Refute Doe6 Motion

8/3/2019 Refute Doe6 Motion

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STEVENS LAW OFFICE,PLC

Ryan J. Stevens (AZ Bar No. 026378)

309 N. Humphreys Street, Ste. 2

Flagstaff, Arizona 86001

Phone:(928) 226-0165

Fax: (928) [email protected]

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

PATRICK COLLINS, INC.,

Plaintiff.

v.

JOHN DOES 1-54,

Defendants.

Case No. 2:11-CV-01602-PHX-GMS

PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANT DOE

NO. 6S OMNIBUS MOTION TO (1) QUASH SUBPOENA PURSUANT TO FED.R. CIV. P. 45(C)(3) OR IN THE ALTERNATIVE ISSUE A PROTECTIVE

ORDER; AND (2) MOTION TO SEVER DEFENDANTS FOR MISJOINDER

Case 2:11-cv-01602-GMS Document 11 Filed 11/04/11 Page 1 of 22


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TABLE OF CONTENTS

I. Introduction...5-8A. Doe 6s Motion is Critically Flawed....6B. Doe 6s Purpose is to Make Litigation Prohibitively Expensive.........7II. Facts.........8-13A. Data Retention and Dynamic IP Issues Weigh in Favor of Joinder................8B. Suing Defendants Individually Is NOT in Their Best Interests..9

C. Doe 6s Motion Does Not Comply With the Rules and Should Be Denied onThat Basis Alone....10

D. Plaintiff is Entitled to Recovery.10E. The Way BitTorrent Works, Infringers Continue to Distribute Filed

Indefinitely.11

F. Same Swarm BitTorrent Infringement is Logistically Related.11G. Doe 6s Computer Arguments Cut Against Him...12

III. Legal Standard for Joinder13-16A. The Infringement Occurred Through a Series of Transactions.....................13

1. The Logical Relationship Test.132. The Infringement Occurred Through a Series of Transactions15

B. The Defendants Are Jointly and Severally Liable.........15a. Contributory Infringement is a Jury Question.16

1. There Are Common Issues of Fact and Law16IV. Legal Argument.17-21

A. Courts Overwhelmingly Support Joinder; And, The Cases Cited by DefendantHave Been Expressly Dismissed..17

1. The Cases Relied Upon By Doe 6 Have Been Distinguished In Such aWay As Would Make Joinder Proper Here.........18

B. Doe 6s Reliance on Judge Gibneys Sua Sponte Order is Unjustified20C. Joinder is Required By Fed.R.Civ.P. 1.21

V. Conclusion..21



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TABLE OF AUTHORITIES

Adobe Systems, Inc. v. Canus Prod., Inc., 173 F. Supp.2d 1044, 1055 (C.D. Cal. 2001).12

Berlin Media Art E.K. v. Does 1-144, 2011 WL 4056167 (E.D. CA. 2011)..14

Broadcast Music, Inc. v. TLM Investments, Inc., 2010 WL 2891524, *6 (D. AZ 2011)...5Call of the Wild, 770 F.Supp.2d at at 343.12

Call of the Wild v. Does 1-331, 274 F.R.D. 334 (D.D.C. 2011).13

Call of the Wild v. Does 1-1062, 770 F.Supp.2d 332, 344 (D.D.C. 2011)....1, 6, 14

Camelot Distribution Group v. Does 1-1210, 2011 WL 4455249, *3 (E.D.Cal. 2011)14

Costar Group, Inc. v. Loopnet, Inc., 164 F. Supp.2d 688, 696 (M.D. 2001).11

Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th

Cir. 1997).10

De Dios v. Intl Realty & Investments, 641 F.3d 1071, 1076 (9th

Cir. 2011).4

Donkeyball Movie, LLC v. Does 1-171, 2011 WL 1807452 (D.D.C. 2011)13

First Time Videos, LLC v. Does 1-76, 2011 WL 3586245 (N.D. IL 2011)..1, 16First Time Videos, LLC v. Does 1-500, --- F.Supp.2d ----, 2011 WL 3498227

(N.D.Ill.,2011)16

Hard Drive Productions, Inc. v. Does 146, 2011 U.S. Dist. LEXIS 67314 (N.D. Cal

2011)....11, 15

Hard Drive v. Does 1-55, 2011 WL 4889094, (N.D.Ill 2011).16

Hard Drive Productions, Inc. v. Does 1-188, 2011 WL 3740473 *4, (N.D. Cal.

2011).............................................................................................................................10

K-Beech Incorporated v. John Does 1-54, Case No. CV-11-01604-PHX-NVW (D. Ariz

2011)6Liberty Media Holdings, LLC v. Does 1-62, 2011 WL 1869923 (S.D.Cal.2011).14, 15

Maverick Entertainment Group, Inc. v. Does 1-2115, 2011 WL 1807428 (D.D.C.

