Boy Racer, Inc. v. Does 1-17

Filing 1

COMPLAINT filed by Boy Racer, Inc.; Jury Demand. Filing fee $ 350, receipt number 0752-6269467. (Attachments: # 1 Exhibit A)(Steele, John)

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

BOY RACER INC.,
CASE NO.
Plaintiff,
Judge:
v.
Magistrate Judge:
DOES 1 – 17,
COMPLAINT
Defendants.
JURY TRIAL DEMANDED

Plaintiff Boy Racer Inc., through its undersigned counsel, hereby files this Complaint
requesting damages and injunctive relief, and alleges as follows:
NATURE OF THE CASE
1.

Plaintiff files this action for copyright infringement under the United States

Copyright Act and a related civil conspiracy claim under the common law to combat the willful
and intentional infringement of its creative works. Defendants, whose names Plaintiff expects to
ascertain during discovery, illegally reproduced and distributed Plaintiff’s copyrighted Video by
acting in concert via the BitTorrent file sharing protocol and, upon information and belief,
continue to do the same. Plaintiff seeks a permanent injunction, statutory or actual damages,
award of costs and attorney’s fees, and other relief.
THE PARTIES
2.

Plaintiff Boy Racer Inc. is a corporation organized and existing under the laws of

the State of New York, with its principal place of business located in North Bellmore, New
York. Plaintiff is the exclusive holder of the relevant rights with respect to the copyrighted
creative work at issue in this Complaint.
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3.

Plaintiff is a producer of adult entertainment content. Plaintiff invests significant

capital in producing the content associated with its brand and has produced substantial numbers
of videos and photographs. The copyrighted work at issue here is one of these adult videos,
“Fuckabilly” (the “Video”).
4.

Defendants’ actual names are unknown to Plaintiff. Instead, each Defendant is

known to Plaintiff only by an Internet Protocol address (“IP address”), which is a number
assigned to devices, such as computers, connected to the Internet. In the course of monitoring
Internet-based infringement of its copyrighted content, Plaintiff’s agents observed unlawful
reproduction and distribution occurring among the IP addresses listed on Exhibit A, attached
hereto, via Bit Torrent protocol. Plaintiff cannot ascertain Defendants’ actual identities without
information from Defendants’ Internet Service Providers (“ISPs”).
JURISDICTION AND VENUE
5.

This Court has subject matter jurisdiction over the copyright infringement claim

under 17 U.S.C. §§ 101, et seq., (the Copyright Act), 28 U.S.C. § 1331 (actions arising under the
laws of the United States), and 28 U.S.C. § 1338(a) (actions arising under an Act of Congress
relating to copyrights). This Court has supplemental jurisdiction over the civil conspiracy claim
under 28 U.S.C. § 1367(a) because it is so related to Plaintiff’s copyright infringement claim,
which is within this Court’s original jurisdiction, that the two claims form part of the same case
and controversy under Article III of the United States Constitution.
6.

This Court has personal jurisdiction because upon information and belief, all

Defendants either reside in or committed copyright infringement in the State of Illinois. Plaintiff
used geolocation technology to trace the IP addresses of each Defendant to a point of origin
within the State of Illinois. Geolocation is a method for ascertaining the likely geographic region
associated with a given IP address at a given date and time. Although not a litmus test for
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personal jurisdiction, the use of geolocation gives Plaintiff good cause for asserting that personal
jurisdiction is proper over the Defendants.
7.

In the alternative, this Court has personal jurisdiction over non-resident

Defendants, if any, under the Illinois long-arm statute, 735 ILCS 5/2-209(a)(2), because they
downloaded copyrighted content from or uploaded it to Illinois residents, thus committing a
tortious act within the meaning of the statute, and because they participated in a civil conspiracy
to commit copyright infringement with Illinois residents.
8.

Venue is properly founded in this judicial district pursuant to 28 U.S.C.

§§ 1391(b) and 1400(a) because Defendants reside in this District, may be found in this District,
or a substantial part of the events giving rise to the claims in this action occurred within this
District.
JOINDER
9.

Joinder of Defendants is proper because they engaged in a series of transactions to

illegally reproduce and distribute the Video. Specifically, the Defendants intentionally entered
and participated in a single BitTorrent swarm that was formed for the purpose of exchanging
pieces of a file that was unique to the swarm. The file, in this case, was a specific digital
reproduction of the Video. The 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 swarm) to obtain a complete copy of the Video. Plaintiff’s agents
observed multiple swarms involved in reproducing and distributing the Video, but the
Defendants in this action joined in one swarm.
10.

Joinder is also proper because Defendants participated in a civil conspiracy to

illegally reproduce and distribute the video. The Defendants intentionally entered a swarm for
the purpose of collaborating with the other Defendants and numerous third parties to conduct
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illegal distribution and reproduction of the particular Video file. The Defendants were
collectively engaged in the conspiracy even if they were not engaged in the swarm
contemporaneously because they all took concerted action that contributed to the chain of data
distribution. Plaintiff has asserted a right to relief jointly and severally against the Doe
Defendants.
11.

