First Time Videos, LLC v. Does 1-76

Filing 22

RESPONSE by First Time Videos, LLCin Opposition to MOTION by Defendant Does 1-76 to quash and for other relief on behalf of Doe 24.15.217.102 20 , MOTION by Defendant Does 1-76 to quash and for other relief on behalf of Doe 71.239.21.116 13 (Steele, John)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FIRST TIME VIDEOS, LLC,

)
)
Plaintiff,
)
)
v.
)
)
DOES 1 – 76,
)
)
Defendants.
)
)
_____________________________________ )

CASE NO. 1:11-cv-3831
Judge: Hon. Elaine E. Bucklo
Magistrate Judge: Hon. Michael T. Mason
OMNIBUS RESPONSE OF PLAINTIFF
FIRST TIME VIDEOS, LLC, IN
OPPOSITION TO MOTIONS TO
QUASH SUBPOENA, TO DISMISS
MOVANTS FOR IMPROPER JOINDER,
AND FOR FEES AND COSTS

An anonymous individual claiming to be associated with Internet Protocol (“IP”) address
71.239.21.116 (“Movant 1”) filed a motion to quash an outstanding subpoena issued to Comcast
Cable Holdings, LLC, by and through his attorney, Jay R. Hoffman.1 Mr. Hoffman later filed a
separate motion with “the same content” on behalf of another anonymous individual claiming to
be associated with IP address 24.15.217.102 (“Movant 2”).2 Because these motions are
substantively identical and suffer from the same flaws and errors, Plaintiff addresses the
arguments of Movant 1 and Movant 2 (collectively “Movants”) together in this omnibus
response. Movants argue that Plaintiff has not sufficiently alleged personal jurisdiction and that
the exercise of personal jurisdiction by the Court would be improper (see Mot. to Quash #13 at
1–2; Mot. to Quash #20 at 2), that Movants are improperly joined (see Mot. to Quash #13 at 2–6;
Mot. to Quash #20 at 3–6), and that the subpoena violates Movants’ First Amendment right to
free speech. (See Mot. to Quash #13 at 6–7; Mot. to Quash #20 at 6–7.)
ARGUMENT
This brief consists of six parts: Part I argues that Movants cannot be preemptively
dismissed from an action to which they are not yet parties. Part II argues that Movants should not

1

Mot. of Doe 71.239.21.116 to Quash Subpoena, Dismiss This Def. for Improper Joinder, and Recover Att’y’s Fees
& Costs, July 22, 2011 [hereinafter Mot. to Quash #13], ECF No. 13.
2
Mot. of Doe 24.15.217.102 to Quash Subpoena, Dismiss This Def. for Improper Joinder, and Recover Att’y’s Fees
& Costs 1, July 25, 2011 [hereinafter Mot. to Quash #20], ECF No. 20.

be allowed to proceed anonymously. Part III identifies multiple fatal flaws in Movants’ personal
jurisdiction arguments. Part IV argues that Movants’ misjoinder arguments are premature at this
stage of the litigation. Part V argues that the First Amendment does not provide a shield for
anonymous copyright infringement. Part VI argues that Movants are not entitled to fees or costs.
I.

MOVANTS ARE NOT PARTIES TO THIS ACTION, AND NONPARTIES
CANNOT BE PREEMPTIVELY DISMISSED FROM AN ACTION
Movants repeatedly ask to be dismissed from this action. (Mot. to Quash #13 at 1, 6–8;

