Call of the Wild v Does (Resp. to EFF Amicus)

8/7/2019 Call of the Wild v Does (Resp. to EFF Amicus)

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UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

CALL OF THE WILD MOVIE, LLC )

)

Plaintiff, ))

v. ) CA. 1:10-cv-00455-RMU

)

DOES 1 1,062 )

)

Defendants. )

_______________________________________)

PLAINTIFFS OPPOSITION TO MEMORANDUM OF AMICI CURIAE [DOC. NO. 18]

Plaintiff submits this opposition to the memorandum and authorities submitted by certain

amici curiae in support of third party Time Warner Cables motion to quash or modify subpoena.

To briefly summarize Plaintiffs case, Plaintiff has identified certain Defendants who

have unlawfully copied and distributed Plaintiffs motion picture, Call of the Wild(the

Movie), over the Internet. When it filed its Complaint, Plaintiff was only able to identify the

Doe Defendants by their Internet Protocol (IP) and the date and time of alleged infringement.

The only way that Plaintiff can determine Defendants actual names is from the Internet Service

Providers (ISPs) to which Defendants subscribe and from which Defendants obtain Internet

access, as this information is readily available to the ISPs from documents they keep in the

regular course of business.

Plaintiffs Complaint was filed on March 19, 2010 and named Does 1-358 as Defendants.

[Doc. No. 1]1 Plaintiff then filed a Motion for Leave to Take Discovery Prior to the Rule 26(f)

1Plaintiffs First Amended Complaint was filed on May 12, 2010 and named Does 1-1,062 as

Defendants. [Doc. No. 6]

Case 1:10-cv-00455-BAH Document 19 Filed 01/13/11 Page 1 of 5


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Conference, which was granted by this Court on April 15, 2010. [See Doc. Nos. 2, 4]

Thereafter, Plaintiff served subpoenas on the non-party ISPs.

In response to the subpoena served on it, Time Warner Cable (TWC) filed a motion to

quash or modify the subpoena, which is still pending. [See Doc. No. 7] As part of its Motion,

TWC asserted numerous arguments that have no relevance on a motion to quash and for which it

has no standing to assert, namely that the Doe Defendants are improperly joined and that the

Court lacks personal jurisdiction over the Doe Defendants. The amici primarily advance these

same arguments and also argue that the First Amendment somehow provides protection to the

Doe Defendants alleged copyright infringement activities. However, none of these arguments

justify quashing any subpoena or any other action by the Court.

Most significantly, these exact arguments have been addressed and rejected in the

Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG v. Does 1-4,577, No. 1:10-cv-00453-

RMC and West Bay One, Inc. v. Does 1-1,653, No. 1:10-cv-00481-RMC cases pending in front

of Judge Collyer. There, Judge Collyer accepted numerous briefings and held a hearing on the

exact same arguments from the exact same amici and from TWC. Judge Collyer dispelled with

the arguments related to personal jurisdiction and the First Amendment and ordered that, at this

juncture, the numerous Doe Defendants are not severed due to misjoinder. [Doc. No. 17-1; see

Doc. No. 15-1 (hearing transcripts)] At the time Judge Collyer made her orders, those cases

were at the same juncture this case is now.

For the convenience of the Court, Plaintiff hereby adopts, relies upon, and incorporates

by reference Plaintiffs previously filed briefs and the briefs filed by the plaintiffs in the cases in

front of Judge Collyer. Attached as Exhibit 1 hereto is Plaintiffs previously submitted



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opposition to various motions to quash and motions to dismiss2, which includes a statement of

good cause addressing the joinder issue (Doc. No. 20 in West Bay One, Inc. v. Does 1-1,653, No.

1:10-cv-00481-RMC).3 This opposition addresses all of the issues raised by the amici.

First, on the joinder issue, to briefly summarize Plaintiffs position, because of the nature

of the torrent file sharing alleged by Plaintiff, all Doe Defendants have jointly engaged in the

same series of transactions to infringe Plaintiffs copyrights. Further, because Plaintiff is still

conducting discovery to identify the Doe Defendants, any severance under Rule 20 is premature.

Second, on the personal jurisdiction issue, to briefly summarize Plaintiffs position, the

amici and TWC have no standing to assert personal jurisdiction arguments, an issue that is

completely irrelevant on a motion to quash. Further, any analysis of the Courts personal

jurisdiction over a particular Doe Defendant is premature until Plaintiff names that Doe

Defendant. See Sony Music Entmt, Inc. v. Does 140, 326 F.Supp.2d 556, 567-568 (S.D.N.Y.

2004) (rejecting the exact same argument to quash a subpoena based on personal jurisdiction,

holding that such a determination was premature).4

Lastly, on the First Amendment issue, to briefly summarize Plaintiffs position, the amici

and TWC again have no standing to assert personal jurisdiction arguments, an issue that should

be reserved for the Doe Defendants. Further, a person using the Internet to distribute or

download copyrighted material without authorization is not entitled to have their identity

protected from disclosure under the First Amendment. See Interscope Records v. Does 1-14, 558

2 Plaintiffs opposition to these motions was sent to the Court via the generic email, as the

motions to quash and motions to dismiss have not been docketed yet.

3 A nearly identical brief was filed in Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG v.Does 1-4,577, No. 1:10-cv-00453-RMC (Doc. No. 29).

4It should also be noted that the documents filed by the amici in this case were exactly the same

as those filed by the same amici in Sony Music Entertainment Inc. v. Does 1-40.



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F.Supp.2d 1176, 1178 (D. Kan. 2008); see also Arista Records LLC v. Does 1-19, 551 F. Supp.

2d 1, 8-9 (D.D.C. 2008) (Kollar-Kotelly, C.) (finding that the speech at issue was that doe

defendants alleged infringement of copyrights and that courts have routinely held that a

defendants First Amendment privacy interests are exceedingly small where the speech is the

alleged infringement of copyrights); Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001)

(computer users do not have a legitimate expectation of privacy in their subscriber information

because they have conveyed it to another personthe system operator); Sony Music Entmt,

Inc. v. Does 140, 326 F.Supp.2d 556, 566 (S.D.N.Y. 2004) (defendants have little expectation

of privacy in downloading and distributing copyrighted songs without permission); Arista

Records, LLC v. Doe No. 1, 254 F.R.D. 480, 481 (E.D.N.C. 2008); U.S. v. Hambrick, 55 F.

Supp. 2d 504, 508 (W.D. Va. 1999), affd, 225 F.3d 656 (4th Cir. 2000).

Lastly, Plaintiff has already shown good cause to obtain the discovery, as Plaintiff cannot

identify the Doe Defendants and prosecute its case without the discovery. Additionally, Plaintiff

has made a prima facie showing that the Doe Defendants did infringe Plaintiffs copyrights,

showing that Plaintiffs suit can withstand a motion to dismiss. Therefore, the Court should deny

TWCs motion, disregard the amicis briefs and involvement in this case, and at least allow

Plaintiff the opportunity to conduct discovery and obtain evidence to prove the copyright

infringement and irreparable harm in this case.



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Respectfully Submitted,

CALL OF THE WILD MOVIE, LLC

DATED: January 13, 2011

By: /s/Thomas M. Dunlap (D.C. Bar # 471319)Nicholas A. Kurtz (D.C. Bar # 980091)

DUNLAP, GRUBB & WEAVER, PLLC

1200 G Street, NW Suite 800

Washington, DC 20005Telephone: 202-316-8558

Facsimile: 202-318-0242

[email protected]@dglegal.com

Attorney for the Plaintiff



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CALL OF THE WILD MOVIE, LLC )

)

Plaintiff, ))

v. ) CA. 1:10-cv-00455-RMU

)

DOES 1 1,062 )

)

Defendants. )

_______________________________________)

PLAINTIFFS OPPOSITION TO MOTIONS TO QUASH/MOTIONS TO DISMISS

Case 1:10-cv-00455-BAH Document 19-1 Filed 01/13/11 Page 1 of 56


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TABLE OF CONTENTS

I. INTRODUCTION........................................................................................................................1

II. ARGUMENT ..............................................................................................................................2

A. STANDARDS ON MOTIONS TO QUASH..................................................................2

B. PLAINTIFF HAS ALREADY SHOWN GOOD CAUSE TO OBTAIN DISCOVERY

AND HAS MADE A PRIMA FACIE SHOWING THAT DEFENDANTS DID

INFRINGE PLAINTIFFS COPYRIGHTS ........................................................................4

C. DOE DEFENDANTS ARGUMENTS ARE MISPLACED..........................................6

1. Quashing the subpoena or dismissing a particular Doe Defendant based on personal

jurisdiction grounds would be premature ......................................................................6

