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.
Peerless Indus., Inc. v. Crimson AV, LLC, No. 11 C 1768, Slip Op. (N.D. Ill. Jun. 27, 2012) (Lefkow, J.).
Judge Lefkow granted defendants’ (collectively “Crimson”) Fed. R. Civ. P. 12(c) motion for judgment on the pleadings as to plaintiff Peerless’s tortious interference and civil conspiracy claims in this patent infringement and related state law claims involving television mounts. The Court held that a clause in the parties’ agreement that restricted defendant Sycamore from selling “Similar Products” was “unworkably difficult” and “unfairly burdensome” because it prevented the sale of any Sycamore product that was similar to any Peerless product. Additionally, the clause gave Peerless sole discretion to determine whether a Sycamore product was similar in Peerless’s reasonable judgment. Because the relevant clause of the agreement was unenforceable, Peerless’s tortious interference claim based upon the clause could not stand.
Similarly, Peerless’s civil conspiracy claim could not survive because it was based upon the clause. The Court denied defendants’ request for their fees noting that defendants offered no justification for an award of fees based upon a “routine” pre-trial motion.
Sunlust Pictures, LLC v. Does 1-75, No. 12 C 1546, Slip Op. (N.D. Ill. Aug. 27, 2012) (Tharp, J.).
Judge Tharp denied Doe defendant’s motion to quash a subpoena seeking his identifying information from his cable provider in this BitTorrent copyright case, but allowed the Doe to proceed in the suit using a pseudonym. The Court also denied Doe’s motion to sever the Doe defendants. As an initial matter, while a party to a suit usually has no standing to move to quash a third party subpoena, there is an exception in cases such as this one where the subpoena implicates that party’s privacy. But Doe’s motion to quash was based upon an argument that the 75 Does were not properly joined. That, however, is not a valid ground for quashing a subpoena.
Plaintiff Sunlust’s joinder was not inappropriate in this case, despite district courts’ increasing concern regarding improper joinder of multiple Does in pornographic downloading cases around the country. Sunlust alleged that each Doe participated simultaneously in a single BitTorrent “swarm” and that the Does were sharing portions of the file between themselves as a part of that process. A swarm is the collective act of downloading a particular file. And joinder was further supported by Sunlust’s civil conspiracy claim alleging that the Does, as part of a single swarm, were engaged in a conspiracy to unlawfully distribute the copyrighted movie. Furthermore, the Does faced common legal and factual questions regarding Sunlust’s copyright claims.
In order to avoid abusive litigation tactics, the Court ordered that Sunlust only contact Doe through counsel and that Doe could proceed using a pseudonym, at least during discovery.