Mot. to Quash #20 at 1, 6–8.) Movants are not yet parties, and nonparties cannot be dismissed
from an action. At this time, Movants are merely third parties who are on notice of their potential
status as party defendants. Courts agree that unserved defendants are not yet “parties” to an
action. Sampson v. Village Discount Outlet, Inc., No. 93-3296, 1994 WL 709278, at *2 (7th Cir.
Dec. 16, 1994); accord Arista Records, LLC v. Doe 3, 604 F.3d 110, 115 (2d Cir. 2010)
(affirming the district court order adopting the magistrate judge’s recommendation to deny the
motion to dismiss because the “defendants, not having been served with process, were not yet
parties”) (internal quotation marks omitted); Flex Homes, Inc. v. Ritz-Craft Corp of Michigan,
Inc., No. 07-cv-1005, 2008 WL 746669, at *1 n.2 (N.D. Ohio Mar. 18, 2008) (unserved
defendant is “not a party to th[e] motion to dismiss”); c.f. F.T.C. v. Compagnie De Saint-GobainPont-a-Mousson, 636 F.2d 1300, 1310–11 (D.C. Cir. 1980) (describing the entity about whom
the information was sought by subpoena as neither “an accused in a criminal action nor . . . a
defendant in a civil action” but as “merely a third-party witness on notice of its potential status as
a party defendant”). As a result, unserved defendants may not properly move to dismiss.
Chandler v. McKee Foods Corp., No. 5:08-CV-00062, 2009 WL 210858, at *2 (W.D. Va. Jan.
28, 2009) (taking unserved defendant’s motion under advisement until he has been served).
There are several reasons why Movants’ implied request to be treated as parties to this
action is improper. The first is the constitutional requirement of standing. Standing is “an
essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also U.S. Const. art III. The closest
2

Movants come to being an adversary is the speculative concern that they may be added as parties
once Comcast responds to Plaintiff’s subpoena. This speculation about what Plaintiff may do
falls far short of the high constitutional bar for concrete adverseness. Spencer v. Kemna, 523 U.S.
1, 11 (1998) (stating that it is the “burden of the party who seeks the exercise of jurisdiction in
his favor clearly to allege facts demonstrating that he is a proper party to invoke judicial
resolution of the dispute.”) (internal quotation marks omitted). Second, the prudential limitations
on the exercise of federal court jurisdiction also prevent Movants from asserting the rights of
unnamed defendants. Allen v. Wright, 468 U.S. 737, 751 (1984); Warth v. Seldin, 422 U.S. 490,
498 (1975); Winkler v. Gates, 481 F.3d 977, 979 (7th Cir. 2007). Prior to the completion of
discovery from nonparty ISPs such as Comcast, neither Plaintiff nor this Court should assume,
based solely on the word of anonymous Movants, that any Movant is the same as a Doe
Defendant, or that a Movant can speak for any Doe Defendant.
The danger of allowing Movants to stand in the shoes of Doe Defendants at this stage of
the litigation becomes especially apparent when examined in the context of the Federal Rules of
Civil Procedure (“FRCP”). Movants argue against the sufficiency of Plaintiff’s pleadings and
against personal jurisdiction, each of which could conceivably be construed as a defense raised
in a pre-answer motion under FRCP 12(b), if Movants were considered parties. However, the
FRCP require a proper 12(b) motion to be made by a party who has been named and served with
process. FRCP 12(h)(1)(A) specifies that any defense listed in FRCP 12(b)(2)–(5) is waived if
omitted from a pre-answer motion. The defenses subject to waiver include, inter alia,
“insufficient process” and “insufficient service of process.” Fed R. Civ. P. 12(b)(4)–(5). Movants
could not possibly raise these defenses at this stage of the litigation, when there is no service of
process to challenge. Yet, the rules dictate that if Movants’ motions are treated as including
proper defenses under FRCP 12(b), the 12(b)(2)–(5) defenses not raised are nevertheless waived.
While waiver of certain defenses may be a defensible legal strategy, it is not defensible for the
Court to allow anonymous individuals, who may or may not be Doe Defendants, to waive

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defenses on behalf of unidentified Doe Defendants. The Court should not indulge in the legal
fiction of treating Movants as parties to this action.
II.

MOVANTS SHOULD NOT BE ALLOWED TO PROCEED ANONYMOUSLY
By bringing their motions anonymously, Movants improperly attempt to circumvent the

