296 F.R.D. 80 (E.D.N.Y. 2012), C. A. 11-3995(DRH)(GRB), In re BitTorrent Adult Film Copyright Infringement Cases

Docket Nº:Civil Action 11-3995(DRH)(GRB); 12-1147(JS)(GRB); 12-1150(LDW)(GRB); 12-1154(ADS)(GRB)
Citation:296 F.R.D. 80
Opinion Judge:GARY R. BROWN, United States Magistrate Judge.
Party Name:IN RE: BITTORRENT ADULT FILM COPYRIGHT INFRINGEMENT CASES
Attorney:For Plaintiff (1-37, CV 11-3995 (DRH)(GRB)): Frederic R. Abramson, Esq., New York, New York. For John Doe #2, Defendant (1-37, CV 11-3995 (DRH)(GRB)): Joseph P. Augustine, Esq., Augustine & Eberle LLP, New York, New York. For John Doe #29, Defendant (1-37, CV 11-3995 (DRH)(GRB)): James Rosenzweig...
Case Date:May 01, 2012
Court:United States District Courts, 2nd Circuit, Eastern District of New York

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296 F.R.D. 80 (E.D.N.Y. 2012)

IN RE: BITTORRENT ADULT FILM COPYRIGHT INFRINGEMENT CASES

Civil Action Nos. 11-3995(DRH)(GRB); 12-1147(JS)(GRB); 12-1150(LDW)(GRB); 12-1154(ADS)(GRB)

United States District Court, E.D. New York

May 1, 2012

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For Plaintiff (1-37, CV 11-3995 (DRH)(GRB)): Frederic R. Abramson, Esq., New York, New York.

For John Doe #2, Defendant (1-37, CV 11-3995 (DRH)(GRB)): Joseph P. Augustine, Esq., Augustine & Eberle LLP, New York, New York.

For John Doe #29, Defendant (1-37, CV 11-3995 (DRH)(GRB)): James Rosenzweig, Esq., New York, New York.

For John Doe #35, Defendant (1-37, CV 11-3995 (DRH)(GRB)): James D. Murtha, Esq., Babylon, New York.

For Plaintiffs (1-26, CV 12-1147 (JS) (GRB), 1-11, CV 12-1150 (LDW) (GRB), 1-9, CV 12-1154 (ADS) (GRB)): Jason Aaron Kotzker, Kotzker Law Group, Highlands Ranch, Colorado.

OPINION

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ORDER & REPORT & RECOMMENDATION

GARY R. BROWN, United States Magistrate Judge.

These actions are part of a nationwide blizzard of civil actions brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent. The putative defendants are identified only by Internet Protocol (" IP" ) addresses. These four civil actions involve more than 80 John Doe defendants; these same plaintiffs have filed another nineteen cases in this district involving more than thrice that number of defendants.1 One media outlet reports that more than 220,000 individuals have been sued since mid-2010 in mass BitTorrent lawsuits, many of them based upon alleged downloading of pornographic works.2

This Order addresses (1) applications by plaintiffs in three of these actions for immediate discovery, consisting of Rule 45 subpoenas directed at non-party Internet Service Providers (" ISPs" ) to obtain identifying information about subscribers to the named IP addresses and (2) motions to quash similar subpoenas by several putative John Doe defendants in the remaining action. For the reasons that follow, including evidence of abusive litigation tactics by plaintiffs, the plaintiffs' applications for service of subpoenas are granted only as to John Doe 1 in each case under terms and conditions set forth herein, and denied in all other respects. The motions to quash are granted because the work in that action is not subject of a copyright registration.

Furthermore, it is respectfully recommended to the respective district judges that (1) as to three of the actions, the matters be dismissed without prejudice as to all defendants other than John Doe 1; (2) that the fourth action be dismissed without prejudice; and (3) that these plaintiffs and their counsel be directed that all future actions be filed only against a single defendant.

BACKGROUND

1. Allegations in the Complaints

The four complaints that are subject to this Order are nearly identical, though each involves a different pornographic film, to wit: Gang Bang Virgins, Veronica Wet Orgasm, Maryjane Young Love and Gangbanged. See K-Beech, Inc. v. Does 1-37, CV 11-3995

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(DRH)(GRB) (hereinafter " K-Beech " ); Malibu Media LLC v. Does 1-26, CV 12-1147(JS)(GRB) (hereinafter " Malibu 26 " ); Malibu Media LLC v. Does 1-11, CV 12-1150 (LDW)(GRB) (hereinafter " Malibu 11 " ); and Patrick Collins, Inc. v. Does 1-9, CV 12-1154 (ADS)(GRB) (hereinafter " Patrick Collins " ). In three of the cases, plaintiff claims to be the owner of a copyright registered for the work in question. See, e.g., Malibu 26, Complaint at ¶ ¶ 11-13, Docket Entry (" DE" ) [1]. In K-Beech, plaintiff claims only that an application for copyright has been submitted as to its work Gang Bang Virgins. K-Beech, Am. Compl. at ¶ ¶ 11-12, DE [18]. Each defendant is identified only by an IP address purportedly corresponding to a physical address in this district, defined in the complaint as " a number that is assigned by an ISP to devices, such as computers, that are connected to the Internet." Malibu 26, Compl. at ¶ 8. The Complaints further allege that " [t]he ISP to which each Defendant subscribes can correlate the Defendant's IP address to the Defendant's true identity." Id. at ¶ 9.

