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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MALIBU MEDIA, LLC, a California limitedliability company,
Plaintiff,
v.
JOHN DOES 1, 13 and 14,
Defendants.
CASE NUMBER: 5:12-cv-02088-MMB
Honorable Michael M. Baylson
PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANT, JOHN DOE NO.
1S, MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT PURSUANT TO
F.R.C.P. 12(b)(6) [CM/ECF 57]
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TABLE OF CONTENTS
I. INTRODUCTION ...............................................................................................................4
II. ARGUMENT ......................................................................................................................5
A. Online Peer-to-Peer Copying and Distribution Is Copyright Infringement .....................5
B. Plaintiff Pled a Claim of Direct Infringement ................................................................7
1. Defendants ISP Need Not Correlate Him to Each Infringement For Plaintiffs
Claims to be Plausible ..........................................................................................8
2. Plaintiff Did Not Need to Serve The Entire Swarm ..............................................9
C. BitTorrent Peers Are Not Necessary Parties Under Rule 19(a) ......................................9
D. Defendants Argument That Plaintiff Lacks Capacity to Sue is Wrong ....................... 11
E. Local Rule 40.1(b)(3) Has No Bearing on a Motion to Dismiss................................... 12
III. CONCLUSION ................................................................................................................. 13
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TABLE OF AUTHORITIES
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th
Cir. 2001) ....................................6
Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003).........................................................6
Arista Records, LLC. v. Doe 3, 604 F.3d 110 (2d Cir. 2010) ........................................................6
Charter Communications, Inc. Subpoena Enforcement Matter, 393 F.3d 771, 774 (8th
Cir. 2005)................................................................................................................................................6
Culinary Service of Delaware Valley, Inc. v. Borough of Yardley, PA, 385 Fed. Appx. 135, 145
(3d Cir. 2010) ..........................................................................................................................9
Dague v. Huddler, CIV.A. 07-5539, 2008 WL 4444266 (E.D. Pa. Oct. 2, 2008) ....................... 11
Dun & Bradstreet Software Services, Inc. v. Grace Consulting, Inc., 307 F. 3d 197, 206 (3d Cir.
2002) .......................................................................................................................................7
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) ....................................................8
Interscope Records v. Duty, 2006 WL 988086, (D. AZ 2006) ................................................... 10
Liebeskind v. Alliance Title Co. , C-07-3962 MMC, 2008 WL 160954 (N.D. Cal. Jan. 11, 2008)
.............................................................................................................................................. 12
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 545 U.S. 913, 125 S.Ct. 2764 (2005) .........5
Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93 (3d Cir. 2004) .......................................................9
Multimedia Games, Inc. v. WLGC Acquisition Corp., 214 F.Supp.2d 1131, 1142
(N.D.Okla.2001) .................................................................................................................... 11
RIAA v. Verizon Internet Services, Inc., 351 F.3d 1229, 1238 (D.C. Cir. 2003) ............................6
Sony v. Tennenbaum, 2011 WL 4133920 at (1st Cir. 2011) .........................................................7
Sony v. Tennenbaum, 660 F.3d 487 (1st Cir. 2011) ......................................................................6
Temple v. Synthes Corp., Ltd., 498 U.S. 5, 6, 7-8, 111 S.Ct. 315, 316, 112 L.Ed.2d 263 (1990) . 10
