Third Degree Films v. Doe

Full title: THIRD DEGREE FILMS, Plaintiff, v. JOHN DOES 1-36, Defendants.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date published: May 29, 2012

Civil Action No. 11-cv-15200 (E.D. Mich. May. 29, 2012)

Opinion

Civil Action No. 11-cv-15200

05-29-2012

THIRD DEGREE FILMS, Plaintiff, v. JOHN DOES 1-36, Defendants.

Magistrate Judge Laurie J. Michelson

District Judge Stephen J. Murphy, III
OPINION AND ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION TO QUASH OR MODIFY SUBPOENA AND TO SEVER [7]

This is one of scores of suits brought by adult-film companies in federal courts across the nation alleging that users of the peer-to-peer communication protocol BitTorrent have committed copyright infringement by downloading a digital copy of a pornographic movie. Plaintiff Third Degree Films asserts that John Does 1-36 ("Defendants") each copied a digital version of the motion picture "Teens in Tight Jeans" (the "Work") using BitTorrent software. Because Plaintiff's pre-suit investigation could only identify the alleged infringers by their internet protocol ("IP") address, Plaintiff sought leave of Court to serve subpoenas on internet service providers ("ISPs") that assigned the IP addresses requesting that the ISPs identify the subscriber associated with each address. (Dkt. 2.) District Judge Stephen J. Murphy, III granted leave. (Dkt. 5.) At least one ISP has now been served with a subpoena, leading the ISP to notify one of the defendants of this suit. (See Dkt. 7, Def.'s Mot. to Sever at 1.)

Presently before the Court is a Motion to Quash or Modify Subpoena and to Sever ("Motion to Sever") brought by "one of the JOHN DOE Defendants" ("Defendant"). (Dkt. 7.) On May 15, 2012, this Court heard oral argument on the motion. Having fully considered the parties arguments, the Court DENIES WITHOUT PREJUDICE Defendant's Motion to Sever.¹

1 The Court proceeds by order rather than by report and recommendation. The Motion to Sever was referred to this Court for an order. (Dkt. 12.) Further, other courts have treated a motion to sever as non-dispositive. See Wright v. Sears Roebuck & Co., No. 09-1498, 2010 WL 330216, at *1 n.1 (W.D. La. Jan. 20, 2010); McCormick v. Festiva Dev. Group, LLC, 269 F.R.D. 59, 60 (D. Me. 2010) (issuing order on the defendant's motion to sever a misjoined defendant pursuant to Fed. R. Civ. P. 21); cf. United States v. Bolden, No. CR08-0001, 2008 WL 4174914, at *9 n.1 (N.D. Iowa Mar. 7, 2008) ("Because a motion to sever [under Fed. R. Crim. P. 14] is not dispositive of an action, a magistrate judge may hear and determine the motion, subject to reconsideration by a district judge upon a showing that the magistrate judge's order is clearly erroneous or contrary to law.").

I. BACKGROUND

A. The BitTorrent Communication Protocol ²

2 The Court was aided in its understanding of the BitTorrent protocol by Magistrate Judge Mark A. Randon's Report and Recommendation in Patrick Collins, Inc. v. John Does 1-21, No. 11-15232, 2012 WL 1190840 (E.D. Mich. Apr. 5, 2012). Additionally, the Court has reviewed a number of academic articles on the communication protocol. E.g., Michal Kryczka et al., Unrevealing the Structure of Live BitTorrent Swarms: Methodology and Analysis, The IEEE International Conference on Peer-to-Peer Computing (2011); Emiel Martjin van Enernnaam, Performance Factors in Peer-to-Peer Filed Distribution Networks, Paper for Course on Selected Topics in Telematics at University of Twente (2007) available at http://wwwhome.ewi.utwente.nl/~eenennaa/; M. Izal et al., Dissecting BitTorrent: Five Months in a Torrent's Lifetime, Passive & Active Measurement Workshop (2004); Brahm Cohen, Incentives Build Robustness in BitTorrent (May 22, 2003).

Although it may be used for improper purposes, the BitTorrent communication protocol itself is not without ingenuity. File sharing, as relevant here, involves the challenge of quickly distributing copies of a large digital file, e.g., a digital movie file like those found on a DVD, to a large number of people. Under more traditional file-sharing approaches, a digital file might reside on a few computers, e.g., servers, and those interested in the file would download a copy of the file from those limited sources. But, because these files tend to be large, and, perhaps, in high demand, a high load is placed on these limited source computers and their associated internet bandwidth. Thus, distribution to this so-called "flash crowd" may be slow.

BitTorrent is one of several peer-to-peer file sharing protocols that address the inefficiencies in the client-server model by making those who download a file another source for the file. That is, sharing is among "peers." Users of the BitTorrent communication protocol also do not have to download an entire file before uploading parts of the file to others. This is because BitTorrent downloads a file in pieces, and by default, begins sharing pieces with other peers almost immediately.