2. Anyargument that a Doe Defendant did not engage in the alleged infringement isinappropriate on a motion to quash..............................................................................14

3. Doe Defendants arguments related to joinder does not justify quashing the

subpoena or dismissing a Doe Defendant and are generally inappropriate at this stage

of the proceedings........................................................................................................15

D. DOE DEFENDANTS HAVE NOT SHOWN THAT THE INFORMATION

REQUESTED IS PRIVILEGED OR CONFIDENTIAL ..................................................16

III. CONCLUSION........................................................................................................................17



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TABLE OF AUTHORITIES

Cases

A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76 (2d Cir.1993)...............................................12

Amobi v. D.C. Dept. of Corrections, 257 F.R.D. 8 (D.D.C. 2009) ............................................. 3-4

Arista Records, LLC v. Doe No. 1, 254 F.R.D. 480 (E.D.N.C. 2008) ..........................................17

Arista Records LLC v. Does 1-16, 2009 WL 414060 (N.D.N.Y February 18, 2009)................. 6-7

Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1 (D.D.C. 2008)..................................... 16-17

Caroline Records, Inc., et al. v. Does 1-175, Case No. 04 2028 (D.D.C.) ....................................17

Covad Communns Co. v. Revonet, Inc., No. 09-MC-102, 2009 WL 3739278

(D.S.D. Nov. 4, 2009)..........................................................................................................3

Fonovisa, Inc. v. Does 1-9, 2008 WL 919701 (W.D.Pa.)................................................................4

Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) ..................................................................................17

Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017 (Fed.Cir. 1986) ...................................4

Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir. 1961)...........................................4

Interscope Records v. Does 1-14, 558 F.Supp.2d 1176 (D. Kan. 2008)........................................16

Jazini v. Nissan Motor Co., 148 F.3d 181 (2d Cir.1998)...............................................................12

Johnson v. Gmeinder, 191 F.R.D. 638 (D.Kan.2000) .....................................................................3

Lions Gate Films, Inc., et al. v. Does 1-5, Case No. 05-386 (EGS) (D.D.C.)...............................17

London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153 (D. Mass. 2008).....................................6

Metro-Goldwyn-Mayer Pictures Inc., et al. v. Does 1-10, Case No. 04-2005 (JR) (D.D.C.) .......17

Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395 (D.C.Cir. 1984)................................4

Novak v. Capital Mgmt. & Dev. Corp., 241 F.R.D. 389 (D.D.C. 2007).........................................3



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PDK Labs, Inc. v. Friedlander, 103 F.3d 1105 (2d Cir. 1997) ......................................................12

Sony Music Entmt, Inc. v. Does 140, 326 F.Supp.2d 556 (S.D.N.Y. 2004)..............6, 13, 16, 17

Thomas v. Marina Assocs., 202 F.R.D. 433 (E.D.Pa.2001)............................................................3

Twentieth Century Fox Film Corp., et al. v. Does 1-9, Case No. 04-2006 (EGS) (D.D.C.).........17

UMG Recordings, et al. v. Does 1-199, Case No. 04-093 (CKK) (D.D.C.) .................................17

U.S. v. Hambrick, 55 F.Supp.2d 504 (W.D. Va. 1999) .................................................................17

U.S. v. Intl Bus. Mach. Corp., 83 F.R.D. 97 (S.D.N.Y. 1979).......................................................4

Warner Bros. Records, Inc. v. Does 1-6, 527 F.Supp.2d 1 (D.D.C. 2007)....................................17

Washington v. Thurgood Marshall Academy, 230 F.R.D. 18 (D.D.C. 2005) .................................3

Webster Industries, Inc. v. Northwood Doors, Inc., 234 F.Supp.2d 981 (N.D. Iowa 2002) ... 10-11

Westinghouse Electric Corp. v. City of Burlington, 351 F.2d 762 (D.C.Cir. 1965) .......................4

Windsor v. Martindale, 175 F.R.D. 665 (D.Colo.1997)..................................................................3

Zwebner v. John Does Anonymous Foundation, Inc., 2001 WL 210173 (D.Or. 2001)............ 9-10

Statutes

Fed. R. Civ. P., Rule 4 ................................................................................................................. 8-9

Fed. R. Civ. P., Rule 5 .....................................................................................................................9

Fed. R. Civ. P., Rule 12 ...................................................................................................................9

Fed. R. Civ. P., Rule 17 ...................................................................................................................9

Fed. R. Civ. P., Rule 26 ...................................................................................................................2

Fed. R. Civ. P., Rule 41 .................................................................................................................11

Fed. R. Civ. P., Rule 45 ...................................................................................................................2



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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiff submits this opposition to numerous motions filed as purported motions to quash

and/or motions to dismiss and requests that the Court consider this opposition to apply to all

similar motions already filed and that will be filed in the future.

To briefly summarize Plaintiffs case, Plaintiff has identified certain Defendants who

have unlawfully copied and distributed Plaintiffs motion picture, Call of the Wild(the

Movie), over the Internet. At this point, Plaintiff has only been able to identify the Doe

Defendants by their Internet Protocol (IP) and the date and time of alleged infringement. The

only way that Plaintiff can determine Defendants actual names is from the Internet Service

Providers (ISPs) to which Defendants subscribe and from which Defendants obtain Internet

access, as this information is readily available to the ISPs from documents they keep in the

regular course of business.

Plaintiffs complaint was filed on March 19, 2010 and named Does 1-358 as Defendants.

[Doc. No. 1] Plaintiff then filed a Motion for Leave to Take Discovery Prior to the Rule 26(f)

Conference, which was granted by this Court on April 15, 2010. [See Doc. Nos. 2, 4]

Thereafter, Plaintiff served subpoenas on the non-party ISPs.

In response to the subpoenas, the ISPs contacted their subscribers for which Plaintiff

identified an infringing IP address on the date and time of alleged infringement. Various Doe

Defendants have filed motions to quash the subpoenas and/or dismiss pursuant to Fed. R. Civ. P.

12(B)(2). As of the filing of this opposition, Plaintiffs counsel is aware of three such motions,



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none of which have been placed on the Courts docket.1

Because the motions all present nearly

identical arguments, all of which do not provide good cause for quashing the subpoena or

dismissing a particular Doe Defendant, Plaintiff requests that the motions and any similar future

motions be denied in their entirety.

II. ARGUMENT

The Doe Defendants advance a number of arguments in their motions: (1) the Court lacks

personal jurisdiction over them, (2) they deny the allegations against them, and (3) joinder of the

multiple Doe Defendants is improper. However, all of these arguments are misplaced and

improper at this stage of the proceedings.

A. STANDARDS ON MOTIONS TO QUASHA person served a discovery subpoena may move either for a protective order under Rule

26(c) or for an order quashing or modifying the subpoena under Rule 45(c)(3). Rule 26(c)

authorizes district courts, upon a showing of good cause by a party or by the person from

whom discovery is sought to make any order which justice requires to protect a party or person

from annoyance, embarrassment, oppression, or undue burden or expense. Rule 45(c)(3)

provides that the court may quash or modify the subpoena if it requires disclosure of privileged

or other protected matter, if no exception or waiver applies, or if it subjects a person to undue

burden.

1 Plaintiff has also received an email from a Doe Defendant acting in pro perthat purports to be

a motion, but Plaintiffs counsel is unaware if this email qualifies as a motion or has been filedwith the Court.



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Ordinarily a party does not have standing to object to a subpoena served on a non-party,

but a party does have standing to object to a subpoena served upon a non-party which requires

the production of privileged information. Covad Communns Co. v. Revonet, Inc., No. 09-MC-

102, 2009 WL 3739278, at *3 (D.S.D. Nov. 4, 2009) (citing E.E.O.C. v. Danka Indus., Inc., 990

F. Supp. 1138, 1141 (E.D.Mo.1997)); Washington v. Thurgood Marshall Academy, 230 F.R.D.

18, 21 (D.D.C. 2005) (Facciola, J.) (A motion to quash, or for a protective order, should

generally be made by the person from whom the documents or things are requested. [citing 9A

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 2459 (2d ed.1995)]).

However, that standing to object should limited to only challenging the subpoena on the

grounds that it requires disclosure of information privileged at common law or by statute or

rule and not any other grounds. See Windsor v. Martindale, 175 F.R.D. 665, 668

(D.Colo.1997). The general rule is that a party has no standing to quash a subpoena served

upon a third party, except as to claims of privilege relating to the documents being sought. Id.

(citation omitted); see also Johnson v. Gmeinder, 191 F.R.D. 638, 639 n. 2 (D.Kan.2000);

Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (E.D.Pa.2001); Novak v. Capital Mgmt. & Dev.

