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Carl D. Crowell, OSB No. 982049

email: carl@crowell-law.com

Drew P. Taylor, OSB No. 135974

email: drew@crowell-law.com

CROWELL LAW

P.O. Box 923

Salem, OR 97308

(503) 581-1240

Of attorneys for plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

COBBLER NEVADA, LLC,

Plaintiff,

v.

USERS OF POPCORN TIME, et al,

Defendants.

 Case No.: 3:15-cv-01991-ST

PLAINTIFF’S EX PARTE MOTION TO 

EXPEDITE DISCOVERY

EXPEDITED RULING REQUESTED

LR 7-1

Plaintiff does not know the identity of the defendants, and as such is unable to confer.

 Notice of Related Proceedings

This case is one of a number of related cases filed in this District, each with the same 

general allegations against different defendants, who have each participated in the BitTorrent 

piracy of plaintiff’s motion picture. This case, though related, is distinguishable in that each of 

the defendants participated though the use of software called Popcorn Time. All other related 

cases are before Judge Stewart, a lead case generally designated as 3:15-cv-01550-ST.

///

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PLAINTIFF’S EX PARTE MOTION TO EXPEDITE DISCOVERY

Pursuant to Federal Rule of Civil Procedure 26 and 45, plaintiff moves the Court ex parte 

for an order permitting plaintiff to take limited discovery to ascertain the identity of the 

defendants in the complaint. Limited discovery prior to the Rule 26(f) conference is necessary as 

per the reasons stated in the accompanying Memorandum of Law. 

Plaintiff respectfully requests the Court grant its ex parte Motion for leave to take 

discovery prior to the Rule 26 conference and enter an Order allowing plaintiff to subpoena 

records from the Internet Service Provider (“ISP”) used by each defendant for the identity of the 

subscribers and account holders assigned each Internet protocol (“IP”) address, and for such 

further information as may be needed to specifically identify the Doe defendants.

Plaintiff requests an expedited ruling on this matter as it is likely the defendants are

actively and currently participating in the piracy of content through the continued use of Popcorn 

Time and any delays are likely to increase the harm suffered by plaintiff and others.

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF EX PARTE MOTION TO 

EXPEDITE DISCOVERY

Pursuant to Federal Rule of Civil Procedure 26 and 45, plaintiff requests limited 

expedited discovery prior to the Rule 26 conference to ascertain the identity of the Doe 

defendants as identified in the complaint. Dkt. 1, Complaint; Dkt. 1-1, List of defendants.

I. INTRODUCTION 

Cobbler Nevada, LLC is the registered copyright owner of the motion picture The 

Cobbler. Each of the Doe defendants is a user of the Popcorn Time software platform who 

downloaded, installed and used a version of the software to both view and then re-distribute 

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plaintiff’s motion picture to others. Dkt. 1, ¶¶ 28-32. Each of the users was provided multiple 

warnings and notices that their conduct was for the express purpose of copying and then redistributing copyrighted content to others. Dkt. 1-2, Popcorn Time Notice; Dkt. 1-3, Popcorn 

Time FAQ; Dkt. 1-4, Popcorn Time Terms of Service.

Popcorn Time is a unique BitTorrent vehicle as it exists for one reason only: to facilitate 

the theft of copyrighted content. The Popcorn Time web site (www.popcorntime.io) makes this 

clear. Dkt. 1-2; Exhibit 2, (“Downloading Copyrighted Material May Be Illegal In Your 

Country.”) A quick search online reveals a number of articles to this effect with titles such as, 

Piracy-powered video streaming platform Popcorn Time is a major threat to Netflix – Financial 

Post, and Hollywood Faces Grave Threat From Popcorn Time – Forbes. Popcorn Time promotes 

itself and is distributed in a manner that invites the most causal of Internet users to enter the 

world of online theft and piracy with its ease of use and friendly logos. Plaintiff’s investigator 

has recorded over 10,000 instances of distribution of its motion picture from locations in Oregon, 

a fact well known to users of Popcorn Time as it is well known that the chances of getting 

singled out and caught with so many infringers is miniscule.1 The users of Popcorn Time hide 

behind the seeming near-anonymity of their actions and with the knowledge that as their 

numbers grow, through heard defense, it is harder and harder for rights holders like plaintiff to 

catch any single infringer. 

