Malibu Media, LLC v. Does 1-68, No. 12 C 6675, Slip Op. (N.D. Ill. Sep. 27, 2013) (Lee, J.).
Malibu Media, LLC v. Does 1-42, No. 12 C 6677, Slip Op. (N.D. Ill. Sep. 27, 2013) (Lee, J.).
Judge Lee granted various Doe defendants motion to sever their cases as unrelated, denied motions to quash subpoenas to the Doe’s ISPs and allowed Does to proceed anonymously at least through discovery in this BitTorrent copyright case. The Court handled the two cases, both by plaintiff Malibu Media, in a single opinion because of the similarity of the various Does’ motions to quash subpoenas to their respective ISPs and/or to sever the cases of the various Does
Considering the motions to sever, the Court noted that the Seventh Circuit had not ruled on whether alleged members of a single BitTorrent “swarm” could be combined in a single suit, even if there are no allegations that the Does were a part of the swarm at or about the same time. Although district courts had decided the issue both ways, the Court, citing a Judge Kendall decision (Malibu Media, LLC v. Reynolds, No. 123 C 6672, 2013 WL 870618, at *10 (N.D. Ill. Mar. 7, 2013), held that the better approach was requiring that Does have been part of the same swarm at or about the same time. The Court also held that Malibu Media’s allegation that each Doe had downloaded the same file containing one element of the copyrighted work was not sufficient to avoid severing, without an allegation regarding the timing of the Does’ alleged participation in the swarm. Because Malibu Media had not alleged that the Does were part of the same swarm at “roughly” the same time, the Court severed the cases against each remaining Doe.
The Court denied a motion to quash an ISP subpoena based upon the Doe’s right to privacy in its personal information provided to the ISP. The Doe gave up any right to privacy in its personal information as to the ISP by providing its personal information to the ISP during registration.
While every party accused of downloading pornographic material did not necessarily have a right to proceed anonymously, the Court balanced that against the possibility that the ISP address owner did not necessarily do the accused downloading and allowed the Doe defendant to proceed anonymously at least through discovery. Additionally, Malibu Media did not object to the Doe proceeding anonymously, as long as Malibu Media could be made aware of the Doe’s identity, which the Court held that it would.