The complaints describe, in some detail, a peer-to-peer filing sharing protocol known as BitTorrent which is a means by which devices connected to the Internet can share large computer files (such as digital copies of movies) while minimizing the strain on computer networks. See, e.g., Malibu 26, Compl. at ¶ ¶ 14-15. BitTorrent works by breaking files into many smaller files " to reduce the load on the source computer, rather than downloading a file from a single source computer (one computer directly connected to another), [and] allows users to join a 'swarm' of host computers to download and upload from each other simultaneously (one computer connected to numerous computers)." Id. at ¶ 15. BitTorrent also uses a " tracker" computer that tracks the pieces of the files as those pieces are shared among various computers. This tracking feature the plaintiffs to identify the IP addresses from which the films were downloaded, the subscribers to which have become the defendants in these actions. Id. ¶ ¶ 24-26.

2. Plaintiffs' Motions for Early Discovery

Plaintiffs in Malibu 26, Malibu 11, and Patrick Collins have filed motions for leave to file non-party subpoenas prior to a Rule 26(f) conference, seeking to serve subpoenas upon the ISPs to identify the subscribers to the subject IP addresses. Specifically, these subpoenas seek the " true name, address, telephone number, e-mail address and Media Access Control (" MAC" ) address of the Defendant to whom the ISP issued an IP address." See, e.g., Malibu 26, Proposed Order, DE [3-2].

3. Motions to Quash

By order dated September 16, 2011, the Honorable A. Kathleen Tomlinson granted a nearly identical motion for early discovery in K-Beech. See K-Beech, Order of 9/16/11, DE [6]. However, to protect the rights of all parties, Magistrate Judge Tomlinson established a procedure by which both the ISPs and the John Does were afforded an opportunity to move to quash before the information was provided to K-Beech. The procedure Magistrate Tomlinson implemented elicited information that not only permits reasoned review of the motions to quash, but also provides insight into the pending motions for early discovery.

A total of six putative John Doe defendants moved to quash, see K-Beech, Motions, DE [7], [13], [14], [16], [17], & [34], while a seventh had counsel appear without filing a motion. Several motions include fact based arguments which are highly individual to each moving party, as well as legal arguments. One argument common to all of these motions arises from the fact that, according to the allegations, K-Beech does not have a registered copyright to Gang Bang Virgins, but premises its action on a copyright application. K-Beech has amended its complaint to include trademark allegations, but, notably, has not alleged the receipt of a copyright registration. As detailed below, the registration argument is a sufficient basis to grant the motions to quash, though not the sole basis.

4. Additional Facts

a. Factual Defenses Raised by the Moving John Doe Defendants

The factual defenses presented are vastly different and highly individualized. One

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movant -- John Doe #16 -- has stated that he was at work at the time of the alleged download. John Doe #2 states under oath that he closed the subject Earthlink account, which had been compromised by a hacker, before the alleged download. K-Beech, Decl. of John Doe #2, ¶ 5, DE [34-1]. John Doe #29's counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins. DE [13]. John Doe #10 represents that downloading a copy of this film is contrary to her " religious, moral, ethical and personal views." Mtn ¶ 5, DE [7]. Equally important, she notes that her wireless router was not secured and she lives near a municipal parking lot, thus providing access to countless neighbors and passersby.3 Id. at ¶ 4

b. The Use of IP Address to Identify the Alleged Infringers

The complaints assert that the defendants -- identified only by IP address -- were the individuals who downloaded the subject " work" and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time. An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones. As one introductory guide states:

If you only connect one computer to the Internet, that computer can use the address from your ISP. Many homes today, though, use routers to share a single Internet connection between multiple computers. Wireless routers have become especially popular in recent years, avoiding the need to run network cables between rooms. If you use a router to share an Internet connection, the router gets the IP address issued directly from the ISP. Then, it creates and manages a subnet for all the computers connected to that router.4

Thus, it is no more likely that the subscriber to an IP address carried out a particular computer function -- here the purported illegal downloading of a single pornographic film -- than to say an individual who pays the telephone bill made a specific telephone call.

Indeed, due to the increasingly popularity of wireless routers, it much less likely. While a decade ago, home wireless networks were nearly non-existent, 61% of U.S. homes now have wireless access.5 Several of the ISPs at issue in this case provide a complimentary wireless router as part of Internet service. As a result, a single IP address usually supports...

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