Corp., 241 F.R.D. 389, 394 (D.D.C. 2007) (Facciola, J.) (stating that [t]o make a legitimate

claim of privilege the Defendants would have had to show some reason to believe that the

subpoena threatened the disclosure of information that was protected by a privilege that these

Defendants could claim) (emphasis added); Amobi v. D.C. Dept. of Corrections, 257 F.R.D. 8,

9-10 (D.D.C. 2009) (Facciola, J.) (holding that District of Columbia Department of Corrections

had no right to claim work product or attorney-client privilege with regard to United States

Attorneys Offices files relating to former corrections officers criminal prosecution for



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assaulting inmate, and thus did not have standing to object to subpoena served on USAO by

officer seeking files in connection with officers civil rights action against Department).

The burden of persuasion in a motion to quash a subpoena is borne by the movant, and

the burden is particularly heavy to support a motion to quash as contrasted to some more

limited protection. Westinghouse Electric Corp. v. City of Burlington, 351 F.2d 762, 766

(D.C.Cir. 1965) (denying a motion to quash supported by two affidavits); US. v. Intl Bus. Mach.

Corp., 83 F.R.D. 97, 104 (S.D.N.Y. 1979); Horizons Titanium Corp. v. Norton Co., 290 F.2d

421, 425 (1st Cir. 1961); see Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403-04

(D.C.Cir. 1984). The district court must balance the relevance of the discovery sought, the

requesting partys need, and the potential hardship to the party subject to the subpoena. Heat &

Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1024 (Fed.Cir. 1986) (citing Deitchman v.

E.R. Squibb & Sons, Inc., 740 F.2d 556, 560, 564 (7th Cir. 1984)).

Additionally, on a motion to quash a subpoena, the merits of a defendants defenses are

not at issue. See Fonovisa, Inc. v. Does 1-9, 2008 WL 919701, *8 (W.D.Pa.) (stating that [i]f

Doe # 3 believes that it has been improperly identified by the ISP, Doe # 3 may raise, at the

appropriate time, any and all defenses, and may seek discovery in support of its defenses).

B. PLAINTIFF HAS ALREADY SHOWN GOOD CAUSE TO OBTAIN DISCOVERYAND HAS MADE A PRIMA FACIE SHOWING THAT DEFENDANTS DID

INFRINGE PLAINTIFFS COPYRIGHTS.

The court has already determined that Plaintiff has met its threshold burden to obtain

further information about the Doe Defendants by identifying the Doe Defendants with sufficient

specificity and showing that Plaintiffs suit can withstand a motion to dismiss. As more fully set



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out in Plaintiffs Motion for Leave to Take Discovery Prior to the Rule 26(f) Conference [See

Doc. Nos. 2, 4], Plaintiff identified the unique IP address for each Defendant, along with the date

and time of alleged infringement and ISP that provided Internet access to each Defendant and

assigned the unique IP address to the Defendant, from information provided to it by Guardaley,

Limited. This information was obtained by Guardaleys proprietary tracing software program to

trace the IP address for each Defendant, as detailed in the declarations of Benjamin Perino and

Patrick Achache. However, Plaintiff is unable to obtain the true identity of the Doe Defendants

without issuing subpoenas to the non-party ISPs, and the Defendants must be identified before

this suit can progress further. Therefore, Plaintiff has already demonstrated good cause for the

requested information.

Further, Plaintiff has made a prima facie evidentiary showing that the IP addresses it has

identified and subpoenaed to various ISPs did make an unlawful download of Plaintiffs Movie

on a specific date and time. Again, Plaintiff utilized proprietary technology developed and

instituted by Guardaley that detects the unauthorized distribution of movies and other

audiovisual content and files over online media distribution systems. See Achache Declaration

(filed as Exhibit B to Plaintiffs Motion for Leave to Take Discovery [Doc. No. 2-2]) 4.

Accordingly, Defendants IP addresses at the time of the alleged infringement were included in

this case because they were offering files corresponding to Plaintiffs Movie for unlawful

transfer or distribution. See id. at 8. In fact, Guardaley actually downloaded Plaintiffs Movie

from the IP address assigned to these Defendants, just as it does with all Doe Defendants. See

id. at 9. Lastly, Guardaley confirmed that the files that Defendants distributed were actually

Plaintiffs Movie by watching both and comparing them. Id. at 16-17.



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C. DOE DEFENDANTS ARGUMENTS ARE MISPLACED.1. Quashing the subpoena or dismissing a particular Doe Defendant based on

personal jurisdiction grounds would be premature.

The Doe Defendants argue that this Court lacks personal jurisdiction over them.

However, the determination of the Courts jurisdiction over a particular Doe Defendant is

premature at this time, when Plaintiff is still conducting discovery to ascertain the identities of

the Defendants and has not yet named any Defendant.

In a similar case, Sony Music Entmt, Inc. v. Does 140, 326 F.Supp.2d 556, 567-568

(S.D.N.Y. 2004), that court rejected a similar argument to quash a subpoena based on personal

jurisdiction, holding that such a determination was premature.2 The court stated that it had

discretion to allow discovery to determine the basis for personal jurisdiction and that without the

identifying information sought by the plaintiffs in the subpoena to an ISP, it would be difficult

to assess properly the existence of personal jurisdiction over the Doe defendants. Id. at 567.

The court stated that such an analysis would require more of an evaluation of the contacts

between the various defendants and the forum state and concluded by holding at this stage that

personal jurisdiction is lacking would be premature. Id.; see London-Sire Records, Inc. v. Doe

1, 542 F.Supp.2d 153, 180-181 (D. Mass. 2008) (stating that affidavit of doe defendant claim she

was not a resident of the forum state was an insufficient basis to disallow discovery); see also

Arista Records LLC v. Does 1-16, 2009 WL 414060, *7 (N.D.N.Y February 18, 2009) (denying

2 Though the courts decision primarily responded to arguments advanced by amicus

organizations, the court did recognize that a letter to the Court from an attorney for a Jane Doe

joined the arguments in the amicis filing, including an objection to the subpoena based on lack

of personal jurisdiction, and a letter from the Jane Doe explicitly contested personal jurisdiction.Sony Music Entmt, Inc. v. Does 140, 326 F.Supp.2d at 567, fn. 8.



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argument that court lacked personal jurisdiction over doe defendants, stating that [w]ithout the

identifying information, an assessment of personal jurisdiction would be idle speculation).

Here, quashing the subpoena based on personal jurisdiction would likewise be premature.

Plaintiff has not yet received any of the identifying information sought from the ISPs for these Doe

Defendants. Allowing Plaintiff to obtain the information from the ISPs is important for numerous

reasons.

First, obtaining the information from the ISPs gives Plaintiff verification of the address

associated with each Doe Defendants ISP account. As the ISPs are the only ones that can verify the

link between a particular IP address on a given date and time with one of its customers, Plaintiffs only

method to obtain this verified evidence is from the ISPs in response to the subpoenas. Because Plaintiff

would otherwise be entitled to discovery to challenge the moving Doe Defendants declarations and

because identifying discovery is already in progress, Plaintiff should at least be entitled to complete its

discovery to independently verify the moving Doe Defendants assertions.

Second, the information sought from the ISPs gives more information than simply the name and

address of the Doe Defendants. Most importantly, the information provided by the ISPs in response to

the subpoenas gives the definitive connection between the IP address and the associated ISP customer.

Again, the ISPs are the only ones with this information, as most ISPs assign IP addresses dynamically

and are the only ones with the logs to determine the customer associated with an IP address at a specific

date and time in the past.

For some of the moving Doe Defendants, getting this information from the ISP is critical, as

some Doe Defendants have not stated the IP address associated with their ISP account that Plaintiff has

alleged to infringe Plaintiffs movie. Because Plaintiff has not received this information from the ISP

yet, Plaintiff has no way to connect those Doe Defendants with any particular IP address.



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For the anonymous moving Doe Defendants that did provide an IP address, Plaintiff still needs

the production from the ISP. Again, as the ISPs are the only ones that can verify the link between a

particular IP address on a given date and time with one of its customers, Plaintiffs only method to

obtain this verified evidence is from the ISPs in response to the subpoenas.

Further, as requested in the subpoenas, some ISPs are able to provide the Doe

Defendants modems Media Access Control (MAC) number, which provides Plaintiff with

further evidence to substantiate its case. None of the moving Doe Defendants has provided this

information.

It must be noted that the moving Doe Defendants have not cited a single legal basis or authority

where a motion to dismiss a Doe defendant was granted before the plaintiff actually specifically named

that Doe defendant. While the omnibus motion attempts to discredit Plaintiffs allegations and primarily

relies on the assumption that the geographical location techniques are conclusive, which they have

proven not to be, it does so without regard to the timing of its motion. In the end, the motions do not

provide a single authority applicable to the stage of this case when Plaintiff is still proceeding against

Doe Defendants.