Each of the defendants in this action used the Internet to commit infringement through 

Popcorn Time, as such plaintiff only knows the defendants by his or her IP addresses, and the 

 1 Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 increased 

maximum damages for such conduct to $150,000 based in part on the need to deter infringers 

that did not believe they would be caught. Sony BMG Music Entertainment v. Tenenbaum, 660 

F. 3d 487, 500 (“Many computer users are either ignorant that copyright laws apply to Internet 

activity, or they simply believe that they will not be caught or prosecuted for their conduct.” 

Quoting H.R. Rep. No. 106–216 (1999).)

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time of the infringement as stated in Exhibit 1 to the compliant. An ISP uses an IP address to

identify each account that is assigned to a person using the Internet through the ISP to transmit 

and receive data similar to the address on a house, namely it is the location to which the ISP

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 addresses. Publicly available data generally does not permit plaintiff to 

ascertain the identity of the subscribers or actual defendants. But as the ISP controls defendants’

access to the Internet, so too does the ISP have the records which tie each IP address used to 

infringe plaintiff’s rights to a specific party who contracted for service. Without this information, 

plaintiff cannot ascertain the identity of the defendants nor pursue this lawsuit to protect its 

valuable copyrights. 

Accordingly, plaintiff seeks leave to serve a Rule 45 subpoena on each ISP used by the 

defendants. Such a subpoena will be limited to non-content subscriber account information such 

as the true name, address, telephone number, and e-mail address of the parties associated with

each defendants’ IP address. Any such information obtained will be used for protecting and 

enforcing plaintiff’s rights as set forth in the Complaint filed in this case.

As a subscriber who contracts with and ISP may not necessarily be a defendant, plaintiff 

may also request leave for reasonable further discovery including an FRCP 45 deposition of the 

subscribers identified by the ISP of not more than two (2) hours, as may be needed to find the 

true identity of the actual defendants. 

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II. ARGUMENT

1. Plaintiff’s Right to Discovery 

Federal Rule of Civil Procedure 26(d)(1) authorizes a court to permit discovery before 

the Rule 26(f) conference upon a showing of “good cause” for the party’s need for expedited 

discovery. See, e.g., Renaud v. Gillick, No. 06-1304, 2004 WL 98465, at *2-3 (W.D. Wash. Jan. 

8, 2007) (analyzing the Ninth Circuit standard of “good cause” and cases permitting expedited 

discovery); Semitool, Inc. v. Tokyo Electron Am., Inc., 280 F.R.D. 273, 276 (N.D. Cal. 2002) 

(“Good cause may be found where the need for expedited discovery, in consideration of the 

administration of justice, outweighs the prejudice to the responding party.”)

Courts routinely allow discovery to identify “Doe” defendants operating through the 

Internet. See generally Voltage, et. al v. Doe, 3:14-cv-01241-AC, (D. OR); 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”); 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).

Courts consider the following factors when granting motions for expedited discovery to

identify anonymous internet users: (1) whether the plaintiff can identify the missing party with 

sufficient specificity such that the court can determine that the defendant is a real person or entity 

who could be sued in federal court; (2) all previous steps taken by the plaintiff to identify the 

Doe defendant; and (3) whether the plaintiff’s suit could withstand a motion to dismiss. 

Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-580 (N.D. Cal. 1999)

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First, it is highly likely plaintiff can identify the missing parties with sufficient specificity

as they are each either the subscriber who contracted for use of the identified IP address, or based 

on the observed conduct, likely known to the subscriber. Dkt. 1. Second, though plaintiff has

been able to identify much about each defendant, namely who he or she uses as his or her ISP, 

where he or she is generally located, and what software (Popcorn Time) he or she used to 

commit acts of infringement, plaintiff has no means to readily identify the Doe defendants as 

named individuals. Each ISP has procedures for revealing the associated subscriber information, 

but require a subpoena as a matter of course. Third, this is a claim for copyright infringement. 