2011)......13

MCGIP, LLC v. Does 1149, 2011 WL 3607666, at 3 (N.D.Cal. 2011).11

MCGIP v. Does 1-316, 2011 WL 2292958 (N.D. Ill. 2011).16

New Sensations, Inc. v. Does 1-1,474, 2011 WL 4407222, (N.D.Cal. 2011)..11, 15

New Sensations, Inc. v. Does 1745, 2011 WL 2837610 (N.D. Cal. 2011)...11, 15

NuImage, Inc. v. Does 1-22,322, 2011 WL 3240562 (D.D.C. 2011)13

Pacific Century Intern., Ltd. v. Does 1-48, *6 (N.D. Cal. 2011).10, 11, 15Patrick Collins, Inc. v. Does 1-35, 11-cv-00406 (E.D. VA 2011) (Dkt. 15)17

Patrick Collins, Inc. v. John Does 1-2590, 2011WL 4407172, * 6 (N.D. Cal

2011)..10, 11, 14

Raw Films, Ltd. v. John Does 1-32, Case No. 3:11-cv-00532 (E.D. Va. 2011)16

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966).....9

http://web2.westlaw.com/result/result.aspx?origin=Search&cfid=1&eq=Welcome%2f7&rlti=1&rp=%2fWelcome%2f7%2fdefault.wl&method=TNC&rltdb=CLID_DB98131401118810&db=CA-CS-ALL&n=1&sri=940&fn=_top&fmqv=c&service=Search&query=BITTORRENT+%26+JOINDER&sskey=CLID_SSSA82147401118810&sv=Split&cnt=DOC&scxt=WL&rlt=CLID_QRYRLT80474401118810&rs=WLW11.07&ss=CNT&vr=2.0&mt=7http://web2.westlaw.com/find/default.wl?serialnum=2025898599&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=0000999&tf=-1&findtype=Y&fn=_top&mt=7&vr=2.0&pbc=59699465&ordoc=2026210164http://web2.westlaw.com/find/default.wl?serialnum=2025898599&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=0000999&tf=-1&findtype=Y&fn=_top&mt=7&vr=2.0&pbc=59699465&ordoc=2026210164http://web2.westlaw.com/result/result.aspx?origin=Search&cfid=1&eq=Welcome%2f7&rlti=1&rp=%2fWelcome%2f7%2fdefault.wl&method=TNC&rltdb=CLID_DB98131401118810&db=CA-CS-ALL&n=1&sri=940&fn=_top&fmqv=c&service=Search&query=BITTORRENT+%26+JOINDER&sskey=CLID_SSSA82147401118810&sv=Split&cnt=DOC&scxt=WL&rlt=CLID_QRYRLT80474401118810&rs=WLW11.07&ss=CNT&vr=2.0&mt=7


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Voltage Pictures, LLC v. Does 1-5000, 79 Fed.R.Serv.3d 891 (D.D.C. 2011).13

Voltage Pictures, LLC v. Vazquez, 2011 WL 5006942 (D.D.C. 2011)....2, 13

West Coast Productions, Inc. v. Does 1-5829, 275 F.R.D. 9 (D.D.C. 2011)..13



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I. INTRODUCTIONThis Courts decision will become widely cited precedent that will affect the rights

of copyright holders across all segments of society. Doe 6 simply cannot demonstrate

any prejudice from being joined together with other Defendants at this early stage of the

lawsuit. For this reason, the overwhelming majority of courts have denied as premature

motions to sever prior to discovery. First Time Videos, LLC v. Does 1-76, 2011 WL

3586245 (N.D. IL 2011) (citing a long list of cases holding joinder is proper). See Call

of the Wild v. Does 1-1062, 770 F.Supp.2d 332, 344 (D.D.C. 2011) (holding the

putative defendants are currently identified only by their IP addresses and are not named

parties. Consequently, they are not required to respond to the plaintiffs' allegations or

assert a defence. The defendants may be able to demonstrate prejudice [after being

named], but they cannot. . . before that time.)

Here, a ruling that conclusively establishes that motions to quash will be denied,

will deter Doe 6 and other similar movants from filing motions with an improper

purpose. Toward that end, the Court in Voltage Pictures, LLC v. Vazquez, 2011 WL

5006942 (D.D.C. 2011) held this week that a Doe Defendant does not have a

sufficiently protectable legally cognizable interest in the litigation prior to being named

in a joined BitTorrent copyright infringement suit to file a motion. A similar definitive

ruling here will make these cases much more manageable.

As explained below, throughout this year, in a series of decisions, Courts across

the country have developed a rule that permits joinder in BitTorrent cases where, as

here, (1) the complaint clearly explains how BitTorrent works through a series of



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transactions, (2) all of the defendants live in the district (eliminating long-arm issues and

venue), (3) all of the defendants were part of the exact same swarm of peer infringers as

evidenced by a unique cryptographic hash value,1

and (4) Plaintiff pled that the

Defendants are contributorily liable for each others infringement.

