TCYK, LLC v. DOES 1-121

Filing 48

OPINION BY RICHARD MILLS, U.S. District Judge: The Motion of Defendant Clay Gordon to Dismiss the Complaint (d/e 38 ) is DENIED. This case is referred to United States Magistrate Judge Tom Schanzle-Haskins for the purpose of holding a scheduling conference. SEE WRITTEN OPINION. Entered by on 9/29/2014. (MJ, ilcd)

E-FILED

Monday, 29 September, 2014 04:19:42 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
TCYK, LLC,

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Plaintiff,
v.
DOES 1-121,
Defendants.

NO. 13-3127

OPINION
RICHARD MILLS, U.S. District Judge:
Pending before the Court is Defendant Clay Gordon’s Motion to
Dismiss pursuant to Rule 12(b)(6).
I.
This is an action wherein the Plaintiff seeks damages and injunctive
relief for copyright infringement under the Copyright Law of the United
States, 17 U.S.C. § 101 et seq. The Plaintiff alleges it is a developer and
producer of motion pictures. The action involves the alleged unauthorized
acquisition and transfer of the copyrighted motion picture, “The Company
You Keep” (“The Movie”), by the Defendants. The Movie was directed by

Robert Redford and stars Redford, Susan Sarandon, Shia LaBeouf, Anna
Kendrick, Julie Christie and Nick Nolte. The Complaint alleges that the
Movie has been produced and created at considerable expense.

The

Plaintiff alleges it owns the copyright and/or the pertinent exclusive rights
in the Movie which it claims has been unlawfully distributed over the
Internet by the Defendants.
At the time of the Complaint, the true names of the Defendants were
unknown to the Plaintiff. Only the Internet Protocol address assigned to
the Defendants by his or her Internet Service Provider and the date and
time at which the infringing activity of each Defendant was observed was
then known. Clay Gordon was listed as Doe No. 105. The summons was
returned executed by Clay Gordon and Gordon filed this Motion to
Dismiss.
The Complaint alleges jurisdiction over the subject matter pursuant
to 28 U.S.C. §§ 1331 & 1338(a) (copyright). The Plaintiff claims that
venue is appropriate under 28 U.S.C. § 1391(b) and/or 28 U.S.C. §
1400(a). The Plaintiff further asserts that, based on information and belief,

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the first named Defendant resides in Sangamon County and the other
Defendants reside elsewhere in the Central District of Illinois. Accordingly,
venue is proper in the Springfield Division of the District.
According to the Complaint, the manner of the alleged transfer and
copying of the Movie is accomplished by using a network called “BitTorrent
protocol” or “torrent,” which is different than the standard Peer-to Peer
protocol. Using this method, most computers are capable of participating
in large data transfers for copying large files such as movies. As more peers
request the same file, each additional user knowingly becomes a part of the
network from which the file can be downloaded. Each peer user who has
a copy of the infringing copyrighted material on a torrent network
intentionally also becomes a source of download for that infringing file.
This manner of distribution can lead to a rapid viral spreading of a file
throughout peer users. The Plaintiff alleges that, because of the manner of
the “swarm downloads,” every infringer is stealing copyrighted material
from a number of different Internet Service Providers (ISPs) in numerous
jurisdictions.

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Based on information and belief, the Plaintiff alleges that Defendants
such as Gordon deliberately participated in a swarm and/or reproduced
and/or distributed the same seed file of the Plaintiff’s copyrighted Movie in
digital form with other Defendants.
II.
At this stage, the Court accepts as true all of the facts alleged in the
Complaint and draws all reasonable inferences therefrom. See Virnich v.
Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). “[A] complaint must provide
a short and plain statement of the claim showing that the pleader is entitled
to relief, which is sufficient to provide the defendant with fair notice of the
claim and its basis.” Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011)
(internal quotation marks omitted). Courts must consider whether the
complaint states a “plausible” claim for relief. See id. The complaint must
do more than assert a right to relief that is “speculative.” See id. However,
the claim need not be probable: “a well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts is improbable,
and that a recovery is very remote and unlikely.” See Independent Trust

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Corp. v. Stewart Information Services Corp., 665 F.3d 930, 935 (7th Cir.
2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
“To meet this plausibility standard, the complaint must supply ‘enough fact
to raise a reasonable expectation that discovery will reveal evidence’
supporting the plaintiff’s allegations.” Id.
To state a claim for copyright infringement, a plaintiff generally must
prove: “(1) ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original.” Schrock v. Learning Curve Intern.,
Inc., 586 F.3d 513, 517 (7th Cir. 2009) (quoting Feist Publ’ns, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
Defendant Clay Gordon alleges that allegations that a particular
Internet Protocol (“IP”) address is associated with the Defendant is
insufficient to allege copyright infringement. Gordon claims that because
wireless home networks can be used by multiple people at one time such as
family, friends, visitors and, if insufficiently secured, even neighbors and
passers by, Gordon claims it is impossible to determine that the person who
registers an IP address that has been used for the infringing activity is

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actually the one guilty of infringement.
Gordon further states that he lives on the campus of Illinois Wesleyan
University in an apartment adjacent to the library and near several
fraternities and sororities. Accordingly, someone else could have been using
Gordon’s IP address. Gordon alleges the Plaintiff has not established a
link, if any, between the IP address and the Defendant. Additionally, the
Plaintiff has not established that Gordon was using the particular IP
address at that particular time.
In response, the Plaintiff alleges that in addition to providing the IP
address associated with the illegal downloading, the Complaint provides:
(1) the date and time of the infringement; (2) the file hash identifier of the
downloaded file; and (3) the BitTorrent software used to obtain the illegal
download. The Plaintiff contends this is sufficient detail of the alleged
infringing activity to plead a claim of copyright infringement.
Upon reviewing the Complaint, the Court concludes that Plaintiff has
sufficiently alleged the elements of copyright infringement. At this stage of
the litigation, the Plaintiff need not conclusively establish that Defendant

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Gordon was using the IP address. The Complaint states a plausible claim
for relief against the Defendant, which is all that is required at this stage.
Ergo, the Motion of Defendant Clay Gordon to Dismiss the
Complaint [d/e 38] is DENIED.
This case is referred to United States Magistrate Judge Tom SchanzleHaskins for the purpose of holding a scheduling conference.
ENTER: September 29, 2014
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge

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