TES Franchising, LLC v. Dombach, CIV.A. 10-0017, 2010 WL 5071472 (E.D. Pa. Nov. 24,2010) ................................................................................................................................. 8, 13
TIG Ins. v. Nobel Learning Communities, Inc., 2002 WL 1340332 (E.D. Pa. 2002) .....................9
Twentieth Century Fox Film Corp. v. iCraveTV, 2000 WL 255989, (W.D. Pa. 2000) .................9
Typh, Inc. v. Typhoon Fence of Pa., Inc., 461 F.Supp. 994, 996-997 (D.C.Pa.1978) .................. 11
UMG Recording, Inc. v. Alburger, 2009 WL 3152153, (E.D. PA. 2009). ....................................6
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I. INTRODUCTION
Each of John Doe 1s arguments runs afoul of well-established law and should be
rejected. First, despite having filed a motion to sever [CM/ECF # 14], wherein John Doe 1
disingenuously argued that he should be sued individually, John Doe 1 who got exactly what
he asked for now claims that [b]y failing to identify and serve the entire swarm, Plaintiff has
also failed to state a claim under Fed.R.Civ.P. 12(b)(6).1
Memorandum in Support of Motion to
Dismiss, CM/ECF # 57, p. 3. Defendants argument should be rejected because the other peer
infringers in a swarm are neither necessary nor indispensable parties within the meaning of Rule
19. Indeed, Plaintiff sued John Doe 1 solely for direct infringement and Plaintiff can obtain
complete relief against Defendant. And, while Plaintiff could have sued other peers in
Defendants swarm, Supreme Court precedent makes clear that a plaintiff need not sue co-
tortfeasors who are jointly or severally liable. Therefore, Defendants erroneously designated
Rule 12(b)(6) motion (it should have been a 12(b)(7) motion) should be denied.
Defendant also incorrectly argues that Plaintiffs additional claims of infringement (i.e.,
those of Plaintiffs claims which were not asserted in the original complaint) should be dismissed
because Defendants Internet Service Provider (ISP) has yet to state that Defendant was
assigned the same Internet Protocol (IP) Address on the dates and times of the additional
infringements. This argument should be rejected because it is not only plausible it is highly
probable that since John Doe 1 stole one of Plaintiffs movies on December 22, 2011, using IP
Address 174.60.32.79, that it was John Doe 1 who also stole three (3) more of Plaintiffs movies
between December 16, 2011 and December 22, 2011, by using the exact same IP Address
174.60.32.79.
1 Presumably, Defendant meant to argue that Plaintiffs claims should be dismissed under Rule
12(b)(7) for failing to join an indispensable party.
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Defendant also erroneously argues that Plaintiff lacks capacity to sue because it is a
foreign corporation that does not have a certificate of authority to transact business in the
Commonwealth. First, Malibu Media mooted this section of Defendants motion by obtaining a
Certificate of Authority to Transact Business. See Exhibit A. Second, Plaintiff has never
transacted business in Pennsylvania within the meaning of 15 Pa.C.S.A. 4141(a). Therefore,
Plaintiff did not need to obtain a Certificate of Authority.
Finally, Defendant complains that Plaintiff failed to file a notice of related cases. Failure
to file a notice of related cases is nota basis for dismissing a case. For these reasons, as more
fully explained below, the Court should deny John Doe 1s motion to dismiss.
II. ARGUMENT
A. Online Peer-to-Peer Copying and Distribution Is Copyright Infringement
During her testimony before the U.S. Senate, the Register of Copyrights stated Mr.
Chairman, make no mistake. The law is unambiguous. Using peer-to-peer networks to copy or
distribute copyrighted works without permission is infringement and copyright owners have
every right to invoke the power of the courts to combat such activity. Every court that has
addressed the issue has agreed that this activity is infringement.2 (Emphasis added.) Vice
President Biden stated: [i]t's smash and grab, no different than a guy walking down Fifth
Avenue and smashing the window at Tiffany's and reaching in and grabbing what's in the
window.3
The Supreme Court inMetro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. 545 U.S.