presumptive openness of judicial proceedings. The Court should deny Movants’ attempt to
proceed anonymously because they fail to meet or discuss their burden to justify doing so.
“[P]arties to a lawsuit must typically openly identify themselves in their pleadings to ‘protect[]
the public’s legitimate interest in knowing all of the facts involved, including the identities of the
parties.’” United States v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995) (citing Doe v.
Frank, 951 F.2d 320, 322 (11th Cir. 1992)); see also Qualls v. Rumsfeld, 228 F.R.D. 8, 10
(D.D.C. 2005). Even so, it is within the discretion of the district court to grant the “rare
dispensation” of anonymity. Microsoft Corp., 56 F.3d at 1464 (quoting James v. Jacobson, 6
F.3d 233, 238 (4th Cir. 1993)).
Pseudonymous litigation has been permitted where the issues are “matters of a sensitive
and highly personal nature such as birth control, abortion, homosexuality or the welfare rights of
illegitimate children or abandoned families.” Southern Methodist Univ. Ass’n of Women Law
Students v. Wynne & Jaffe, 599 F.2d 707, 712–13 (5th Cir. 1979). The district court has a duty to
consider the impact of a party’s anonymity on both the public interest in open proceedings and
on fairness to the opposing party. Microsoft Corp., 56 F.3d at 1464. In conducting this balance,
the court must weigh a plaintiff’s “privacy concerns against the presumption of openness of
judicial proceedings.” Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). Factors for the court to
consider include:
(1) whether the justification asserted by the requesting party is merely
to avoid the annoyance and criticism that may attend any litigation
or is to preserve privacy in a matter of sensitive and highly
personal nature;
(2) whether identification poses a risk of retaliatory physical or mental
harm to the requesting party or even more critically, to innocent
nonparties;
(3) the ages of the persons whose privacy interests are sought to be
protected;
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(4) whether the action is against a governmental or private party; and
(5) the risk of unfairness to the opposing party from allowing an action
against it to proceed anonymously.
James v. Jacobson, 6 F.3d at 238. Because, as will be discussed further, infra Part IV, the Doe
Defendants in this case have no cognizable claim of privacy in their subscriber information, they
should not be permitted to proceed anonymously. Moreover, as discussed above, supra Part I, it
is improper to allow anonymous nonparty Movants to raise—or even waive—the legal rights of
Doe Defendants. At least one other federal court came to the same conclusion and ordered John
Does who filed pleadings to also file a notice indicating their identity by name, address, phone
number, and email address. Order Denying Implied Request to Proceed Anonymously 3,
Achte/Neunte Boll Kino Beteiligungs GMBH & CO. KG, v. Does 1–4,577, No. 10-453 (RMC)
(D.D.C., Sept. 16, 2010). This Court should do the same, and deny John Does the ability to
proceed anonymously.
III.

MOVANTS’ PERSONAL JURISDICTION CHALLENGE MUST FAIL

Movants argue that they should be dismissed for lack of personal jurisdiction, but their
motions must be denied for several independent reasons. First, Movants’ challenge is premature.
Second, plaintiffs are not required to plead personal jurisdiction in the complaint. Third, Plaintiff
has nevertheless made a prima facie showing of personal jurisdiction.
A.

Movants’ Personal Jurisdiction Challenge Is Premature

Movants’ challenge to personal jurisdiction is premature at this stage of the litigation,
when the Court has limited means to evaluate Movants’ specific connections with this forum.
E.g., MGCIP [sic] v. Does 1–316, No. 10-C-6677, 2011 WL 2292958, at*2 (N.D. Ill. June 9,
2011) [hereinafter Kendall June 9 Decision] (Kendall, J.) (denying multiple motions to dismiss
for lack of personal jurisdiction as “premature” in a similar factual and procedural context);
Virgin Records Am., Inc. v. Does 1–35, No. 05-1918, 2006 WL 1028956, at *3 (D.D.C. Apr. 18,
2006); see also London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 180–81 (D. Mass
2008) (finding it “premature to adjudicate personal jurisdiction” on the available record). A court
cannot properly assess a defendant’s contacts with a forum until the defendant has at least been
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identified. Virgin Records, 2006 WL 1028956, at *3; see also Sony Music Entm’t, Inc. v. Does
1–40, 326 F. Supp. 2d 556, 567 (S.D.N.Y. 2004) (holding that “without identifying information
sought by plaintiffs in the [ISP] subpoena, it would be difficult to assess properly the existence
of personal jurisdiction over the Doe defendants”).
Movants do not directly deny that they have any significant contacts with this jurisdiction
sufficient for general or specific jurisdiction. (See generally Mot. to Quash #13; Mot. to Quash
#20.) Even if Movants had done so, however, the Court currently has limited information to
assess whether their jurisdictional defenses are valid and to evaluate possible alternate bases to
establish jurisdiction. Kendall June 9 Decision, 2011 WL 2292958, at *2; Voltage Pictures, LLC
v. Does 1–5,000, No. 10-0873, 2011 WL 1807438, at *9 (D.D.C. May 12, 2011); see also, e.g.,
London-Sire Records, 542 F. Supp. 2d at 181 (“Even taking all of the facts in [movant’s]
application as true, it is possible that the Court properly has personal jurisdiction.”). Movants cite
three cases in support of their personal jurisdiction arguments (Mot. to Quash #13 at 2; Mot. to
Quash #20 at 2), but each of these cases is distinguishable as involving defendants who had
already been identified, named, and served with process, not anonymous and unidentified Does.
See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 288–90 (1980); Clemens v.
McNamee, 615 F.3d 374, 377–78 (5th Cir. 2010); Enterprise Intern. Inc. v. Corporacion Estatal
Petrolera Ecuatoriana, 762 F.2d 464, 466–70 (5th Cir. 1985).
Plaintiff will be able to proceed only against named defendants over whom this court has
personal jurisdiction. Call of the Wild Movie v. Does 1–1,062, No. 10-455, 2011 WL 996786, at
*9 (D.D.C. Mar. 22, 2011). After the defendants are named and served, they will have an
opportunity to file appropriate motions challenging this Court’s jurisdiction and that will be the
appropriate time for the resolution of this issue. Kendall June 9 Decision, 2011 WL 2292958, at
*2; Call of the Wild Movie, 2011 WL 996786, at *9; see also Virgin Records, 2006 WL
1028956, at *3. Until that time, however, Movants’ personal jurisdiction arguments are
premature.

