that statutory damages are not excessive and to insist on a 

variety of procedural safeguards. 

 17 Malibu Media, LLC v. Doe, 2013 U.S. Dist. LEXIS 139068, 2 (N.D. Ill. Sept. 27, 2013) (“Once 

the identities become known to the plaintiff, the John Does are served with process. The defendants then 

either settle with the plaintiffs, default, or contest the suit.”)

18 See e.g., Settlement Letter from Steele & Hansmeier, PLLC (May 16, 2011), available at 

http://www.scribd.com/doc/80437326/Steele-Hansmeier-Settlement-Demand-Letter-First-Time-Videos.

(Explaining statutory damages and offering to settle $2,900).

19 17 U.S.C.§504(c)(statutory damages).

20 Ingenuity 13 LLC v. John Doe, 2:12-CV-8333-ODW JCX, 2013 WL 1898633 (C.D. Cal. May 6, 

2013)

21 See infra, Part II-C.

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PART I THE RISE OF THE COPYRIGHT TROLL

This Part documents the rise of the copyright troll as an empirical phenomenon. 

As part of the foundation for the empirical exercise, Part I-A locates MDJD litigation

within the broader context of the IP troll debate. It explains why the existing focus of the 

literature on examples such as Righthaven overlooks the most important manifestations 

of trolling. Part I-B explains why MDJD lawsuits typically should be regarded as trolling. 

Part I-C explores the basic economics of MDJD litigation. Part I-D then presents the 

empirical data on the rise of MDJD lawsuits over the past decade.

A. Copyright Trolls and Copyright Trolling

(1) Righthaven

From 2010 to 2011, a Nevada-based company called Righthaven LLC set about a 

business model that can be summarized in three simple steps: (1) recruit content owners, 

principally newspapers; (2) identify plausible cases of copyright infringement, such as the 

reposting newspaper articles on blogs; (3) acquire a partial assignment of copyright 

tailored precisely to the infringement identified in step two.22 Note that steps one and two 

can easily be reversed. This model generated significant profits from a string of quick 

settlements. 

The Righthaven model began to look vulnerable when a number of defendants 

were able to establish that their conduct fell within the scope of the fair use doctrine.23

However, the real problem for Righthaven turned out to be that its standing to sue was 

built on a “nothing more than a fabrication”. 24 The limited exclusive rights that 

Righthaven had received from the original content appeared to satisfy the requirement 

for copyright standing – only the legal or beneficial owner of an exclusive right under 

copyright law is entitled, or has standing, to sue for infringement.25 However, those 

assignments were subject to a secret “Strategic Alliance Agreement” that meant that all 

Righthaven possessed was a mere right to sue.26 An agreement transferring the right to 

 22 Shyamkrishna Balganesh, The Uneasy Case Against Copyright Trolls, 86 S. CAL. L. REV. 723

(2013).

23 E.g., Righthaven, LLC v. Hoehn, 792 F. Supp. 2d 1138, 1147-51 (D. Nev. 2011); Righthaven 

LLC v. Realty One Grp., Inc., No. 2:10-cv-1036-LRH-PAL, 2010 U.S. Dist. LEXIS 111576, at 4-6 (D. 

Nev. Oct. 18, 2010); Righthaven LLC v. Klerks, No. 2:10-cv-00741-GMN-LRL, 2010 U.S. Dist. LEXIS 

105307, at 6-10 (D. Nev. Sept. 17, 2010) (finding a sufficient meritorious fair use defense to set aside a 

default).

24 Righthaven LLC v. Democratic Underground, LLC, 791 F. Supp. 2d 968, 973 (D. Nev. 2011).

25 See Silvers v. Sony Pictures Entm’t Inc., 402 F.3d 881, 884 (9th Cir. 2005) (en banc).

26 Righthaven LLC v. Democratic Underground, LLC, 791 F. Supp. 2d 968, 972 (D. Nev. 2011) 

(Section 7.2 of the Strategic Alliance Agreement between Righthaven and Stephens Media provided that 

“Despite any such Copyright Assignment, Stephens Media shall retain (and is hereby granted by 

Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful 

purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of 

royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds 

in association with a Recovery.”)

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sue without any of the copyright owner’s exclusive rights is ineffectual. Following these 

revelations, Righthaven’s suits were dismissed and the firm quickly succumbed to the 

weight of legal fees and went into insolvency.27

In his thought provoking article on the copyright troll phenomenon, Professor 

Shyamkrishna Balganesh offered the following definition: “A copyright troll refers to an 

entity whose business revolves around the systematic legal enforcement of copyrights in 

which it has acquired a limited ownership interest.”28 Balganesh argued that the real 

problem with copyright trolls is not this delegation of enforcement of itself, but rather the 

fact that such delegation disrupts the “enforcement equilibrium” that is integral to the 

functioning of copyright as an institution.29

This seems to fit the Righthaven story, but perhaps a little too well. Righthaven 

targeted defendants who were largely non-commercial and whose alleged infringements 

were usually inconsequential to the copyright owner’s bottom line. Righthaven disrupted 

the previous enforcement equilibrium by attempting to monetize borderline cases of 

infringement that without its intervention would have either been ignored or tolerated. 

Balganesh’s definition of copyright trolls, which focuses on the delegation of 

enforcement to a separate entity, has echoes of patent law’s concerns with non-practicing 

entities and patent aggregators. 

Righthaven is a compelling example, but it is just one example.30 As the data in 

this Article shows, a status-based conception of copyright trolling does not fit particularly 

well with is the predominant form of copyright trolling witnessed in federal courts over 

the last few years. MDJD lawsuits typically do not involve any assignment of rights. By 

focusing on delegation through assignment, a status-based definition overlooks most of 

the reality of copyright trolling in practice. Arguably, there is still a form of delegation in 

MDJD cases in that the handling of these suits is given over to specialized law firms who 

in many instances recruit their clients. If these specialized law firms are working on 

contingency, their incentives will be virtually the same as an entity that acquired rights 

solely for the purpose of litigation. The willingness of entrepreneurial law firms to pursue 

allegations of infringement on contingency makes any status-based definition of trolls 

and trolling in copyright obsolete.31 Patent litigation is driven by different economic 

 27 Ian Polonsky, You Can’t Go Home Again: The Righthaven Cases And Copyright Trolling On 

The Internet, 36 Colum. J.L. & Arts 71 (2012).

28 Balganesh supra note 150 at 732. 

29 Id.

30 Another example unrelated to MDJD litigation is arguably the textile printer L.A. Printex. 

Charles Colman, “California federal jury finds for copyright plaintiff L.A. Printex in Aeropostale fabric 

pattern case: blurgh” LAW OF FASHION February 1, 2013 (“L.A. Printex has developed something of a bad 

reputation in the fashion world, having brought more copyright infringement cases than one can count 

against a plethora of fashion designers and retailers, most of whom find it cheaper to settle than to fight the 

frequently questionable lawsuits.”) (Available at http://lawoffashion.com/blog/story/02/01/2013/173). 

31 Statements about the relationship between the plaintiffs and their legal counsel in MDJD cases 

are necessarily merely generalizations.

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fundamentals, but the evidence from copyright at least raises a serious question as to 

whether the current status-based ideas of who is and is not a patent troll are really viable. 

Another potentially misleading aspect of troll discussions focusing on Righthaven 

is the idea that the problem with copyright trolls is that they disrupt existing conventions 

of tolerated use.32 MDJD file-sharing lawsuits typically do not relate to boundary issues 

fair use or tolerated use—unauthorized file sharing using BitTorrent and similar software 

tools is not a legal gray area.33 It is strenuously objected to by the mainstream of creative 

industries and is clearly not fair use or de minimus. We would do better to define trolling 

than trolls.

(2) Beyond Righthaven

Copyright trolling cannot be defined by characteristics such as whether the 

plaintiff is the original owner of the copyright, or whether the plaintiff has attempted to 

license the work in the marketplace. Descriptively, these indicia may provide some useful 

shortcuts, but they would exclude the majority of troll litigation in copyright. In seeking 

to define what makes a litigant a troll, we would do better to focus on conduct rather than 

status. We should, in short, seek to identify instances of trolling rather than looking for 

trolls per se.

If anything unifies the patent law and copyright law experience of trolls, it is the 

sense that a troll is a systematic opportunist.34 The reason why agreeing on an exact 

definition of trolls is so difficult is that there are so many different manifestations of 

opportunism in IP litigation. In the patent context, some plaintiffs are labeled as trolls 

because they exploit flaws in the administration of the patent system, such as the 

uncertain scope of patent claims and the poor quality of patent examination. Others are 

labeled as trolls because they take advantage of asymmetric stakes and the high cost of 

litigation to extract settlements or licensing fees based on dubious claims. The claims 

may be dubious in the sense that, if fully litigated, the defendant would be very likely to 

win. The troll’s case may also be dubious in the sense that even if their patents are 

technically valid and infringed under our current legal standards, this simply reflects the 

failure of those standards to adequately promote investment in innovation and invention. 

In addition to opportunism relating to litigation strategy, the decision to base a 

business model on litigation can be seen as a form of opportunism in itself. Patent trolls 

acquire and assert patents based on the their litigation potential rather than the value of 

the underlying technology. On this view, the essence of trolling is that the plaintiff is 

 32 Tim Wu, Tolerated Use, 31 COLUM. J.L. & ARTS 617, 619 (2008)

33 See Metro–Goldwyn–Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005); A & M 

Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir.2001); BMG Music v. Gonzalez, 430 F.3d 888, 890 

(7th Cir.2005).

34 On opportunism in general, see Kenneth Ayotte, Ezra Friedman and Henry E. Smith, A Safety 

Valve Model of Equity as Anti-Opportunism (Available at SSRN: http://ssrn.com/abstract=2245098)

(explaining the development of equity as part of the law’s response to the problem of opportunism).

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more focused on the business of litigation than on selling a product or service or licensing 

their IP to third parties to sell a product or a service. 

Copyright trolls are best defined in terms of a cluster of attributes rather than any 

single definitive feature. A troll deserving of the name either asserts rights it does not 

have, makes poorly substantiated claims or tenuous of infringement, or seeks 

disproportionate remedies. Trolls do at least one of these things on a systematic basis.35

The opportunism of copyright trolls is primarily directed towards statutory damages. As 

the Righthaven example shows, statutory damages can make the pursuit of otherwise 

inconsequential infringements extremely profitable, more profitable than licensing those 

uses in advance could ever have been. As the MDJD cases show, statutory damages stack 

the deck in favor of the plaintiff such that the underlying liability of the defendant is 

effectively irrelevant to the settlement calculation.

B. When does Multi-Defendant John Doe Lawsuit Amount Copyright Trolling?

Not all BitTorrent lawsuits are exercises in copyright trolling. In fact the 

Recording Industry Association of America (“RIAA”) pioneered the MDJD model as 

part of its broader campaign against illegal file sharing over a decade ago. Modern 

copyright trolling follows the RIAA’s template, but with a different motivation. 

In 2003 the RIAA began a widely publicized campaign of lawsuits against 

individual file sharers, characterized by Justice Breyer as “a teaching tool”36 and by the 

RIAA itself as “the enforcement phase of its education program.”37 The RIAA wound 

down this program in 2008, by which time over 35,000 individuals had been targeted 

with letters of demand.38 The RIAA and its members are not copyright trolls because the 

industry’s end-user litigation strategy was aimed at sending a message not creating an 

independent revenue stream. 

The RIAA sought to channel potential infringers back into the legitimate market: 

in contrast, more recent MDJD suits appear to prefer the revenues available in the 

courthouse to those of the market place. In 2010, a Hollywood production company, 

Voltage Pictures, filed a series of lawsuits against thousands of John Does for 

 35 Of course, Rule 11 provides for sanctions against plaintiffs and attorneys who make frivolous or 

unsupportable claims,35 but establishing a Rule 11 violation is notoriously difficult. See e.g., Giddings v. 

Vision House Production, Inc., 584 F.Supp.2d 1222 (D.Ariz 2008). (Plaintiff’s legal theory ultimately 

proved to be incorrect but was not “so objectively baseless to qualify as completely frivolous and subject to 

sanctions under Rule 11”). In Raw Films, Ltd. v. Does 1–32 allegations of harassment lead to a show cause 

order relating to sanctions, but sanctions were not ultimately imposed. Raw Films, Ltd. v. Does 1–32, 2011 

WL 6182025, at *2 (E.D.Va. Oct. 5, 2011).