913, 125 S.Ct. 2764 (2005), found that Grokster was liable for contributory infringement because
it materially aided and induced its users to commit direct infringement via its peer-to-peer file
2Pornography, Technology, and Process: Problems and Solutions on Peer-to-Peer Networks Statement of Marybeth
Peters The Register of Copyrights before the Committee on the Judiciary, 108th
Cong. (2003) available at
http://www.copyright.gov/docs/regstat090903.html3 See http://www.reuters.com/article/2010/06/22/us-usa-trade-web-idUSTRE65L3YN20100622
Case 5:12-cv-02088-MMB Document 63 Filed 12/05/12 Page 5 of 13
http://www.copyright.gov/docs/regstat090903.htmlhttp://www.reuters.com/article/2010/06/22/us-usa-trade-web-idUSTRE65L3YN20100622http://www.reuters.com/article/2010/06/22/us-usa-trade-web-idUSTRE65L3YN20100622http://www.copyright.gov/docs/regstat090903.html -
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sharing service. Similarly, the First, Second, Seventh, Eighth, Ninth and D.C. Circuits have all
held that peer-to-peer infringement is actionable. See Sony v. Tennenbaum, 660 F.3d 487 (1st
Cir. 2011) (holding in a twenty-six (26) page opinion that Tennenbaum was liable for
infringement committed through a peer-to-peer network, that peer-to-peer infringement is not
fair use nor would any other defense shield Tennenbaums tortious conduct, and that the
statutory damages clause set forth in the Copyright Act is constitutional);Arista Records, LLC. v.
Doe 3, 604 F.3d 110 (2d Cir. 2010) (denying an individual John Doe Defendants motion to
quash a subpoena issued to an internet service provider in response to an allegation that the John
Doe Defendant infringed Aristas copyrights through a peer-to-peer file sharing network); In re
Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003) (upholding a preliminary injunction
because Aimster was contributorily liable for its users direct infringements); In re Charter
Communications, Inc. Subpoena Enforcement Matter, 393 F.3d 771, 774 (8th
Cir. 2005) (opining
that copyright owners can use a Rule 45 subpoena to identify peer-to-peer file sharers because
those file sharers are infringing the owners copyrights); A&M Records, Inc. v. Napster, Inc.,
239 F.3d 1004, 1013 (9th Cir. 2001) ([w]e agree that the plaintiffs have shown that Napster
users infringe at least two of the copyright holders exclusive rights: the rights of reproduction,
106(1); and distribution, 106(3)); andRIAA v. Verizon Internet Services, Inc., 351 F.3d 1229,
1238 (D.C. Cir. 2003) (repetitively acknowledging that file sharing is infringement).
Significantly, District courts in the Third Circuit (and elsewhere) agree . . . that
downloading music from the internet, without paying for it or acquiring any rights to it, is a
direct violation of the Copyright Act. UMG Recording, Inc. v. Alburger, 2009 WL 3152153, *3
(E.D. Pa. 2009). In 1999 Congress intentionally amended the Copyright Act to deter individuals
from infringing copyrights on the internet by increasing the statutory remedies:
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Congress did contemplate that suits like this [against individuals] were withinthe Act. Congress last amended the Copyright Act in 1999 to increase the
minimum and maximum awards available under 504(c). See Digital TheftDeterrence and Copyright Damages Improvement Act of 1999, Pub. L. No.
106-160, 113 Stat. 1774. At the time, Congress specifically acknowledged that
consumer-based, noncommercial use of copyrighted materials constitutedactionable copyright infringement. Congress found that "copyright piracy ofintellectual property flourishes, assisted in large part by today's world of
advanced technologies," and cautioned that the potential for this problem toworsen is great.
Sony v. Tennenbaum, 2011 WL 4133920 at *11 (1st Cir. 2011) (emphasis added). By
specifically amending the Copyright Act to deter on-line infringement Congress evinced a clear
and unmistakable intent that people who download works on-line commit infringement.
B. Plaintiff Pled a Claim of Direct Infringement
To establish a claim of copyright infringement, a plaintiff must establish: (1) ownership
of a valid copyright; and (2) unauthorized copying of original elements of the plaintiffs work.
Dun & Bradstreet Software Services, Inc. v. Grace Consulting, Inc., 307 F. 3d 197, 206 (3d Cir.