Specifically, sufficient facts are alleged to support a plausible right to relief well above any 

general level of mere speculation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Good cause to allow expedited discovery in this case clearly exists because the ISP used 

to commit the acts of copyright 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 online 

copyright infringement there is likely irreparable harm to the copyright 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 logs prior to the conference.) 

If plaintiff is denied its subpoenas 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. As such it is clearly in the interest of preserving justice and order that this court 

should grant Plaintiff’s motion. Semitool, Inc., 280 F.R.D. at 276 (“Good cause may be found 

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where the need for expedited discovery, in consideration of the administration of justice, 

outweighs the prejudice to the responding party.”)

2. Joinder is Proper

a) Elements allowing joinder exist in plaintiff’s complaint.

Joinder of defendants is permissible if (1) “any right to relief is asserted against them

jointly, severally, or in the alternative with respect to or arising out of the same transaction, 

occurrence, or series of transactions or occurrences,” and (2) “any question of law or fact

common to all defendants will arise in the action.” FRCP 20(a)(2). Federal Rule of Civil 

Procedure 1 provides that each rule should be “construed and administered to secure the just, 

speedy and inexpensive determination of every action or proceeding.” FRCP 1. The Supreme 

Court has stated “joinder of claims, parties and remedies is strongly encouraged.” United Mine 

Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966); see also Hagan v. Rogers, 570 F.3d 146, 152 

(3d Cir. 2009). Accordingly, the court should liberally interpret the joinder rules and apply them 

in the interests of fairness and justice to all parties. 

The elements for permissive joinder have been met in that all of the defendants face the 

same claim: knowingly and willingly joining in the BitTorrent exploitation of plaintiff’s motion 

picture through the use of the Popcorn Time software platform, which provides express notice of 

their infringing conduct and that their conduct will facilitate the infringing activities of others 

who join with them. Dkt. 1, passim. There are clearly commonalities in their joined, if not 

unified and cooperative activity. Similarly almost all defenses that might be raised by any

defendant (plaintiff’s ownership, facts of the complaint, investigative data, etc.) would be 

common to all defendants. Further, as per the express pleading, any defendant that claims 

prejudice in joinder will be freely severed on request. Dkt. 1, ¶ 51.

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b) Joinder, in the discretion of the court, is favored.

In similar cases, some courts permit joinder of thousands, at least in the initial stages to 

permit discovery. Voltage Pictures, LLC v. Does 1-2,514, No. 12-217 (M.D. Fl., 2012), 

Maverick Entertainment Group, Inc. v. Does 1-4,350, No. 10-569 (D.D.C., 2010). Some courts 

refuse to allow joinder, forcing plaintiffs to pursue infringers on an individual basis. In Re 

BitTorrent Adult Film Copyright Infringement Cases, No. 12-3995 (E.D.N.Y., 2012), Boy Racer, 

Inc. v. Does 1–60, No. 11-1738 (N.D. Cal., 2011). And some courts have limited joinder to

varying degrees of commonality. Digital Sin, Inc. v. Does 1–176, 2012 WL 263491 (S.D.N.Y., 

2012), Raw Films v. John Does 1-15, 2012 WL 1019067 (E.D. Pa., 2012). There have even been 

contemporaneous inconsistencies in the same district. See Patrick Collins, Inc. v. John Does 1-

21, 282 F.R.D. 161 (E.D. Mich., 2012)(Joinder found proper) and Patrick Collins, Inc. v. John 

Does 1-23, 2012 WL 1019034 (E.D. Mich., 2012)(Joinder denied). No single issue is 

determinative. 

Courts have tended to deny joinder in the instance of adult content, where the stigma of 

association makes them more susceptible to abuse. But recently courts are recognizing joinder is 

preferable in BitTorrent litigation for general management and economics for the courts, 

plaintiffs, and defendants when there are no other indicia of abuse. See generally, Survivor 

Productions, Inc. v. Anonymous Users of Popcorn Time, 3:15-cv-01587-AA, (D. Or. Sept. 15,

2015); Dallas Buyers Club, LLC v. Anonymous Users of Popcorn Time, 3:14-cv-01779-AC (D. 