More specifically, the file distribution process using the BitTorrent protocol works as follows. Initially, an individual with BitTorrent software obtains a copy (perhaps legally) of the large digital file he wishes to share (in this case, a digital version of the Work). This individual, known in BitTorrent parlance as the "initial seeder," uses his BitTorrent software to divide the large file into thousands of smaller digital files known as "pieces." The software also creates a unique "digital fingerprint," a 40 character alpha-numeric code, for each piece. (Dkt. 4, Am. Compl. ¶¶ 20-21) The initial seeder's BitTorrent software also creates an associated ".torrent" file which includes information about the original digital file, the pieces, and each piece's digital fingerprint. (See Am. Compl. ¶¶ 19, 22-23.) The initial seeder then posts this .torrent file - but not the large digital file to which it corresponds - to one of various websites on the internet that host .torrent files. (See Am. Compl. ¶¶ 27, 29.)

When a BitTorrent user is interested in obtaining a copy of a particular digital file, e.g., the digital movie file at issue in this case, he can search the internet, perhaps using one of several torrent search engines, to find a .torrent file associated with the digital file of interest. (See Am. Compl. ¶ 28.) Once a user downloads this .torrent file, the BitTorrent software, with the help of another internet-connected computer running BitTorrent software known as a "tracker," uses the information in the .torrent file to locate a "swarm" of peers sharing pieces of the particular digital file described by the .torrent file.³ (Am. Compl. ¶¶ 24-26, 32-33.) Downloads may be from any peer that has already downloaded a piece of the particular digital file. This is possible because the BitTorrent software, by default, offers for download any piece of a digital file that it has previously downloaded. (See Am. Compl. ¶¶ 31, 34.) When a peer has copied a piece from another peer, the BitTorrent software verifies the authenticity of the piece by checking its digital fingerprint; once this is done, the peer becomes another source for that piece. Although a particular BitTorrent swarm may, over its lifetime, consist of thousands of peers, at any given moment each peer is only directly sharing with a small fraction of the swarm.⁴ Once a peer has downloaded all the pieces of the digital file of interest (possibly receiving pieces from dozens of different peers), the BitTorrent software re-assembles the pieces to a single digital (movie) file. (Am. Compl. ¶ 35.) The file is then usable, or in this case, viewable, by the BitTorrent user. (Id.)

3 In some BitTorrent software, the duties of the tracker may be distributed among BitTorrent peers. (See Am. Compl. ¶ 26.)

4 More specifically, a particular peer directly connects to a set of about 50 "neighbor" peers in the swarm but uploads or downloads from only a few of these neighbor peers at any given moment. The BitTorrent software uses several algorithms to select and reselect, at short intervals, which handful of the about 50 neighbor peers are best to download from. Some versions of the BitTorrent software also change the larger set of about 50 neighbor peers over time. Kryczka at 5, 7.

B. Plaintiff's Investigation

Each computer connected to the internet (or each wireless router to which a computer connects to) identifies itself via its internet protocol address. This IP address is similar to a street address: it helps ensure that information sent from one location (a computer on the internet) is routed to the correct destination (another computer on the internet). Internet service providers (e.g., Comcast or SBC Internet Services) are the entities that assign their subscriber's computers (or wireless routers) the unique IP address. Plaintiff's investigator, IPP, Ltd., has identified the 36 John Doe Defendants in this case by their IP address.

According to Plaintiff, IPP used forensic software to scan peer-to-peer networks, such as BitTorrent, for the presence of infringing transactions. (Dkt. 4, Am. Compl. ¶ 37.) Plaintiff vaguely explains,

IPP extracted the resulting data emanating from the investigation, reviewed the evidence logs, and isolated the transactions and the IP addresses associated therewith for the file identified by the SHA-1 hash value of 3A7FEA8906A476A2F9FB4A8F831AF50B834FC133 (the "Unique Hash Number").

(Am. Compl. ¶ 38.) Although Plaintiff refers to the "file" identified by the 40-character alpha-numeric string, the Court believes that this is either the unique digital fingerprint of one of the pieces of the digital file that IPP downloaded from the 36 John Does or the "info hash" of the .torrent file. See Robert Layton and Paul Watters, Investigation into the Extent of Infringing Content on BitTorrent Networks, Internet Commerce Security Laboratory Report (Apr. 2010) at 7; Patrick Collins, Inc. v. John Does 1-21, No. 11-15232, 2012 WL 1190840, at *6 n.6 (E.D. Mich. Apr. 5, 2012) (Report and Recommendation). In either event, the hash value uniquely identifies the digital file. Based on this unique identifier, Plaintiff asserts that 36 people corresponding to the 36 IP addresses listed in Exhibit A of the Amended Complaint each downloaded a piece of the Work. (Am. Compl. ¶ 39; see also id., Ex. A.) In its Response to the Motion to Sever, Plaintiff further explains,

Plaintiff's 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 version of Plaintiff's movie . . . . Significantly, many of Plaintiff's 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.