2002). Plaintiff pled a prima facie case of infringement. Plaintiff is the owner of those United
States Copyright Registrations attached hereto as Composite Exhibit A. Each registration covers
a copyrighted work which was infringed by Defendant. Complaint at 10. Each Defendant
installed a BitTorrent Client onto his computer. Id. at 13. Each Defendant went to a torrent
site to upload and download those of Plaintiffs Works identified in the Count directed to each
Defendant. Id. at 25. Plaintiff retained IPP, Limited (IPP) to identify the IP addresses that
are being used by those people that are using the BitTorrent Protocol and the internet to
reproduce, distribute, display or perform Plaintiffs copyrighted works. Id. at 32. IPP used
forensic software . . . and related technology enabling the scanning of peer-to-peer networks for
the presence of infringing transactions. Id. at 33. IPP extracted the resulting data . . .
reviewed the evidence logs, and isolated the transactions and the IP addresses associated
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therewith . . .Id. at 34. The IP addresses, Unique Hash Number and hit dates . . . accurately
reflect . . . and show each Defendant had copied a piece of Plaintiffs copyrighted Work(s). Id.
at 35. By using the BitTorrent protocol and a BitTorrent Client and the processes described
above, Defendant copied the constituent elements of the registered Works on Exhibit C that are
original. Id. at 43. Plaintiff did not authorize, permit or consent to Defendants copying of
its Works. Id. at 44. As a result of the foregoing, Defendant violated Plaintiffs exclusive
[copy]right[s]. Id. at 45.
1. Defendants ISP Need Not Correlate Him to Each Infringement For
Plaintiffs Claims to be Plausible
Defendant attempts to attack the plausibility of Plaintiffs claims by claiming that
Defendants ISP has yet to state that Defendant was assigned the same IP address on the dates
and times of the additional infringements. When analyzing a Rule 12(b)(6) motion to dismiss the
court must accept all of the complaint's well-pleaded facts as true . . . [and] . . . determine
whether the facts alleged in the complaint demonstrate that the plaintiff has a plausible claim for
relief. TES Franchising, LLC v. Dombach, CIV.A. 10-0017, 2010 WL 5071472 (E.D. Pa.
2010) (citing Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009)). Plaintiff suffers
approximately 100,000 infringements a month. Currently, there are approximately 350,000,000
people in the United States. If one were to conservatively estimate that a quarter of the people in
the U.S. have internet access, that would mean that there are 87,500,000 people with internet.
Mathematically, this means that there is approximately a 0.1% chance that another person was
assigned Defendants IP address and also downloaded one of Plaintiffs works. It is 1 in 1,000.
Significantly, despite some IP addresses being dynamic, they are often assigned for
months or years at a time. Defendants infringements were alleged to have occurred between
December 16, 2011 and December 22, 2011, two films on the 16th
and two films on the 22nd
.
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Indeed, Defendants ISP, Comcast, states on its website, [a]s an XFINITY Internet subscriber,
youre given an Internet protocol (IP) address assigned by a Dynamic Host Configuration
Protocol (DHCP) server. While not permanent, your IP address doesnt change often. See
http://customer.comcast.com/help-and-support/internet/releasing-and-renewing-ip-address/
(emphasis added). Defendants 1 in 1,000 chance does not defeat the plausibility of Plaintiffs
claims.
2. Plaintiff Did Not Need to Serve The Entire Swarm
Defendant erroneously argues [b]y failing to identify and serve the entire swarm,
Plaintiff has also failed to state a claim under Fed.R.Civ.P. 12(b)(6).
4
Memorandum in Support
of Motion to Dismiss, CM/ECF # 57, p. 3. A Rule 19 analysis is a two-step process. The court
must first determine whether the absent parties are necessary under Rule 19(a). If the parties
are necessary, and joinder is not feasible, then the court must determine whether the parties are
indispensable under Rule 19(b). Culinary Service of Delaware Valley, Inc. v. Borough of
Yardley, PA, 385 Fed. Appx. 135, 145 (3d Cir. 2010) (reversing District Courts finding that a
party was indispensable), internal citations omitted.
