Malibu Media, LLC v. Doe, No. 14 C 693, Slip Op. (N.D. Ill. Feb. 7, 2014) (Shadur, Sen. J.).
Judge Shadur sua sponte ordered plaintiff Malibu Media to serve a courtesy copy of its copyright complaint on the Court in compliance with Local Rule 5.2(f) and the Court’s website. Malibu Media also was ordered to pay a $100 fine for delayed compliance with Local Rule 5.2(f).
Osiris Entertainment, LLC v. Does 1-38, No. 13 C 4901, Slip Op. (N.D. Ill. Aug. 20, 2013) (Tharp, J.).
Judge Tharp granted plaintiff Osiris Entertainment’s Fed. R. Civ. P 26(d) motion to take expedited discovery prior to a Rule 26 conference in order to discover the potential identities of the thirty eight Doe defendants otherwise only identified by their respective IP addresses in this copyright case involving the alleged infringement of the movie Awaken via BitTorrent.
As an initial matter, the Court sua sponte considered whether the thirty-eight Does were properly joined. Recognizing a district split, that mirrors a national split among district courts, the Court held that members of the same swarm may be joined in a single suit even if their direct participation in the swarm did not overlap in time, explaining:
As noted above, BitTorrent requires a cooperative endeavor among those who use the protocol. 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, without regard to whether those other members were in the swarm contemporaneously or whether they joined it later. In that light, permitting joinder among non-contemporaneous swarm participants does not seem novel or extreme; the law governing joint ventures and conspiracies, for example, clearly permits plaintiffs to proceed against groups of defendants who engaged in a cooperative endeavor to facilitate an unlawful object whether or not all of the members of the group took part in all of the actions of the group and without regard to when the members joined the group.
Citations omitted. The Court did, however, note that there would be some requirement of temporal proximity because at some amount of separation the analogy would break down. But in this instance, the alleged Does were involved over a “relatively brief” period.
Having determined that joinder was proper at least at the initial stages of the case, the Court granted Osiris Entertainment’s motion to issue subpoenas aimed at identifying the Does based upon their alleged IP addresses. The Court, however, prohibited Osiris Entertainment from publishing the Doe’s alleged identities without leave of Court, noting that there was a “substantial possibility[y]” that the individuals associated with a particular IP address were not the individuals that downloaded the allegedly copyrighted material.
Purzel Video GmbH v. Does 1-99, No. 13 C 2501, Slip Op. (N.D. Ill. Aug. 16, 2013) (Gottschall, J.).
Judge Gottschall denied various Doe defendants’ motions to quash third party subpoenas to their respective internet service providers (ISPs) as well as motions to sever and dismiss individual Does from this action. This is a BitTorrent case in which the Does are accused of being part of a “swarm” that downloads a copyright file, in this case the motion picture “Trade of Innocents.” Of particular interest, the Court held as follows:
- The Court avoided a district split in whether Doe defendants have standing to quash a third-party ISP subpoena, holding that plaintiff Purzel Video was entitled to the information sought in the subpoenas and that the Doe defendants were not unduly burdened by the third-party subpoenas. The fact that the customer associated with the identified IP address may not be the actual infringer was not a basis for quashing the subpoenas.
- The Court ordered Purzel Video not to publish any Doe’s identity without leave of Court. And to further limit “potential for harassment,” the Court held that only the bill payer and mailing address related to the IP address were discoverable. Purzel Video was not entitiled to phone numbers or email addresses. Purzel was also required to communicate with Does via their respective counsel to the extent that they had counsel.
- Recognizing a nation-wide split in authority as to how closely connected members of a “swarm” must be in order to be joined in a single suit, the Court sided with Judge Castillo, holding that it was sufficient that the Does downloaded the same initial seed file intending to use other computers to download pieces of the copyrighted works and to allow the Doe’s computer to be used by others in the swarm to download the same work. The Court also noted that while not all Does downloaded the files at the same time, the downloads occurred during the same month.
- The Court declined to exercise its Fed. R. Civ. P. 21 discretion to sever the cases, although without prejudice to reconsider at a later date. In the early stages of the case, the issues amongst Does remained relatively common and joinder made judicial sense. It is possible that varying and opposing defenses might eventually change that, at which point the Court would be willing to consider severing some or all of the cases.
- Purzel Video’s civil conspiracy claim was preempted by copyright law because it seeks to vindicate the same rights as a copyright claim.
- Purzel Video’s Local Rule 3.2 corporate disclosure was deficient because it did not list all of the members of Purzel Video. A GmbH is a German LLC, and Local Rule 3.2 requires disclosure of all members of LLC’s.