A.Doe 6s Motion is Critically FlawedIn support of Doe 6s motion, he: (1) blatantly mischaracterizes material

allegations in the Complaint; (2) proffers putative facts about the way the internet works

which are just plain wrong; (3) fails to disclose to this Court that the cases upon which

he relies have been expressly and repeatedly distinguished by the same courts which

issued them in such a way that would make joinder proper here; (4) urges this Court to

adopt a standard for when joinder should be permitted that is contrary to decisional

authority established in the 9th

Circuit; (6) falsely states that former cases involving

Plaintiff used identical complaints; and (7) makes unfounded and erroneous assertions

about Plaintiffs intentions of litigating this matter.

1As alleged in the Complaint, Plaintiffs movie was processed by a BitTorrent Client (a

BitTorrent software program) which generated a torrent file. Plaintiffs investigators use

the hash value as a digital fingerprint that enables Plaintiff to ensure that all of the

infringements alleged in this suit arise from the exact same unique copy of Plaintiffs

movie as evidenced by the cryptographic hash value. Significantly, many of Plaintiffs

movies have been initially seeded several times. Each seeding produces its own

independent swarm. Here, Plaintiff has only sued Defendants in the exact same swarm.



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Significantly, among the erroneous assertions Doe 6 proffers is that Plaintiff has

no intention of proceeding with this litigation past the discovery phase. Doe 6 is wrong.

This suit was intentionally designed so that it could be litigated through trial as a joined

case. And, Plaintiff fully intends to do so.2

Further, for the record, Plaintiff will

proceed against the Doe Defendants individually if this case is severed.

B. Doe 6s Purpose is to Make Litigation Prohibitively ExpensiveThe purpose of Doe 6s motions is to make it logistically impossible and

prohibitively expensive to sue copyright infringers.3 Doe 6 admits this improper purpose

by asserting that, absent joinder, Plaintiff would not otherwise bother to obtain the

identities of the Doe Defendants. This evinces an intent to win by forcing the

2Notwithstanding the foregoing, Fed.R.Civ.P. 4(m)s mandate that service be completed

within 120 days, unless enlarged by several months, may make it necessary for Plaintiff

to have to voluntarily dismiss this case without prejudice. If it does so, Plaintiff will re-

file the case as a joined case. This process allows the parties to cost-effectively discuss

their disputes while ensuring that those Defendants who seek a confidential resolution

are afforded that opportunity.

3According to Graham Seifert, one of the primary authors of these motions, [m]y

dream would be to have 10,000-20,000 people file all three documents to the lawyers

and severely cripple the entire process. See http://lawvibe.com/uscg-sues-bittorrent-

users-graham-syfert-of-affinity-law-firm-defends/. Not surprisingly, many of the

motions to quash are being downloaded from BitTorrent.

http://lawvibe.com/uscg-sues-bittorrent-users-graham-syfert-of-affinity-law-firm-defends/http://lawvibe.com/uscg-sues-bittorrent-users-graham-syfert-of-affinity-law-firm-defends/http://lawvibe.com/uscg-sues-bittorrent-users-graham-syfert-of-affinity-law-firm-defends/http://lawvibe.com/uscg-sues-bittorrent-users-graham-syfert-of-affinity-law-firm-defends/


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expenditure of attorneys fees as opposed to on the merits. Additionally, Doe 6s

request for a protective order that requires an attorney instead of Plaintiff to contact Doe

Defendants is further evidence of Doe 6s improper purpose of making this case

prohibitively expensive for Plaintiff.

Rule 11 expressly prohibits a party or attorney from signing a paper with the

intention of needlessly increasing the cost of litigation. 4

Oddly, Doe 6 accuses

Plaintiff of an improper purpose for not doing that which the Ninth Circuit has held is

sanctionable. See De Dios v. Intl Realty & Investments, 641 F.3d 1071, 1076 (9th

Cir.

2011) (finding that there appears to be no legitimate reason for the filing of nine

individual actions rather than a single action naming nine Defendants.) Further, the De

Dios Court held that sanctions in the form of attorneys fees were warranted because

Plaintiffs counsel unnecessarily multiplied the costs of litigation and the burden on the

Court. Id.

II. FACTSA.Data Retention And Dynamic IP Issues Weigh In Favor of Joinder

Just like the FBI, Plaintiff has learned through suits across the country that there

are major deficiencies associated with many internet service providers ability to

4Plaintiff has not complied with the safe harbor provisions in Rule 11 and is not seeking

sanctions; a strongly worded opinion discouraging these motions will suffice.



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correlate a subscriber to an individual.5

According to the FBI, 19% of its ISP lookup

requests fail to yield a positive identity because the ISP deleted the correlating data. Id.

Plaintiffs statistics are similar. Consequently, a rule requiring Plaintiff to sue John Doe

defendants on an individual basis creates the substantial risk that the target will not be

identified. Since costs are recoverable under 17 U.S.C. 505, one of the core purposes

of the Copyright Act would be undermined in cases where the discovery failed to

identify a person.