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B.

Plaintiff Is Not Required to Plead Personal Jurisdiction In the Complaint

Movants are under the mistaken belief that “Plaintiff bears the burden of pleading
specific facts sufficient to support the Court’s exercise of personal jurisdiction” in its Complaint.
(Mot. to Quash #13 at 2; Mot. to Quash #20 at 2.) Movants unsurprisingly cite no direct authority
for this proposition. On the contrary, it is well-established in all federal courts that personal
jurisdiction does not have to be pled. Wendt v. Handler, Thayer & Duggan, LLC, 613 F. Supp.
2d 1021, 1027 (N.D. Ill. 2009) (Castillo, J.) (“[A] plaintiff need not anticipate a personal
jurisdiction challenge in its complaint . . . .”); Blackmore v. Lacosse, No. 85 C 6325, 1985 WL
5052, at *2 (N.D. Ill. Dec. 17, 1985) (“Although some states, including Illinois, require plaintiffs
to allege in their complaints facts sufficient to support personal jurisdiction over the defendants
. . . such allegations are unnecessary in the federal courts.”). Federal Rule of Civil Procedure 8
sets forth the general rules of pleading, requiring a “short and plain statement of the grounds for
the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). Courts across jurisdictions interpret this rule to
refer to subject-matter jurisdiction and not personal jurisdiction. See, e.g., 5 Wright & Miller,
Fed. Prac. & Proc. Civ. § 1206 (3d ed.) (collecting cases).
In general, a plaintiff is obligated to make a prima facie showing of personal jurisdiction
only after a proper challenge in a Rule 12(b)(2) motion or when a personal jurisdiction defense is
asserted in the answer. See, e.g., Labtest Intern., Inc. v. Centre Testing Intern. Corp., No. 10-CV02897, 2011 WL 382879, at *3 (N.D. Ill. Feb. 1, 2011). This is not the case here, as Movants are
not parties and cannot yet properly bring Rule 12(b)(2) motions. See supra Part I. Nevertheless,
Plaintiff alleged sufficient facts in its complaint to make a prima facie showing of personal
jurisdiction.
C.

