First Time Videos, LLC v. Does 1-76

Filing 38

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 8/16/2011:Mailed notice(mpj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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FIRST TIME VIDEOS, LLC,
Plaintiff,
v.
DOES 1-76,
Defendants.

No. 11 C 3831

MEMORANDUM OPINION AND ORDER
Plaintiff

First

Time

Videos,

LLC,

a

producer

of

adult

entertainment content, filed this suit against seventy-six unnamed
defendants,1 alleging a claim for copyright infringement under the
Copyright Act, 17 U.S.C. § 504, and a common-law claim for civil
conspiracy.

Plaintiff

claims

that

the

defendants

illegally

reproduced and distributed one of its copyrighted videos using socalled

BitTorrent

technology.

As

one

court

has

explained,

BitTorrent:
is a decentralized method of distributing data. Since
its release approximately 10 years ago, BitTorrent has
allowed users to share files anonymously with other
users. Instead of relying on a central server to
distribute data directly to individual users, the
BitTorrent protocol allows individual users to distribute
data amo[ng] themselves by exchanging pieces of the file
with each other to eventually obtain a whole copy of the
file. When using the BitTorrent protocol, every user
simultaneously receives information from and transfers

1

Twelve
plaintiff.

of

the

Doe

defendants

have

since

settled

with

information to one another. In the BitTorrent vernacular,
individual downloaders/distributors of a particular file
are called “peers.” The group of peers involved in
downloading/distributing a particular file is called a
“swarm.” A server which stores a list of peers in a swarm
is called a “tracker.” A computer program that implements
the BitTorrent protocol is called a BitTorrent “client.”
MCGIP, LLC v. Does 1-30, No. C11–03680 HRL, 2011 WL 3501720, at *1
(N.D. Cal. Aug. 10, 2011) (quoting Diabolic Video Productions, Inc.
v. Does 1-2099, No. 10–CV–5865–PSG, 2011 WL 3100404, at *1 (N.D.
Cal. May 31, 2011)).
Because it has so far been able to identify the alleged
infringers

only

by

their

internet

protocol

(“IP”)

addresses,

plaintiff filed a motion for expedited discovery, requesting that
it be allowed to subpoena the Doe defendants’ Internet service
providers (“ISPs”) for identifying information associated with each
IP address, including the individuals’ names, addresses, telephone
numbers, and e-mail addresses.

In response, several of the

putative Doe defendants have filed motions to quash the subpoenas
and/or to dismiss the complaint.

For the reasons discussed below,

the motions are denied.
Motion to Quash
The Doe defendant identified with Internet Protocol Address
No. 71.239.21.116 (“Doe 71.239.21.116”) has moved to quash the
subpoena. “Under Rule 45(c), courts must quash a subpoena where it
requires disclosure of privileged or other protected matter, if no
exception or waiver applies or where it subjects a person to undue

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burden.”
WL

First Time Videos, LLC v. Does 1-500, No. 10 C 6254, 2011

3498227,

at

*8

(N.D.

(quotation marks omitted).

Ill.

Aug.

9,

2011)

(Castillo,

J.)

Doe 71.239.21.116’s argument does not

specifically speak to Rule 45’s requirements but instead broadly
argues that the subpoena violates his/her first amendment right to
anonymous speech.

This argument is routinely advanced in cases

similar to this one, and it has consistently been rejected.
Although

courts

have

found

that

file-sharers’

activities

are

entitled to first amendment protection, they have emphasized that
the protection is minimal and that it does not cover illegal
conduct such as copyright infringement.

See, e.g., Call of the

Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 349-54
(D.D.C. 2011) (“File-sharers . . . do engage in expressive activity
when they interact with other users on BitTorrent. The First
Amendment

interest

implicated

by

their

activity,

however,

is

minimal given that file-sharers’ ultimate aim is not to communicate
a thought or convey an idea but to obtain movies and music for
free.”) (citations and quotation marks omitted); see also First
Time Videos, LLC v. Does 1-500, No. 10 C 6254, 2011 WL 3498227, at
*9 (N.D. Ill. Aug. 9, 2011); MGCIP vs. Does 1 - 316, 10 C 6677
(N.D. Ill. June 9, 2011) (Kendall, J.); Hard Drive Productions,
Inc. v. Does 1-30, 11 C 345, 2011 WL 2634166, at *3 (E.D. Va. July
1, 2011); Donkeyball Movie, LLC v. Does, 10–1520 (BAH), 2011 WL
1807452, at *3 (D.D.C.