(Dkt. 9, Pl.'s Resp. to Mot. to Sever at 10.)⁵

5 Plaintiff's argument did not significantly aid the Court in understanding IPP, Ltd.'s investigation. Plaintiff's counsel appears to have confused the import of the hash values that correspond to the pieces or .torrent file (i.e., the "info hash"). These hash values simply indicate that each defendant participated in the same swarm. Plaintiff's counsel also could not inform the Court of the size of the swarm, or whether each of the defendants uploaded the same piece or different pieces of the work to Plaintiff's investigator. The latter fact is relevant, for example, in determining whether the defendants each contributed a piece of the Work to a single entity allowing that entity to assemble the movie into a watchable whole.

II. ANALYSIS

A. Defendant's Motion To Sever Is Not In Compliance With Court Order

On December 2, 2011, District Judge Murphy found that "good cause" existed for serving subpoenas on the Internet Service Providers listed in Exhibit A of the Amended Complaint. (Dkt. 5, Order on Mot. for Leave to File 3d Party Subpoenas at 1, ¶ 1.) In that same Order, however, Judge Murphy provided:

6. Until the Doe Defendants' internet service providers disclose the Defendants' identities to Plaintiff(s), any motion that is filed by a putative Defendant or his or her counsel that fails to identify the putative Defendant's internet protocol address or the putative Defendant's Doe number is hereby denied without further action of this Court.

(Id. at 3, ¶ 6.)

Although neither party has informed the Court as to whether any ISP has disclosed the defendants' identities to Plaintiff, it seems that this has not occurred. No certificates of service have been filed with the Court. In fact, on March 27, 2012, Plaintiff moved for a 60-day extension of time to effectuate service. (Dkt. 8; see also Dkt. 13.) Additionally, at oral argument, Defendant's counsel - after the Court raised paragraph six of the order grating leave to serve the subpoenas - maintained that he could not identify his client by IP address or Doe number for fear of retaliation from Plaintiff in the form of abusive litigation tactics. (See also Def.'s Mot. to Sever at 2-3.)

Although the Court acknowledges Defendant's desire to remain anonymous, procedurally, this Court is not in position to disregard the plain language of Judge Murphy's order. Substantively, courts in similar cases have found that a plaintiff's right to pursue its claims of copyright infringement outweigh a defendant's right to remain anonymous. See Patrick Collins, Inc. v. Does 1-10, JFM 8:12-CV-00094, 2012 WL 1144980, at *8 (D. Md. Apr. 4, 2012) ("This district, among others, however, has held that, in general, individuals who use the Internet to download or distribute copyrighted works are engaged in only a limited exercise of speech and the First Amendment does not necessarily protect such persons' identities from disclosure."); Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 349 (D.D.C. 2011).

Accordingly, under the plain language of the Court's December 2, 2011 Order, the Court DENIES WITHOUT PREJUDICE Defendant's Motion to Sever. (Id. at 3, ¶ 6.)

B. Alternatively, Defendants Are Properly Joined at this Stage of the Litigation

Alternatively, because it does not need the identify of the moving defendant to analyze the relevant joinder issues, the Court will address the merits of the Motion to Sever.

Federal Rule of Civil Procedure 20 provides, in relevant part:

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.

Fed. R. Civ. P. 20(a)(2).

1. A Common Question of Law or Fact to All Defendants Will Arise in this Case

Defendant does not offer any developed argument explicitly directed to Rule 20(a)(2)(B)'s common-question-of-law-or-fact requirement. (See generally, Def.'s Mot. to Sever.) Instead, Defendant implies that Plaintiff is misusing joinder to save filing fee costs (id. at 3-4) and that Defendants are unrelated, may have infringed at different times, and may have disparate defenses (id. at 8, 12). At oral argument, Defendant's counsel refused to concede that Plaintiff has pled facts that satisfy Rule 20(a)(2)(B) because, according to counsel, Defendant may not be the individual who participated in the swarm. This is possible, for example, if Defendant is the ISP subscriber but (perhaps unknowingly) shared his wireless router with someone who actually participated in the swarm.

The Court finds that Plaintiff has adequately pled facts satisfying Rule 20(a)(2)(B). Plaintiff has alleged the same legal causes of action involving the same digital file against each of the defendants. (Am. Compl. ¶¶ 11-13, 45-76.) Plaintiff has also alleged that the same investigation led to the discovery of the IP addresses allegedly associated with Defendants. (Am. Compl. ¶¶ 36-42.) Courts have found a common question of law or fact based on similar allegations. K-Beech, Inc. v. Does 1-31, No. 12-CV-00088, 2012 WL 1431652, at *3 (D. Md. Apr. 24, 2012) ("Plaintiff meets this requirement [of Federal Rule 20(a)(2)(B)] in the instant action because it asserts identical claims against the Doe Defendants."); Raw Films, Ltd. v. John Does 1-15, No. 11-7248, 2012 WL 1019067, at *4 (E.D. Pa. Mar. 26, 2012) ("The claims against each defendant are logically related because they will feature largely duplicative proof regarding the nature of BitTorrent, the plaintiff's ownership interest in the copyright for the Work, and the forensic investigation conducted by the plaintiff. These common questions of fact are likely to arise along with the legal standards for direct and contributory copyright infringement liability."). Further, Defendant's arguments regarding Plaintiff's litigation practices and Defendants' varied defenses are better directed to this Court's discretion to sever under Rules 20(b) and 21. The Court therefore finds that Plaintiff has adequately pled a "question of law or fact common to all defendants will arise in the action." See Fed. R. Civ. P. 20(a)(2)(B).