36 545 U.S. at 963 (Breyer, J., concurring).

37 Press Release, RIAA, Recording Industry Begins Suing P2P File Sharers Who Illegally Offer 

Copyrighted Music Online (Sept. 8, 2003), available at http://www.riaa.org/newsitem.php?id=85183A9C28F4-19CE-BDE6-F48E206CE8A1.

38 See, e.g., Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits, WALL ST. J., 

Dec. 19, 2008, at B1.

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downloading its film The Hurt Locker over BitTorrent.39 These suits were filed as Voltage 

Pictures, LLC v. Does 1 – 5000,

40 and eventually totaled 24,500 defendants. 41 The 

Voltage Pictures cases have now been voluntarily dismissed, but only after thousands of 

user records were subpoenaed from ISPs and thousands of demand letters were sent to 

account subscribers. Statements by the plaintiff’s lawyers confirm that this litigation 

campaign was not aimed at deterrence or compensation; their intention was to “creat[e] a 

revenue stream and monetize[e] the equivalent of an alternative distribution channel.”42

C. The Economics of Multi-Defendant John Doe Lawsuits 

To understand the copyright trolling phenomenon, it is useful to begin with its’

economic fundamentals. This section explores those fundamentals by developing a 

simple model the costs and benefits of MDJD litigation from the point of view of the 

plaintiff. 

The plaintiff (or realistically, the plaintiff’s lawyer) in any MDJD lawsuit faces 

certain fixed costs (Cf) such as detecting potential infringement, drafting the initial 

complaint, drafting a motion for discovery, and appearing in court to argue in favor of 

discovery. Detecting potential infringement requires an investment in technology and/or 

technological expertise.43 The remaining fixed costs largely consist of attorney time. 

These costs do not change significantly whether there is one defendant or 5000 in a single 

case. The plaintiff also faces variable costs (Cv) primarily related to the time and effort it 

takes to persuade Internet Service Providers to divulge subscriber information and to 

persuade the subscribers thus identified to settle. Where N is the number of defendants, 

the plaintiff’s costs can be represented as follows: 

Costs = Cf + Cv*N

The plaintiff’s recovery depends primarily on the average settlement obtained (P

or payoff), the percentage of defendants who can be persuaded to settle (Y or yield) and 

the number of defendants (N).44 Thus, 

Recovery = P*Y*N

 39 See e.g., Voltage Pictures, LLC v. Does, Docket No. 1:10-cv-00873 (D.D.C. May 24, 2010).

40 Id.

41 First Amended Complaint for Copyright Infringement at 1, Voltage Pictures, LLC v. Vasquez, 

No. 1:10-cv-00873 (D.D.C. Apr. 22, 2011), ECF No. 143-1.

42 Eriq Gardner, New Litigation Campaign Quietly Targets Tens of Thousands of Movie 

Downloaders, HOLLYWOOD REP. (Dec. 21, 2010), http://www.hollywoodreporter.com/blogs/thresq/litigation-campaign-quietly-targets-tens-63769.

43 It may also be the case that by contracting with outside technology firms, the cost of detecting 

infringement can be transformed into a variable cost.

44 The obvious simplification here is that there is just one settlement price. In theory, a plaintiff 

with perfect information could extract high settlements from easy targets and low settlements from more 

intransigent ones. 

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The economic viability of copyright trolling in the form of MDJD litigation 

depends on suing as many defendants as possible in a single action to keep costs low and 

leveraging the threat of statutory damages (and sometimes other threats) in order to 

maximize the product of payoff and yield (P*Y). Thus, 

Profit = (P*Y*N) – (Cf + Cv*N) 

= N(PY –Cv) – Cf

This model does not assume that all defendants are in fact liable for copyright 

infringement, but it does assume that the plaintiff’s case is strong enough to make a 

certain proportion of defendants want to settle.45 Even so, a plaintiff cannot expect to be 

able to locate the person responsible for every IP address named in the lawsuit, nor can it

expect every accused infringer to be solvent or to settle without a costly fight. However, 

the plaintiff can expect that most individuals who it does locate and who do have the 

capacity to pay will eventually capitulate and agree to settle for a few thousand dollars.46

Most defendants in this situation will settle because even with fee shifting, settling for a 

few thousand dollars will cost less on a risk-adjusted basis than establishing their 

innocence in court. As discussed in more detail in Part II-A, the prospect of statutory 

damages ensures that despite the possibility of fee shifting, a very small chance of being 

found liable is enough to make settlement the defendant’s best option.47 Making money 

from this type of litigation depends on dispersing one’s fixed costs over a large group of 

defendants and persuading a reasonable number of defendants to settle reasonably 

quickly. Part II of this Article will return to this basic economic model and use it to 

explain the significance of joinder, statutory damages and pornography in MDJD lawsuits.

D. The Rise of Multi-Defendant John Doe Lawsuits

Just how widespread is the practice of generating revenue through MDJD

lawsuits?48 To answer this question, I created a database that includes all copyright cases 

filed in the all federal district courts circuits between January 1, 2001 and December 31, 

2013.49 “John Doe” lawsuits were identified by hand, based initially on the appearance of 

the words “John Doe” and “Doe” in the case title (in plural and singular form).

50 Figure 1

displays the resulting data broken down by circuit and into three-year time periods based 

 45 Parts II-A (statutory damages) and II-C (pornography) further explain why defendants will be 

motivated to settle, even if the plaintiff’s case is far from watertight.

46 Ingenuity 13 LLC v. John Doe, 2:12-CV-8333-ODW JCX, 2013 WL 1898633 (C.D. Cal. May 6, 

2013) (finding that settlement offers were generally about $4,000)

47 See infra Part II-A

48 Many Judges have noted the increasing prevalence of these suits. See e.g. In re BitTorrent Adult 

Film Copyright Infringement Cases, Nos. 11-3995(DRH)(GRB), 12-1147(JS)(GRB), 12-

1150(LDW)(GRB), 12-1154(ADS)(GRB), 2012 WL 1570765, at *1 (E.D.N.Y. May 1, 2012) (“These 

actions are part of a nationwide blizzard of civil actions brought by purveyors of pornographic films 

alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent.”)

49 Note: this dataset will be expanded to all circuits in a future draft. 

50 Cases with titles such as “___ v. Unknown Parties” were also included. 

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on the year of filing, beginning with the year 2001. The figure shows the prevalence of 

John Doe actions as a percentage of all copyright filings in each circuit. The figure 

highlights the recent growth of MDJD lawsuits and their uneven geographic 

concentration. It is particularly noteworthy that MDJD suits made up the majority of 

copyright filings in Third, Fourth, Sixth, Seventh, Tenth, Eleventh and DC Circuits in 

2013.

Figure 1: Percentage of John Doe Law Suits by Circuit, 2001-03, 2004-06, 2007-09, 2010-12, 

2013

MDJD suits were almost non-existent 10 years ago; as of 2013 they were the 

majority of filings in 19 out of 92 federal districts.51 MDJD suits accounted for just over

16% of filings between 2001 and 2013,

52 but they account for over 42% of filings in 2013.

The sudden rise of the MDJD copyright lawsuit is apparent from Figure 2, below which 

focuses in on the years 2010, 2011, 2012 and 2013. This Figure shows the prevalence of 

John Doe lawsuits as a percentage of all copyright lawsuits over the past four years, by 

state, excluding states with no John Doe copyright suits. 

As the figure above shows, in 2010 there was substantial MDJD litigation in the 

District of Columbia and West Virginia and small pockets in California, Connecticut, 

Illinois, Oregon, Maryland, Massachusetts, New Jersey, Oregon, Texas, Utah and 

Virginia. By 2012, MDJD suits were the majority of all copyright cases filed in Colorado, 

 51 See supra note 10.

52 1993 out of 19,142, to be exact.

0 25 50 75 100 0 25 50 75 100 0 25 50 75 100 0 25 50 75 100 0 25 50 75 100

DC Cir

11th Cir

10th Cir

9th Cir

8th Cir

7th Cir

6th Cir

5th Cir

4th Cir

3rd Cir

2d Cir

1st Cir

2001 2004 2007 2010 2013

Other Copyright John Doe

Percent of Copyright Cases Filed

Graphs by three year groups, except 2013

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13

Delaware, Florida, Georgia, Illinois, Indiana, Maryland, Michigan, Ohio, Pennsylvania, 

Tennessee, Washington, Wisconsin and the District Of Columbia. Interestingly, 2013 saw 

a sharp decline in the proportion of these suits in California and New York.

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Figure 2: John Doe lawsuits as a percentage of all copyright lawsuits 2010–2013, by State

0 50 100 0 50 100 0 50 100 0 50 100

Wisconsin

West Virginia

Washington

Virginia

Utah

Texas

Tennessee

Pennsylvania

Oregon

Ohio

North Carolina

New York

New Mexico

New Jersey

Missouri

Mississippi

Minnesota

Michigan

Massachusetts

Maryland

Louisiana

Kentucky

Kansas

Iowa

Indiana

Illinois

Georgia

Florida

District Of Columbia

Delaware

Connecticut

Colorado

California

Arkansas

Arizona

Alabama

2010 2011 2012 2013

Other Copyright John Doe

Percent of Copyright Cases Filed

* Some states with no John Doe Filings Excluded

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This original data shows, for the first time, the astonishing rate of growth of this 

particular form of copyright trolling. MDJD lawsuits are not just the predominant form of 

copyright trolling; they are the dominant form of copyright litigation in several districts.

It is to be hoped that now that the extent of this kind of copyright trolling is apparent has 

been made apparent, it will receive some attention from policy makers.

53

II. STATUTORY DAMAGES, JOINDER & PORNOGRAPHY

This Part focuses on the role of statutory damages, permissive joinder and 

pornography in enabling MDJD litigation to thrive. Part II-A explores the role of 

statutory damages in MDJD lawsuits in terms of the economic model developed 

previously. Part II-B takes the same approach with joinder. Part II-C explains why 

MDJD litigation is so well-suited to allegations of infringement concerning pornography 

and presents new data on the prevalence of pornography in this context. Understanding 

these components is vital to developing sound reform proposals, the subject of Part III.

A. Statutory Damages

U.S. copyright law allows the plaintiff to elect, at any time before final judgment,

to receive statutory damages in lieu of actual damages or an account of the defendant’s 

profit.54 Statutory damages were originally designed to overcome the difficulties injured 

plaintiffs faced in proving the true extent of their damage or of the defendant’s profits.55

However, statutory damages now appear to be largely divorced from that original 

purpose. Critically, statutory damages effectively guarantee a minimum rate of recovery 

regardless of proof of damages or profits.56

Statutory damages provide compensation for real world harms that may be 

difficult to establish in the courtroom. The problem with statutory damages, as a matter of 

both design and application, is that the amounts awarded bear no relationship to the harm 

of infringement, the need for deterrence, or generally accepted norms of proportionality 

 53 It is not apparent that the issues of copyright trolls or MDJD litigation are on the Copyright 

Office’s reform agenda. See Statement of Maria A. Pallante Register of Copyrights United States 

Copyright Office before the Subcommittee on Courts, Intellectual Property and the Internet, Committee on 

the Judiciary, “The Register's Call for Updates to U.S. Copyright Law,” (March 20 2013) (available at 

http://www.copyright.gov/regstat/2013/regstat03202013.html) (not mentioning copyright trolls, MDJD 

litigation). See also Maria A. Pallante, The Next Great Copyright Act, COLUMBIA JOURNAL OF LAW & THE 

ARTS (2013) (noting in passing that “arguments abound on the subject of statutory damages, suggesting that 

they are either too high, too low, too easy, or too hard to pursue.”)

54 17 U.S.C. § 504(c)

55 See, Pamela Samuelson & Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in 

Need of Reform, 51 WM. & MARY L. REV. 439 (2009) at 448 (Summarizing the legislative history of the 

1909 Copyright Act.)

56 The only prerequisite for statutory damages is copyright registration. 17 U.S.C. § 412 (requiring 

registration within three months of publication to qualify for awards of statutory damages and attorneys

fees).