Or. Sept. 22, 2015); Dallas Buyers Club, LLC v. Does, 14-cv-1684 (W.D. WA., October 31, 

2014); Dallas Buyers Club, LLC v. Does, 14-cv-1402 (W.D. WA., September 11, 2014); ElfMan, LLC v. Does 1-152, Case No. 13-cv-0507 (W.D. WA., March 26, 2013).

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The determination lies with the discretion of the court and whether or not there is a 

common nexus of law and fact that the court deems is best managed through joinder. United 

States v. Mississippi, 380 U.S. 128, 142-142 (1965). Courts should weigh the principals of 

fundamental fairness to all parties examined on a case by case basis, but joinder is strongly 

encouraged.

c) Interests of justice and principals of fundamental fairness favor 

joinder.

Without a doubt, the enforcement of plaintiff’s rights is a burden on the courts. 

Thousands of acts of infringement in this District, when policed as opposed to being ignored, 

cannot help but strain resources. However, even though justice may be difficult to administer, 

the difficulty should not be a barrier to relief. Marbury v. Madison, 5 U.S. 137 (1803). Joinder 

of the defendants creates judicial efficiency, particularly at this stage of the litigation. First Time 

Videos, LLC v. Does 1-500, 276 F.R.D. 241, 252-53 (N.D. Ill. 2011) (“[J]oinder at this stage is 

... in the interest of convenience and judicial economy [and] does not create any unnecessary 

delay nor does it prejudice any party. Rather, severance is more likely to likely to cause delays 

and prejudice [plaintiff] and future named defendants alike.”); Raw Films v. John Does 1-15, 

2012 WL 1019067 (E.D. Pa., 2012) (“consolidating early discovery for the purpose of 

determining the scope of claims and defenses will foster judicial economy.”).

While the burden of the present case is very real, the burden is far less than if the cases 

were presented individually. The defendants presented individually would likely file the same 

motions to quash, have the same defenses, and there would be excessive redundancy. The 

savings of the plaintiff in joinder are also afforded the court. The interests of justice favor 

joinder.

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d) In BitTorrent cases defendants’ interests favor joinder. 

Where the economy of joinder is rarely discussed is the benefit that is realized by the 

actual defendants. The Copyright Act subjects infringers to notable penalties. Civil penalties 

have increased to $150,000 per work in direct response to the proliferation of internet piracy. 17 

U.S.C. § 504(c). The implication that a plaintiff gains unfair advantage by reducing the costs at 

the filing stage of these cases by only a fraction of the potential damages available for each 

individual case should be balanced against the real exposure of the defendants. The real 

exposure to most defendants are the costs and fees associated with their conduct, either their own

duplicative costs and fees, or those assessed against them. 

Joinder permits parties to manage cases at a reduced cost and permits a plaintiff to accept 

settlements in lesser amounts, particularly as costs and fees for the willful infringement through 

the use of Popcorn Time are properly assessed against defendants. 17 U.S.C. § 505. If plaintiff 

were forced to proceed against defendants individually, costs and fees (transactions costs) would 

be higher dictating higher settlements and greater burdens on defendants.

This is evident as often when a defendant files an answer to a single party BitTorrent case 

they assert an affirmative defense claiming that plaintiffs have failed to join other defendants. 

See Voltage Pictures, LLC v. Blake, 3:14-cv-1975-AC, Dkt. 21 (May 27, 2015); Dallas Buyers 

Club v. Fernandez, 3:15-cv-00444-AC, Dkt. 15 (July 9, 2015.) What is clear is that once a 

defendant is named, the defendants favor joinder.

e) Unsupported concerns for possible abuse should not trump the 

interests of the parties and fundamental fairness of joinder.

Plaintiff acknowledges joinder in BitTorrent actions in this District has been disfavored. 