Internet Protocol addresses are frequently dynamic which means that the

address used by any particular computer changes from time-to-time. Despite Plaintiffs

best efforts not to do so, Plaintiff has sued the same person twice for downloading the

same torrent file. In these situations, it is unclear if Plaintiff could recover its fees and

costs for both suits from that defendant. Regardless of to whom these fees and costs are

attributed, someone will be adversely affected by a rule requiring individual suits.

B. Suing Defendants Individually Is NOT in Their Best InterestsCourts routinely award the [attorneys] fees incurred by Plaintiffs copyright

infringement cases. Broadcast Music, Inc. v. TLM Investments, Inc., 2010 WL

2891524, *6 (D. AZ 2011). For this reason, Courts hold that joinder in a single case of

the putative defendants . . . is beneficial to the putative defendants. Call of the Wild

Movie, LLC., 770 F.Supp.2d 332, 344 (D.D.C. 2011).

5 See Statement Of Jason Weinstein Deputy Assistant Attorney General at

http://judiciary.house.gov/hearings/pdf/Weinstein01252011.pdf.

http://judiciary.house.gov/hearings/pdf/Weinstein%2001252011.pdfhttp://judiciary.house.gov/hearings/pdf/Weinstein%2001252011.pdf


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C.Doe 6s Motion Does Not Comply with the Rules And Should BeDenied On That Basis Alone

Just as the Court should here, less than two weeks ago, in K-Beech Incorporated

v. John Does 1-54, Case No. CV-11-01604-PHX-NVW (D. Ariz. 2011), Judge Wake

denied a Doe Defendants Motion to Quash Subpoena and held the Doe may not appear

in this Court without stating his true name. He may move for leave to file his true name

under seal, although such a motion must state sufficient grounds for remaining

anonymous. See Order dated October 24, 2011, attached as Exhibit A.

D.Plaintiff is Entitled to RecoveryDoe 6 incorrectly implies that because Plaintiff obtained its copyright registration

after Doe 6s infringement that Plaintiff is not entitled to recovery. Doe 6 is wrong.

Plaintiff will still be able to recover statutory damages for copyright infringement from

Doe 6 because Plaintiffs work was registered within three months of publication. See

17 U.S.C. 412(2) and 17 U.S.C. 504. Further, Plaintiff uses the marks PATRICK

COLLINS and ELEGANT ANGEL. Both marks are contained on the copy of the

subject movie which was illegally distributed by Doe 6. PATRICK COLLINS is

protected under the common law and 15 U.S.C. 1125(a). ELEGANT ANGEL is

protected by under the common law, 15 U.S.C. 1125(a) and 15 U.S.C. 1114 because

it is registered, see U.S. Reg. No. 2329270. Plaintiff will be filing shortly an Amended

Complaint that pleads: (a) direct copyright infringement, (b) contributory copyright

infringement, (c) trademark infringement, (d) contributory trademark infringement; and



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(e) in the alternative, negligence. Trebel actual damages, statutory damages and

attorneys fees are available under 15 U.S.C. 1117.

E. The Way Bittorrent Works, Infringers Continue To Distribute FilesIndefinitely

BitTorrent continues to distribute data for a particular torrent file until the user

commands its BitTorrent Client (software program) to stop distributing it. Many users

never instruct the program to stop distributing data. According to BitTorrents own

website:

Seeding is where you leave your BitTorrent client open after you've finishedyour download to help distribute it (you distribute the file while

downloading, but it's even more helpful if you continue to distribute the full

file even after you have finished downloading). Chances are that most of the

data you got was from seeds, so help give back to the community! It doesn't

require much - BitTorrent will continue seeding until the torrent is removed.

[Underlining added.]

See http://www.bittorrent.com/help/guides/beginners-guide.

F. Same Swarm BitTorrent Infringement is Logically RelatedThe following description of BitTorrent can be found at

http://computer.howstuffworks.com/bittorrent2.htm, and describes the series of

transactions:

http://www.bittorrent.com/help/guides/beginners-guidehttp://computer.howstuffworks.com/bittorrent2.htmhttp://computer.howstuffworks.com/bittorrent2.htmhttp://www.bittorrent.com/help/guides/beginners-guide


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BitTorrent is unique insofar as it distributes the burden of sharing files to all

users:

See://lifehacker.com/285489/a-beginners-guide-to-bittorrent. By causing all users to

distribute the file, BitTorrent ensures that all peers in a swarm materially aid every other

peer. This critical fact makes BitTorrent different than every other peer-to-peer network

and is why BitTorrent cases are distinguishable from previous peer-to-peer cases.

G.Doe 6s Computer Arguments Cut Against HimOn page 3, Doe 6 makes three bizarre arguments: (1) we cannot identify MAC

addresses; and (2) IP addresses can be hidden by the use of VPN tunnels; and (3) IP

addresses can be spoofed. MAC (media access control) addresses are used to identify

the specific computers within a network that are using a Doe Defendants internet

WHAT BITTORENT DOES

Unlike some other peer-to-peer downloading methods,

BitTorrent is a protocol that offloads some of the file

tracking work to a central server (called a tracker).