2. Plaintiff Has Adequately Pled a Right to Relief Against the Defendants Arising out of the Same Series of Transactions or Occurrences

The Court now turns to the heart of Defendant's motion: whether Plaintiff's right to relief arises out of "the same transaction, occurrence, or series of transactions or occurrences" under Fed. R. Civ. P. 20(a)(2)(A). The Federal Circuit Court of Appeals recently provided a helpful analysis for construing this language in infringement actions. In re EMC Corp., — F.3d —, 2012 WL 1563920 (Fed. Cir. May 4, 2012).

In EMC Corp., the Federal Circuit began its Rule 20 analysis by first concluding that "[i]t is clear that where defendants are alleged to be jointly liable . . . the transaction-or-occurrence test is always satisfied." Id. at *4. Then, relying on the Supreme Court's decision in United States v. Mississippi, 380 U.S. 128 (1965), the Appellate Court reasoned that it is "equally clear" that even if defendants are "independent actors" joinder is not precluded so long as "their actions are part of the 'same transaction, occurrence, or series of transactions or occurrences.'" Id.; see also Patrick Collins, Inc. v. John Does 1-21, No. 11-15232, 2012 WL 1190840 (E.D. Mich. Apr. 5, 2012) (Report and Recommendation) ("[A] concert of action is not required since Plaintiff alleges a right to relief severally against Defendants. Alleging a right to 'several' relief is a proper route to joinder." (citing Fed. R. Civ. P. 20(a)(2))).

Thus, the question becomes "under what circumstances is the joinder of independent actors permissible under Rule 20." In re EMC Corp., 2012 WL 1563920 at *4. The Federal Circuit began answering that question by looking to the plain language of the rule:

In imposing both the transaction-or-occurrence requirement and the requirement of a common question of law or fact, Rule 20 makes clear that the existence of a single common question of law or fact alone is insufficient to satisfy the transaction-or-occurrence requirement. In the present context the mere fact that infringement of the same claims of the same patent is alleged does not support joinder, even though the claims would raise common questions of claim construction and patent invalidity. . . .

Id. at *5. The Appellate Court then examined how other Courts of Appeals have interpreted the "transaction or occurrence" language of Rule 20:

As other courts have noted, the transaction-or-occurrence test of Rule 20(a) is similar to the transaction-or-occurrence test of Rule 13(a) for compulsory counterclaims, which has been construed as requiring a "logical relationship" between the claims. See Moore v. N.Y. Cotton Exch., 270 U.S. 593, 610, 46 S.Ct. 367, 70 L.Ed. 750 (1926) . . . ;⁶

Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974) . . . ; see also Alexander v. Fulton Cnty., 207 F.3d 1303, 1323 (11th Cir. 2000) . . . .

The logical relationship test is satisfied if there is substantial evidentiary overlap in the facts giving rise to the cause of action against each defendant. In other words, the defendants' allegedly infringing acts, which give rise to the individual claims of infringement, must share an aggregate of operative facts. The Supreme Court in United States v. Mississippi, 380 U.S. at 142-43, adopted this approach, as have several of our sister circuits.

Id. at *6 (citing Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997); N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 882 (5th Cir. 1998); Iglesias v. Mut. Life Ins. Co., 156 F.3d 237, 242 (1st Cir. 1998) abrogated on other grounds by Global NAPs, Inc. v. Verizon New Eng. Inc., 603 F.3d 71, 86 n. 18 (1st Cir. 2010)). Having reviewed the Rule's language, its application by the Supreme Court, and its interpretations by other Courts of Appeals, the Federal Circuit offered the following Rule 20(a)(2)(A) test:

Claims against independent defendants (i.e., situations in which the defendants are not acting in concert) cannot be joined under Rule 20's transaction-or-occurrence test unless the facts underlying the claim of infringement asserted against each defendant share an aggregate of operative facts. To be part of the "same transaction" requires shared, overlapping facts that give rise to each cause of action, and not just distinct, albeit coincidentally identical, facts.

Id. at *7 (emphasis added). This interpretation of transaction-or-occurrence language of Rule 20 aligns with the Sixth Circuit precedent reviewed by this Court. See Dye v. Jackson, 172 F.3d 48 (6th Cir. 1998) cert. granted, judgment vacated, 527 U.S. 1032 (1999); Pasha v. Jones, 82 F.3d 418 (6th Cir. 1996); Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir. 1988); cf. LASA Per L'Industria Del Marmo Societa Per Azioni of Lasa, Italy v. Alexander, 414 F.2d 143, 147 (6th Cir. 1969).

6 The Supreme Court in Moore v. New York Cotton Exch., 270 U.S. 593, 610, 46 S. Ct. 367, 371, 70 L. Ed. 750 (1926) provided: "'Transaction' is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship."