The plain language of the Federal Rules of Civil Procedure contemplates that a defendant can

only respond to the complaint when that defendant has been named as a party and after a summons has

been issued and served on a defendant (or service is waived by the defendant). For example, Rule 4

states that a summons must name the court and the parties and be directed to the defendant. Fed. R.

Civ. P. 4(a)(1)(A) and (B) (emphasis added).

Only then can the provisions of the Federal Rules of Civil Procedure, such as when a defendant

must file a responsive pleading or motion, take effect. Therein, one of the things the summons must do

is advise the defendant of the obligation to appear and defend and state the time the defendant has for



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doing so, whether after being served with the summons or by waiving service. See Fed. R. Civ. P.

4(a)(1)(D). The timeframe in which a defendant has to appear and defend therefore does not start

until, at the earliest, a summons specifically names the defendant and is directed to that defendant.3

Accordingly, moving Doe Defendants motions to dismiss should be denied because there is no

authority that they were even permitted to file them. As stated in Fed. R. Civ. P. 12(b):

Every defense to a claim for relief in any pleading must be asserted in theresponsive pleading if one is required. But a party may assert the following

defenses by motion: . . . (2) lack of personal jurisdictionA motion asserting any

of these defenses must be made before pleading if a responsive pleading is

allowed. If a pleading sets out a claim for relief that does not require a

responsive pleading, an opposing party may assert at trial any defense to that

claim. No defense or objection is waived by joining it with one or more otherdefenses or objections in a responsive pleading or in a motion.

Fed. R. Civ. P. 12(b) (emphasis added).

The language clearly contemplates that a motion to dismiss for lack of personal jurisdiction is

only appropriate if a responsive pleading is required or allowed. A responsive pleading is not yet

required of the anonymous Doe Defendants because their deadline to appear and defend has not even

started. They are not yet named parties to the case, and no summons has been issued with their names or

directed at them. [See Docket Entry of 5/27/10 (SUMMONS Not Issued.)]

The only case Plaintiffs counsel could find similar to this topic is inapplicable and easily

distinguishable. In Zwebner v. John Does Anonymous Foundation, Inc., 2001 WL 210173 (D.Or.

2001), the court allowed an unnamed and unserved doe defendant to file an answer. Id. at *3 (as the

judge noted, [n]either the parties, nor I, have found any cases on the issue faced here). However, there

3While the Federal Rules of Civil Procedure do not explicitly define party, the plain language of

multiple provisions suggests that a person is only a party to a case when that person is identified and

specified by name in the case. For example, Fed. R. Civ. P. 17 states that an action must be prosecuted

in the name of the real party in interest, and Fed. R. Civ. P. 5 contemplates service of papers on every

party wherein the general provisions for service contemplate that the partys identity must be known(See Fed. R. Civ. P. 5(b)(2)).



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the plaintiff alleged a specific alias name for the doe defendant, and the doe defendants answer

admitted using the alias name as described in the Complaint. See id. Accordingly, it was established

that the person who filed the answer was definitively the doe defendant because that defendant admitted

committing the alleged acts.

That is not the case here. The moving Doe Defendants have not admitted to engaging in the

activities alleged by Plaintiff, and they have not even admitted to owning the IP addresses associated

with the infringing activity. Rather, the moving Doe Defendants generally assert the exact opposite

that they did not engage in any infringing activity.

In fact, the court in Zwebner recognized this distinction when it noted that a Massachusetts court

declined to allow the unnamed defendant to file a motion to dismiss based on lack of personal

jurisdiction in a companion case:

Plaintiff suggests that in a similar case filed by plaintiff in Massachusetts and

currently pending there, the court rejected Frenchs attempt to appear in the case. Thepleadings in that case show that plaintiff named as defendants Robert Villasenor and John

Does 1-100. In the Complaint, plaintiff alleges that John Doe 1 used the aliasInternetZorro when communicating over the Internet. Plaintiff also alleges that

Villasenor published statements about plaintiff on the JDAF website, which plaintiff

contends is controlled by French. Plaintiff further alleges that French published a seriesof innuendos about plaintiff on the Internet and that InternetZorro published numerous

false and defamatory statements about Zwebner. [] French filed a motion to dismiss

contending that the court lacked personal jurisdiction over him. The court declined tohear Frenchs motion because French was not a party to the action. [] Thus, unlike in the

present case, French did not appear and answer admitting he was InternetZorro, and the

precise question at issue here was not addressed by the Massachusetts court.

2001 WL 210173 at fn. 2.

Although not as analogous to this case, and not dealing with anonymous defendants, Webster

Industries, Inc. v. Northwood Doors, Inc., 234 F.Supp.2d 981 (N.D. Iowa 2002) provides another

example of a court refusing to entertain a motion to dismiss based on lack of personal jurisdiction

because it was premature. There, a named defendant, China Hardwood Imports, attempted to make a



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special appearance to contest service of process and jurisdiction based on attempted service and a

letter from plaintiff entitled Notice of Intent to File Written Application for Default. See id. at 987-

988. The court noted that there was not yet any attempt by the plaintiffs to actually invoke the courts

personal jurisdiction over China Hardwood Imports, as the plaintiff had not yet filed any application for

default, so the court did not even entertain the merits of that defendants motion to dismiss for lack of

personal jurisdiction. See id at 988.

Similarly here, Plaintiff has not attempted to invoke the Courts personal jurisdiction over any

particular Doe Defendant. Plaintiff has not named any Defendant or sought any action by the Court over

any particular Doe Defendant. Rather, Plaintiff has only requested discovery from the third-party ISPs.

Overall, the moving Doe Defendants authorities are completely inapplicable. Every authority

deals with a named defendant. Therein, all of the motions to dismiss fail on the basic premise of

timing.4 The Court should not dismiss any Doe Defendant until Plaintiff has actually named that person

to the lawsuit.

Additionally, Plaintiff already has a deadline to name and serve all defendants in this case. It

would not prejudice any Doe Defendant to allow Plaintiff to complete its discovery within that time.

Further, it would not make practical sense to dismiss particular Doe Defendants on a piecemeal basis

before that time.5

4 Not only would allowing the Doe Defendants to interject themselves by way of responsive pleadings

or motions to dismiss impinge on Plaintiffs right and discretion to choose which Defendants to name, it

would also impinge upon Plaintiffs ability to voluntarily dismiss the case before it actually names theDoe Defendants and serves them. See Fed. R. Civ. P. 41(a)(1)(A)(i).

5Judge Collyer has ruled in a similar case pending in this Court that arguments related to personal

jurisdiction and joinder are premature until Plaintiff actually names any Defendants. [West Bay One,Inc. v. Does 1-1,653, CA. 1:10-cv-00481-RMC, Doc. No. 36 at p. 5, fn. 2 (John Doe #2 also asserts that

the Court lacks personal jurisdiction over him and that joinder of the numerous Doe defendants here is

improper. Mr. Doe #2 may raise these issues with the Court when he has been identified and Plaintiffnames him as a defendant in this case.)]



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While the moving Doe Defendants declarations generally state that the do not reside in the

jurisdiction or do regular business here, even if these statements are true, they do not conclusively

establish that the Court lacks personal jurisdiction over them.6 The Court could still have jurisdiction

over these Doe Defendants because they could have specifically directed their alleged infringing

activities to the District of Columbia by downloading or uploading Plaintiffs copyrighted work with

another Doe Defendant based in the District of Columbia or because they committed the infringing

activities while visiting the jurisdiction.

For example, one of the moving Doe Defendants could have downloaded or uploaded Plaintiffs

movie from/to a non-moving, still unidentified Doe Defendant who does have personal jurisdiction in

Washington, D.C. If the discovery were to show that connection, Plaintiff would have a good faith

argument to assert personal jurisdiction over that moving Doe Defendant based on that activity directed

at this jurisdiction. Therefore, because Plaintiff has not received all of the identifying information from

all of the Does, it is premature to dismiss any Doe Defendant at this time simply because that Doe

Defendant may reside outside of the jurisdiction.