Plaintiff Has Made a Prima Facie Showing of Personal Jurisdiction

Even if the Court concludes that a discussion of personal jurisdiction is not premature, it
should still deny Movants’ motions because Plaintiff has made a prima facie showing of personal
jurisdiction. Plaintiff alleged that it used geolocation technology to trace the IP address of each
Doe Defendant to a point of origin within Illinois. (Compl. ¶ 6.) Although geolocation is not a
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litmus test for personal jurisdiction, its use for the purpose of preliminary screening has been
championed even by pro-piracy groups. See Decl. of Seth Schoen ¶¶ 2, 4, 15–22, OpenMind
Solutions, Inc. v. Does 1–1,295, No. 3:11-cv-00092-GPM-SCW (S.D. Ill. Mar. 22, 2011), ECF
No. 15-2. Use of the same geolocation technology described in Mr. Schoen’s declaration
predicted the physical location of the Doe Defendant associated with IP address 71.239.21.116 to
be the Village of Round Lake, Illinois. See IP Details for 71.239.21.116, What Is My IP
Address, http://whatismyipaddress.com/ip/71.239.21.116 (last visited July 26, 2011). Similarly,
the physical location of the Doe Defendant associated with IP address 24.15.217.102 is predicted
to be the City of Chicago. See IP Details for 24.15.217.102, What Is My IP Address,
http://whatismyipaddress.com/ip/24.15.217.102 (last visited July 26, 2011). Physical presence
establishes personal jurisdiction. E.g., Burnham v. Superior Court of Cal., Cnty. of Marin, 495
U.S. 604, 619 (1990) (“The short of the matter is that jurisdiction based on physical presence
alone constitutes due process . . . .”).
Even absent the use of geolocation technology, Plaintiff has made a sufficient prima facie
showing of personal jurisdiction at this stage of the litigation. A federal court deciding a case on
similar facts found that plaintiffs had made a prima facie showing of personal jurisdiction over
an anonymous downloader of copyrighted music. Virgin Records, 2006 WL 1028956, at *4.
Plaintiffs alleged that the defendant, without the permission or consent of plaintiffs, offered to
the public—including persons within the court’s jurisdiction—plaintiffs’ copyrighted sound
recordings; in exchange, defendant was able to download recordings made available by others,
including persons within the Court’s jurisdiction. Id. The court in Virgin Records found these
allegations sufficient for a prima facie showing. These allegations are virtually identical to the
allegations in Plaintiff’s Complaint. (See Compl. ¶¶ 6, 11, 13–15, 23–24.) The defendants
offered to the public—including persons in Illinois—Plaintiff’s copyrighted Video via BitTorrent
software; in exchange, defendants were able to download files made available by others,
including persons in Illinois. This infringing activity is enough to establish specific personal
jurisdiction under the Illinois long-arm statute. See 735 ILCS 5/2-209(a)(2).
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Although Movants’ personal jurisdiction challenge is premature at this stage of the
litigation and Movants are wholly mistaken in believing that Plaintiff must plead any basis for
personal jurisdiction, Plaintiff has nevertheless exhaustively established a prima facie showing of
personal jurisdiction. Further, Plaintiff has acted in good faith by taking precautions to name
only Doe Defendants that reside in the State of Illinois. Movants’ personal jurisdiction challenge
should therefore be denied.
IV.