Accordingly, the question in this case is whether Plaintiff has sufficiently pled that each defendant's act of infringement - downloading and uploading pieces of a digital version of the Work - share "an aggregate of operative facts" or, restated, whether Plaintiff has sufficiently pled "shared, overlapping facts" giving rise to the claim of infringement against each of the defendants. See In re EMC Corp., 2012 WL 1563920 at *7; Brandeis Univ. v. E. Side Ovens, Inc., 11-CV-619-BBC, 2012 WL 506616, at *1 (W.D. Wis. Feb. 15, 2012) (rejecting the plaintiff's argument that "defendants have the burden to prove that joinder was improper."); Stinnette v. Medtronic Inc., No. H-09-03854, 2010 WL 767558, at *1 (S.D. Tex. Mar. 3, 2010) ("The burden rests with the plaintiffs to show proper joinder."); DirecTV, Inc. v. Lewis, No. 03-CV-6241CJS(F), 2004 WL 941805, at *7 (W.D.N.Y. Jan. 6, 2004). Before answering this question, it is helpful to examine the joinder analysis in infringement cases involving technologies that preceded BitTorrent.

In 2003 and 2004, a number of federal district courts addressed whether multi-defendant suits brought by DIRECTV against purchasers of "pirate access cards" (cards which allowed the defendants to watch programming without payment) should be severed. For example, in DIRECTV, Inc. v. Boggess, DIRECTV alleged that ten defendants purchased pirate access devices from a single internet retailer. 300 F. Supp. 2d 444, 445 (S.D.W. Va. 2004). DIRECTV asserted that the defendants' actions arose out of the same transaction or occurrence "because the claims against each defendant are identical, each defendant caused the same kind of damage to the plaintiff, and the records and other information that provide the foundation for the plaintiff's claims arose from the same investigation and raids." Id. at 449. The Boggess court disagreed,

The only connection between the defendants is that all of the pirate access devices were allegedly purchased from the same Internet retailer and were allegedly used to intercept the same satellite signal. Without any other claimed connections between the defendants, the plaintiff's allegations amount to no more than a claim that ten unrelated defendants engaged in distinct and unrelated conduct.

Id. That court also noted that while there was not a consensus among courts, the majority had found joinder improper on similar facts:

Since DIRECTV has filed almost identical actions in courts across the country, several courts have ruled on similar motions to dismiss for the improper joinder of defendants. An overwhelming majority of these courts have concluded, as this court does, that unrelated defendants who purchase pirate access devices in separate transactions engage in distinct and unrelated acts.

Id. (citing cases).

Similarly, in LaFace Records, LLC v. Does 1-38, the plaintiffs were the alleged owners of the copyrights in numerous sound recordings and sued 38 John Does for allegedly "downloading and distributing copyrighted music from the internet through use of . . . [one of several] peer-to-peer . . . network[s], without permission from [the] plaintiffs." 5:07-CV-298-BR, 2008 WL 544992, at *1 (E.D.N.C. Feb. 27, 2008). The court rejected the plaintiffs' argument that "the claims asserted against the various defendants arise out of the same series of transactions because each defendant used the same ISP as well as some of the same P2P networks 'to commit the exact same violation of the law in exactly the same way.'" Id. at *2. According to the LaFace Records court, "committing the same type of violation in the same way does not link defendants together for purposes of joinder." Id.; see also Hard Drive Productions, Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1157 (N.D. Cal. 2011) ("In the case law addressing alleged copyright infringement using P2P technologies that predate BitTorrent technology, numerous courts have found that the alleged use of the same P2P network by a group of Doe defendants to commit copyright infringement is insufficient to sustain permissive joinder." (citing IO Group, Inc. v. Does 1-19, No. C 10-03851, 2010 WL 5071605, at *3 (N.D. Cal. Dec. 7, 2010))).

With the evolving technology, the Court now has to addresses whether Plaintiff has sufficiently pled that each defendant's acts of infringement - downloading pieces of the Work from, and uploading pieces of the Work to, others in the same BitTorrent swarm to ultimately obtain the complete work - share "an aggregate of operative facts." And while this Court - and others - have struggled with the issue, the Court believes that Plaintiff has, at this early stage of the litigation, sufficiently pled that there are shared, overlapping facts that give rise to the claims of infringement against each defendant.

Defendant's strongest argument to the contrary is that 69 days elapsed from the first and last transmission logged by Plaintiff's investigator, and, while neither party could say with any certainty, it is likely that over the lifetime of the swarm, thousands of peers were involved. Therefore, it is possible that Defendant did not upload to or download from another defendant. Many courts have accepted this argument. For example, in Third Degree Films, Inc. v. Does 1-131, 12-108, 2012 WL 692993 (D. Ariz. Mar. 1, 2012) the Court found that Rule 20's transaction-or-occurrence test was not satisfied "because pieces and copies of the protected work [may] be coming from various sources within the swarm, individual users might never use the same sources":