Additionally, it is interesting to note that none of the Doe Defendants declarations state

anything about them visiting the jurisdiction. While most state that they do not reside in the

district or conduct regular business in the district, the declarations do not disclaim that they

occasionally visit the jurisdiction. Further, Plaintiffs allegations state a specific date and time

6To avoid dismissal for lack of personal jurisdiction under Rule 12(b)(2), when such motions are

brought before discovery and decided without an evidentiary hearing, a plaintiff need only make a prima

facie showing that personal jurisdiction exists. PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d

Cir. 1997); A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79 (2d Cir.1993). A plaintiff may relyentirely on factual allegations, Jazini v. Nissan Motor Co., 148 F.3d 181, 184 (2d Cir.1998) and will

prevail even if defendants make contrary arguments, A.I Trade, 989 F.2d at 79. In resolving such

motions, the court will read the complaints and affidavits in a light most favorable to the plaintiff. PDK

Labs, 103 F.3d at 1108.



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associated with each IP address for each Doe Defendant. It is quite telling that none of the Doe

Defendants declarations make any mention of Doe Defendants location on that date and time.

Obviously, if a Doe Defendant engaged in the infringing activity while visiting the jurisdiction,

Plaintiff would have a good faith argument that the Court has jurisdiction over that Doe

Defendant.

Lastly, the moving Doe Defendants argue that Plaintiff knows, or is able to determine, each Doe

Defendants geographic location without receiving the identifying information from the ISPs. However,

that is simply not true.

The exact same argument and technique was specifically rejected in Sony v. Does 1-40.

7

There,

the plaintiffs opposed this technique and stated that the geographical designations fall far short of 100

percent accuracy and are often extremely inaccurate. 326 F. Supp. 2d at 567. The court went on to

state that [a]ssuming personal jurisdiction were proper to consider at this juncture, the techniques

suggested by amici, at best, suggest the mere likelihood that a number of defendants are located

outside of New York. This, however, does not resolve whether personal jurisdiction would be proper.

Id. at 567-568.

Similarly here, the moving Doe Defendants have not established that their techniques

conclusively establish the location of any particular Doe Defendant. In fact, the website cited in the

omnibus motion (http://whatismyipaddress.com/) provides the following disclaimer when a user clicks

on Additional IP Details: This information should notbe used for emergency purposes, trying to find

someones exact physical address, or other purposes that would require 100% accuracy. (emphasis

added). Additionally, that very same website has a page dedicated How accurate is GeoLocation?

7 It should be noted that the issues raised, arguments presented, and technique used for the omnibus

motion mirrors what was filed in Sony Music Entertainment Inc. v. Does 1-40.



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which states: Determining the physical location down to a city or ZIP code, however, is more difficult

and less accurate because there is no official source for the information, users sometimes share IP

addresses and Internet service providers often base IP addresses in a city where the company is basing

operations. [] Accuracy rates on deriving a city from an IP address fluctuate between 50 and 80

percent, according to DNS Stuff, a Massachusetts-based DNS and networking tools firm. See

http://whatismyipaddress.com/geolocation-accuracy.8

Therefore, the arguments and techniques raised by the moving Doe Defendants that

Plaintiff knows or could know the exact location of every Doe Defendant is simply not true.

Overall, it is premature for the Court to make any decision related to personal jurisdiction until

after Plaintiff obtains the information from the ISPs and names a particular Doe Defendant.

2. Any argument that a Doe Defendant did not engage in the allegedinfringement is inappropriate on a motion to quash.

To the extent any Doe Defendant argues that he did not engage in the infringing activity,

this argument is misplaced and does not address the requirements for a motion to quash. Again,

the merits of the case, or Doe Defendants defenses, are not at issue at this stage of the case. The

court only considers the relevance of the discovery sought, the requesting partys need, and the

potential hardship to the party subject to the subpoena.

Here, Plaintiff has already demonstrated good cause for the subpoena in that the

information is absolutely necessary in this case so that Plaintiff can ascertain the true identities of

the alleged infringing Doe Defendants and that Plaintiff can only obtain the information by

8 As just one example of the potential inaccuracy with the techniques argued by the moving Doe

Defendants, when Plaintiffs counsel went on to the website (http://whatismyipaddress.com) from their

Leesburg, Virginia office, it showed up as Warrenton, Virginia.



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issuing subpoenas to the ISPs. In contrast, Doe Defendants have not shown any annoyance,

embarrassment, oppression, or any undue burden or hardship they would incur if the information

is divulged to Plaintiff. Additionally, Doe Defendants cannot claim that the subpoena is

unreasonable or oppressive, because they are not the ones responding to the subpoenas. Lastly,

Doe Defendants have not shown why quashing the subpoenas is necessary when other, more

limited methods are available to address any concerns.

3. Doe Defendants arguments related to joinder does not justify quashing thesubpoena or dismissing a Doe Defendant and are generally inappropriate at

this stage of the proceedings.

The Doe Defendants argue that the joinder of the Defendants is improper in this case.

However, joinder is proper at this time.

In two similar pending cases in front of Judge Collyer, an order to show cause hearing

was conducted wherein Judge Collyer ruled that joinder was proper at this stage of the

proceedings and that, at this juncture, the numerous Doe Defendants are not severed due to

misjoinder. [West Bay One, Inc. v. Does 1-1,653, CA. 1:10-cv-00481-RMC, Doc. No. 25;

Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG v. Does 1-2,094, CA No. 1:10-cv-00453-

RMC, Doc. No. 34] For the convenience of the Court and the parties, Plaintiff has attached the

Statement of Good Cause filed in the West Bay One, Inc. v. Does 1-1,653, CA. 1:10-cv-00481-

RMC [Doc. No. 20] as Exhibit 1 hereto and hereby incorporates those arguments and authorities

in opposition to the Doe Defendants arguments related to joinder in this case.9

9 A nearly identical Statement of Good Cause was also filed in Achte/Neunte Boll Kino

Beteiligungs GMBH & Co. KG v. Does 1-2,094, CA No. 1:10-cv-00453-RMC [Doc. No. 39].



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To summarize the argument in opposition to the joinder argument, any consideration of

joinder is premature and inappropriate at this stage. See Sony Music Entmt, Inc. v. Does 140,

326 F.Supp.2d at 568 (stating that discussion of joinder is not germane to the motions to quash

before the Court, as the remedy for improper joinder is severance, see Fed.R.Civ.P. 21, and not

the quashing of the subpoena at issue here).

D. DOE DEFENDANTS HAVE NOT SHOWN THAT THE INFORMATIONREQUESTED IS PRIVILEGED OR CONFIDENTIAL.

Doe Defendants only have standing to assert that the subpoena requests privileged or

confidential information. However, such an argument has no basis in law or in fact for this

case.10

As further detailed in Plaintiffs Motion [Doc No. 2], a person using the Internet to

distribute or download copyrighted music without authorization is not entitled to have their

identity protected from disclosure under the First Amendment. See Interscope Records v. Does

1-14, 558 F.Supp.2d 1176, 1178 (D. Kan. 2008); see also Arista Records LLC v. Does 1-19, 551

F. Supp. 2d 1, 8-9 (D.D.C. 2008) (Kollar-Kotelly, C.) (finding that the speech at issue was that

doe defendants alleged infringement of copyrights and that courts have routinely held that a

defendants First Amendment privacy interests are exceedingly small where the speech is the

alleged infringement of copyrights); Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001)

(computer users do not have a legitimate expectation of privacy in their subscriber information

because they have conveyed it to another personthe system operator); Sony Music Entmt,

Inc. v. Does 140, 326 F.Supp.2d 556, 566 (S.D.N.Y. 2004) (defendants have little expectation

10For those Doe Defendants who have identified themselves in their motions, the motion to

quash aspect of their motions must be denied as moot.



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of privacy in downloading and distributing copyrighted songs without permission); Arista

Records, LLC v. Doe No. 1, 254 F.R.D. 480, 481 (E.D.N.C. 2008); U.S. v. Hambrick, 55 F.

Supp. 2d 504, 508 (W.D. Va. 1999), affd, 225 F.3d 656 (4th Cir. 2000).

Additionally, Plaintiff is only seeking limited information sufficient to identify each Doe

Defendant, and Plaintiff will only use that information in this lawsuit. Therefore, the Doe

Defendants are protected from any improper disclosure or use of their information.

III. CONCLUSION

Overall, Doe Defendants have not demonstrated any reason to quash the subpoenas or

dismiss them at this stage of the proceedings. As fully laid out in Plaintiffs Motion for Leave to

Take Discovery, which was granted by the court, courts have routinely allowed discovery to

identify Doe defendants in cases almost identical to this one. See, e.g., Metro-Goldwyn-Mayer

Pictures Inc., et al. v. Does 1-10, Case No. 04-2005 (JR) (D.D.C.) (Robertson, J.); Twentieth

Century Fox Film Corp., et al. v. Does 1-9, Case No. 04-2006 (EGS) (D.D.C.) (Sullivan, E.);

Lions Gate Films, Inc., et al. v. Does 1-5, Case No. 05-386 (EGS) (D.D.C.) (Sullivan, E.); UMG

Recordings, et al. v. Does 1-199, Case No. 04-093 (CKK) (D.D.C.) (Kollar-Kotelly, C.);

Caroline Records, Inc., et al. v. Does 1-175, Case No. 04 2028 (D.D.C.) (Lamberth, R.); see also

Warner Bros. Records, Inc. v. Does 1-6, 527 F.Supp.2d 1, 2 (D.D.C. 2007).