MOVANTS’ MISJOINDER CHALLENGE IS PREMATURE

Movants’ challenge to joinder is premature at this early juncture of the litigation.
Movants claim that by joining seventy-six Doe Defendants in one action, Plaintiff has created a
situation of misjoinder. (See Mot. to Quash #13 at 2–6; Mot. to Quash #20 at 3–6.) However,
courts considering other cases with nearly-identical facts have decided that such issues are
premature at this stage in the litigation, regardless of whether Movants’ arguments eventually
prove to have merit. Kendall June 9 Decision, 2011 WL 2292958, at *2 (citing Donkeyball
Movie, LLC v. Does 1–18, No. 10-1520, 2011 WL 1807452, at *4 (D.D.C. May 12, 2011));
MCGIP, LLC v. Does 1–18, No. 11-1495, 2011 WL 2181620, at *1 (N.D. Cal. June 2, 2011)
(Chen, J.) (citing Voltage Pictures, 2011 WL 1807438, at *4) (finding joinder “proper” at early
stage of litigation, even where movant’s assertion of misjoinder “may be meritorious”).
At this stage in the litigation, where discovery is underway only to learn identifying facts
necessary to permit service on Doe Defendants, joinder is plainly proper. Kendall June 9
Decision, 2011 WL 2292958, at *2. Plaintiff has alleged that Doe Defendants have infringed
Plaintiff’s copyrighted Video through the same file-sharing protocol—BitTorrent—that operates
through simultaneous and sequential computer connections and data transfers among the users,
including Defendants. (See Compl. ¶¶ 4, 8, 11–13, 15, 22–24.) Such allegations have been held
sufficient to sustain joinder while discovery of Doe Defendants’ identities is underway. MCGIP,
2011 WL 2181620, at *4 (holding such allegations were sufficient at same early stage of
litigation and postponing joinder discussion); Voltage Pictures, 2011 WL 1807438, at *4 (same);
see also Call of the Wild Movie, 2011 WL 996786, at *4–5 (finding plaintiffs’ allegations that
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the Doe defendants used BitTorrent, that BitTorrent “makes every downloader also an uploader,”
and that any peer who has completed a download “is automatically a source for the subsequent
peer” were sufficient to make claims against defendants “logically related”).
Movants would have the Court misinterpret Plaintiff’s pleadings as alleging that Doe
Defendants merely “use[d] the same ISP and P2P networks” or “merely . . . infringed the same
[copyright,] patent or trademark” in order to analogize this lawsuit to distinguishable authority,
including authority based on fundamentally different P2P file-sharing technologies. (Mot. to
Quash #13 at 3; Mot. to Quash #20 at 3–4.) In fact, as a brief review of Plaintiff’s pleadings
shows, Plaintiff’s allegations go much further. Plaintiff not only alleged that all Doe Defendants
used the same BitTorrent P2P technology and infringed upon the same copyrighted Video, but
also that all Doe Defendants joined the torrent swarm particular to Plaintiff’s Video to
accomplish their illegal activities, and that all Doe Defendants intentionally engaged in concerted
action with other Doe Defendants and third parties to perpetuate the illegal reproduction and
distribution of Plaintiff’s Video, and that this amounted to a civil conspiracy to infringe
Plaintiff’s Video. (See Compl. ¶¶ 3, 8, 23, 24, 33–37.) For good reason, courts typically will not
sever cases involving civil conspiracy claims. See In re High Fructose Corn Syrup Antitrust
Litigation, 293 F. Supp. 2d 854, 863 (C.D. Ill. 2003) (Mihm, J.) (“[D]iligent research by both the
parties and the Court has uncovered no case in which a Rule 21 severance has been granted in a
civil conspiracy case.”).
Movants also make vague claims that the Court should order severance for reasons of
avoiding prejudice and delay, ensuring judicial economy, and safeguarding principles of
fundamental fairness. (Mot. to Quash #13 at 5; Mot. to Quash #20 at 5.) These discretionary
concerns were thoroughly examined in a highly similar factual and procedural context by Judge
Howell of the United States District Court for the District of Columbia—but on each point Judge
Howell reached an opposite conclusion. Call of the Wild Movie, 2011 WL 996786, at *4–7.
“Joinder will avoid prejudice and needless delay for the only party currently in the case, namely
the plaintiff, and promote judicial economy.” Id. at *4. Furthermore, “[t]he putative defendants
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are not prejudiced but likely benefited by joinder, and severance would debilitate the plaintiffs’
efforts to protect their copyrighted materials and seek redress . . . .” As Judge Howell reasoned,
and as Plaintiff’s counsel has learned through experience, severance would be especially
contrary to the interests of any individuals who have been named as Doe Defendants multiple
times in the same suit for multiple observed instances of infringing activity, a possibility that is a
consequence of the dynamic reassignment of many consumer IP addresses:
[S]ome IP addresses may relate to the same person, who is
engaged in the allegedly infringing activity claimed by plaintiffs.
Severance of the putative defendants associated with different IP
addresses may subject the same Time Warner customer to multiple
suits for different instances of allegedly infringing activity and,
thus, would not be in the interests of the putative defendants.
Call of the Wild Movie, 2011 WL 996786, at *6. The same logic applies to Comcast in Illinois,
and thus all discretionary factors weigh against severance at this stage of the litigation.
At a later point in this litigation, after Doe Defendants have been named and served, they
may re-raise joinder issues under Fed. R. Civ. P. 20 and move to sever under Fed. R. Civ. P. 21,
and that will be the appropriate time for the Court to evaluate the merits of such arguments.
Kendall June 9 Decision, 2011 WL 2292958, at*2; Voltage Pictures, 2011 WL 1807438, at *8;
see also MCGIP, 2011 WL 2181620, at *1. The Court should deny the instant motions because
Movants’ joinder challenge is premature.
V.