The Court finds that a user participating in the same swarm is not the same transaction or occurrence or series of transactions or occurrences. The Court bases this finding on the fact that a particular swarm, including the swarm at issue in this case, can last for many months. During those months, the initial participants may never overlap with later participants. Additionally, because pieces and copies of the protected work many [sic] be coming from various sources within the swarm, individual users might never use the same

sources. Finally, in Plaintiff's effort to ensure this Court's jurisdiction, Plaintiff has included only Arizona IP addresses from this particular swarm. However, the Court presumes many users from many other jurisdictions participated in this swarm. Because of the ease with which all of the various users can be separated, the Court finds it would be inconsistent to find a single transaction or occurrence for joinder based solely on Plaintiff's litigation goals of bringing a single lawsuit against the Arizona defendants. In other words, there is no logic to segregating the Arizona based members of the swarm from the non-Arizona based members, except Plaintiff's convenience. The Court finds this is not a basis for allowing permissive joinder.

Third Degree Films, 2012 WL 692993 at *5; see also Patrick Collins, Inc. v. John Does 1-23, 11-CV-15231, 2012 WL 1019034, at *4 (E.D. Mich. Mar. 26, 2012) ("The absence of information concerning the number of total users in the swarm, coupled with the BitTorrent protocol's ability to quickly share files further demonstrates that it is implausible that any of the Doe defendants were simultaneously sharing pieces of plaintiff's Work."); SBO Pictures, Inc. v. Does 1-3036, 11-4220 SC, 2011 WL 6002620, at *3 (N.D. Cal. Nov. 30, 2011) ("The Court cannot conclude that a Doe Defendant who allegedly downloaded or uploaded a portion of the Motion Picture on May 11, 2011, a Doe Defendant who allegedly did the same on August 10, 2011, and over three thousand Doe Defendants who allegedly did the same in the interim, were engaged in the single transaction or series of closely-related transactions recognized under Rule 20."); Third Degree Films v. Does 1-3577, No. C 11-02768 LB, 2011 WL 5374569, at *3 (N.D. Cal. Nov. 4, 2011) ("Third Degree Films argues that the Doe defendants are properly joined [because] the Doe defendants downloaded and shared the exact same file (i.e., were a part of the same swarm) and the nature of the BitTorrent technology requires concerted action with regard to each swarm. But, without more, permissive joinder is inappropriate, particularly given that 3,577 Doe defendants downloaded the protected work at various dates and times ranging from November 11, 2010, to June 1, 2011." (internal citation omitted)).

The Court finds that while the rationale underlying these cases has substantial merit, it is slightly less persuasive than the rationale supporting the equally weighty contrary case law. As an initial matter, the Court agrees with Defendant that it is unlikely that any defendant in this case directly shared a piece of the work with another defendant. Defendant explains that BitTorrent swarms have lifetimes: they start with the initial seed, grow when peers join the swarm, possibly stabilize at a certain swarm size (when the rate of new peers joining the swarm matches the rate of peers leaving the swarm), and eventually die when interest in the file diminishes and too few new peers join the swarm. (See Def.'s Mot. to Sever at 9.) Defendant also provides support for the proposition that only a small fraction, less than 3%, of BitTorrent swarms have more than 10 active peers at a given moment. (Def.'s Mot. to Sever at 10 (citing Envisional, Ltd., Technical Report: An Estimate of Infringing Use of the Internet (Jan. 2011)).)⁷ This suggests that when a defendant in this case joined the swarm, it directly uploaded pieces to only those peers who began participating in the swarm around the same time. Given that only 36 defendants are named in this suit, and that the transactions are logged over a 69-day period, Defendant correctly argues that it is unlikely that contemporaneous peers involved two defendants.

7 Another study similarly found that 80% of swarms had 10 or less peers participating at any particular moment. Chao Zhang et al., Unraveling the BitTorrent Ecosystem, 22 IEEE Transactions on Parallel and Distributed Systems 1164-1177 (2011).

But it is important to consider that while a peer directly uploads to only a small number of peers, those peers in turn upload pieces to other peers that later join the swarm. Thus, a defendant's "generation" of peers - peers that a defendant likely directly uploaded to - helped pass on pieces of the Work to the next "generation" of active peers. For example, it is not implausible that John Doe No. 10, who apparently participated in the swarm on July 18, 2011, shared pieces of the Work with peers that in turn, helped propagate the Work to later joining peers. Therefore, Doe No. 10 plausibly indirectly uploaded pieces of the work to, say, Doe No. 25 who participated in the swarm four days later. Indeed, it is beyond dispute that the initial seeder indirectly uploaded pieces of the Work to every peer in the swarm - no matter when they joined. See Patrick Collins, Inc. v. John Does 1-21, No. 11-15232, 2012 WL 1190840, at *5 (E.D. Mich. Apr. 5, 2012) (Report and Recommendation) ("[E]ach Defendant is logically related to every other Defendant because they were all part of a series of transactions linked to a unique Initial Seeder and to each other.").