Plaintiff has shown good cause for obtaining information related to the Doe Defendants

from the non-party ISPs, especially when considering that these ISPs typically retain user

activity logs containing the information sought for only a limited period of time before erasing

the data. Therefore, the court should deny these motions and any similar future motions and at



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least allow Plaintiff the opportunity to conduct discovery and obtain evidence to prove the

copyright infringement and irreparable harm in this case.

Respectfully Submitted,

CALL OF THE WILD MOVIE, LLC

DATED: October 18, 2010

By: /s/

Thomas M. Dunlap (D.C. Bar # 471319)Nicholas A. Kurtz (D.C. Bar # 980091)

DUNLAP, GRUBB & WEAVER, PLLC

1200 G Street, NW Suite 800Washington, DC 20005

Telephone: 202-316-8558

Facsimile: [email protected]

[email protected]

Attorney for the Plaintiff



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CERTIFICATE OF SERVICE

I hereby certify that on October 18, 2010, a true and correct copy of the foregoing

PLAINTIFFS OPPOSITION TO MOTIONS TO QUASH/MOTIONS TO DISMISS was sentvia first-class mail as follows:

Carey N. Lening, Esq.1325 G St. NW Ste 500

Washington, DC 20005

Attorney for Omnibus Motion Defendants

Patrick King, Esq.

47 Seaton Pl., NW

Washington, DC 20001

Attorney for Doe Defendant

Brian D. Geno, Esq.Geno Law Firm, P.C.

Red Maple Court Office Condiminiums

10617 Jones Street, Suite 201-B

Fairfax, VA 22030

Attorney for Doe Defendant

I hereby certify that on October 18, 2010, a true and correct copy of the foregoing

PLAINTIFFS OPPOSITION TO MOTIONS TO QUASH/MOTIONS TO DISMISS was sentvia electronic means, wherein after a reasonable time after sending I did not learn that it did not

reach the person to be served, to the following:

[email protected]

/s/ Nick Kurtz

Nicholas A. Kurtz



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WEST BAY ONE, INC., )

)

Plaintiff, ))

v. ) CA. 1:10-cv-00481-RMC

)

DOES 1 2,000 )

)

Defendants. )

_______________________________________)

PLAINTIFFS STATEMENT OF GOOD CAUSE

AS TO WHY DEFENDANTS 2 THROUGH 2,000SHOULD NOT BE DISMISSED FOR MISJOINDER

UNDER RULE 20 OF THE FEDERAL RULES OF CIVIL PROCEDURE

Case 1:10-cv-00481-RMC Document 20 Filed 06/21/10 Page 1 of 29Case 1:10-cv-00455-BAH Document 19-1 Filed 01/13/11 Page 24 of 56


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TABLE OF CONTENTS

I. INTRODUCTION........................................................................................................................1

II. BRIEF PROCEDURAL OVERVIEW........................................................................................2

III. APPLICABLE LEGAL STANDARDS ARGUMENT.............................................................3

IV. ARGUMENT.............................................................................................................................5

A. THE NATURE OF THE TORRENT ACTIVITY ALLEGED......................................5

B. PLAINTIFF HAS APPROPRIATELY JOINED THE DOE DEFENDANTS AT THIS

STAGE OF THE CASE.......................................................................................................9

1. Plaintiffs right to relief arises out of the same transaction, occurrence, or series of

transactions or occurrences............................................................................................9

2. A question of law or fact common to all Doe Defendants will arise in the action..12

C. SIMILAR CASES HAVE FOUND THAT ALLEGATIONS SIMILAR TO

PLAINTIFFS DO NOT VIOLATE RULE 20 .................................................................13

D. THE PRIOR CASES DEALING WITH SIMILAR ALLEGATIONS CITED BY

AMICI ARE SIGNIFICANTLY DISTINGUISHABLE ..................................................16

E. ANY ACTION TAKEN PURSUANT TO RULES 20 OR 21 WOULD BE

PREMATURE ...................................................................................................................21

IV. CONCLUSION........................................................................................................................24



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TABLE OF AUTHORITIES

Cases

Androphy v. Smith & Nephew, Inc., 31 F. Supp. 2d 620 (N.D. Ill. 1998)....................................23

Arista Records, LLC v. Does 1-11, No. 1:07-CV-2828, 2008 WL 4823160

(N.D. Ohio Nov. 3, 2008) ............................................................................................16, 20

Arista Records LLC v. Does 1-16, Civ. No. 1:08-CV-765 (GTS/RFT), 2009 WL 414060

(N.D.N.Y. Feb. 18, 2009) ............................................................................................14, 15

Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1 (D.D.C. 2008)............................... 15, 22-23

Arista Records, LLC v. Does 1-27, 584 F. Supp. 2d 240 (D. Me. 2008) .................... 13-16, 20, 24

BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888 (E.D. Pa. Apr. 2, 2004).. 16-17

Brereton v. Commcns Satellite Corp., 116 F.R.D. 162 (D.D.C. 1987)..........................................5

Desert Empire Bank v. Insurance Co. of N. Am., 623 F.2d 1371 (9th Cir. 1980) ..........................3

DIRECTV, Inc. v. Barrett, 220 F.R.D. 630 (D. Kan. 2004)........................................ 11-13, 20, 24

DIRECTV. Inc. v. Essex, No. C02-5503RJB, 2002 U.S. Dist. LEXIS 26923

(W.D. Wash. Nov. 13, 2002) ....................................................................................... 19-20

DIRECTV, Inc. v. Hosey, 289 F. Supp. 2d 1259 (D. Kan. 2003) .................................................19

DIRECTV, Inc. v. Russomanno, No. 03-2475, 2003 U.S. Dist. LEXIS 23403

(D.N.J. Nov. 12, 2003).......................................................................................................19

Disparte v. Corporate Executive Bd., 223 F.R.D. 7 (D.D.C. 2004) ................................................4

Fonovisa, Inc. v. Does 1-9, Civil Action No. 07-1515, 2008 WL 919701

(W.D. Pa. Apr. 3, 2008).....................................................................................................16

Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974) ...................................................4



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MyMail, Ltd. v. America Online, Inc., 223 F.R.D. 455 (D.C.Tex. 2004).....................................11

Sony Music Entmt Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004)....................2, 15, 23

Sprint Commcns Co., L.P. v. Theglobe.com, Inc., 233 F.R.D. 615 (D. Kan. 2006)....................11

Stanley Works v. Haeger Potteries, Inc., 35 F.R.D. 551 (N.D. Ill. 1964) .................................4, 10

United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966) .............................................4

Statutes

17 US.C. 101 et seq............................................................................................................. passim

17 U.S.C. 106.............................................................................................................................XX

Fed. R. Civ. P. Rule 20 ..............................................................................................................3, 17

Fed. R. Civ. P. Rule 21 ....................................................................................................................3



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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

To briefly summarize Plaintiffs allegations, Plaintiff has identified certain Defendants

who have unlawfully copied and distributed Plaintiffs motion picture, The Steam Experiment

(a/k/a The Chaos Experiment) (the Movie), over the Internet. At this point, Plaintiff has

only been able to identify the Doe Defendants by their Internet Protocol (IP) address and the

date and time of alleged infringement. The only way that Plaintiff can determine Defendants

actual identities is from the various non-party Internet Service Providers (ISPs) to which

Defendants subscribe and from which Defendants obtain Internet access. However, Plaintiff

cannot obtain this discovery without first filing a lawsuit against the anonymous Doe

Defendants.

Various organizations have argued, through an amicus curiae brief, that Plaintiffs filing

of one lawsuit against all of the Doe Defendants constitutes improper joinder in violation of Rule

20 of the Federal Rules of Civil Procedure. In raising this issue with the court, the Amici rely on

previous, purportedly similar cases instituted against illegal downloaders of copyrighted

material. However, notwithstanding the fact that some courts have ruled, in prior seemingly

similar cases, that joining numerous Internet downloader copyright infringement defendants may

constitute improper joinder at this stage of the proceedings, the technological differences

between the file sharing services in this case compared to those prior cases are significantly

different.

