The Thompsons Film, LLC v. Does 1-60, Slip Op. 13 C 2368 (N.D. Ill. Sep. 6, 2013) (Gottschall, J.).
Judge Gottschall denied two Doe defendants’ motions to quash subpoenas to their respective ISPs seeking, among other things, their identities based upon their IP addresses in this BitTorrent copyright case. The Court held that a copyright holder alleging infringement had the right to discovery the potential identity of the accused infringer, it did not matter that someone other than the owner of the IP address may have actually performed the accused infringement.
The Court did, however, allow the Doe defendants to proceed anonymously because of the “substantial possibility” that the IP address owner did not commit the accused acts, but rather someone else did using the Doe’s network. The Court ordered plaintiff not to identify any Doe in a pleading filed with the Court except by IP address or by Doe#, absent a further order of the Court allowing public disclosure of the Doe’s identify. The Court also limited the subpoenas to seeking the Doe’s name and address. Plaintiff was not entitled to phone numbers or email addresses, and plaintiff was not allowed to contact the Does directly by either email or phone.
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.