Films v. Doe, Civil Action No. 11-cv-15200

• Decision Date: 29 May 2012
• Docket Number: Civil Action No. 11-cv-15200
• Parties: THIRD DEGREE FILMS, Plaintiff, v. JOHN DOES 1-36, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

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

Civil Action No. 11-cv-15200

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 29, 2012

District Judge Stephen J. Murphy, III

Magistrate Judge Laurie J. Michelson

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

I. BACKGROUND

A. The BitTorrent Communication Protocol²

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 informationin 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.)

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 beeninitially 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

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'scounsel - 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...