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in the administration of penalties.57 A recent review of statutory damages by Samuelson 

and Wheatland cites several arbitrary, inconsistent, incoherent and excessive awards of 

statutory damages in copyright cases.58 In one of the most striking examples, Capitol 

Records v. Thomas-Rasset, a jury awarded statutory damages of more than $1.92 million 

against a defendant who had illegally downloaded about $54 worth of music on a peer-topeer file-sharing network.59 That is a ratio of more than 35,000 to 1. 

There are many problems with the current statutory damages framework, but as 

they relate to the issue of copyright trolling, the basic defect of statutory damages is that 

the range is too broad and too high. The Copyright Act of 1976 allows for statutory 

damages anywhere in a range between $750 and $150,00060 – that is the difference 

between an average priced 55 inch flat screen television61 and the median sale price of a 

single-family home in the Mid-West of the United States.

62 Technically, the upper 

$30,000 to $150,000 of this range is confined to cases of “willful infringement”63 and 

should be reserved for truly exceptional cases, 64 however “courts have interpreted 

willfulness so broadly that those who merely should have known their conduct was 

infringing are often treated as willful infringers.”65

Recall the formula in Part I: Profit = N(PY –Cv) – Cf. Statutory damages play a 

significant role in the profitability of copyright trolling. Without statutory damages, 

defendants might cling to the idea that their infringements are so trivial that the plaintiff 

will not bother to pursue them. They might decide to wait it out and take the risk. An 

individual copyright owner who establishes a single instance of illegal downloading 

could hope to recover some approximation of the retail price of their product as the 

measure of damage they have suffered or as disgorgement of the defendant’s profits from 

 57 For a comprehensive review of the history and current application of statutory damages in 

copyright, see Samuelson & Wheatland, supra note 50.

58 Id. at 442-43.

59 Capitol Records v. Thomas-Rasset 579 F. Supp. 2d 1210, 1213, 1227 (D. Minn. 2008) 

(“Thomas allegedly infringed on the copyrights of 24 songs-the equivalent of approximately three CDs, 

costing less than $ 54.”).

60 17 USC 504(c).

61 E.g., at the time of writing, the LG Electronics 55LN5400 55-Inch 1080p 120Hz LED-LCD 

HDTV with Smart Share was available on Amazon.com for $749. 

62 NATIONAL ASSOCIATION OF REALTORS, Existing-Home Sales Data (available at 

http://www.realtor.org/topics/existing-home-sales/data) (reporting the median sales price of existing singlefamily homes in the Mid-West of the U.S. as $143,700 in 2012, $150,800 in November 2013 and 155,700 

for all of 2013). 

63 17 USC 504(c).

64 See S. REP. No. 94-473, at 144-45 (1975) (enhanced damages should be available in 

“exceptional cases”); H.R. REP. No. 94-1476, at 162 (1975) (same). See also Samuelson & Wheatland, 

supra note 55 (summarizing the legislative history). 

65 Samuelson & Wheatland, supra note 50 at 441. See also Nimmer §14.04[B][3][a] (citing cases).

Note that even those defendants with plausible fair use defenses may be characterized as “egregious and 

willful” infringers, see e.g. Rogers v. Koons, 960 F.2d 301, 313 (2d Cir. 1992). 

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infringement. For the typical music single, album, television show, or movie, this would 

be in the range from $1 to $20. 

The credible threat of damages as high as $150,000 makes any real risk of being 

found liable for copyright infringement intolerable for anyone who is not completely 

insolvent or staggeringly wealthy. Without statutory damages, the plaintiff in a typical 

BitTorrent suit might recover only nominal damages, thus reducing their expected 

settlement payoff (P) to almost zero. For a single infringement, statutory damages 

increase the potential settlement range from $0 – $20 to $0 – $150,000. But the point is 

not just that statutory damages increase the average payoff (P); the threat of statutory 

damages also reduces the Plaintiff’s variable cost (Cv) by acting as a tool of persuasion 

that brings reluctant defendants to heel more quickly. In addition, because the possibility 

of a $150,000 verdict makes the plaintiff’s claims that it will pursue the case to the bitter 

end more credible, it should substantially increase settlement yield (Y) compared to a 

world without statutory damages.66 For the plaintiff in MDJD cases, statutory damages 

are the pot of gold at the end of the litigation rainbow. Statutory damages make the stakes 

of copyright litigation fundamentally uneven. While both plaintiff and defendant could 

lose and be forced to pay the other side’s attorneys fees, only the plaintiff is entitled to

statutory damages. The possibility of fee shifting for successful defendants should make 

troll-like behavior less rewarding in copyright, but the risk of statutory damages more 

than negates the benefits of fee shifting.

B. Joinder

Joinder also plays an important role in the economics of MDJD litigation. From 

the perspective of the plaintiff, rules relating to joinder are favorable if they permit the 

joining of defendants with a low level of relatedness. A low threshold of relatedness 

allows the plaintiff to spread its fixed costs across a large number of defendants.67 Joinder 

rules are also plaintiff friendly to the extent that they allow a case to proceed to discovery

in a MDJD case without a substantial investment in proving the alleged underlying 

infringements.68

The economic logic of MDJD lawsuits relies on permissive joinder of large 

numbers of tenuously related defendants in thinly substantiated actions that are never 

intended to go to trial. There is no doubt that BitTorrent is widely used for copyright 

infringement, nonetheless many of the MDJD cases are questionable for two reasons. 

First, they typically rely on a snapshot of Internet activity that does not show that a 

complete file was downloaded.69 All that the snapshot shows is that a download was 

initiated. Second, the MDJD cases rely on the inference that the account owner behind an 

 66 The extent to which more explicitly punitive damages could substitute for statutory damages 

will be discussed in Part III, infra. 

67 Thus Cf/N is reduced.

68 Thus Cf itself is reduced. 

69 See e.g., Ingenuity 13 LLC v. John Doe, 2:12-CV-8333-ODW JCX, 2013 WL 1898633 (C.D. 

Cal. May 6, 2013).

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IP address was in fact responsible for any use made of that account.70 The possibility of 

hacking, open Wi-Fi networks, Internet accounts accessed by multiple users, and

mistakes by ISPs open the door to numerous highly fact specific “it wasn’t me”

defenses.71 These two weaknesses can be overcome, but only by investing individual time 

and effort into each case, something that is anathema to the copyright trolling model. 

The appropriateness of joinder in MDJD litigation has divided federal district 

courts across the country. The Federal Rules of Civil Procedure allow defendants to be 

joined in a single action subject to two requirements set forth in Fed. R. Civ. P. 20(a)(2). 

First, the right to relief must be asserted against the defendants “jointly, severally, or in 

the alternative with respect to or arising out of the same transaction, occurrence, or series 

of transactions or occurrences.”72 Second, there must be common questions of fact or 

law.73 It is important to note that joinder is not merely allowed under the Federal Rules of 

Civil Procedure, it is strongly encouraged. The Supreme Court held in United Mine 

Workers v. Gibbs that “the impulse is toward the broadest possible scope of action 

consistent with fairness to the parties.”74 The current split in the district courts on whether 

joinder is proper in MDJD suits centers around the courts’ understanding of the 

BitTorrent file sharing technology — specifically whether the phrase “same transaction 

or occurrence or series of transactions or occurrences” properly applies to the participants 

in a BitTorrent swarm. 

BitTorrent works by segmenting a large file into thousands of smaller pieces that 

can be downloaded in any order and reassembled by the end user. This initial process is 

called “seeding”. Once a file is seeded, it can be downloaded by multiple individuals 

simultaneously. The group of individuals downloading the seeded file is known as the 

‘swarm’. One advantage of BitTorrent over other file sharing programs is that there is no 

need to maintain a connection between the seeder and the downloader for the duration of 

the download. Any participant in the swarm can download any fragment from any other 

participant who already has it. Swarm members are typically downloading and uploading

file-fragments from other computers in the swarm at the same time.

75 The probability that 

any two swarm members chosen at random have directly interacted is less than one, and 

it could be quite low in a large swarm. The basic theory in MDJD litigation is that all 

 70 Id.

71 Third Degree Films, Inc. v. Doe, 2013 U.S. Dist. LEXIS 44131, 26, n7 (E.D. Mich. Mar. 18, 

2013) (noting that “plaintiff’s counsel represented that approximately 95% of defendants in cases such as 

this raise some form of the ‘it wasn’t me’ defense.”); In re BitTorrent Adult Film Copyright Infringement 

Cases, 2012 U.S. Dist. LEXIS 61447, 2012 WL 1570765 at *12 (noting the “panoply of individual 

defenses including age, religious convictions, and technological savvy; misidentification of ISP accounts; 

the kinds of WiFi equipment and security software utilized; and the location of defendant’s router.”).

72 Fed. R. Civ. P. 20(a)(2)(A).

73 Fed. R. Civ. P. 20(a)(2)(B).

74 United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966). (joinder of claims, parties and 

remedies is strongly encouraged.)

75 Malibu Media, LLC v. Doe, 2013 U.S. Dist. LEXIS 139068, 4-5 (N.D. Ill. Sept. 27, 2013)

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swarm participants are involved in a “series of transactions or occurrences” that are 

sufficiently related to allow joinder.76

Courts are divided as to whether, by itself, participation in a BitTorrent swarm 

meets the “same transaction or occurrence or series of transactions or occurrences”

standard under Fed. R. Civ. P. 20(a)(2)(A).77 Many courts have rejected joinder based on 

swarm participation alone.78 For example, the district court in Dragon Quest Prods., LLC 

v. Does, held that “the initial seeder, other seeders, the various peers, and the Defendants 

may have participated in this swarm months apart from each other. While ... the initial 

seeder, the other seeders, the peers, and the Defendants, may be connected by the same 

initial seed file, the Court finds that this connection alone is not sufficient to establish 

joinder.”79 Some plaintiffs have overcome this obstacle by pleading specifically that the 

Doe defendants had in fact shared the same pieces of the file with each other.80 Others 

have focused on groups of John Does who acted within a short time frame.81

 76 See infra. 

77 See infra note 65 for examples of cases concluding joinder is impermissible or inappropriate. 

See infra note 69 for examples of cases allowing joinder. 

78 See e.g. SBO Pictures, Inc. v. Does 1-57, No. 12-22, 2012 U.S. Dist. LEXIS 56578, 2012 WL 

1415523, *2 (D. Md. Apr. 20, 2012) (denying joinder); MCGIP, LLC v. Does 1-149, No. 11-2331, 2011 

U.S. Dist. LEXIS 108109, 2011 WL 4352110, *3 (N.D. Cal. Sep. 16, 2011) (misjoinder where plaintiff 

“has failed to show that any of the 149 Doe defendants actually exchanged any piece of the seed file with 

one another”); Hard Drive Productions, Inc. v. Does 1-188, 809 F.Supp.2d 1150, 1164 (N.D. Cal. 2011) 

(finding no concerted action where plaintiff conceded that defendants “may not have been physically 

present in the swarm on the exact same day and time”); Boy Racer, Inc. v. Does 1-60, No. 11-1738, 2011 

U.S. Dist. LEXIS 92994, 2011 WL 3652521, at *4 (N.D. Cal. Aug. 19, 2011) (severing defendants where 

plaintiff did not plead facts showing that any particular defendant illegally shared plaintiff’s work with any 

other particular defendant); Patrick Collins, Inc. v. Does 1-23, No. 11-CV-15231, 2012 U.S. Dist. LEXIS 

40536, 2012 WL 1019034, at *4 (E.D. Mich. Mar. 26, 2012) (severing the Doe defendants because the 

infringement of the film via BitTorrent did not constitute a “series of transactions or occurrences”); SBO 

Pictures, 2011 U.S. Dist. LEXIS 137361, 2011 WL 6002620, at *3 (same).

79 Dragon Quest Prods., LLC v. Does, 2013 U.S. Dist. LEXIS 83683, 24-25 (D.N.J. June 13, 

2013).

80 See e.g., Malibu Media, LLC v. Doe, 2013 U.S. Dist. LEXIS 139068, 6 (N.D. Ill. Sept. 27, 

2013) (Plaintiff alleges ... John Does accessed the same piece of the copyrighted work, and each piece is 

identified by a unique value known as a “Hash Identifier” or “Hash Number.”) Digital Sin, Inc. v. Does 1-

176, 279 F.R.D. 239, 243 (S.D.N.Y. 2012) (Declining to sever where “Plaintiff claims to have carefully 

selected only a small group of New York-based defendants who traded the exact same file, identifiable by a 

hash value, as part of the same swarm within a six-week period.”) Sunlust Pictures, LLC v. Does 1-75, 

2012 U.S. Dist. LEXIS 121368, 2012 WL 3717768, at *3. (Noting that “Sunlust alleges in its complaint 

that the defendants participated in the swarm simultaneously and that it observed the defendants 

transferring data from the Video between themselves.”)