THE FIRST AMENDMENT IS NOT A SHIELD FOR COPYRIGHT
INFRINGERS

Movants argue that the release of their identifying information would violate their right to
anonymous speech under the First Amendment. (See Mot. to Quash #13 at 6–7; Mot. to Quash
#20 at 6–7.) This argument is unavailing because the First Amendment is not a shield for
copyright infringers. The Supreme Court, accordingly, has rejected First Amendment defenses to
copyright infringement actions. See, e.g., Harper & Row Publishers, Inc. v. Nation Enters., 471
U.S. 539, 555–56, 569 (1985).

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Movants argue that “courts must consider” the issues of privacy and First Amendment
anonymous speech “before authorizing discovery.” (Mot. to Quash #13 at 7; Mot. to Quash #20
at 7.) Movants will be glad to learn, then, that the Court was indeed presented with these issues
prior to granting discovery. (See Mem. of Law In Supp. of Pl.’s Mot. for Leave to Take Disc.
Prior to the Rule 26(f) Conference 6–9, June 6, 2011, ECF No. 5-1.) Movants cite Sony Music
Entertainment Inc. v. Does 1–40 in support of their argument, but ironically, the Sony Music
court ultimately denied an analogous motion to quash. 326 F. Supp. 2d 556, 558 (S.D.N.Y. 2004)
(“[D]efendants’ First Amendment right to remain anonymous must give way to plaintiffs’ right
to use the judicial process to pursue what appear to be meritorious copyright infringement
claims.”). Likewise, courts across the nation have repeatedly held that a person who uses the
Internet to download or distribute copyrighted works without permission is engaging in the
exercise of speech, but only to a very limited extent, and the First Amendment does not protect
that person’s identity from disclosure. See, e.g., Arista Records, LLC v. Doe 3, 604 F.3d 110,
118–19 (2d Cir. 2010) (concluding that plaintiff’s need for discovery of alleged infringer’s
identity outweighed defendant’s First Amendment right to anonymity); Arista Records, LLC v.
Does 1–19, 551 F. Supp. 2d 1, 8 (D.D.C. 2008) (“[C]ourts have routinely held that a defendant’s
First Amendment privacy interests are exceedingly small where the ‘speech’ is the alleged
infringement of copyrights.”); UMG Recordings, Inc. v. Does 1–4, No. 06-0652, 2006 WL
1343597, at *2 (N.D. Cal. Mar. 6, 2006) (Chen, J.) (applying the Sony Music factors and
allowing discovery of Doe defendants’ identities).
The Sony Music court found that the plaintiffs had made a prima facie showing of
copyright infringement by alleging (1) ownership of the copyrights or exclusive rights of
copyrighted sound recordings at issue; and (2) that “each defendant, without plaintiffs’ consent,
used, and continue[d] to use an online media distribution system to download, distribute to the
public, and/or make available for distribution to others certain” copyrighted recordings. 326 F.
Supp. 2d at 565. Here, Plaintiff has made a prima facie showing of copyright infringement.
First, it alleged ownership of the copyrights of the creative Video at issue in this case. (See
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Compl. ¶¶ 2, 18–20, 26.) Second, it also alleged supporting facts, identifying the copyrighted
Video and describing how it was reproduced and distributed by Doe Defendants using
BitTorrent. (See Compl. ¶¶ 3, 22–24, Ex. A.) Thus, the limited protection afforded by the First
Amendment must give way to Plaintiff’s need to enforce its rights.
Movants cannot cloak their identities in the First Amendment when their infringing
activities are not private: “[I]t is difficult to say that Doe had a strong expectation of privacy
because he or she either opened his or her computer to others through file sharing or allowed
another person to do so.” MCGIP, LLC v. Does 1–18, No. 11-1495, 2011 WL 2181620, at *1
(N.D. Cal. June 2, 2011) (Chen, J.); see also Voltage Pictures, LLC v. Does 1–5,000, No. 100873, 2011 WL 1807438, at *4 (D.D.C. May 12, 2011) (finding movants’ rights to anonymity to
be minimal); In re Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 267 (D.D.C. 2003) (“[I]f an
individual subscriber opens his computer to permit others, through peer-to-peer file-sharing, to
download materials from that computer, it is hard to understand just what privacy expectation he
or she has after essentially opening the computer to the world.”), rev’d on other grounds sub
nom, Recording Indus. Ass’n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C.
Cir. 2003). Because the First Amendment is not a shield for copyright infringement, the Court
should deny Movants’ motions.
VI.

