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.