81 TCYK, LLC v. Does, 2013 U.S. Dist. LEXIS 177765 (finding temporal proximity of 62 doe 

defendants alleged to have acted within a four day period sufficient). See also, Pac. Century Int’l v. Does 1-

31, No. 11 C 9064, 2012 U.S. Dist. LEXIS 82796, 2012 WL 2129003, at *2 (N.D. Ill. June 12, 2012) 

(allegations that the defendants participated in the same swarm at varying times spanning just over one 

month supported permissive joinder).

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However, a number of courts have taken a broader view and held that this specific 

level of interaction is not necessary and that merely participating in the same swarm is 

sufficient for joinder under Fed. Rule 20.82 As the district court in Malibu Media, LLC v. 

John Does 1-6 explained, Rule 20 does not require that defendants acted “in concert” or 

with any “temporal distance or temporal overlap”; all that Rule 20 requires is “a logical 

relationship between the separate causes of action.”83 In Patrick Collins, Inc. v. Does 1–

21, the court found that logical relationship was satisfied because “each Doe Defendant 

downloaded the same Torrent file that was created by the same initial seeder, intending 

to: 1) utilize other users’’ computers to download pieces of the same [Copyrighted 

Works], and 2) allow his . . . own computer to be used in the infringement by other peers 

and Defendants in the same swarm.”84

On this view, joining the participants in a BitTorrent swarm in a single action is 

proper because the swarm is more than a collection of individuals acting the same way, it 

is in essence a cooperative endeavor, whether the participants are personally known to 

each other or not.85 This interpretation is bolstered by the fact that Rule 20(a) refers to a 

“series of transactions or occurrences” and not just the “same transaction.”86 Astute 

plaintiffs have also bolstered the case for joinder by adding claims for inducement and 

contributory liability.87 

Even if the individual participants in a BitTorrent swarm are sufficiently related to 

permit joinder under the Federal Rules, which appears likely, district courts still have the 

power to disallow joinder for discretionary reasons.88 Here too, the courts are divided.89 In 

 82 See e.g. Pacific Century Int’l v. Does 1-31, No. 11-9064, 2012 U.S. Dist. LEXIS 82796, 2012 

WL 2129003, *2 (N.D. Ill. June 12, 2012) (allowing joinder where “the anonymous defendants participated 

in the same ‘swarm’”); Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 244 (S.D.N.Y. 2012); Bicycle 

Peddler, LLC v. Does 1-12, No. 13 C 2372, 2013 U.S. Dist. LEXIS 95184, 2013 WL 3455849, at *3-4 

(N.D. Ill. July 9, 2013); Patrick Collins, Inc. v. Does 1-39, No. 12-CV-00096-AW, 2012 U.S. Dist. LEXIS 

57187, 2012 WL 1432224, at *3 (D. Md. Apr. 24, 2012); First Time Videos, LLC v. Does 1-76, 276 F.R.D. 

254, 257 (N.D. Ill. 2011).

83 See e.g., Malibu Media, LLC v. John Does 1-6, 291 F.R.D. 191,204 (N.D. Ill. 2013); TCYK, 

LLC v. Does 1-62, 13 C 3842, 2013 WL 6671675 (N.D. Ill. Dec. 18, 2013).

84 Patrick Collins, Inc. v. Does 1–21, 282 F.R.D. at 165 (ED Mich. 2012). See also Malibu Media, 

LLC v. John Does 1-6, 291 F.R.D. 191,204 (N.D. Ill. 2013)(same); TCYK, LLC v. Does 1-62, 13 C 3842, 

2013 WL 6671675 (N.D. Ill. Dec. 18, 2013)(same).

85 Id. (“Every member of a swarm joins that cooperative endeavor knowing that, in addition to 

downloading the file, they will also facilitate the distribution of that identical file to all other members of 

the swarm.”) See also TCYK, LLC v. John Does 1-87, 2013 U.S. Dist. LEXIS 95817, 2013 WL 3465186, 

at *4 (same). 

86 Id.

87 See e.g., Patrick Collins, Inc. v. Does 1-38, 941 F. Supp. 2d 153, 158 (D. Mass. 2013).

88 Fed. R. Civ. P. 21 provides that the court may add or drop a party on motion or on its own “on 

just terms”. The court may also sever any claim against a party. See e.g., Patrick Collins, Inc. v. Does 1-38, 

941 F. Supp. 2d 153, 156-157 (D. Mass. 2013) (Finding that although “joinder of the defendants may be 

permissible under Fed. R. Civ. P. 20(a), the interests of justice and judicial economy would best be served 

if all of the defendants except Doe Number 1 were severed and dropped from the case pursuant to Fed. R. 

Civ. P. 21.”)

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part, the division of opinion as to whether joinder is appropriate under the Federal Rules 

can be seen as a conflict between formalism and realism. 

For the formalist judge, the complaint is the beginning of a process that ultimately 

leads to a hearing. If the joinder of 5000 very loosely related individuals would make it 

impossible to conduct a hearing based on the merits, joinder appears to be unsound.90 The 

court in Third Degree Films, Inc. v. Does 1-131 explained at length the practical 

problems that make joinder in MDJD suits inappropriate: differences in factual and legal 

defenses would generate completely unrelated motions; scheduling and conducting 

hearings and discovery disputes among a large number of parties would be almost 

impossible; pro se defendants without access to the e-filing system would be forced to 

serve paper copies of all filings on all other parties; all defendants, including those 

proceeding pro se would have an interest in attending all other parties’ depositions and 

may do so as a matter of right; any eventual trial would require a hundred separate minitrials with different witnesses and evidence, “eviscerating any ‘efficiency’ of joinder.”91

Cumulatively, these obstacles would substantially delay the ultimate resolution of any 

particular defendant’s case and thus from this perspective joinder appears unsound.

92

For the realist judge, the complaint is the beginning of a process that almost 

inevitably leads to settlement and thus joinder is an efficient way of aggregating claims at 

the early stage of litigation for which there is very likely no later stage. The minority of 

defendants who actively contest that liability can have their cases severed at a later point 

in time. In the meantime, allowing MDJD suits to proceed to the discovery stage is 

efficient to the extent that it reduces the plaintiff’s costs.

The conflict between realism and formalism is not entirely determinative of the 

appropriateness of joinder in MDJD cases. A number of courts have also refused to allow 

MDJD cases to proceed en masse because of their association with “potentially abusive 

litigation tactics.”93 These courts accept that “a valid copyright holder is entitled to seek 

 89 See, e.g., Malibu Media 1-30, 2012 U.S. Dist. LEXIS 175919, 2012 WL 6203697 (permitting 

joinder); Malibu Media, LLC v. John Does 1-5, 285 F.R.D. 273 (S.D.N.Y. 2012) (permitting joinder); 

Malibu Media, LLC v. John Does 1-22, No. 12-5091, 2013 U.S. Dist. LEXIS 56147, 2013 WL 1704291 

(D.N.J. Apr. 19, 2013)(severing and dismissing all defendants other than John Doe #1); Amselfilm Prods. 

GMBH & Co. KG v. Swarm 6a6dc, No. 12-3865, 2012 U.S. Dist. Lexis 186476, (D.N.J. Oct. 10, 

2012)(finding joinder to be inappropriate and severing the defendants); Next Phase Distribution, Inc. v. 

John Does 1-27, 284 F.R.D. 165 (S.D.N.Y. 2012) (not deciding whether joinder was proper, but severing 

the defendants based on practical considerations).

90 See e.g. Malibu Media, LLC v. John Does 1-39, No. 12-6945, Doc. No. 23, 2013 U.S. Dist. 

LEXIS 44053 (D.N.J. Mar. 28, 2013) (The court noted that its “ability to efficiently manage the pretrial 

phase of this action with the present number of defendants could be compromised by permitting joinder, 

causing a strain on judicial resources.”)

91 Third Degree Films, Inc. v. Does 1-131, 280 F.R.D. 493, 498-99 (D. Ariz. 2012) reconsideration 

denied, CV 12-0108-PHX-JAT, 2012 WL 2383560 (D. Ariz. June 25, 2012)

92 Id.

93 Third Degree Films v. Doe, 286 F.R.D. 188, 189 (D. Mass. 2012) (“In recent months, this Court 

has grown increasingly troubled by ‘copyright trolling,’ specifically as it has evolved in the adult film 

industry. ... Against this backdrop of mass lawsuits and potentially abusive litigation tactics, courts 

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protection of its intellectual property in federal court” but they remain wary of suits filed 

“solely to facilitate demand letters and coerce settlement, rather than ultimately serve 

process and litigate the claims.”94 This doubtful impression has been reinforced by the 

failure of plaintiffs to actually serve the individual defendants in many cases. 95 Courts 

have noted that much of the coercive force of the settlement offer derives from the 

pornography at issue, not the alleged copyright infringement. 96 The extraordinary 

leverage plaintiffs obtain in John Doe pornography cases is manifest by the number of 

Doe defendants who rush to settle before being identified in the public record.97

Some courts have also taken issue with one of the main sources of efficiency in 

the MDJD model, the evasion of filing fees.98 For example, the court in In re BitTorrent 

Adult Film Copyright Infringement Cases estimated that “plaintiffs have improperly 

avoided more than $25,000 in filing fees by employing its swarm joinder theory. . . . 

Nationwide, these plaintiffs have availed themselves of the resources of the court system 

on a scale rarely seen. It seems improper that they should profit without paying statutorily 

required fees.”99

 nationwide have become skeptical of allowing the adult film companies unfettered access to the judicial 

processes of subpoenas and early discovery”). See also Patrick Collins, Inc. v. Does 1-38, 941 F. Supp. 2d 

153, 156-157 (D. Mass. 2013); Kick Ass Pictures, Inc. v. Does 1-25, C.A. No. 12-10810-MLW, 2013 U.S. 

Dist. LEXIS 1386, 2013 WL 80162, at *1 (D. Mass. Jan. 4, 2013). See also Pacific Century Int’l, Ltd. v. 

Does 1-101, 2011 U.S. Dist. LEXIS 124518, 2011 WL 5117424, at *2.

94 Third Degree Films v. Does 1-47, 286 F.R.D. 188, 190 (D. Mass. 2012) (footnotes omitted). See 

also Hard Drive Prods., Inc. v. Does 1-90, No. C 11-03825 HRL, 2012 U.S. Dist. LEXIS 45509, 2012 WL 

1094653, at *3 & n.4 (N.D. Cal. Mar. 30, 2012). 2012 U.S. Dist. LEXIS 45509, [WL] at *7. (“Plaintiff 

seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it 

can pursue a non-judicial remedy that focuses on extracting ‘settlement’ payments from persons who may 

or may not be infringers. This the court is not willing to do.”)

95 See e.g. Hard Drive Prods., Inc. v. Does 1-90, No. C 11-03825 HRL, 2012 U.S. Dist. LEXIS 

45509, 2012 WL 1094653, at *3 & n.4 (N.D. Cal. Mar. 30, 2012). (magistrate judge refused to grant 

expedited discovery to subpoena the ISP providers for the Doe defendants’ identities after noting that the 

adult film company plaintiff conceded that to its knowledge, neither it nor any other plaintiff had ever 

served a single Doe defendant after early discovery had been granted.)

96 Third Degree Films v. Does 1-47, 286 F.R.D. at 197; Patrick Collins, Inc. v. Does 1-38, 941 F. 

Supp. 2d 153, 165-166 (D. Mass. 2013) (expressing concern that joinder is being used “to facilitate a lowcost, low-risk revenue model for the adult film companies.”) Patrick Collins, Inc. v. Does 1-38, 941 F. 

Supp. 2d 153, 157 (D. Mass. 2013) (“Although the record before this court reveals no evidence of improper 

tactics or bad faith by Patrick Collins in this action, the fact that four settlements have occurred before any 

of the defendants have been identified in the public record illustrates how these types of cases create a 

strong tool for leveraging early settlements.”)