Joinder is also proper at the early stage of the litigation because, upon information

and belief, a single individual can be associated with multiple IP addresses. Due to the dynamic
nature of most consumer IP address assignments, an individual’s IP address can change
frequently. Thus, Plaintiff’s monitoring software, which identifies infringing activity by IP
address, may identify multiple instances of infringing activity that are actually associated with a
single individual. In other words, it is likely that multiple Does (i.e. IP addresses listed on
Exhibit A) are, in fact, a single individual. For example, in the past, a single individual was
associated with nearly one-third of the IP addresses contained in an initial complaint. Joinder of
identical claims against a single individual is encouraged under the Federal Rules and conserves
the resources of this Court.
12.

Finally, Defendants share the same questions of law with respect to copyright

infringement, including but not limited to:
(A) Whether “copying” has occurred within the meaning of the Copyright Act;
(B) Whether entering a torrent swarm constitutes a willful act of infringement;
(C) Whether entering a torrent swarm constitutes a civil conspiracy; and
(D) Whether and to what extent Plaintiff has been damaged by the Defendant’s conduct.
13.

Supporting the propriety of joinder in this case is the underlying nature of the

BitTorrent file distribution protocol. The BitTorrent protocol is different than the standard peer-

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to-peer (“P2P”) protocol used for such networks as Kazaa, Grokster and Limewire. Unlike
standard P2P networks, every BitTorrent downloader is also an uploader of the illegally
transferred file. Further, the BitTorrent protocol breaks an individual file into small pieces, which
are shared among a group of collaborators. Standard P2P protocols involve the one-to-one
transfer of whole files. Use of the BitTorrent protocol provides significant benefits to swarm
participants that derive from its distributed and collaborative nature, but it also makes its users
susceptible to joinder.
BACKGROUND
14.

BitTorrent is a modern file sharing method (“protocol”) used for distributing data

via the Internet.
15.

Traditional file transfer protocols involve a central server, which distributes data

directly to individual users. This method is prone to collapse when large numbers of users
request data from the central server, in which case the server can become overburdened and the
rate of data transmission can slow considerably or cease altogether. In addition, the reliability of
access to the data stored on a server is largely dependent on the server’s ability to continue
functioning for prolonged periods of time under high resource demands.
16.

Standard P2P protocols involve a one-to-one transfer of whole files between a

single uploader and single downloader. Although standard P2P protocols solve some of the
issues associated with traditional file transfer protocols, these protocols still suffer from such
issues as scalability. For example, when a popular file is released (e.g. an illegal copy of the
latest blockbuster movie) the initial source of the file performs a one-to-one whole file transfer to
a third party, who then performs similar transfers. The one-to-one whole file transfer method can
significantly delay the spread of a file across the world because the initial spread is so limited.

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17.

In contrast, the BitTorrent protocol is a decentralized method of distributing data.

Instead of relying on a central server to distribute data directly to individual users, the BitTorrent
protocol allows individual users to distribute data among themselves. Further, the BitTorrent
protocol involves breaking a single large file into many small pieces, which can be transferred
much more quickly than a single large file and in turn redistributed much more quickly than a
single large file. Moreover, each peer can download missing pieces of the file from multiple
sources—often simultaneously—which causes transfers to be fast and reliable. After
downloading a piece, a peer automatically becomes a source for the piece. This distribution
method contrasts sharply with a one-to-one whole file transfer method.
18.

In 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. Each swarm is
unique to a particular file.
19.

The BitTorrent protocol operates as follows. First, a user locates a small “torrent”

file. This file contains information about the files to be shared and about the tracker, the
computer that coordinates the file distribution. Second, the user loads the torrent file into a
BitTorrent client, which automatically attempts to connect to the tracker listed in the torrent file.
Third, the tracker responds with a list of peers and the BitTorrent client connects to those peers
to begin downloading data from and distributing data to the other peers in the swarm. When the
download is complete, the BitTorrent client continues distributing data to other peers in the
swarm until the user manually disconnects from the swarm or the BitTorrent client otherwise
does the same.

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20.

The degree of anonymity provided by the BitTorrent protocol is extremely low.

Because the protocol is based on peers connecting to one another, a peer must broadcast
identifying information (i.e. an IP address) before it can receive data. Nevertheless, the actual
names of peers in a swarm are unknown, as the users are allowed to download and distribute
under the cover of their IP addresses.
21.

The BitTorrent protocol is an extremely popular method for transferring data. The

size of swarms for popular files can reach into the tens of thousands of unique peers. A swarm
will commonly have peers from many, if not every, state in the United States and several
countries around the world. And every peer in the swarm participates in distributing the file to
dozens, hundreds, or even thousands of other peers.
22.

The BitTorrent protocol is also an extremely popular method for unlawfully

copying, reproducing, and distributing files in violation of the copyright laws of the United
States. A broad range of copyrighted albums, audiovisual files, photographs, software, and other
forms of media are available for illegal reproduction and distribution via the BitTorrent protocol.
23.