In other words, each defendant allegedly participated in the same swarm for the same digital encoding of the Work and thereby jointly contributed to the illegal distribution of the Work to others. By undoubtedly uploading to other peers in the swarm, which enabled those peers to upload to still other peers, all 36 Doe Defendants jointly contributed to either growing the swarm or maintaining its existence. Each defendant contributed to an enterprise, the sole purpose of which was to distribute a particular version of Plaintiff's Work See Patrick Collins, Inc. v. Does 1-39, No. 12-CV-00096, 2012 WL 1432224, at *3 (D. Md. Apr. 24, 2012) ("Although the downloads in this case occurred over a span of around three months, suggesting that the Does were not downloading the copyrighted movie at the exact same time, Plaintiff has adequately alleged that each download directly facilitated the others in such a way that the entire series of transactions would have been different but for each of Defendants' infringements.").

The Court finds that under this view of the BitTorrent communication protocol, Plaintiff has pled more than Defendants have committed the "exact same violation of the law in exactly the same way." LaFace Records, LLC, 2008 WL 544992, at *2. Recalling that Rule 20 joinder is broad, see United Mine Workers of America v. Gibbs, 383 U.S. 715, 724 (1966), Plaintiff has sufficiently pled "shared, overlapping facts," In re EMC Corp., 2012 WL 1563920 at *7, giving rise to Plaintiff's claims of infringement to make joinder presently proper.

Ample case law supports this conclusion. In Patrick Collins, Inc. v. Does 1-39, a federal court in the District of Maryland recently reasoned,

The Court acknowledges that this swarm involved possibly thousands of other online users from across the country. Even though Plaintiff is suing only a small portion of the swarm, however, the Court finds that Plaintiff has sufficiently alleged that the putative Defendants used the same file-sharing device, in the same region, and within . . . roughly the same time period, to copy the same version of Plaintiff's movie. Although the downloads in this case occurred over a span of around three months, suggesting that the Does were not downloading the copyrighted movie at the exact same time, Plaintiff has adequately alleged that each download directly facilitated the others in such a way that the entire series of transactions would have been different but for each of Defendants' infringements. Additionally, Plaintiff has adequately alleged that, given the nature of BitTorrent, each Defendant may have continued seeding files to other Defendants after their initial download of the motion picture. As such, Plaintiff has sufficiently shown a logical relationship between the series of individual downloads. Although Defendants may be able to rebut these allegations once the Court becomes aware of their identities and individual defenses, at this stage Plaintiff has adequately satisfied the first prong of permissive joinder.

No. 12-CV-00096-AW, 2012 WL 1432224, at *3 (D. Md. Apr. 24, 2012); see also Liberty Media Holdings, LLC v. Swarm Sharing Hash File AE340 D0560129AFEE8D78CE07F2394 C7B5BC9C05 , 821 F. Supp. 2d 444, 451 (D. Mass. 2011) (crediting the plaintiff's argument that "[u]nlike traditional peer-to-peer networks, which broker a 1-to-1 connection between an uploader and a downloader, a BitTorrent swarm is a collective enterprise where each downloader is also an uploader, and where a group of uploaders collaborate to speed the completion of each download of the file."); Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 343 (D.D.C. 2011) ("Each putative defendant is a possible source for the plaintiffs' motion pictures, and may be responsible for distributing the motion pictures to the other putative defendants, who are also using the same file-sharing protocol to copy the identical copyrighted material." (citation omitted)); First Time Videos, LLC v. Does 1-76, 276 F.R.D. 254, 257 (N.D. Ill. 2011) ("At this stage, joinder is appropriate. First, the complaint alleges that all of the Doe defendants were part of a common scheme. For example, the complaint asserts that '[i]n using the peer-to-peer BitTorrent file distribution method, each Defendant engaged in a concerted action with other Defendants and yet unnamed individuals to reproduce and distribute Plaintiff's Video by exchanging pieces of the Video file in the torrent swarm.'"); New Sensations, Inc. v. Does 1-1,474, No. 11-2770, 2011 WL 4407222 (N.D. Cal. Sept. 22, 2011) ("For each of the 1,474 Doe Defendants, Plaintiff has provided an identical hash. . . . Based on these allegations, Plaintiff's claims against the Doe Defendants appear logically related. Each putative Defendant is a possible source for Plaintiff's copyrighted work, and may be responsible for distributing the work to the other putative Defendants, who are also using the same file-sharing protocol to copy the identical copyrighted material.").

To reiterate, if, in the future, Defendant is able to show that he/she did not indirectly share a piece of the Work with another defendant, the Rule 20(a)(2)(A) test may not be satisfied. Or, it may become apparent that Defendants have varied defenses justifying an exercise of this Court's discretionary authority to sever under Rules 20(b) and 21. See e.g., Third Degree Films, Inc. v. Does 1-108, No. 11-3007, 2012 WL 1514807, at *3 (D. Md. Apr. 27, 2012) ("Doe 100 identifies the family members who had access to her computer on the relevant date and explains that no one in her household could have downloaded the Work. . . . In contrast, Doe 102 explains that the IP address of his personal computer does not correspond with the IP address that his ISP used to identify him as a Doe defendant. . . . These starkly disparate factual scenarios immediately call into question whether the claims against Doe Defendants are 'reasonably related' and should 'be tried in a single proceeding.' . . . Thus, the timeline for reconsidering permissive joinder has accelerated, and the circumstances now tip the scales in favor of severance."). At this time, however, the Court finds joinder proper.