97 Id.

98 In re BitTorrent Adult Film Copyright Infringement Cases, 2012 U.S. Dist. LEXIS 61447, 2012 

WL 1570765, at *13. (estimating that “plaintiffs have improperly avoided more than $25,000 in filing fees 

by employing its swarm joinder theory. . . . Nationwide, these plaintiffs have availed themselves of the 

resources of the court system on a scale rarely seen. It seems improper that they should profit without 

paying statutorily required fees.”)

99 In re BitTorrent Adult Film Copyright Infringement Cases, 2012 U.S. Dist. LEXIS 61447, 2012

WL 1570765, at *13.

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23

For a combination of all of these reasons a substantial number of courts have 

severed all but the first named defendant and required plaintiffs to re-file individually in a 

substantial number of cases.100

C. The Copyright Trolling-Pornography Nexus

Conventional wisdom asserts that 15 percent of Internet traffic is comprised of cat 

videos101 and 30 percent is pornography.

102 Cat videos do not feature prominently in 

MDJD lawsuits; pornography is another story. To investigate the copyright trollingpornography nexus, I individually reviewed at least one underlying complaint per John 

Doe plaintiff in the dataset and coded the plaintiff as either ‘pornography’ or ‘not 

pornography’ accordingly.

103

Figure 3: Percentage of John Doe Law Suits by Circuit, 2001 to 2013

 100 Third Degree Films v. Does 1-47, 286 F.R.D. at 198. (“Although this court emphasizes that it 

has observed no bad faith behavior on the part of the plaintiff thus far, “the Court takes issue with the 

general structure of this case and like cases, and has determined that the most appropriate method to protect 

against any potential coercion is to sever the Doe defendants and require them to be sued individually.”) 

See also Patrick Collins, Inc. v. Does 1-38, 941 F. Supp. 2d 153, 166 (D. Mass. 2013).

101 See e.g., http://www.cbsnews.com/videos/cat-videos-take-over-internet-marketing-world/

102 See “Porn Sites Get More Visitors Each Month Than Netflix, Amazon And Twitter Combined”

THE HUFFINGTON POST, May 4, 2013, available at http://www.huffingtonpost.com/2013/05/03/internetporn-stats_n_3187682.html. 

103 I relied on descriptions of works as ‘adult content’, descriptions on IMDB and reasonable 

inferences from titles such “My Little Panties # 2”. I did not watch any of the underlying titles.

0 50 100 0 50 100 0 50 100 0 50 100 0 50 100

DC Cir

11th Cir

10th Cir

9th Cir

8th Cir

7th Cir

6th Cir

5th Cir

4th Cir

3rd Cir

2d Cir

1st Cir

2001 2004 2007 2010 2013

Other Copyright John Doe - Pornography John Doe - Other

Percent of Copyright Cases Filed

Graphs by three year groups, except 2013

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 107 of 125
24

Figure 3 illustrates the relative frequency of John Doe litigation as a percentage of 

all copyright litigation broken down by circuit and into three-year time periods based on 

the year of filing, beginning with the year 2001. Figure 3 differs from Figure 1104 in that it 

differentiates between pornography related John Doe litigation and other John Doe 

litigation.

Figure 4: Percentage of John Doe Law Suits in Selected Districts, 2010 to 2013

Figure 4 takes a selection of the same data and shows how the relative frequency 

of Pornography focused John Doe litigation has changed in selected districts over the last 

four years. The 22 districts shown are those with had the highest ratios of pornography 

filings in 2013. There were almost no John Doe pornography cases until 2010, yet by 

2013 these cases made more than half of all copyright filings in 19 federal districts in 

2013. 

Why so much pornography? The prevalence of pornography in MDJD lawsuits 

could be attributable to characteristics of the adult entertainment industry itself. It might 

be, for example, that the industry is generally more innovative and less convention bound 

and so is simply the first to adopt what may soon be a broader trend.105 Indeed, anecdotal 

reports of the increasing appearance of low-budget and independent films in the MDJD 

format suggests that the appeal of MDJD litigation may be expanding. A related 

 104 Part I, Supra. 

105 Peter Johnson, Pornography Drives Technology: Why Not to Censor the Internet, 49 Fed. 

Comm. L.J. 217 (1996) (discussing pornography’s role at the vanguard of new technology). 

0 25 50 75 100 0 25 50 75 100 0 25 50 75 100 0 25 50 75 100

Wisconsin (WD)

Wisconsin (ED) Washington (WD)

Tennessee (WD)

Tennessee (ED) Pennsylvania (ED) Ohio (SD)

New Jersey Michigan (WD)

Michigan (ED) Maryland

Indiana (SD)

Indiana (ND)

Illinois (ND)

Illinois (CD)

Georgia (SD)

Georgia (ND)

Florida (MD)

District Of Columbia

Delaware

Colorado Alabama (SD)

2010 2011 2012 2013

Other Copyright John Doe - Pornography John Doe - Other

Percent of Copyright Cases Filed

Selected Districts

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 108 of 125
25

explanation would be that the producers of pornography are less concerned about 

negative publicity than other creative industries.106 A closer look into the mechanics of 

MDJD litigation suggests two additional structural explanations.

The first structural explanation is simply that the economics of copyright trolling 

are particularly well suited to pornography because the plaintiff can threaten accused 

infringers with public exposure in addition to statutory damages. This additional 

incentive to settle can fundamentally transform the viability of such an enterprise. As 

noted previously, the profitability of MDJD lawsuits depends on keeping costs low and 

recovery high. 

Recall that Profit = N(PY –Cv) – Cf. Hypothetically, if the plaintiff faces fixed 

costs of $100,000 and an average variable cost of $1000 per defendant, MDJD litigation 

would be unprofitable if the plaintiff achieved an average settlement of $3000 (P=3000)

and a yield of 30% (Y=0.3) in a lawsuit targeting 5000 IP addresses (N=5000). This 

would result in a loss of $150,000 on an investment of $5.1 million.107 But assuming that 

the threat of public exposure as a consumer of pornography motivates more people to 

settle more quickly, the enterprise would become profitable to the tune of $3.9 million 

simply by increasing the yield from 30% to 60%.108 In short, one reason that the MDJD

model has been employed more in relation to pornography than an other subject matter is 

that the social stigma relating to pornography, or particular types of pornography,

increases both yield (Y) and payoff (P) while keeping the plaintiff’s variable costs (Cv)

low.

The second structural explanation for the prevalence of pornographic subject 

matter in copyright trolling is that a significant amount of this litigation has been initiated 

by a small number of entrepreneurial lawyers and plaintiffs.109 The most well-known of 

these is the Prenda Law firm.110 A group of entities associated with Prenda Law have 

amassed millions of dollars in settlements in MDJD lawsuits.

111 According to media 

reports and court records, Prenda has leveraged this fear of social stigma associated with 

downloading pornography by posting the names of defendants who do not settle on its 

 106 This seems entirely speculative.

107 Profit = N(PY –Cv) – Cf = 5000(3000*0.30 – 1000) – 100,000 = – 150,000.

108 Profit = N(PY –Cv) – Cf = 5000(3000*0.60 – 1000) – 100,000 = 3,900,000

109 The appearance of the same counsel and making virtually identical claims and using virtually 

identical filings has not gone unnoticed by the courts. See e.g. Patrick Collins, Inc. v. Does 1-38, 941 F. 

Supp. 2d 153, 155 (D. Mass. 2013).

110 Guava, LLC v. Does 1-5, 1:12-CV-8000, 2013 WL 3270663 (N.D. Ill. June 27, 2013) (“The 

aggressive tactics of Guava’s counsel, Prenda Law, in litigating John Doe lawsuits have been widely 

reported and acknowledged by courts, including those in Illinois and California.”) See also, Joe Mullin, 

“‘Porn troll’ Prenda Law sanctioned in defamation lawsuit” Ars Technia, January 23, 2014 

(http://arstechnica.com/tech-policy/2014/01/porn-troll-prenda-law-sanctioned-in-defamation-lawsuit/). 

111 Kashmir Hill “How Porn Copyright Lawyer John Steele Has Made A ‘Few Million Dollars’

Pursuing (Sometimes Innocent) ‘Porn Pirates’” FORBES (October 15, 2012). Note that the Prenda legal 

team appears to have began under the firm title Steele Hansmeier PLLC and has now changed its name to 

the Anti-Piracy Law Group.

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 109 of 125
26

website, along with a link to the lawsuit.112 Lawyers in an unrelated case were censured in 

several cases for attaching an erroneous exhibit listing several other adult films that 

defendants were alleged to have downloaded that were unrelated to the litigation.113 All of 

these techniques are aimed at forcing settlement by leveraging the threat of exposure.

Attorneys associated with Prenda have been ruthless in their pursuit of profits and 

have also been sanctioned for various forms of deceit and unethical behavior. 114

Defendants in a Florida case involving Prenda have presented evidence that someone 

inside the firm was “seeding” its own content, i.e., making pornography available for 

illegal download in the first place, in an attempt to induce copyright infringement.115

Prenda lawyers have also been accused of colluding in litigation,116 lying to the court,117

forging documents118 and identity theft.119

The influence of Prenda and entities associated with it can be seen on the 

following two tables which list the top 20 plaintiffs in copyright suits against John Does.

Table 1 lists the top 20 plaintiffs between 2001 and 2013 ranked according to the total 

number of John Doe defendants. Table 2 lists the top 20 plaintiffs between 2010 and 

2013, ranked according to the number of suits filed. 

 112 Claire Suddath, “Prenda Law, the Porn Copyright Trolls”, BUSINESS WEEK, May 30, 2013 

(available at http://www.businessweek.com/articles/2013-05-30/prenda-law-the-porn-copyright-trolls)

113 Malibu Media, LLC, Doe, subscriber assigned IP address 184.58.186.212 and related cases 

(Case Nos. 13-C-536, 13-C-544, 13-C-779 (E.D. Wis. December 12, 2013); Malibu Media, LLC v. Doe,

2013 WL 5276081 (E.D. Wis. Sept. 17, 2013); see also Malibu Media LLC v. Doe, 2013 WL 4821911 

(W.D. Wis. Sept. 10, 2013) (Judge Conley’s Order imposing sanctions). MALIBU MEDIA, LLC v. 

MCSWEENEY et al, INSD (Motion for fees/costs against Malibu Media – Also 2 defaults v. 2 Does for 

$67.5K), 1:12-cv-00842; Malibu Media LLC v. Doe, ILND (80-Year Old Woman), 2:13-cv-00097

114 Lightspeed Media Corp. v. Smith, CV 12-889-GPM, 2013 WL 6225093 (S.D. Ill. Nov. 27, 

2013) (“the Court has no doubt that Duffy, Steele, and Hansmeier are closely associated and acted in 

concert to file and prosecute this frivolous lawsuit.”) Ingenuity 13 LLC v. John Doe, 2:12-CV-8333-ODW 

JCX, 2013 WL 1898633 (C.D. Cal. May 6, 2013) (finding that “the Principals engaged in vexatious 

litigation designed to coerce settlement;” that the “Plaintiffs have demonstrated their willingness to deceive 

not just this Court, but other courts where they have appeared,” and awarding sanctions against lawyers 

Steele, Hansmeier, Duffy and Gibbs, the Prenda Law and their clients AF Holdings and Ingenuity 13 based 

on the “Plaintiffs’ brazen misconduct and relentless fraud.”)

115 Cyrus Farivar, “Prenda seeded its own porn files via BitTorrent, new affidavit argues” ARS 

TECHNICA (June 3, 2013).

116 Mike Masnick, “‘Defendant’ In Prenda Law Case Reveals He Agreed To Take A Dive”,

TECHDIRT. Retrieved April 11, 2013. (January 25, 2013).

117 See Judge Wright’s findings of fact in Ingenuity 13 LLC v. John Doe, 2:12-CV-8333-ODW 

JCX, 2013 WL 1898633 (C.D. Cal. May 6, 2013).