In early BitTorrent related infringement actions in this District, in response to numerous 

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concerns and before any substantive proceedings, to address the potential for abuse Judge Aiken 

ordered cases be pursued against individual parties. Voltage Pictures, LLC v. Does, 3:13-cv00295-AA, Dkt. 78, (May 7, 2013.). In compliance with this directive plaintiffs have done so. 

However, in part due to the increased costs associated with individual cases, defendants have 

since complained that individual Doe cases are even “more nefarious.” Voltage Pictures, LLC v. 

Revitch, 6:14-cv-00301-AA, Dkt. 46, (January 23, 2015.) And when a defendant answers in a 

single Doe BitTorrent case, plaintiffs often face the affirmative defense that they have failed to 

join other defendants. See above. It is clear that defendants’ only real objection is not any 

perceived abuse, but that plaintiffs are legitimately enforcing their rights and defendants simply 

do not want to be caught. 

The concerns for abuse are real, but in response to the unfounded complaints in this 

District, on investigation of actual cases and conduct, there is no actual abuse. Id. (“... defendant 

only cites ...another attorney in another case in another district...There is no allegation of such 

activity in this case.” Fn. 2.); Elf-Man, LLC v. Does, 6:13-cv-00331-TC (D. Or., Nov. 25, 13), 

(“There is no showing that plaintiff attempted to coerce an unfair settlement ...”); Voltage 

Pictures, LLC v. Pecsok, 3:14-cv-01407-AC, Dkt. 30, (April 29, 2015.), (“The action was not 

frivolous, was motivated by Plaintiffs’ desire to protect their copyright interests, and reasonably 

sought to recover compensation for, and deter future, copyright infringement.”)

In effect, while single party cases are always proper, and the concerns about abuse are 

legitimate, the result and outcome of the vast majority of the single Doe cases in this district is 

that defendants are successfully identified and found to be liable only to then endure the full 

weight of their actions in a single party case as they are assessed costs and fees when they are 

finally caught. Voltage Pictures, LLC v. Doe-50.141.97.4, 3:14-cv-01872-AC, (April 9, 2015), 

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(“Based on Plaintiffs’ successful identification of defendants in the vast majority of the cases it 

has filed in 2014....”). While claims of abuse from defendants is common, those claims have 

been proven hollow.

The principals of fundamental fairness in this District, as evidenced by the actual cases 

reviewed, is that both plaintiffs and defendants favor joinder, with plaintiffs benefiting in the 

early stages of litigation and the defendants clearly benefiting, if not demanding joinder, once 

named.

III. EXPEDITED RELIEF IS PROPER

As per the activity observed associated with each defendants’ IP address, there is 

evidence each defendant regularly and actively contributes to the BitTorrent piracy economy. 

The acts of the defendants do not appear to be isolated or singular in occurrence. Each 

defendants’ IP address has been observed associated with the BitTorrent exchange of multiple

files. (A record of such activity is available should the Court deem such properly filed.) This 

activity is likely ongoing. If the defendants maintain plaintiff’s work in a shared folder 

connected to the BitTorrent network and permit continued access throughout this time, the 

number of distributions of plaintiff’s work and harm that might be attributed to defendants would 

be countless. However it is the experience of counsel that parties generally promptly terminate 

infringing activity and further distribution as soon as they have notice of an actual suit pending. 

As such, expedited relief is warranted such that notice may be provided to subscribers as quickly 

as possible to at least limit further distribution and harm to plaintiff and others. 

IV. CONCLUSION

For the foregoing reasons, plaintiff respectfully requests the Court grant its ex parte 

Motion for leave to take discovery prior to the Rule 26 conference and enter an Order allowing 

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plaintiff to subpoena records from the ISPs for the identity of the account holders assigned to the 

defendants’ IP addresses as identified in Docket Entry 1-1, Exhibit 1 to the Complaint and for 

such further reasonable discovery as may be needed.

DATED: October 22, 2015.

/s/Carl D. Crowell

Carl D. Crowell, OSB No. 982049

email: carl@crowell-law.com

Drew P. Taylor, OSB No. 135974

email: drew@crowell-law.com

(503) 581-1240

Of attorneys for the plaintiff

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