MOVANTS ARE NOT ENTITLED TO FEES AND COSTS BECAUSE THEY
ARE NOT PARTIES AND CANNOT PREVAIL
Movants seek an award of attorney’s fees and costs if their motions are granted. (Mot. to

Quash #13 at 7; Mot. to Quash #20 at 7–8.) The standard for awarding attorney fees and costs in
copyright infringement cases is well-established. 17 U.S.C. § 505 states: “In any civil action
under this title, the court in its discretion may allow the recovery of full costs by or against any
party . . . . [T]he court may also award a reasonable attorney’s fee to the prevailing party as part
of the costs.” 17 U.S.C. § 505 (1994). The plain language of the statute directs that prevailing
plaintiffs and defendants are to be treated alike, “but attorney’s fees are to be awarded to
prevailing parties only as a matter of the court’s discretion.” Fogerty v. Fantasy, Inc., 510 U.S.
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517, 533 (1994). Movants merely cite the statutory provision and state, without arguing, that
each of them “will be the prevailing party” if the Court grants their motions in part or full. (Mot.
to Quash #13 at 7; Mot. to Quash #20 at 8.)
The Seventh Circuit has pointed out that the “Supreme Court has adopted a generous
formulation of the term prevailing party; parties are said to have prevailed in litigation for
attorney’s fees purposes if they succeed on any significant issue in litigation which achieves
some of the benefit the parties sought in bringing suit.” King v. Illinois State Bd. of Elections,
410 F.3d 404, 411 (7th Cir. 2005) (footnotes and quotation marks omitted) (quoting in part
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Seventh Circuit has also stated that “[a]t a
minimum, to be considered a prevailing party . . . [a party] must be able to point to a resolution
of the dispute which changes the legal relationship between itself and the defendant.” Id.
Movants cannot meet even this generous standard—they have not been named and
served, and thus, are not parties. Courts agree that unserved defendants are not yet “parties” to an
action. See supra Part I. Movants appear only because they received letters from their ISPs, and
are at this time merely third parties on notice of their potential status as party defendants.
Movants fail to cite, and Plaintiff’s counsel has not found, any authority for awarding prevailing
party fees and costs before a defendant is even named to a lawsuit or served with process.
Furthermore, even if the court grants their motions, Movants will not be able to point to
any appreciable change in the legal relationship between Plaintiff and themselves. Plaintiff’s
subpoenas are not directed at Movants but at nonparty ISPs. Movants do not yet have any
obligation to appear or otherwise litigate in this district. Movants do not even ask for any relief
which could be dispositive; the proper remedy for misjoinder, for example, is severance. Fed. R.
Civ. P. 21. Because Movants have not discussed the standard for awarding fees and costs under
17 U.S.C. § 505, much less argued why the Court should exercise its discretion in their favor,
because Movants are not parties to this case, and because Movants cannot explain how the
outcome of their motions would change the legal relationship between Movants and Plaintiff, the
Court should deny Movants’ requests for fees and costs.
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CONCLUSION
The Court should deny Movants’ motions. Movants cannot be preemptively dismissed
from an action to which they are not yet parties; Movants should not be allowed to proceed
anonymously; Movants’ challenge to personal jurisdiction suffers multiple fatal flaws; Movants’
misjoinder arguments are premature at this stage of the litigation; the First Amendment does not
provide a shield for anonymous copyright infringement; and Movants are not entitled to fees or
costs.

Respectfully submitted,
FIRST TIME VIDEOS, LLC
DATED: July 26, 2011
By:

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/s/ John Steele
John Steele (Bar No. 6292158)
Steele Hansmeier PLLC
161 N. Clark St.
Suite 4700
Chicago, IL 60601
312-880-9160; Fax [phone]
[e-mail]
Attorney for Plaintiff

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on July 26, 2011, all counsel of record who are deemed to
have consented to electronic service are being served a true and correct copy of the foregoing
document using the Court’s CM/ECF system, in compliance with Local Rule 5.2(a).

/s/ John Steele
JOHN STEELE

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