Another difference is that it uses a principal called tit-

for-tat. This means that in order to receive files, you

have to give them. This solves the problem of leeching

one of the developer Bram Cohens primary goals.

With BitTorrent the more files you share with others,

the faster your downloads are from multiple computers.

What makes the BitTorrent protocol unique is that itdistributes [the burden of] the sharing of files to all users

who have downloaded or are in the process of downloading

a file. Because BitTorrent breaks up and distributes files in

hundreds of small chunks, you don't even need to have

downloaded the whole file before you start sharing. As

soon as you have even a piece of the file, you can start

sharing that piece with other users. That's what makes

BitTorrent so fast; your BitTorrent client starts sharing as

soon as it downloads one chunk of the file (instead of

waiting until the entire download has been completed).

[Parenthetical added, emphasis added.]



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service. MAC addresses are never disseminated publically but only to the network

administrator, here the ISPs. Plaintiff requested it via a subpoena to assist it to identify

which computer Defendant used. As for hiding ones IP addresses through a VPN

tunnel, it clearly did not happen here since Plaintiffs investigator recorded Doe 6s IP

Address. Moreover, that this technology may exist merely underscores the problem with

infringement. Finally, the assertion that an IP address can be spoofed in such a way as

to give a false positive is inconsistent with the fundamental rule governing the internet;

viz. no two computers can be assigned the same IP address at the same time. If that was

possible, the internet would crash. Moreover, at best, it is a defense.

III. Legal Standard for JoinderFed. R. Civ. P. 20(a)(2) states: Persons . . . may 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. Under the Federal Rules generally, the impulse is

toward the broadest possible scope of action consistent with fairness to the parties;

joinder of claims, parties and remedies is strongly encouraged. United Mine Workers

of Am. v. Gibbs, 383 U.S. 715, 724 (1966). Here, Plaintiff pled that the actions arise

from a series of transactions and that the Defendants are jointly and severally liable.

A.The Infringement Occurred Through A Series of Transactions1. The Logical Relationship Test



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The Ninth Circuit has interpreted the phrase same transaction, occurrence, or

series of transactions or occurrences' to require a degree of factual commonality

underlying the claims. Pacific Century Intern., Ltd. v. Does 1-48, *6 (N.D. Cal. 2011),

citing Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th

Cir. 1997). Typically, this means

that a party must assert rights ... that arise from [logically] related activities-a

transaction or an occurrence or a series thereof. Id. See also, Patrick Collins, Inc. v.

John Does 1-2590, 2011WL 4407172, * 6 (N.D. Cal. 2011) (using the logical

relationship test and holding joinder is proper.)

On page 4 of its Motion, by citing Hard Drive Productions, Inc. v. Does 1-188,

2011 WL 3740473 *4, (N.D. Cal. 2011), Doe 6 argues this Court should adopt a test that

would require that all the Defendants were in a BitTorrent swarm at the exact same time.

This rationale reads out of Rule 20 the series of transactions language and is legally

inconsistent with 9th

Circuit precedent. Moreover, Doe 6 fails to inform this Court that

the Northern District of California has rejected this rationale in its last six opinions

discussing the issue:

While this period might seem protracted, such time periods can be

somewhat arbitrary in BitTorrent-based cases as long as the alleged

defendants participate in the same swarm, downloading and uploading the

same file. * * * [E]ven after a Doe Defendant disconnects from the swarm,

the parts of the file that he downloaded and uploaded will continue to be

transferred to other Doe Defendants remaining in the swarm.Id. 12.

Pacific Century Intern., Ltd. v. Does 1-48, *6 (N.D. Cal. 2011). Accord, Patrick

Collins v. Does 1-2590, 2011 WL 4407172 (N.D. Cal. 2011); MCGIP, LLC v. Does 1

149, 2011 WL 3607666, at 3 (N.D.Cal. 2011); New Sensations, Inc. v. Does 1-1,474,

http://web2.westlaw.com/find/default.wl?serialnum=2025898599&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=0000999&tf=-1&findtype=Y&fn=_top&mt=7&vr=2.0&pbc=59699465&ordoc=2026210164http://web2.westlaw.com/find/default.wl?serialnum=2025898599&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=0000999&tf=-1&findtype=Y&fn=_top&mt=7&vr=2.0&pbc=59699465&ordoc=2026210164http://web2.westlaw.com/find/default.wl?serialnum=2025898599&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=0000999&tf=-1&findtype=Y&fn=_top&mt=7&vr=2.0&pbc=59699465&ordoc=2026210164http://web2.westlaw.com/find/default.wl?serialnum=2025898599&tc=-1&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.07&db=0000999&tf=-1&findtype=Y&fn=_top&mt=7&vr=2.0&pbc=59699465&ordoc=2026210164


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2011 WL 4407222, (N.D.Cal. 2011); Hard Drive Productions, Inc. v. Does 146, 2011

U.S. Dist. LEXIS 67314 (N.D. Cal. 2011) New Sensations, Inc. v. Does 1745, 2011 WL

2837610 (N.D. Cal. 2011).