118 Id.

119 Id.

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 110 of 125
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Table 1: Top 20 Copyright John Doe Plaintiffs 2001–2013 

By total number of defendants

Litigant

Cases 

Filed

Fewest 

defendants

Most 

defendants 

Total 

defendants 

Percentage 

of total 

Patrick Collins, Inc 224 1 3757 11460 12.2%

Third Degree Films 56 1 3577 8288 8.8%

New Sensations, Inc 17 1 1768 7502 8.0%

Braun 9 1 7098 7106 7.6%

Digital Sin, Inc 19 1 5698 6476 6.9%

Malibu Media, LLC 1367 1 81 5938 6.3%

Discount Video Center, Inc 3 1 5041 5071 5.4%

On The Cheap, LLC 1 5011 5011 5011 5.3%

West Coast Productions 24 1 2010 4761 5.1%

Diabolic Video Productions, 

Inc 2 2099 2099 4198 4.5%

SBO Pictures 13 1 3036 3637 3.9%

Zero Tolerance Entertainment 6 1 2943 3128 3.3%

Openminded Solutions, Inc 17 1 2925 2979 3.2%

Third World Media, LLC 7 1 1568 2977 3.2%

Contra Piracy 1 2919 2919 2919 3.1%

Hard Drive Productions, Inc 57 1 1000 2853 3.0%

Media Products, Inc 24 1 1257 2550 2.7%

Tcyk, LLC 119 1 131 2528 2.7%

Combat Zone 35 1 1037 2165 2.3%

Arista Records 301 1 143 2123 2.3%

Total 2302 93670 100%

* Only Contra Piracy and Arista Records are not related to pornography. The 297 Arista Records suits were 

filed between 2004 and 2008. 

The only Prenda-related entity listed on Table 1 is Hard Drive Productions, Inc.,120

however Prenda-related entities claim 5 out of the top 20 positions on Table 2. It is 

important to note that the methodology of counting John Doe defendants is underinclusive. Doe numbers were derived from the case captions them-selves—e.g. “Digital 

Sin, Inc v. Does 1-208” would be counted as 208 John Doe defendants, but “Digital Sin, 

Inc v. Does” or “Digital Sin, Incorporated v. Unknown Parties” would be counted as a 

single John Doe defendant. 

 120 According to media reports, Hard Drive Productions stopped working with Prenda in late 2012. 

See, Claire Suddath, “Prenda Law, the Porn Copyright Trolls”, BUSINESS WEEK, May 30, 2013 (available 

at http://www.businessweek.com/articles/2013-05-30/prenda-law-the-porn-copyright-trolls)

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 111 of 125
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Table 2: Top 20 Copyright John Doe Plaintiffs 2010–2013 

By number of suits filed

Litigant

Cases 

Filed

Malibu Media, LLC 1367

Patrick Collins, Inc 224

AF Holdings, LLC* 138

Tcyk, LLC 119

Ingenuity 13, LLC* 66

Voltage Pictures✝ 64

K-Beech, Inc 62

Quad International, Inc 59

Hard Drive Productions, Inc* 57

Third Degree Films 56

Killer Joe Nevada, LLC 49

Breaking Glass Pictures✝ 41

John Wiley & Son✝ 40

Combat Zone 35

Bait Productions Pty Ltd ✝ 34

Zambezia Film✝ 30

First Time Videos, LLC* 27

West Coast Productions 24

Media Products, Inc 24

Boy Racer, Inc* 21

Total 2537

*Entities associated with the Prenda Law Firm at some time. ✝ Not related to pornography

The significance of repeat players may also explain the uneven geographic 

distribution of MDMJ lawsuits.121 Figure 5, below, shows the raw numbers for John Doe 

pornography and other John Doe copyright litigation, by district court. Measured by the 

number of John Doe defendants, the Northern District of Illinois is the clear leader in 

pornography related copyright trolling, whereas the District of Connecticut is the venue 

of choice for non-pornography trolling.

 121 The appearance of the same counsel and making virtually identical claims and using virtually 

identical filings has not gone unnoticed by the courts. See e.g. Patrick Collins, Inc. v. Does 1-38, 941 F. 

Supp. 2d 153, 155 (D. Mass. 2013).

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 112 of 125
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Figure 5: John Doe Copyright Lawsuits 2010–2013

Selected Districts

The copyright troll-pornography nexus illustrates how a general system of 

incentives can lead to unintended results. Pornography may be no better and no worse 

than other genres, but it is uniquely well suited to exploit the litigation incentives of our 

current copyright system. Copyright is meant to establish market-based incentives for the 

production of creative works, however, for a particular breed of plaintiff, the litigation 

incentives established by permissive joinder and statutory damages are more attractive. 

0 100 200 300 400

Wisconsin (WD)

Wisconsin (ED)

West Virginia (ND)

Washington (WD)

Virginia (WD)

Virginia (ED)

Tennessee (WD)

Tennessee (ED)

Pennsylvania (ED)

Ohio (SD)

Ohio (ND)

New Jersey

Missouri (ED)

Michigan (WD)

Michigan (ED)

Maryland

Indiana (SD)

Indiana (ND)

Illinois (SD)

Illinois (ND)

Illinois (CD)

Georgia (SD)

Florida (SD)

Florida (ND)

Florida (MD)

District Of Columbia

Delaware

Colorado

California (SD)

California (ND)

California (ED)

Number of John Doe Cases filed in selected districts since 2010

Other John Doe Pornography

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 113 of 125
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No doubt, some readers will be concerned that pornography giving copyright litigation a 

bad name, but the conduct of plaintiff’s lawyers described in a number of copyright 

trolling cases might suggest the reverse: copyright litigation is sullying the reputation of 

pornography. 

III. REFORMS

A. The Normative Foundations for Reform

Some question whether the system really works but that debate is entirely beyond 

the scope of this Article just as it is beyond the mandate of the judges who must apply the 

law.122 For purposes of a rational discussion about copyright trolling, as opposed to a 

wholesale reappraisal of the copyright system, we should accept the central dogma of 

copyright that exclusive rights are an effective way to provide incentives for the creation 

and distribution of expressive works.123 In less abstract terms this means, at the very least, 

accepting the premise that unauthorized file sharing is a civil wrong deserving of a 

remedy: there is no legal justification for someone who can pay a reasonable price for 

legitimate access to Game of Thrones to instead download it via BitTorrent.124 In short, 

the problem with MDJD lawsuits is not that individual infringers face the risk of 

detection and sanction—an unenforceable copyright law would provide no incentives. 

The primary problems with MDJD litigation relate to the fairness of the judicial 

process. MDJD suits allow accusations of infringement to be made based on a minimal 

investigation of the facts. Defendants in these cases are often subject to leverage that 

crosses the line into extortion, and effectively denied an opportunity to defend themselves. 

Once an ISP names an individual, the burden of proof is effectively reversed. This 

 122 For a representative sample of the literature, see Shyamkrishna Balganesh, Foreseeability and 

Copyright Incentives, 122 HARV. L. REV. 1569 (2009); Lydia Pallas Loren, The Pope’s Copyright? 

Aligning Incentives with Reality by Using Creative Motivation to Shape Copyright Protection, 69 LA. L.

REV. 1 (2008); Diane Leenheer Zimmerman, Copyrights as Incentives: Did We Just Imagine That?, 12 

THEORETICAL INQUIRIES L. 29 (2011).

123 The utilitarian foundation of copyright can be traced back to its origins in England the 1710 

Act “for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers 

of such copies, during the times therein mentioned” or the Statute of Anne as it is now known. This 

purposive conception of Copyright is also clearly reflected in the U.S. Constitution which provides that 

“The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for 

limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

U.S. Const., Art. I, Sect. 8, cl. 8. The Supreme Court has repeatedly observed that “the primary objective of 

copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts.” 

Feist v. Rural Telephone at 350 (quoting Art. I, § 8, cl. 8., citing Twentieth Century Music Corp. v. Aiken,

422 U. S. 151, 156 (1975)). The rights of authors are not the ends of the copyright system, but they are an 

important means by which those ends are achieved. As the Court observed in Harper & Row “By 

establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to 

create and disseminate ideas.” Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558

(1985). See also Eldred v. Ashcroft, 537 US 186 (2003). See generally William M. Landes & Richard A. 

Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325 (1989)

124 Unauthorized file-sharing is not fair use. See Metro–Goldwyn–Mayer Studios Inc. v. Grokster, 

Ltd., 545 U.S. 913, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005); A & M Records, Inc. v. Napster, Inc., 239 

F.3d 1004 (9th Cir.2001); BMG Music v. Gonzalez, 430 F.3d 888, 890 (7th Cir.2005). 

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 114 of 125
31

reversal takes place because, unless the defendant has a lawyer willing to work on 

contingency, the cost of establishing his innocence vastly exceeds the settlement payoffs 

demanded by plaintiffs. Fee shifting is available for the successful defendant in copyright 

cases, but it is not guaranteed,125 and it does not level the playing field. The innocent 

defendant must calculate the expected value of litigation versus settlement with reference 

to the small probability that the plaintiff will prevail. If the defendant prevails and is 

awarded attorney fees, his126 profit is zero at best.

127 If the defendant loses, his combined 

liability for statutory damages and attorney fees could easily exceed $100,000. Even if 

the chance of this catastrophic loss is only 5%, the defendant’s expected loss is $5,000. 

The potential for six-figure statutory damage awards compounds the problem of litigation 

costs by making the downside risk for a defendant who fails to establish his innocence 

untenable on most objective risk-reward calculations. For the innocent and guilty alike, 

the rational response to a letter of demand in these circumstances is to negotiate a 

settlement. In this context, the discovery orders that link IP addresses to personal 

individual information are little more than a judicially sanctioned hunting license. 

Arguably, another problem with MDJD lawsuits is that they lower the cost of 

copyright enforcement too far. Although some enforcement is required for copyright’s 

incentives to function, it is wrong to assume that more enforcement is always better. The 

idea that copyright should always be enforced equivalent to the suggestion that every 

trespass should lead to litigation. Like other forms of property, copyright is private right 

that creates the option of enforcement. We expect landholders and copyright owners alike 

to enforce their rights when the private benefits of doing so outweigh the private costs. 

Litigation invokes significant public resources and has potentially significant public costs. 

Attaching a positive cost to litigation through filing fees or other procedural mechanisms 

can act as an important screening mechanism that deters the marginal complaint and 

those with trivial claims. Filing fees and the like help allocate judicial resources to more 

valuable claims. 

B. Reform Proposals

With these normative foundations in place, we can now consider some concrete 

reform proposals.

1. Reasonable Statutory damages 

Copyright law’s statutory damages framework leads to awards that are 

unreasonably high in contexts such as unauthorized file-sharing. In the standard 

 125 17 U.S.C. § 505 allows for attorney’s fees to be awarded to the prevailing party at the court’s 

discretion. The Supreme Court has held that prevailing plaintiffs and prevailing defendants must be treated 

alike under Section 505. Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). 

126 Perhaps because of the close association between copyright trolling and pornography, the vast 

majority of defendants appear to be men.

127 It is not truly zero, because the defendant must finance the litigation and the cost of money 

(whether interest or opportunity cost) is not part of the attorney fee calculation. If the defendant’s lawyer 

works on contingency, the cost is truly zero.

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 115 of 125
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BitTorrent case, statutory damages are likely to amount to tens of thousands of dollars, if 

not hundreds of thousands of dollars.128 The threat of statutory damages makes resistance 

to even quite unreasonable plaintiff demands irrational from an economic perspective. At 

their current levels, statutory damages are a tool of coercion that can be wielded just as 

effectively against the innocent as the guilty. 

Ideally, reform of statutory damages would come from Congress, but even if 

Congress continues to ignore the problems with statutory damages,129 courts have a 

statutory and constitutional obligation to oversee them.130 Courts should recognize that in 

the typical BitTorrent lawsuit, statutory damages are punitive: it is hard to see that 

damages which clearly exceed any plausible measure of compensation or restitution 

could be considered to be anything else.

131 The fact that statutory damages are punitive 

does not mean that there is no place for them. On the contrary, it is quite likely that 

punitive damages are necessary as a deterrent to illegal file-sharing. Like parking 

violations and cheating on taxes, the probability of an individual file-sharer being 

detected is low but the cumulative harm of widespread infringement may be significant.132

Where the probability of detection is low, punitive statutory damages tilt the cost-benefit 

calculation of buying versus stealing back in the direction of legal acquisition. Where 

statutory damages exceed the amount required to compensate the plaintiff for the wrong 

suffered, they should be justified under some rational theory of deterrence and subject to 

the same constitutional constraints as other forms of punitive damages. Currently, neither 

is the case. For example, the district court in UMG Recordings, Inc. v. MP3.com, Inc.

awarded $53 million in statutory damages and attorney fees against a technology startup 

 128 Capitol Records v. Thomas-Rasset 579 F. Supp. 2d 1210, 1213, 1227 (D. Minn. 2008); Sony 

BMG Music Entertainment v. Tenenbaum 593 F. Supp. 2d 319 (D. Mass. 2009).