As Plaintiff will demonstrate herein, because of the unique and true peer-to-peer nature of

the torrent file sharing alleged by Plaintiff in this case, all Doe Defendants have jointly

engaged in the same series of transactions to infringe on Plaintiffs copyright. Further, because



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Plaintiff has not yet learned the identities of all Doe Defendants in this case, any severance under

Rule 20 is premature at this time. Overall, justice requires that Plaintiff be permitted to proceed

with its case as plead.

II. BRIEF PROCEDURAL OVERVIEW

Plaintiff filed its complaint against 2,000 Doe Defendants on March 23, 2010. [Doc. No.

1] Plaintiff then filed a Motion for Leave to Take Discovery Prior to the Rule 26(f) Conference,

which was granted by this Court on April 13, 2010. [See Doc. Nos. 3, 4]1 Pursuant to that order,

Plaintiff served the various ISPs with subpoenas to identify the Doe Defendants.

In response to the subpoena served on it, Time Warner filed a motion to quash, primarily

arguing that the number of IP requests was unduly burdensome in the time requested and that

Plaintiff should have to pay Time Warners costs for responding to the subpoena. [See Doc. No.

5] During the parties briefing on Time Warners motion to quash, various organizations filed a

motion for leave to file an amicus curiae brief, purportedly in support of Time Warners motion

to quash. [See Doc. No. 13]2

Seemingly in response to the amicus curiae brief, on June 7, 2010, this Court issued a

minute order requiring Plaintiff to show cause in writing no later than June 21, 2010 why Doe

1 The motion was granted and ordered entered by Judge John D. Bates, prior to the case being

reassigned. [See Doc. No. 4]

2 It should be noted that the issues raised, arguments presented, and declarations submitted by

Amici are exactly the same as those filed in Sony Music Entertainment Inc. v. Does 1-40, 326 F.

Supp. 2d 556 (S.D.N.Y. 2004). There, Amici similarly submitted their papers in the context of a

motion to quash a subpoena, and the court firmly rejected all of Amicis arguments. See id. at568.



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Defendants 2 through 2,000 should not be dismissed for misjoinder under Federal Rule of Civil

Procedure 20. [June 7, 2010 Minute Order]3

III. APPLICABLE LEGAL STANDARDS

The Federal Rules of Civil Procedure, specifically Rule 20, provide for the permissive

joinder of parties. As relevant to this case, Rule 20 states that [p]ersonsmay be joined in one

action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the

alternative with respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences; and (B) any question of law or fact common to all defendants will

arise in the action. Fed. R. Civ. P. Rule 20(a)(2).4

Rule 21 states that [m]isjoinder of parties is not a ground for dismissing an action. On

motion or on its own, the court may at any time, on just terms, add or drop a party. The court

may also sever any claim against a party. Fed. R. Civ. P. 21.

3 The amicus curiae brief also raised the issues of personal jurisdiction and the right toanonymous speech, but the courts minute order did not reference these issues. Accordingly,

Plaintiff has focused this statement on the issue of joinder as stated in the courts order to show

cause minute order. To the extent the Court is evaluating the merits of these other issues,

Plaintiff respectfully requests an opportunity to submit additional responsive briefing.

4 Amici incorrectly state that three conditions must be met under Rule 20(a)(2) to join multiple

defendants, improperly separating subsection (a)(2)(A) into two separate requirements. [See

Doc. No. 13, at p. 22] However, the plain language of the statute states that these requirements

are disjunctive any right to relief is asserted against them jointly, severally, or in the

alternative with respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences. Rule 20(a)(2)(A) (emphasis added); see also Desert Empire Bank

v. Insurance Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980) (On a threshold level, Rule20(a) imposes two specific requirements for the permissive joinder of parties: (1) a right to relief

must be asserted by, or against, each plaintiff or defendant relating to or arising out of the same

transaction or occurrence or series of transactions or occurrences; and (2) some question of lawor fact common to all parties must arise in the action.).



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Rules 20 and 21 are intended to promote trial convenience, to expedite the determination

of litigation, and toavoid multiplicity of suits. Stanley Works v. Haeger Potteries, Inc., 35

F.R.D. 551, 554 (N.D. Ill. 1964) (emphasis added). These rules should be construed liberally, as

[j]oinder of claims, parties and remedies is strongly encouraged. United Mine Workers v.

Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138 (1966). Ultimately, a determination on the

question of joinder rests within the discretion of the trial court. See Mosley v. General Motors

Corp., 497 F.2d 1330, 1332 (8th Cir. 1974).

In satisfying the first prong of Rule 20(a), a case by case approach is generally pursued.

Id., 497 F.2d at 1333. In analyzing the first prong, Mosley found that [n]o hard and fast rules

have been established under the rule. Id. In looking at Rule 13(a) dealing with counterclaims

as guidance, that court adopted the same construction of the terms transaction or occurrence:

[t]ransaction is a word of flexible meaning. It may comprehend a series of

many occurrences, depending not so much upon the immediateness of theirconnection as upon their logical relationship. Accordingly, all logically related

events entitling a person to institute a legal action against another generally areregarded as comprising a transaction or occurrence. The analogous interpretation

of the terms as used in Rule 20 would permit all reasonably related claims for

relief by or against different parties to be tried in a single proceeding.

Id.; see Disparte v. Corporate Executive Bd., 223 F.R.D. 7, 10 (D.D.C. 2004) (stating that the

logical relationship test is flexible).5

As to the second prong of Rules 20(a), [t]he rule does not require that all questions of

law and fact raised by the dispute be common.common questions have been found to exist in a

wide range of context. Mosley, 497 F.2d at 1334.

5 In Mosley v. General Motors Corp., supra, the court found the plaintiffs had asserted a right to

relief arising out of the same transactions or occurrences where each of the ten plaintiffs alleged

that he had been injured by the same general policy of discrimination on the part of thedefendants, regardless of the fact that the different plaintiffs asserted claims for discrimination

occurring at different times for each plaintiff. 497 F.2d at 1333-1334.



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Lastly, the court should consider whether an order under Rule 21 would prejudice any

party or would result in undue delay. See Brereton v. Commcns Satellite Corp., 116 F.R.D.

162, 163 (D.D.C. 1987) (stating that Rule 21 must be read in conjunction with Rule 42(b), which

allows the court to sever claims in order to avoid prejudice to any party).

IV. ARGUMENT

A. THE NATURE OF THE TORRENT ACTIVITY ALLEGED.Plaintiff has alleged, and Plaintiff has shown in its motion for expedited discovery, that

each and every Doe Defendant, without the permission or consent of the Plaintiff, has used an

online media distribution system to copy and distribute to the public, including by making

available for distribution to others, Plaintiffs copyrighted Movie. [Doc. No. 1 (Complaint) at

12] In doing so, each Defendant has violated Plaintiffs exclusive rights of reproduction and

distribution, constituting infringement of Plaintiffs exclusive rights protected under the

Copyright Act of 1976 (17 US.C. 101 et seq.). Id.

As alleged, the manner of the illegal transfer of Plaintiffs Movie by Doe Defendants has

been through a BitTorrent protocol (or torrent) peer-to-peer (P2P) network, which is

significantly different in its architecture than the older P2P protocols used by such networks as

Napster, Grokster, Kazaa, Limewire, and Gnutella. [Doc. No. 1 (Complaint) at 3; see also

Declaration of Patrick Achache filed concurrently herewith (Achache Decl. 06/21/10), 2]

The BitTorrent protocol used by the Doe Defendants to copy and distribute Plaintiffs Movie

allow computers with low bandwidth capabilities to participate in large data transfers across a

network, which was more problematic with the older P2P protocols. [Doc. No. 1 (Complaint) at

3] Under the BitTorrent protocol, the initial file-provider intentionally elects to share or upload



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a file via a BitTorrent network. Id. This is called seeding. Id. Other users (peers) on the

network connect to the seeder to download. Id. As additional peers request the same file, each

additional user becomes a part of the network (or swarm) from where the file can be

downloaded, which means that such additional users computer is connected not only to the

seeder/uploader but also to other peer/downloaders. Id. Unlike the older P2P protocols, each

new file downloader is receiving a different piece of the data from each user who has already

downloaded that piece of data, all of which pieces together comprise the whole. Id. This means

that every node or peer user who has a copy of the infringing copyrighted material on such a

networkor even a portion of a copycan also be a source of download for that infringing file,

potentially both copying and distributing the infringing work simultaneously. Id.

This distributed nature leads to a rapid viral spreading of a file through peer users, all of

whom are both uploading and downloading portions of the file simultaneously. [Doc. No. 1

(Complaint) at 4] As more peers join the swarm, the likelihood of a successful download

increases. Id. Because of the nature of the BitTorrent protocols, any peer that has downloaded a

file prior to the time a subsequent peer downloads the same file is automatically a possible, and

even likely, source of the file for the subsequent peer. Id. Essentially, because of the nature of

the swarm downloads as described above, every infringer is simultaneously stealing copyrighted

material through collaboration from many other infringers, through a number of ISPs, in

numerous jurisdictions around the country. See id.