C. BitTorrent Peers Are Not Necessary Parties Under Rule 19(a)
BitTorrent Peers are not necessary parties under Rule 19. To explain, copyright
[infringement] is a strict liability tort. 5 Patry on Copyright 17:167. See also, Miller Yacht
Sales, Inc. v. Smith, 384 F.3d 93 (3d Cir. 2004) (Copyright infringement is a . . . tort); TIG Ins.
v. Nobel Learning Communities, Inc., 2002 WL 1340332 (E.D. Pa. 2002) (tort of copyright
infringement.); Twentieth Century Fox Film Corp. v. iCraveTV, 2000 WL 255989, * 6 (W.D.
Pa. 2000) (copyright infringement is a strict liability tort.) Here, Plaintiff alleged Defendant
4 Presumably, Defendant meant to argue that Plaintiffs claims should be dismissed under Rule
12(b)(7) for failing to join an indispensable party.
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directly infringed Plaintiffs copyright by: (a) downloading a complete copy of Plaintiffs works
from other peers via BitTorrent; and (b) distributing pieces of Plaintiffs works to other peers (as
evidenced by its distribution of a piece to IPP, Ltd.) If Plaintiff proves its case, Defendant is
individually liable for this direct infringement.
Plaintiff could have pled that John Doe 1 was contributorily liable for the direct
infringement of the other members of the BitTorrent swarm. Plaintiff did not do so because
omitting that count makes the case simpler, and this Court stayed Plaintiffs claims against all
but three Defendants. Further, by the time the Bellwether trial is over, hundreds of thousands of
more people will have infringed Plaintiffs copyrights and Plaintiff will move on to new
defendants. Even if Plaintiff had pled Defendants were contributorily liable for the infringement
of the other peer members, and are therefore jointly liable for the other peers infringement, it is
black letter tort law that joint tortfeasors are notnecessary parties. See Temple v. Synthes Corp.,
Ltd. 498 U.S. 5, 6 (1990) (It has long been the rule that it is not necessary for all joint
tortfeasors to be named as defendants in a single lawsuit. . . . The Advisory Committee Notes to
Rule 19(a) explicitly state that a tortfeasor with the usual joint-and-several liability is merely a
permissive party to an action against another with like liability. 28 U.S.C.App., p. 595.) This
rule has been applied in copyright cases. See, e.g., Interscope Records v. Duty, 2006 WL
988086, *2 (D. Ariz. 2006) (Duty also argues that the alleged infringement would not have been
possible without the use of Kazaa [a peer to peer file sharing service], and therefore the owner of
Kazaa, Sharman Networks, Ltd. (Sharman), is a necessary and indispensable party to this suit.
We disagree. . . ., citing, Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7-8, 111 S.Ct. 315, 316, 112
L.Ed.2d 263 (1990));Multimedia Games, Inc. v. WLGC Acquisition Corp., 214 F.Supp.2d 1131,
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1142 (N.D.Okla.2001) (Because a co-tortfeasor is simply allowable but not necessary for a
copyright violation, they are by nature also not indispensable parties.)
D. Defendants Argument That Plaintiff Lacks Capacity to Sue is Wrong
Defendant cites to 15 Pa. Cons. Stat. Ann. 4141 for the proposition that [a]
nonqualified foreign business corporation doing business in this Commonwealth . . . shall not be
permitted to maintain any action or proceeding in any court of this Commonwealth until the
corporation has obtained a certificate of authority. Defendant also points to 15 Pa. Cons. Stat.
Ann. 8587 for the similar position that [a] nonqualified foreign limited partnership doing
business in this Commonwealth may not maintain any action or proceeding in any court of this
Commonwealth until it has registered under this subchapter. These statutes do not preclude
Plaintiff from bringing these suits for three reasons.