2. The Infringement Occurred Through a Series of TransactionsThe infringement occurred through a series of transactions. See Complaint:

39. The IP addresses, Unique Hash Number and hit dates contained

within Exhibit A accurately reflect what is contained in the evidence logs,

and show:

(A) Each Defendant had copied a piece or pieces of Plaintiffs

copyrighted Movie/Work identified by the Unique Hash Number and wassimultaneously distributing that piece or pieces to the other Defendants

who, in turn, were copying and distributing that piece and other pieces

thereof for distribution to the other Defendants; and

(B) Therefore, each Defendant acted in concert with the Defendants and

was part of the same series of transactions which, taken together, resulted in

the copying and distribution of complete copies of Plaintiffs work.

B. The Defendants Are Jointly and Severally LiableJoinder is also proper because Plaintiff pled that each Defendant is contributorily

liable for each of the other Defendants infringement. See Complaint at 54-59. It

is, today, a given that one who. . . materially contributes to the infringing conduct of

another, [is a] contributory infringer. Costar Group, Inc. v. Loopnet, Inc., 164 F.

Supp.2d 688, 696 (M.D. 2001).

At trial, Plaintiff will prove that said Defendant materially assists the downstream

infringers direct infringement of Plaintiffs exclusive right to redistribute . . . the

Work. . . . in violation of 17 U.S.C. 106(3) and 17 U.S.C. 501. Similarly, when a

Defendant provides a piece of Plaintiffs copyrighted work to an upstream infringer,



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Plaintiff will prove that the upstream infringer both sends that piece to other infringers

and will also assemble the entire Work. Accordingly, by delivering a piece to an

upstream infringer, the Defendant is contributorily liable for materially assisting the

upstream infringer to redistribute, perform and display the Work in violation of 17

U.S.C. 106(3)-(5) and 17 U.S.C. 501.

a. Contributory Infringement is a Jury QuestionSince one of the grounds for permissive joinder is joint and several liability, should

the Court hold that joinder is not permitted, then any such holding would effectively

summarily adjudicate Plaintiffs claim for contributory infringement. Such a holding

would be erroneous because contributory infringement is a question of fact for trial.

Adobe Systems, Inc. v. Canus Prod., Inc., 173 F. Supp.2d 1044, 1055 (C.D. Cal. 2001).

1. There Are Common Issues of Fact and LawRule 20(a)(2)(B) requires the plaintiffs' claims against the putative defendants to

contain a common question of law or fact. Call of the Wild, 770 F.Supp.2d at at 343.

The plaintiffs meet this requirement. Id. In each case, the plaintiff will have to

establish against each putative defendant the same legal claims concerning the validity

of the copyrights in the movies at issue and the infringement of the exclusive rights

reserved to the plaintiffs as copyright holders. Id. The factual issues related to how

BitTorrent works and the methods used by plaintiffs to investigate, uncover and collect

evidence about the infringing activity will be essentially identical for each putative

defendant. Id.

http://web2.westlaw.com/find/default.wl?tc=-1&docname=USFRCPR20&rp=%2ffind%2fdefault.wl&sv=Split&utid=4&rs=WLW11.07&db=1004365&tf=-1&findtype=L&fn=_top&mt=IntellectualProperty&vr=2.0&pbc=6D8190FD&ordoc=2024842901http://web2.westlaw.com/find/default.wl?tc=-1&docname=USFRCPR20&rp=%2ffind%2fdefault.wl&sv=Split&utid=4&rs=WLW11.07&db=1004365&tf=-1&findtype=L&fn=_top&mt=IntellectualProperty&vr=2.0&pbc=6D8190FD&ordoc=2024842901


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IV. LEGAL ARGUMENTA.Courts Overwhelmingly Support Joinder; And, The Cases Cited by

Defendant Have Been Expressly Distinguished

The District of Columbia has issued the longest, most comprehensive, decisions

concerning the issues, including joinder, raised in BitTorrent litigation. From most

recent to oldest, the eight cases D.C. judges have adjudicated, which can be found on

Westlaw, are as follows: (1) Voltage Pictures, LLC v. Vazquez, 2011 WL 5006942

(D.D.C. 2011) (opining joinder is proper and that Doe Defendants do not have standing

to intervene in the discovery process prior to being named as a defendant); (2)

NuImage, Inc. v. Does 1-22,322, 2011 WL 3240562 (D.D.C. 2011) (10 page opinion,

permitting joinder but raising concerns about long-arm); West Coast Productions, Inc. v.