One difference between this BitTorrent protocol and the older P2P network protocols

used by such networks as Napster, Grokster, Kazaa, Limewire, and Gnutella is how they locate

and trade bits of the files. Achache Decl. 06/21/10, 3. Napster, Grokster, Kazaa, Limewire,

Gnutella, etc. are file sharing networks. Id. Through a series of nodes, infringers are



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interconnected to a variety of people sharing a variety of files. Id. Most of the time they send

out a search request along the network and people who have files that meet the search criteria

answer back that they have it. Id. Then an individual will pick one of the search results and start

getting bits of the file from that particular person who has some available bandwidth for

transferring of the file. Id.

BitTorrent, on the other hand is file-focused. Achache Decl. 06/21/10, 4. Someone

who has a copy of the file creates a tracker and makes it available. Id. Rather than finding that

tracker by sending out search requests along a file sharing network, infringers find it on web

sites, via recommendations in chat rooms, in links posted to mailing lists, etc. Id. Then

everyone interested in sharing that specific file (either providing a copy they already downloaded

or getting a copy) can use the tracker to essentially create a network dedicated to sharing just that

specific file. Id.

The primary characteristic of BitTorrent is the notion of torrent, which defines a session

of transferring a single file to a set of peers. Achache Decl. 06/21/10, 5. Peers involved in a

torrent cooperate to replicate the file among each other using swarming techniques. Id. A user

joins an existing torrent by downloading a .torrent file and adding it to its client. Id. This file

contains meta-information on the file to be downloaded, e.g., the number of pieces, the SHA-1

hash values of each piece, and the IP address of the so-called tracker of the torrent. Id. The

tracker is the only centralized component of BitTorrent, but it is not involved in the actual

distribution of the file. Id. It only keeps track of the peers currently involved in the torrent and

collects statistics on the torrent. Id. When joining a torrent, a new peer asks the tracker for a list

of IP addresses of peers to connect to and cooperate with, typically 50 peers chosen at random in

the list of peers currently involved in the torrent. Id. This set of peers forms the peer set of the



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new peer. Id. The group of peers will share the file among each other. Id. Each peer knows

what pieces each other peer in its peer set has, and each peer helps the other to fulfill the

completion of the file. Id.

If a file is observed directly after its release, the network size increases from a few users

to the maximum amount in which all users are potential uploaders for the respective file.

Achache Decl. 06/21/10, 6. Within a small network, and depending on the upload bandwith of

each user and the size of the file shared, the plausibility that each user downloaded a part from

each other is very high. Id. Within Mr. Achaches declaration, he illustrates an example where

Guardaley found several IP addresses sharing the same file with the same hash, same name,

same file size, and operating over the same ISP with not more than five hours between them on

two consecutive days. Id. All those infringers only had one specific file in connection, a file of

Plaintiffs Movie. Id. Seeing the whole structure of the infringers from other ISPs sharing the

same file with the same hash value, it indicates that all of those individuals must have searched

for this file on a website like isohunt, mininova, the pirate bay, etc., and they all chose the same

file. Id.

Overall, there are a limited number of files of Plaintiffs movie available on BitTorrent

protocols. Achache Decl. 06/21/10, 7. Accordingly, because of the nature of these protocols, it

is highly likely that all of the infringers of Plaintiffs movie have been involved with the same

infringing file from the time of its initial seeding up to and including the present day. Id.6

6The data already obtained by Guardaley could be completely analyzed by an external expert,

but such analysis would take at least 10 to 14 business days. Achache Decl. 06/21/10, 7.



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B. PLAINTIFF HAS APPROPRIATELY JOINED THE DOE DEFENDANTS ATTHIS STAGE OF THE CASE.

1. Plaintiffs right to relief arises out of the same transaction, occurrence, orseries of transactions or occurrences.

As shown above, the nature of the infringement alleged in this case tends to show that all

Doe Defendants engaged in the same series of transactions and occurrences. Each Doe

Defendant is alleged to have participated in a swarm with other Doe Defendants, all of which

was targeted at one thing illegally downloading/uploading Plaintiffs copyrighted Movie. Even

though all of the Doe Defendants may not have participated on the very same day and time, all of

the events involving all of the Doe Defendants are logically related to the sharing of the seed file

(Plaintiffs copyrighted Movie in digital form).

Again, this is significantly different from the prior cases involving copyright

infringement via P2P systems. In those earlier cases, the doe defendants utilized platforms such

as Napster, Grokster, Kazaa, and Limewire. Using those platforms, the infringer basically

copied a work from one other user. Each particular act of infringement involved a specific one-

on-one connection between two users for that specific file. Once the sharing of that file was

over, so presumably was the relationship between the infringers.

Further, because those cases dealt with multiple rights holders asserting claims for

multiple copyrighted works, the infringements tended to be more independent and unrelated acts

amongst the various doe defendants. For example, in the prior cases each doe defendant was

typically alleged to have downloaded a number of different songsprotected by a number of

different copyrights and owned by a number of different plaintiff copyright holdersfrom

various third-party infringers.



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Here, the use of a torrent P2P platform for the infringement of one copyrighted work is

an ongoing and continuous series of infringements. In order for each and every Doe Defendant

to obtain a download of Plaintiffs Movie, each and every Doe Defendant must link to a seed file

of Plaintiffs Movie. Because a seed file can only exist from another Doe Defendant, each Doe

Defendant is necessarily intertwined.

Overall, because of the swarm nature of the torrent file sharing, Plaintiffs alleged facts

tend to show that the Doe Defendants acted in concert in an ongoing effort to infringe Plaintiffs

work. Whether each Doe Defendant actually illegally downloaded, uploaded, and/or made

Plaintiffs work available for others to infringe, all Doe Defendants acted together in the various

swarms.7

Amici summarily dismiss the distinction of the torrent protocol. [See Doc. No. 13

(Motion to File Amici Curiae Brief) at p. 24] Therein, Amici acknowledge that this protocol

works by taking small fragments of a work from multiple people in order to assemble a copy

but dismiss this distinction by claiming that the individual Defendants still have no knowledge

of each other, nor do they control how the protocol works. Id. However, it is unclear how

Amici can definitively say that the individual Defendants still have no knowledge of each

other [Doc. No. 13 (Motion to File Amici Curiae Brief) at p. 24] when each BitTorrent user can

see that portions of the file are being downloaded from (and uploaded to) tens, hundreds, or

7In Stanley Works v. Haeger Potteries, Inc., 35 F.R.D. 551 (N.D. Ill. 1964), the court found that

the allegations made against the prospective defendants arose out of the same factual situation

and stated that [i]t would seem that where the party to be added allegedly made possible that

infringement, induced it and contributed thereto, judicial economy would require that partyspresence in the original infringement suit, as well. Id. at 554. Here, while all Doe Defendants

acted in concert and contributed to distributing Plaintiffs copyrighted Movie, each Doe

Defendants own acts of downloading and/or distributing Plaintiffs Movie also constitutes aninfringement of Plaintiffs exclusive rights of reproduction and distribution under the Copyright

Act of 1976. See generally 17 US.C. 106.



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perhaps thousands of other users. Apparently, Amici are arguing that multiple defendants must

personally know each other before they can be joined in a lawsuit. That is not the requirement.

Notwithstanding Amicis understanding of the nature of a torrent protocol, because of the

nature of the alleged protocols used to infringe on Plaintiffs Movie, the Doe Defendants do have

knowledge that they are illegally downloading and/or distributing Plaintiffs Movie to others.

While the Doe Defendants may not know the real identity of the other Doe Defendants, they may

know them by their anonymous user names or IP addresses.

Additionally, the fact that Plaintiff is alleging infringement of only one work tends to

show a relationship among all Doe Defendants. In MyMail, Ltd. v. America Online, Inc., 223

F.R.D. 455 (D.C.Tex. 2004), the court specifically held that joinder of unrelated defendants who

allegedly infringed the same patent was proper. The court stated:

A logical relationship exists if there is some nucleus of operative facts or

law.MyMail alleges that all defendants have infringed the 290 patent.TheUOL Defendants urge the Court to adopt the rule that infringement by different

defendants does not satisfy Rule 20s same transaction requirement, but the Courtfinds that this interpretation of Rule 20 is a hypertechnical one that perhaps fails

to recognize the realities of complex, and particularly patent, litigation. I

Call of the Wild v Does (Resp. to EFF Amicus)

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