First, Plaintiff is registered with the Pennsylvania Department of State as of November
26, 2012. See Exhibit A. Although the registration occurred after initiation of the suit, this
Court has held that registration after initiation of a suit is permissible. See Dague v. Huddler,
2008 WL 4444266 (E.D. Pa. 2008) (citing Typh, Inc. v. Typhoon Fence of Pa., Inc., 461 F.Supp.
994, 996-997 (D.C.Pa.1978) (it is not necessary that plaintiff comply with 2014 [the
predecessor statute to 15 Pa. C.S.A. 4141(a)] before filing suit; compliance during the
pendency of the litigation is sufficient.)) Because Plaintiff is registered, Defendants argument
fails.
Second, even if Plaintiff had not registered, since it is a California limited liability
company only transacting business in interstate commerce, Plaintiff falls squarely within the
exceptions of 15 Pa. Cons. Stat. Ann. 4122. 4122 provides that a foreign business
corporation shall not be considered to be doing business in this Commonwealth . . . by reason of
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carrying on in this Commonwealth any one or more of the following acts: (1) maintaining or
defending any action or . . . effecting the settlement thereof or the settlement of claims or
disputes . . . (9) Transacting any business in interstate or foreign commerce. Id. The
Committee Comment to this statute provides that foreign companies conducting business in
interstate commerce are not subject to the registration requirement so as not to run afoul of the
Commerce Clause.
A corporation is not doing business within the meaning of subsection (a) if it istransacting business in interstate commerce (subsection (a)(9)) or soliciting or
obtaining orders that must be accepted outside Pennsylvania before they becomecontracts (subsection (a)(6)). These limitations reflect the provisions of the United
States Constitution that grant to the United States Congress exclusive power overinterstate commerce, and preclude states from imposing restrictions or conditions
upon this commerce. It is intended that these subsections will be construed in amanner consistent with judicial decisions under the United States Constitution.
Committee Comment (1988). Here, Plaintiff does not have offices, an agent or any other
connection to Pennsylvania except to the extent that it has filed law suits here and has
subscribers here. These are exempt activities under 4122.
Third, Fed. R. Civ. P. 17(b)(2) states that the capacity of a corporation to sue or be sued
in federal court is determined by the law under which it was organized. Id. Plaintiff was
organized under the laws of the State of California. In California, an entity only loses its
capacity to sue when it dissolves or is suspended by the State for non-payment of taxes.
Liebeskind v. Alliance Title Co, 2008 WL 160954 (N.D. Cal. 2008). Neither reason applies to
Plaintiff; accordingly, Plaintiff retains its ability to sue or be sued.
E. Local Rule 40.1(b)(3) Has No Bearing on a Motion to Dismiss
Defendants assertion that Plaintiff was required to file a notice of related cases under
Local Rule 40.1(b)(3) has no bearing on a motion to dismiss, which is designed to test the legal
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sufficiency of the complaint. TES Franchising, LLC v. Dombach, 2010 WL 5071472 (E.D. Pa.
2010) (citing Conley v. Gibson, 355 U.S. 41, 4546, (1957)).
III. CONCLUSION
For the foregoing reasons, Defendants motion to dismiss should be denied.
DATED this 5th
day of December, 2012
Respectfully submitted,
FIORE & BARBER, LLC
By: /s/ Christopher P. Fiore
Christopher P. Fiore, EsquireAman M. Barber, III, Esquire
Attorneys for Plaintiff425 Main Street, Suite 200
Harleysville, PA 19438Tel: (215) 256-0205
Fax: (215) 256-9205Email: [email protected]
CERTIFICATE OF SERVICE
I hereby certify that on December 5, 2012, I electronically filed the foregoing documentwith the Clerk of the Court using CM/ECF and that service was perfected on all counsel of
record and interested parties through this system.
By: /s/ Christopher P. Fiore
Case 5:12-cv-02088-MMB Document 63 Filed 12/05/12 Page 13 of 13
mailto:[email protected]:[email protected]