May 12, 2011); Sony Music Entertainment
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Inc. v. Does 1-40, 326 F. Supp. 2d 556, 565 (S.D.N.Y. 2004).
Arguments advanced by other putative Doe defendants in support
of their motions to quash are similarly unconvincing. For example,
Doe 98.215.224.86 argues that the subpoena requires production of
“certain documents . . . that are likely located in the state of
New Jersey and not Illinois.”

Doc. 25 at 1-2.

Doe 98.215.224.86

argues that the subpoena has therefore been issued by the wrong
court, since subpoenas must be issued by a court located in the
district where the documents are physically located. Id. However,
no explanation or evidence is offered in support of the claim that
the documents in question are likely to be found in New Jersey.
Similarly, Doe 67.184.193.1862 argues that the subpoena should
be “quashed because it does not contain any information about the
claimed copyrighted work, for example, file name and/or movie name
nor file type and/or movie type, on the allegedly uploaded and/or
downloaded movie using a computer assigned to the I.P. address
67.184.193.186 on May 5.”

Doc. 17 ¶ 12.

That is incorrect: the

complaint specifically identifies the movie in question as “FTV –
Tiffany.”

See Compl. ¶ 3. Doe 67.184.193.186 also argues that the

subpoena should be quashed because he/she “has no idea how [he/she]
may possibly be connected with” plaintiff’s copyright infringement
claim.

Doc. 17 ¶

4.

It is well-settled that such general denials

2

Putative Doe defendant’s motion identifies himself in one
place with the IP address 67.184.193.186, but in another place with
67.184.185.211.
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of liability cannot serve as a basis for quashing a subpoena.

See,

e.g., Voltage Pictures, LLC v. Does 1-5,000, 2011 WL 1807438, at *2
(D.D.C. 2011); First Time Videos, 2011 WL 3498227, at *8 (N.D. Ill.
Aug. 9, 2011); MGCIP vs. Does 1 - 316, 10 C 6677 (N.D. Ill. June 9,
2011); MCGIP, LLC v. Does 1-18, No. C–11–1495 EMC, 2011 WL 2181620,
at *1 (N.D. Cal. June 2, 2011); Donkeyball Movie, 2011 WL 1807452,
at *2; Achte/Neunte Boll Kino Beteiligungs Gmbh & Co., Kg. v. Does
1–4,577, 736 F. Supp. 2d 212, 215-16 (D.D.C. 2010).

For these

reasons, the defendants’ motions to quash are denied.
Motion to Sever
Does 71.239.21.116 and 98.215.224.86 argue that their joinder
as defendants in the instant suit is improper and ask that they be
severed and dropped from the action.

Questions concerning the

propriety of joinder are addressed by Fed. R. Civ. P. 20.
Specifically, under “Rule 20, [p]ersons . . . 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.”

First Time

Videos, LLC v. Does 1-500, No. 10 C 6254, 2011 WL 3498227, at *9
(N.D. Ill. Aug. 9, 2011) (quotation marks omitted).

Beyond “the

two requirements of Rule 20(a)(2), the Court also considers whether
joinder would prejudice any party or result in needless delay.”
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Id.
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

exchanging pieces of the Video file in the torrent swarm.”

by

Compl.

¶ 33.
Defendants point out that, according to the complaint, several
dozen

distinct

IP

addresses

were

involved

in

the

illegal

downloading, and that the downloading is alleged to have taken
place over the space of more than a month (between April 25, 2011
to June 6, 2011).
technology,

however,

inappropriate.

As

Given the particular nature of BitTorrent
these
the

differences

complaint

do

alleges,

not

make

“[t]he

joinder

series

of

transactions in this case involved exchanging pieces of the Video
file with other Defendants in the group of individuals who were
sharing pieces of the file among one another (i.e. the torrent
swarm) to obtain a complete copy of the Video. The nature of the
BitTorrent distribution protocol necessitates a concerted action by
many people in order to disseminate files, such as the Video, and
Defendants intentionally engaged in this concerted action with
other Defendants by entering the torrent swarm.”