129 Canada recently amended its copyright law to reduce the range of statutory damages to a 

maximum of $5000 for non-commercial infringement. Copyright Modernization Act 2012 §38.1(1)(b). The 

current administration is clearly in favor of statutory damages in copyright law. The United States both 

encourages and mandates the adoption of statutory damage rules in copyright law through bilateral and 

regional trade agreements and through the Special 301 review process. See, Pamela Samuelson et al, 

Statutory Damages: A Rarity in Copyright Laws Internationally, But for How Long? 60 J. COPYRIGHT 

SOC'Y U.S.A. (2013).

130 Section 504 expressly states within the applicable range, the award of statutory damages should 

be “as the court considers just”. 17 U.S.C § 504. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 

416 (2003) (“The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly 

excessive or arbitrary punishments on a tortfeasor.”)

131 Tellingly, § 504(c) of the 1976 Act omits the part of its 1909 Act predecessor that provided that 

statutory damages are not intended as a penalty. Compare § 504(c) 1976 and § 101(b) 1909.

132 There is an extensive literature that attempts to establish and quantify the effect of file sharing. 

Proving causality and estimating the size of any effect is extremely difficult because although music sales 

declined sharply after Napster emerged in 1999, this decline was at least partially attributable to the end of 

the CD replacement cycle, a sustained economic downturn in much of the Western world, and the increased 

competition for entertainment spending attributable to the Internet and the games. See generally, Stan J. 

Liebowitz, File Sharing: Creative Destruction or Just Plain Destruction?, 49 J.L. & ECON. 1, 15-16 

(2006); Alejandro Zentner, Measuring the Effect of File Sharing on Music Purchases, 49 J.L & ECON. 63, 

65-66 (2006). But see, Felix Oberholzer-Gee & Koleman Strumpf, The Effect of File Sharing on Record 

Sales: An Empirical Analysis, 115 J. POL. ECON. 1, 3 (2007) (finding no causality between declining music 

sales and peer-to-peer file-sharing).

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33

that based its music streaming service on an aggressive (and ultimately flawed) reading 

of the fair use doctrine.133 Rational deterrence theory suggests that where the probability 

of detection is low, damages must be higher in order to reduce the expected gains from 

law-breaking.134 However, the probability that MP3.com would be detected was 100%, as 

its operation was no secret and was bound to attract the attention of the record industry. 

The damages/profits accrued by the time case went to trial were not substantial. Given 

the large number of copyrights infringed in that case, even the minimum statutory 

damages award plus attorney fees would have provided substantial deterrence and yet the 

trial judge saw fit to award damages well in excess of the statutory minimum.135 Cases 

like MP3.com and Capitol Records v. Thomas-Rasset are also difficult to reconcile with 

the U.S. Supreme Court’s guidance that “few awards [of punitive damages] exceeding a 

single-digit ratio between punitive and compensatory damages, to a significant degree, 

will satisfy due process.” 136 Copyright scholars have addressed the possible 

unconstitutionality of statutory damages; courts have not yet seen fit to apply the 

constitutional standards of tort litigation to copyright law.137

The imposition of statutory damages should take into account the need for 

deterrence, but the courts must recognize that the level of damages justified by deterrence 

has logical and constitutional limits. The fact that statutory damages for file-sharing can 

exceed the financial penalty for kidnapping violates the principle of marginal deterrence 

as well as common decency.138 Copyright owners should not be indifferent to public 

perceptions of the fairness of copyright penalties. Without completely discounting the 

effect of deterrence, the weight of evidence in sociology and behavioral psychology 

suggests that compliance with the law is much more normative than instrumental.139 Tom 

 133 UMG Recordings, Inc., et al v. MP3.com, Inc., Docket No. 1:00-cv-00472 (S.D.N.Y. Jan 21, 

2000) Nov. 14 2000 (Final Judgment and Order Nov. 14, 2000). 

134 Gary Becker, Crime and Punishment: An Economic Approach, in ESSAYS IN THE ECONOMICS 

OF CRIME AND PUNISHMENT 1, 24–34 (Gary S. Becker & William M. Landes, eds., 1974)

135 UMG Recordings, Inc., et al v. MP3.com, Inc., Docket No. 1:00-cv-00472 (S.D.N.Y. Jan 21, 

2000) Nov. 14 2000 (Final Judgment and Order Nov. 14, 2000)

136 State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 1524, 155 

L.Ed.2d 585 (2003). The Court also noted that “four times the amount of compensatory damages might be 

close to the line of constitutional impropriety.” Id., citing Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 

23-24 (1991), and BMW of North America, Inc. v. Gore, 517 U.S. 559, 581 (1996).

137 See, e.g., Sony BMG Music Entertainment v. Tenenbaum, 719 F.3d 67, 70–72 (1st Cir. 2013) 

(an award of $675,000 for infringement of thirty songs did not offend due process); Zomba Enterprises, Inc. 

v. Panorama Records, Inc., 491 F.3d 574, 586–88 (6th Cir. 2007) (rejecting Due Process Clause challenges 

and upholding a statutory damage award of $806,000, representing a 44:1 ratio of statutory to actual 

damages), cert. denied, 553 U.S. 1032 (2008); Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 907–

10 (8th Cir. 2012) (upholding an award of $222,000 in statutory damages for infringement of twenty-four 

songs), cert. denied, 133 S. Ct. 1584 (2013); Lowry’s Reports, Inc. v. Legg Mason, Inc., 302 F. Supp. 2d 

455, 459–60 (D. Md. 2004) (rejecting a due process challenge to a $19 million jury verdict for copyright 

infringement where the defendant argued that actual harm was limited to $59,000).

138 The United States Sentencing Guidelines §5E1.2 establishes a fine range of $17,000 to 

$175,000 for crimes at a base offense level from 23-24, such as kidnapping. See U.S.S.G. §2A4.1. and § 

5E1.2

139 See generally TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990).

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Tyler’s canonical research found that obedience to the law is largely a function of the 

perception that the law is legitimate, and that legitimacy in turn is significantly influenced 

by perceptions of fairness.140 Persuading ordinary consumers who would pay for creative 

content in a world without illegal file-sharing to continue to do so in spite of the existence 

of BitTorrent means appealing to their sense of fairness as well as their fear of sanctions.

Unreasonable and arbitrary sanctions undermine the normative case for copyright 

compliance. Copyright owners who want to reinforce their normative appeals with 

deterrence would do far better to increase the perceived probability of detection than to 

pursue million-dollar verdicts in sporadic show trials.

141To the extent that high levels of 

statutory damages are justified under a theory of rational deterrence, they must still 

comply with the constitutional limits of the Due Process clause. In BMW of North 

America, Inc. v. Gore, the U.S. Supreme Court indicated that punitive damages are likely 

to violate the constitutional guarantee of Due Process if they exceed compensatory 

damages by a ratio of more than 10 to 1. 142 In the subsequent case of State Farm Mutual 

Automobile Ins. Co. v. Campbell, the Court noted that “four times the amount of 

compensatory damages might be close to the line of constitutional impropriety.”143 It is 

not clear that the Court’s guidance should extend to every context,144 but it does suggest 

that even in the absence of legislative reform, district court judges have a duty to ensure 

that statutory damages do not exceed the proportionality constraints of the Due Process 

clause. In addition to the general duty to uphold the Constitution, the Copyright Act 

clearly states that any award should an amount that the court “considers just.”145

The range of statutory damages available in ordinary file-sharing cases should be 

reduced by Congress or circumscribed by the courts. Obviously, selecting any particular 

number may appear arbitrary, but we can at least move toward a rational basis for 

statutory damages by comparing file sharing to other violations of the law that may easily 

go undetected. My specific proposal is that the constitutionally plausible range of 

statutory damages for a first-time defendant found liable for illegal file-sharing should be 

between $250 and $3000. The lower boundary is equivalent to the fine for parking in a 

handicapped space.146 The upper boundary is in the ballpark of fines imposed for driving 

under the influence.147 According to the Centers for Disease Control, almost 30 people in 

 140 Id. at 25.

141 Capitol Records v. Thomas-Rasset 579 F. Supp. 2d 1210, 1213, 1227 (D. Minn. 2008); Sony 

BMG Music Entertainment v. Tenenbaum 593 F. Supp. 2d 319 (D. Mass. 2009).

142 State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003). 

143 Id. (citing Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24 (1991), and BMW of North 

America, Inc. v. Gore, 517 U.S. 559, 581 (1996).)

144 Mathias v. Accor Economy Lodging, Inc., 347 F. 3d 672 (7th Cir. 2003).

145 17 U.S.C. § 504(c) (2006).

146 Vehicles parked in a space reserved for persons with disabilities without properly displaying 

disability license plates and/or a parking placard may be fined a minimum of $250. 625 ILCS 5/11-1301.3.

147 In lieu of more systematic data a recent example: a Chicago local television news reporter pled 

guilty in February 2014 to driving under the influence and was ordered to pay a $1,700 fine with one year’s 

supervision. Prosecutors dropped other charges, including battery, leaving the scene of an accident and 

child endangerment. The reporter’s drink-driving was detected after a minor traffic accident a Taco Bell 

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the United States die in motor vehicle crashes that involve an alcohol-impaired driver 

every day and the annual cost of alcohol-related crashes totals more than $51 billion.148

There are no reported incidents of death by file-sharing. This range should not be 

exceeded even for multiple acts of infringement unless the plaintiff can establish that 

damages beyond the range are necessary for either compensation or deterrence.149

Limiting the range of statutory damages available in Internet file-sharing cases 

would not significantly detract from general deterrence campaigns like those of the 

RIAA.150 The prospect of nontrivial sanctions combined with an award of attorney’s fees 

should still provide a powerful incentive for accused infringers who are in fact liable to 

admit their wrongdoing and settle quickly. However, the amounts at stake are not so great 

that no reasonable person could ever be expected to defend themselves against an 

erroneous accusation.

Reforming statutory damages would allow copyright owners to continue to use 

litigation to deter infringement and to steer consumers toward the legitimate market, but 

it would make litigation as an independent revenue stream less attractive. This is not just 

an economic reform; it may also be necessary to protect the integrity of the judicial 

system. Currently, the prospect of high statutory damages unrelated to any assessment of 

harm sounds like easy money. There may be plaintiffs and lawyers pursuing in MDJD 

lawsuits as a revenue stream who are fine upstanding people, but there is substantial

evidence that the lure of easy money in the form of statutory damages has attracted those 

with dubious ethics and a propensity for cutting corners.

151 In the context of MDJD suits, 

the threat of massive statutory damages gives plaintiffs and their attorneys enormous 

leverage with no accountability. By divorcing statutory damages from either 

compensation or deterrence, modern copyright law has extended an invitation to 

blackmail and abuse of process that has been eagerly accepted. That invitation should be 

revoked. 

2. Denying Joinder, Severing Cases

A second option for reform is to simply deny joinder (sever cases) as indeed many 

courts have done.152 In practical terms, denying joinder increases the plaintiff’s cost of 

 parking lot. Clifford Ward “TV reporter pleads guilty in DUI case,” CHICAGO TRIBUNE, February 5, 2014, 

Pg. 7

148 CENTERS FOR DISEASE CONTROL AND PREVENTION, Injury Prevention & Control: Motor 

Vehicle Safety, April 17, 2013 (available at 

http://www.cdc.gov/motorvehiclesafety/impaired_driving/impaired-drv_factsheet.html. 

149 Samuelson & Wheatland, supra note 40 at 509-10 (recommending that courts should also have 

the power to lower statutory damages when the award would be grossly disproportionate to the harm 

caused).

150 See supra notes 25 to 26 and accompanying text. 

151 See supra note 99. See also Righthaven LLC v. Democratic Underground, LLC, 791 F. Supp. 

2d 968, 979 (D. Nev. 2011) (Righthaven ordered to show cause why it should not be sanctioned for making 

“flagrant misrepresentation[s]” to the Court).