Does 1-5829, 275 F.R.D. 9 (D.D.C. 2011) (11 page opinion, permitting joinder, holding

long arm could be used, denying all motions to quash); Call of the Wild v. Does 1-331,

274 F.R.D. 334 (D.D.C. 2011) (permitting joinder, holding long arm could be used,

denying all motions to quash); Maverick Entertainment Group, Inc. v. Does 1-2115,

2011 WL 1807428 (D.D.C. 2011) (18 page opinion, permitting joinder, holding long

arm could be used, denying all motions to quash); Voltage Pictures, LLC v. Does 1-

5000, 79 Fed.R.Serv.3d 891 (D.D.C. 2011) (18 page opinion permitting joinder, holding

long arm could be used, denying all motions to quash); Donkeyball Movie, LLC v. Does

1-171, 2011 WL 1807452 (D.D.C. 2011) (15 page opinion permitting joinder, holding

long arm could be used, denying all motions to quash); Call of the Wild v. Does 1-1062,

770 F.Supp.2d 332 (D.D.C. 2011) (36 page opinion addressing all of the issues raised in



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pre-Doe identification BitTorrent litigation.) Significantly, the Call of the Wild Court

denied all of the motions to quash, ruled in favor of copyright owners on the joinder

issue, the free speech issue, the right to remain anonymous issue [Does who file

motions do not have that right], allowed Plaintiff to use the long arm statute.

All three Districts in California which have adjudicated joinder in BitTorrent

copyright infringement cases hold that joinder is proper. In Camelot Distribution Group

v. Does 1-1210, 2011 WL 4455249, *3 (E.D.Cal. 2011), the Court conclude[d] that a

decision regarding joinder would be more appropriately made after further development

of the record. See also, Berlin Media Art E.K. v. Does 1-144, 2011 WL 4056167 (E.D.

CA. 2011) (permitting discovery in joined case.) In Liberty Media Holdings, LLC v.

Does 1-62, 2011 WL 1869923 (S.D.Cal.2011) the Court held [a]fter careful

consideration of the issue, . . . [i]n this case, the complaint sufficiently alleges that

defendants are properly joined due to the use of BitTorrent, which necessarily requires

each user to be an uploader as well as a downloader.

1. The Cases Relied Upon By Doe 6 Have Been Distinguished In Such AWay As Would Make Joinder Proper Here

Six out of seven of the latest Northern District of California decisions have held

that joinder was proper. In these six cases the Court expressly distinguished the

Districts prior decisions, upon which Doe 6 relied. See e.g. Patrick Collins v. Does 1-

2590, 2011 WL 4407172 (N.D. Cal. 2011), noting that [r]ecently, courts in this District

. . . have come to varying decisions about the proprietary of joining multiple defendants

in BitTorrent infringement cases and finding:

http://web2.westlaw.com/result/result.aspx?origin=Search&cfid=1&eq=Welcome%2f7&rlti=1&rp=%2fWelcome%2f7%2fdefault.wl&method=TNC&rltdb=CLID_DB98131401118810&db=CA-CS-ALL&n=1&sri=940&fn=_top&fmqv=c&service=Search&query=BITTORRENT+%26+JOINDER&sskey=CLID_SSSA82147401118810&sv=Split&cnt=DOC&scxt=WL&rlt=CLID_QRYRLT80474401118810&rs=WLW11.07&ss=CNT&vr=2.0&mt=7http://web2.westlaw.com/result/result.aspx?origin=Search&cfid=1&eq=Welcome%2f7&rlti=1&rp=%2fWelcome%2f7%2fdefault.wl&method=TNC&rltdb=CLID_DB98131401118810&db=CA-CS-ALL&n=1&sri=940&fn=_top&fmqv=c&service=Search&query=BITTORRENT+%26+JOINDER&sskey=CLID_SSSA82147401118810&sv=Split&cnt=DOC&scxt=WL&rlt=CLID_QRYRLT80474401118810&rs=WLW11.07&ss=CNT&vr=2.0&mt=7http://web2.westlaw.com/result/result.aspx?origin=Search&cfid=1&eq=Welcome%2f7&rlti=1&rp=%2fWelcome%2f7%2fdefault.wl&method=TNC&rltdb=CLID_DB98131401118810&db=CA-CS-ALL&n=1&sri=940&fn=_top&fmqv=c&service=Search&query=BITTORRENT+%26+JOINDER&sskey=CLID_SSSA82147401118810&sv=Split&cnt=DOC&scxt=WL&rlt=CLID_QRYRLT80474401118810&rs=WLW11.07&ss=CNT&vr=2.0&mt=7http://web2.westlaw.com/result/result.aspx?origin=Search&cfid=1&eq=Welcome%2f7&rlti=1&rp=%2fWelcome%2f7%2fdefault.wl&method=TNC&rltdb=CLID_DB98131401118810&db=CA-CS-ALL&n=1&sri=940&fn=_top&fmqv=c&service=Search&query=BITTORRENT+%26+JOINDER&sskey=CLID_SSSA82147401118810&sv=Split&cnt=DOC&scxt=WL&rlt=CLID_QRYRLT80474401118810&rs=WLW11.07&ss=CNT&vr=2.0&mt=7


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This Court has carefully reviewed such decisions and notes that they are

highly dependent on the information the plaintiff presented regarding the

nature of the BitTorrent file-sharing protocol and the specificity of the

allegations regarding the Doe defendants' alleged infringement of the

protected work. Both of these factors guide the Court's joinder analysis . . .[in concluding joinder is proper].

