Malibu Media, LLC v. Reynolds, No. 12 C 6672, Slip Op. (N.D. Ill. Mar. 7, 2013) (Kendall, J.).

Judge Kendall:  1) denied defendant Doe 15’s motion to dismiss; 2) denied Doe 15’s motion to quash the subpoena of Doe 15’s internet provider; 3) granted Doe 15’s unopposed motion to remain anonymous; and 4) severed each of the 15 defendants, except for Doe 15 in this Bit Torrent copyright case.  The Court leads off with a very good description of Bit Torrent and how a “swarm” operates.  It is worth reading for anyone that is dealing with these cases. 

Motion to Dismiss

The fact that plaintiff Malibu Media filed certain copyrights as works for hire, although Malibu Media was not yet formed when those works were made (and therefore they could not be works for hire) was a mistake that Malibu Media had already taken steps to correct, and it did not require dismissal of Malibu Media’s copyright claims.

Motion to Quash

Doe 15 did not have standing to oppose Malibu Media’s subpoena to Doe 15’s internet service provider, absent a privilege claim.  But regardless of standing, Doe 15 had not made a showing that it would face an undue burden based upon the subpoena. 

Motion to Proceed Anonymously

Malibu Media did not oppose Doe 15 remaining anonymous, at least through the close of discovery.  And the Court agreed that allowing Doe 15 to proceed anonymously would prevent Malibu Media from forcing settlement based upon Doe 15’s potential embarrassment from being accused of illegally downloading pornography.  The Court, therefore, allowed Doe 15 to proceed anonymously at least until dispositive motions were decided.

Motion to Sever

The Court held that in order to be joined in the same case, defendants need not just have been members of the same swarm — which can last weeks or months depending upon the members of the swarm.  Instead, the defendants would have to have been members of the same swarm that downloaded the accused file at the same time.  Because none of the defendants, which were all part of the same swarm, were part of the same swarm at the same time, the Court severed each of the defendants, except Doe 15.  While the Court would normally retain the first defendant, in this instance the Court retained the last because it had decided several motions related to Doe 15.