152 See supra note 65 for examples of cases concluding joinder is impermissible or inappropriate.

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enforcement: it adds a $350 filing fee to the cost of proceeding against each defendant 

and it demands substantially more court time from the plaintiff’s lawyers. Forcing 

disfavored plaintiffs to endure greater expense merely because the court doubts the social 

value of the underlying copyrighted work would be an abuse of discretion.153 But refusing 

to allow plaintiffs to circumvent filing fees is legitimate because filing fees act “as a 

threshold barrier, albeit a modest one, against the filing of frivolous or otherwise 

meritless lawsuits.”154 Requiring individual filings, and thus filing fees, in BitTorrent 

infringement cases would destroy the financial appeal of litigation as a revenue source, 

but it would still leave the courthouse door open for litigation aimed at general deterrence 

or example setting. If allowing joinder makes abusive litigation tactics more likely, a 

court should use the discretion it has been given to take steps to curb such abuse. 

Disallowing joinder in MDJD cases would go a long way towards ensuring that litigation 

is used to protect the plaintiff’s copyrights and not simply to monetize infringement.155

Figure 6 Individual Doe Defendants in John Doe Copyright Cases 2001 – 2013

 153 Bleistein v. Donaldson Lithographing Company, 188 U.S. 239 (1903) (It would be a dangerous 

undertaking for persons trained only to the law to constitute themselves final judges of the worth of 

pictorial illustrations, outside of the narrowest and most obvious limits.)

154 Patrick Collins, Inc. v. Does 1-38, 941 F. Supp. 2d 153, 166 (D. Mass. 2013) (quoting In re 

Diet Drugs, 325 F. Supp. 2d 540, 541 (E.D. Pa. 2004)).

155 Patrick Collins, Inc. v. Does 1-38, 941 F. Supp. 2d 153, 166 (D. Mass. 2013) (“Furthermore, it 

will help to ensure that Patrick Collins is pursuing the Doe defendants for the purpose of protecting its 

intellectual property and not simply to coerce early settlements without any intention of litigating its claims 

to completion.”)

0 10,000 20,000 30,000 40,000

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

A conservative estimate of the number of individual John Doe defendants

Other John Does Pornography John Does

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Although up until now many courts have been willing to allow plaintiffs to join 

thousands of defendants in a single action, the data examined in this study shows signs of 

increasing judicial resistance. Figure 6, above, shows a conservative estimate of the 

number of Doe defendants in these cases.156 As shown in Figure 6, the number of 

individual defendants peaked in 2010 and is been declining since. It is also apparent that 

although pornography related suits have accounted for an increased number of filings 

over the past four years, the raw numbers of John Doe defendants in pornography related 

suits has been declining since 2011. Although the data does not definitively establish as 

much, it does reinforce the observation that plaintiffs are reducing the number of 

defendants in each MDJD suit so as to make joinder seem more palatable and that this is 

in response to mounting judicial skepticism.

157

The opportunism associated with the current wave of MDJD suits is by no means 

confined to this format. Lawyers working in this area have reported that some plaintiffs 

have now abandoned the MDJD form for BitTorrent litigation and are now suing 

individual IP addresses and demanding significantly higher settlement amounts. Malibu 

Media, for example, now appears to filing suits against single IP addresses and 

demanding higher settlement amounts to compensate for its increased costs. Malibu 

Media has filed 197 such cases, 143 in 2013 alone. Lawyers working in this area report 

that Malibu Media's current settlements in the range of $4000 to $8000 for cases filed 

against individuals.

Figure 7 illustrates the average number of John Doe defendants per the suit filed 

on a year-by-year basis. The individual bowls in Figure 7 are scaled to reflect the total 

number of John Doe defendants in a given year. As illustrated, 2010 saw an extraordinary 

number of defendants, 41,025 to be exact, targeted in a mere 91 suits. In the following 

year 43,632 defendants were targeted, but these John Does were spread out over 435 

individual suits. The total number of John Doe defendants fell in 2012 and again in 2013 

to 30,666 and 22,239 respectively even as the number of lawsuits filed increased from 

1211 to 1640. Thus although the average number of defendants per suit has decreased 

precipitously since 2010 this is been somewhat offset by a steady increase in filings. We 

should not expect this litigation environment to remain static. The broad trends revealed 

in the data are consistent with anecdotal observations that the serial litigators in this area 

have been adapting their tactics so that they are less dependent on permissive joinder.

 156 As noted previously, the methodology of counting John Doe defendants relies on the case 

captions them-selves; it is likely to be under-inclusive. See supra note 120 and accompanying text.

157 Note that the number of Doe defendants in each case is calculated based on the case title. This 

data will be supplemented with additional research into cases titled “Copyright Owner v. Does” in the near 

future. As a result the numbers reported herein will increase.

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 121 of 125
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Figure 7 Average Number of Doe Defendants per Suit 2001 – 2013

One explanation of the decline in John Does per suit relates to personal 

jurisdiction. Rule 12(b)(2) permits dismissal of a claim based on lack of personal 

jurisdiction.158 Personal jurisdiction can be established by either residency, minimum 

contacts or purposeful availment under most applicable state laws.159 Defendants are in 

something of a Catch 22. They do not wish to be named individually, but until they are so 

named, a number of courts will not grant a motion to dismiss for lack of personal 

jurisdiction.160 Nonetheless, as courts have grown more skeptical of the propriety of these 

 158 Fed. R. Civ. P. 12(b)(2).

159 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (Due Process requires 

the plaintiff to show that the defendant has "minimum contacts" with the forum, thereby ensuring that "the 

defendant's conduct and connection with the forum State are such that he should reasonably anticipate 

being haled into court there.")

160 See e.g., First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 251 (N.D. Ill. 2011) 

("Defendants cannot be dismissed under Federal Rule of Civil Procedure 12(b)(2) from a lawsuit to which 

they are not yet parties."); see also Malibu Media, LLC v. Does 1-6, 291 F.R.D. 191, 206 (N.D. Ill. 2013); 

First Time Videos, LLC v. Does 1-76, 276 F.R.D. 254, 259 (N.D. Ill. 2011); MGCIP v. Does 1-316, No. 10 

C 6677, 2011 WL 2292958, at *2 (N.D. Ill. June 9, 2011). See, e.g., London-Sire Records, Inc. v. Doe 1, 

542 F.Supp.2d 153, 180-181 (D.Mass.2008) ("premature to adjudicate personal jurisdiction" and permitting 

plaintiff to engage in jurisdictional discovery); Sony Music Entm't, Inc. v. Does 1-40, 326 F.Supp.2d 556, 

567 (S.D.N.Y.2004) (evaluating personal jurisdiction premature without defendants' identifying 

information). But see DigiProtect USA Corp. v. Does 1-240, No. 10 Civ. 8760(PAC), 2011 WL 4444666, 

at *3 n. 3 (S.D.N.Y. Sept. 26, 2011) (dismissing complaint because of insufficient allegations of personal 

jurisdiction but noting that allegations were also insufficient to satisfy joinder requirements)

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

0 50 100 150 200 250 300 350 400 450 500

Average number of John Doe defendants per suit

Bubble size scaled to number of John Doe defendants

Case 6:14-cv-00812-MC Document 1-2 Filed 05/16/14 Page 122 of 125
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MDJD suits, plaintiffs have had to work harder to establish a credible basis for pleading 

personal jurisdiction.

Severing cases would obviously be inefficient if it required multiple judges to 

adjudicate the same issues, over and over again, for the exact same plaintiffs. However, 

there is no reason why cases could not be severed and then consolidated. The basis of 

consolidation could be (i) the plaintiff, (ii) the plaintiff law firm or even (ii) the plaintiffs’

technical experts who log the IP addresses to begin with. Consolidation could be for

limited purposes including assessing the validity and ownership of the copyrights at 

issue; determining the reliability of plaintiff's proffered expert; entertaining affirmative 

defenses that are potentially applicable in all cases. The ‘it wasn't me’ defenses should 

then proceed on an unconsolidated basis. 

3. Conditional Joinder and Other Safeguards

Severing John Doe defendants and forcing the plaintiff to proceed on an 

individual basis is not the only possible solution. District court judges have inherent 

power to supervise litigation and substantial discretion in matters relating to both joinder 

and discovery. Even in the absence of legislative reform of statutory damages, district 

courts could use their considerable powers to impose safeguards on the discovery process 

and constrain the potential for abuse. Specifically: 

(i) Joinder in MDJD actions should be subject to an undertaking by the plaintiff 

not to seek and not to threaten to seek statutory damages above a specified 

amount. For the reasons stated in the previous section, that range, at least for a 

first-time defendant, should be between $250 and $3000.161

(ii) In addition, the court could appoint an independent attorney to supervise the 

discovery process and ensure that the names and addresses of individuals are not 

given over to the plaintiff until the initial round of “it wasn’t me defenses” have 

been raised and investigated. This should bring to light any systematic errors by 

ISPs (or by the plaintiff) in identifying IP addresses or matching IP addresses to 

subscribers. 

(iii) In the same vein, the court could provide defendants with the option of an 

express mini-trial on their “it wasn’t me” defenses. 

(iv) The court could grant defendants leave to proceed anonymously in order to 

protect their privacy, at least until liability has been definitively established.162

 161 Supra note 146 to 149 and accompanying text. 

162 TCYK, LLC v. Does, 2013 U.S. Dist. LEXIS 177765 (“Numerous courts have deemed it 

prudent to allow defendants to proceed by pseudonym during preliminary stages of copyright infringement 

proceedings, even when, as here, the material downloaded is innocuous, given the ‘substantial possibility 

that the names turned over by ISPs will not accurately identify the individuals who actually downloaded or 

shared the copyrighted material.’” citing TCYK, LLC v. Does 1-87, 2013 U.S. Dist. LEXIS 95817, 2013 

WL 3465186, at *4.)

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These reforms and similar safeguards could reduce the threat of abusive litigation tactics 

while retaining the initial efficiency of the MDJD format. 

IV. CONCLUSION

Although the problem of patent trolls has drawn more attention, we are currently 

witnessing an explosion of copyright trolling in U.S. federal district courts. The data in 

this Article shows that copyright trolling in the form of MDJD lawsuits has grown rapidly 

over the last decade and that much of the growth has taken place in the last four years. 

The data also shows that MDJD litigation is dominated by claims of infringement relating 

to pornographic films. As well as highlighting these particular trends and their 

implications, the results of this study have significant implications for the wider troll 

debate. What little attention has been paid to copyright trolls has largely focused on 

Righthaven and similar examples — this Article shows that these previous studies have 

missed the core of the copyright troll phenomenon.163

The opportunism of copyright trolls is primarily directed towards statutory 

damages. As the Righthaven example shows, statutory damages can make the pursuit of 

otherwise inconsequential infringements extremely profitable, more profitable than 

licensing those uses in advance could ever have been. As the MDJD cases show, statutory 

damages stack the deck in favor of the plaintiff such that the underlying liability of the 

defendant is effectively irrelevant to the settlement calculation.

 163 Shyamkrishna Balganesh, The Uneasy Case Against Copyright Trolls, 86 S. CAL. L. REV. 723

(2013). See also, Brad A. Greenberg, Copyright Trolls And Presumptively Fair Uses, 85 U. COLO. L. REV. 

53 (2014) (focusing on the application of fair use where copyright trolls attempt to exploit previously 

tolerated uses); Shyamkrishna Balganesh, Copyright Infringement Markets, 113 COLUM. L. REV. 2277 

(2013) (arguing that an independent market for copyright claims could be beneficial).

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14C13823, 13824 Certificate of Service

Mersenne Law LLP

9600 S.W. Oak Street, Suite 500 / Tigard, Oregon 97221 US 

info@mersenne.com ............................ (503)679-1671 

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the 

document entitled: 

Motion to Dismiss; Motion to Quash or Modify Subpoena 

was served upon the parties listed below on the date indicated, 

 by handing it to the person; 

 by leaving it at the leaving it at the person’s office with a clerk or other 

person in charge or, if no one is in charge, in a conspicuous place in 

the office; or if the person has no office or the office is closed, at the 

person’s dwelling or usual place of abode with someone of suitable 

age and discretion who resides there; 

 by mailing it to the address indicated; 

 by leaving it with the court clerk; 

 by electronic filing notification (PACER); or 

 other: by electronic mail to crowell@kite.com 

Carl D. Crowell, Esq. 

Crowell Law 

943 Liberty Street S.E. 

P.O. Box 923 

Salem, Oregon 97308-0923 

Attorney for Plaintiff VOLTAGE PICTURES, LLC 

 

Date David H. Madden

OSB #080396

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