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Compl. ¶ 8.

For

the same reason, courts in other cases involving file-sharing via
BitTorrent

protocol

appropriate.

have

similarly

held

that

joinder

is

See, e.g., MGCIP v. Does 1-316, 2011 WL 2292958, at

*2 (“[G]iven the decentralized nature of BitTorrent’s file-sharing
protocol-where individual users distribute the same work’s data
directly to one another without going through a central server-the
Court finds that sufficient facts have been plead to support the
joinder of the putative defendants at this time.”); Call of the
Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 339 (D.D.C.
2011)(“BitTorrent . . .
with other users.

allows users to share files anonymously

When a user downloads a specific file through

BitTorrent – in this case, plaintiffs’ copyrighted motion pictures
– data is transferred in a piecemeal fashion whereby a different
piece of the data [is received] from each user who has already
downloaded

the

file

.

.

.

.

The

nature

of

the

BitTorrent

file-sharing technology makes every downloader also an uploader of
the illegally transferred file(s).”) (quotation marks omitted);
West Coast Productions, Inc. v. Does 1-5829, No. 11–57 (CKK), 2011
WL 2292239, at *5 (D.D.C. June 10, 2011) (“Plaintiff alleges that
each John Doe Defendant participated in a single ‘swarm’ of
BitTorrent

users

in

which

Plaintiff’s

copyrighted

unlawfully shared, downloaded, and distributed.

film

was

Plaintiff alleges

that the BitTorrent protocol allows users in the ‘swarm’ to
download and upload from each other simultaneously.

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Therefore,

Plaintiff has alleged that the John Doe Defendants were sharing
Plaintiff’s copyrighted film with one another via the BitTorrent
protocol.”) (citations omitted).
Second, the suit involves questions of law and fact that are
common to all defendants.
several

legal

defendant:

“(A)

questions
Whether

Plaintiff’s complaint singles out
underlying

the

the

Plaintiff

claims
is

the

against
owner

of

each
the

copyrighted works at issue; (B) Whether ‘copying’ has occurred
within the meaning of the Copyright Act; (C) Whether entering a
torrent swarm constitutes a willful act of infringement; (D)Whether
entering a torrent swarm constitutes a civil conspiracy; and (E)
Whether and to what extent Plaintiff has been damaged by the
Defendant’s conduct.”

Compl. ¶ 8.

Doe 71.239.21.116 insists that the suit involves no common
questions of fact.

Even if this claim were true, however, joinder

would remain appropriate because, as noted, the case involves
common questions of law, and Rule 20 merely requires the presence
of common questions of either law or fact.

However, despite

defendants’ assertion to the contrary, the suit does involve common
questions of fact.

Since plaintiff alleges that the defendants

used the BitTorrent protocol to reproduce and distribute the
copyrighted video, the factual inquiry into alleged copyright
infringements will be substantially identical.

As Judge Castillo

recently observed in another suit brought by plaintiff, the methods

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used “to investigate, uncover, and collect evidence about any
infringing activity will be the same as to each Doe Defendant.”
First Time Videos, 2011 WL 3498227, at *2.
It is true that some courts in this District have reached
different conclusions on the issue of joinder.

For example, in

some cases, courts have severed all but the first of the Doe
defendants from the action and subsequently dismissed the suit
against the first Doe defendant for lack of personal jurisdiction.
See, e.g., Future Blue, Inc. v. Does 1-300, 10 C 6256 (N.D. Ill.
June 8, 2011) (Conlon, J.); Lightspeed v. Does 1-1000, 10 C 5604
(N.D. Ill. Mar. 31, 2011) (Manning, J.); Millenium [sic] TGA Inc.
v. Does 1-800, 10 C 5603 (N.D. Ill. Mar. 31, 2011) (Manning, J.);
see also Hard Drive Productions Inc. v. Does 1-58, No. C 11–02537
LB, 2011 WL 3443548, at *4
However,

the

allegations

different from those here.

(N.D. Cal. 2011) (Beeler, Mag. J.).
at

issue

in

the

latter

cases

were

For example, Lightspeed and Millenium

TGA involved many more defendants than are present here, and in
both cases, the plaintiff had “provided no good-faith basis for its
allegation that . . . each Defendant may be found in this district
and/or a substantial part of the acts of infringement complained of
. . . occurred in this District.”