See also, New Sensations, Inc. v. Does 1-1,474, 2011 WL 4407222, (N.D.Cal.

2011) (same.) Accord Hard Drive Productions, Inc. v. Does 146, 2011 U.S. Dist.

LEXIS 67314 (N.D. Cal. 2011) (same); New Sensations, Inc. v. Does 1745, 2011 WL

2837610 (N.D. Cal. 2011) (same, and opining Judge Howell of the D.C. Circuit has

repeatedly held that in infringement actions joinder is proper [h]is analysis makes

sense.)6

Defendant also relies heavily on cases which cannot be found on Westlaw from

Illinois. There are only four decisions which come up using Westlaw and the terms

BitTorrent & joinder in Illinois; they are: Hard Drive v. Does 1-55, 2011 WL

4889094, (N.D.Ill 2011); First Time Videos, LLC v. Does 1-76 --- F.R.D. ----, 2011

WL 3586245 (N.D.Ill.,2011); First Time Videos, LLC v. Does 1-500, --- F.Supp.2d ----,

2011 WL 3498227 (N.D.Ill.,2011); MGCIP v. Does 1-316, 2011 WL 2292958 (N.D. Ill.

6See Pacific Century Intern v. Does, 2011 WL 5117428 (N.D. Cal. 2011) (a poorly

reasoned opinion holding that if Plaintiff admits additional discovery is needed to

proceed against the correct person then joinder is improper.) Cf In Liberty Media

Holdings, LLC v. Does 1-62, 2011 WL 1869923 (S.D.Cal.2011) (holding a claim for

negligently letting others to use your internet could with stand a motion to dismiss).

Here, Plaintiff intends to pursue each Doe Defendant.



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2011). All four Illinois decisions held joinder is proper and expressly distinguish the

prior Illinois decisions, relied upon by Doe 6, on the exact same basis as did the

California courts.

B. Doe 6s Reliance on Judge Gibneys Sua Sponte Order is UnjustifiedDefendants reliance on the opinion of the Honorable Judge John Gibney, Jr. is

unjustified. The case Raw Films, Ltd. v. John Does 1-32, Case No. 3:11-cv-00532 (E.D.

Va. 2011), and two identical cases involving Patrick Collins, Inc. and K-Beech, were

decided sua sponte without Plaintiff being afforded the opportunity to brief the issue. At

the time this decision was made, Judge Gibney was unaware that the majority of courts

hold joinder is proper as evidenced by his finding pursuant to Rule 11 the joinder of

unrelated defendants does not seem to be warranted by existing law. Id. at *5. He has

since ruled alleging joinder is not sanctionable. Id. at Order.

Unfortunately, Plaintiffs mistakenly assumed Judge Gibney was aware that

Plaintiff had won the first and only joinder argument in that district after two hearings

and two full sets of briefs. See Patrick Collins, Inc. v. Does 1-35, 11-cv-00406 (E.D.

VA 2011) (Dkt. 15): [w]ithout prejudice to the ability of any defendant or third party

to raise the joinder issue later in this litigation, the court finds on the present record that

plaintiff has shown proper joinder of these putative defendants prima facie. That

concern having been satisfied, the court follows the weight of authority in finding

plaintiff is entitled to discovery at this stage to determine the identities of John Doe

Defendants.



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In the cases before Judge Gibney, Plaintiff had been employing a litigation tactic

of acquiescing in the relief it knows disingenuous movants seeking severance do not

want; viz. voluntarily dismissing them and suing them individually. Through this

process, Plaintiff was able to reach agreements with numerous lawyers not to file these

improper motions and that was its sole intent.

C.Joinder is Required By Fed.R.Civ.P. 1Fed.R.Civ.P. 1 requires that Courts construe the rules to secure the inexpensive

determination of every action. Fed.R.Civ.P. 20, the joinder rule, has the same purpose.

Since jurisdiction and venue is proper in this District, if Plaintiff is forced to proceed

individually, all of these cases would be filed in this District. Plaintiff would have to file

notices of related cases. Thereafter, at every stage of the process, the litigants and the

Court would be faced with additional work and many of the papers would be cut and

paste duplicates of each other.

V. CONCLUSIONFor the foregoing reasons, Plaintiff respectfully requests that the Court deny the

subject motion.

DATED this 4th

day of November, 2011.

Respectfully submitted,

/s/ Ryan J. Stevens gSTEVENS LAW OFFICE, PLC

309 N. Humphreys Street, Suite 2

Flagstaff, Arizona 86001

Telephone: (928) 226-0165

Facsimile: (928) 752-8111

Email: [email protected]

Attorney for Plaintiff



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CERTIFICATE OF SERVICE

I hereby certify that on November 4, 2011 I electronically filed the foregoing

document with 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/ Ryan J. Stevens


Refute Doe6 Motion

Documents

Transcript of Refute Doe6 Motion