3. Defendant's Other Requested Relief

In addition to seeking to sever this action, Defendant asks for an emergency stay of the proceedings pending resolution of joinder issues. Defendant makes no developed argument as to why an emergency stay is necessary. Moreover, this prayer for relief may be moot in light of this Order. (The Court notes that Defendant's Motion to Sever was filed a little over two months ago and it does not appear that this suit has significantly advanced since that time. None of the Doe Defendants have been served and no others have filed motions.) Defendant's request for an emergency stay is denied without prejudice.

Defendant also asks that this Court quash the subpoena served on Defendant's ISP. However, given the arguments raised by Defendant, this request appears to rise and fall with Defendant's claim that this case should be severed for improper joinder. To the extent that it is independent, the Court notes that while Defendant claims that this suit was brought only to scare up settlements (Def.'s Mot. to Sever at 2, 11), Defendant has offered no case-specific facts supporting this claim. Rather, Defendant relies on the conduct of adult-film companies in other cases. This guilt-by-association argument does not justify quashing the subpoena that this Plaintiff, Third Degree Films, served on Defendant's ISP pursuant to an Order entered by Judge Murphy allowing this discovery. See Patrick Collins, Inc. v. John Does 1-54, No. 11-1602, 2012 WL 911432, at *3 (D. Ariz. Mar. 19, 2012) ("[T]he Court will not conclude based on the tactics of other lawsuits in other districts that this suit was brought for a purely improper purpose."). To the extent that Defendant claims that he/she is not liable to Plaintiff, the Court finds the following reasoning persuasive:

A general denial of engaging in copyright infringement is not a basis for quashing the plaintiff's subpoena. It may be true that the putative defendants who filed motions and letters denying that they engaged in the alleged conduct did not illegally infringe the plaintiff's copyrighted movie, and the plaintiff may, based on its evaluation of their assertions, decide not to name these individuals as parties in this lawsuit. On the other hand, the plaintiff may decide to name them as defendants in order to have an opportunity to contest the merits and veracity of their defenses in this case. In other words, if these putative defendants are named as defendants in this case, they may deny allegations that they used BitTorrent to download and distribute illegally the plaintiff's movie, present evidence to corroborate that defense, and move to dismiss the claims against them. A general denial of liability, however, is not a basis for quashing the plaintiff's subpoenas and preventing the plaintiff from obtaining the putative defendants' identifying information.

Voltage Pictures, LLC v. Does 1-5,000, 818 F. Supp. 2d 28, 35 (D.D.C. 2011). Accordingly, the Court denies Defendant's request to quash the subpoena served on Defendant's ISP.

Finally, Defendant asks that the Court enter a protective order. Defendant does not specify the basis for this request. Nor does Defendant detail what type of protective order he or she seeks. Presumably, Defendant seeks a protective order permitting anonymous participation in this lawsuit and justifies this request on the basis of being subjected to potential embarrassment. The Court denies this request without prejudice. See Voltage Pictures, 818 F. Supp. 2d at 38 ("To the extent that the putative defendants seek protective orders to prevent disclosure of private identifying information, the Court has held that the putative defendants' First Amendment rights to anonymity in the context of their BitTorrent activity is minimal and outweighed by the plaintiff's need for the putative defendants' identifying information in order to protect its copyrights."); Patrick Collins, Inc. v. John Does 1-54, No. 11-1602, 2012 WL 911432, at *4 (D. Ariz. Mar. 19, 2012) ("Defendant claims he would prefer that the proceedings take place under seal, but offers no reason that disclosing the fact that a particular IP address is associated with his name constitutes annoyance, embarrassment, oppression, or undue burden. Although the Court acknowledges that there is some social stigma attached to consuming pornography, Defendant strenuously denies the allegations, and it is the rare civil lawsuit in which a defendant is not accused of behavior of which others may disapprove. The nature of the allegations alone do not merit a protective order."). "The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records." Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006); see also In re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 476 (6th Cir. 1983) ("Only the most compelling reasons can justify non-disclosure of judicial records."). If Defendant can provide the Court with reasons particularized to his or her situation that justify proceeding anonymously, or at least provide some developed argument supporting the presently bare request, the Court will reconsider whether a protective order is warranted.

IV. CONCLUSION

For the reasons set forth above, this Court DENIES WITHOUT PREJUDICE Defendant's Motion to Quash or Modify Subpoena and to Sever (Dkt. 7).

IT IS SO ORDERED.

The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a period of fourteen days from the date of receipt of a copy of this order to file objections for consideration by the district judge under 28 U.S.C. § 636(b)(1).

s/Laurie J. Michelson

LAURIE J. MICHELSON

UNITED STATES MAGISTRATE JUDGE Dated: May 29, 2012

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys and/or parties of record by electronic means or U.S. Mail on May 29, 2012.

s/Jane Johnson

Deputy Clerk