Lightspeed, 10 C 5604 (N.D. Ill.

Mar. 31, 2011) (quotation marks omitted).

The court found the

plaintiff’s failure to allege such a basis particularly egregious
given the existence of “easily accessible tools exist to verify the

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locations of the IP addresses of the other named Doe defendants.”
Id.
Here, however, plaintiff has provided a good faith basis for
alleging

that

Specifically,

the
the

infringement
complaint

occurred
alleges

in

this

that

District.

plaintiff

used

“geolocation technology to trace IP addresses of each Defendant to
a point of origin within the State of Illinois.”

Compl. ¶ 6.

And

in any event, findings of misjoinder in such cases are rare.

The

overwhelming majority of courts have denied as premature motions to
See, e.g., First Time Videos, 2011 WL

sever prior to discovery.

3498227, at *11; MGCIP, 2011 WL 2292958, at *2; MCGIP, LLC v. Does
1-18, No. C–11–1495 EMC, 2011 WL 2181620, at *1 (N.D. Cal. June 2,
2011);

Call

of

the

Wild

Movie,

770

F.

Supp.

2d

at

342–45;

Donkeyball Movie, LLC v. Does 1–171, No. 10–1520(BAH), 2011 WL
1807452, at *7 (D.D.C. May 12, 2011); West Coast Prod., Inc. v.
Does 1–5829, Civil Action No. 11–57(CKK), 2011 WL 2292239, at *5–*6
(D.D.C. Jun. 10, 2011); Hard Drive Productions, Inc. vs. John Does
1-44, 11 C 2828 (N.D. Ill. Aug. 9, 2011) (Holderman, C.J.).
This does not entirely foreclose the possibility that certain
of the defendants might be able at a later time to identify factual
differences

that

would

warrant

severance

from

this

action.

However, “[p]rospective factual distinctions . . . will not defeat
the commonality in facts and legal claims that support joinder
under Rule 20(a)(2)(B) at this stage in the litigation.” FTV, 2011
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WL 3498227, at *10.

Accordingly, the defendants’ motions for

severance are denied.
Personal Jurisdiction
Does 71.239.21.116 and 98.215.224.86 additionally contend that
the

complaint

jurisdiction.
allegations

should
For

fail

be

example,
to

dismissed
they

indicate

argue

that

infringement took place in Illinois.

for

lack

that

the

of

the

personal

complaint’s

alleged

copyright

See Doc. 13 at 2.

As already

noted, this is not true, for plaintiff claims to have traced the
defendants’ IP addresses to Illinois. Moreover, to the extent that
the

suit

poses

questions

concerning

personal

defendants’ arguments are once again premature.

jurisdiction,

Without discovery

regarding the identity of the various Doe defendants, it is unclear
whether the individuals in question are parties to the suit; and
even assuming they are parties, I lack sufficient information at
this time for evaluating their jurisdictional defenses. See, e.g.,
First Time Video, 2011 WL 3498227, at *9. Accordingly, the motions
to dismiss for lack of personal jurisdiction are denied at this
time.

See, e.g., First Time Videos, 10 C 6254 (N.D. Ill. Aug. 11,

2011); Hard Drive Productions, Inc. vs. John Does 1-44, 11 C 2828
(N.D. Ill. Aug. 8, 2011); MGCIP vs. Does 1 - 316, 10 C 6677 (N.D.
Ill. June 9, 2011); Call of the Wild Movie, LLC v. Does 1-1,062, 70

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F. Supp. 2d 332, 347 (D.D.C. 2011); Sony, 326 F. Supp. 2d at 567.3
Conclusion
For the reasons discussed above, the motions to quash are
denied.
ENTER ORDER:
____________________________
Elaine E. Bucklo
United States District Judge
Dated: August 16, 2011

3

Does 71.239.21.116 and 98.215.224.86 have moved for fees and
costs under 17 U.S.C. § 505 in the event that their motions to
quash are granted. See 17 U.S.C. § 505 (“In any civil action under
this title, the court in its discretion may allow the recovery of
full costs by or against any party other than the United States or
an officer thereof. Except as otherwise provided by this title,
the court may also award a reasonable attorney’s fee to the
prevailing party as part of the costs.”). Since the motions to
quash have been denied, the latter motions also are denied.
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