Efforts at combating BitTorrent-based copyright infringement have been stymied

by BitTorrent’s decentralized nature. Because there are no central servers to enjoin from
unlawfully distributing copyrighted content, there is no primary target on which to focus antipiracy efforts. Indeed, the same decentralization that makes the BitTorrent protocol an extremely
robust and efficient means of transferring enormous quantities of data also acts to insulate it from
anti-piracy measures. This lawsuit is Plaintiff’s only practical means of combating BitTorrentbased infringement of the Video.
ALLEGATIONS COMMON TO ALL COUNTS
24.

At all times relevant hereto, Plaintiff was the exclusive rights holder with respect

to BitTorrent-based reproduction and distribution of the Video.
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25.

Plaintiff has applied for and received a certificate of copyright registration for the

Video from the United States Copyright Office (Reg. No. # PA0001739393).
26.

The torrent file used to access the copyrighted material was named in a manner

that would have provided an ordinary individual with notice that the Video was protected by the
copyright laws.
27.

Plaintiff employs proprietary peer-to-peer network forensic software to perform

exhaustive real time monitoring of the BitTorrent-based swarm involved in distributing the
Video. This software is effective in capturing data about the activity of peers in a swarm and
their infringing conduct.
28.

Defendants, without Plaintiff’s authorization or license, intentionally downloaded

a torrent file particular to Plaintiff’s Video, purposefully loaded that torrent file into their
BitTorrent clients, entered a BitTorrent swarm particular to Plaintiff’s Video, and reproduced
and distributed the Video to numerous third parties.
29.

Plaintiff observed Defendants’ activities in the torrent swarm specific to the

Video and created a log of IP addresses identifying each Defendant and the date and time of
Defendant’s activity, attached hereto as Exhibit A.
COUNT I – COPYRIGHT INFRINGEMENT
30.

Plaintiff hereby incorporates by reference each and every allegation contained in

the preceding paragraphs as if fully set forth fully herein.
31.

Defendants’ conduct infringes upon Plaintiff’s exclusive rights of reproduction

and distribution that are protected under the Copyright Act.
32.

Each Defendant knew or had constructive knowledge that their acts constituted

copyright infringement.

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33.

Defendants’ conduct was willful within the meaning of the Copyright Act:

intentional, and with indifference to the Plaintiff’s rights.
34.

Plaintiff has been damaged by Defendants’ conduct, including but not limited to

economic and reputation losses. Plaintiff continues to be damaged by such conduct, and has no
adequate remedy at law to compensate the Plaintiff for all of the possible damages stemming
from the Defendants’ conduct.
35.

Plaintiff hereby reserves the right, pursuant to 17 U.S.C. § 504(c), to elect to

recover statutory damages for each infringement, in lieu of seeking recovery of actual damages.
36.

As Defendants’ infringement was intentional and willful, the Plaintiff is entitled

to an award of statutory damages, exemplary damages, attorneys’ fees, and the costs of the suit.
COUNT II – CIVIL CONSPIRACY
37.

Plaintiff hereby incorporates by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.
38.

In 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 by exchanging pieces of the Video file in the torrent swarm.
39.

Each of the Defendants downloaded a torrent file, opened it using a BitTorrent

client, and then entered a torrent swarm comprised of other individuals distributing and
reproducing Plaintiff’s Video.
40.

Participants in the torrent swarm have conspired to provide other individuals with

pieces of the Video in exchange for receiving other pieces of the same Video to eventually obtain
a complete copy of the file.

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41.

In furtherance of this civil conspiracy, Defendants committed overt tortious and

unlawful acts by using BitTorrent software to download the Video from and distribute it to
others, and were willful participants in this joint activity.
42.

As a proximate result of this conspiracy, Plaintiff has been damaged, as is more

fully alleged above.
JURY DEMAND
43.

Plaintiff hereby demands a jury trial in this case.
PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests Judgment and relief as follows:
1)

Judgment against all Defendants that they have: a) willfully infringed Plaintiff’s

rights in federally registered copyrights pursuant to 17 U.S.C. § 501; and b) otherwise injured the
business reputation and business of Plaintiff by Defendants’ acts and conduct set forth in this
Complaint;
2)

Judgment in favor of the Plaintiff against Defendants for actual damages or

statutory damages pursuant to 17 U.S.C. § 504, at the election of Plaintiff, in an amount to be
ascertained at trial;
3)

Order of impoundment under 17 U.S.C. §§ 503 & 509(a) impounding all

infringing copies of Plaintiff’s audiovisual works, photographs or other materials, which are in
Defendants’ possession or under their control;
4)

On Count II, an order that Defendants are jointly and severally liable to the

Plaintiff in the full amount of the Judgment on the basis of a common law claim for civil
conspiracy to commit copyright infringement; for an award of compensatory damages in favor of
the Plaintiff and against Defendants, jointly and severally, in an amount to be determined at trial;

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5)

Judgment in favor of Plaintiff against the Defendants awarding the Plaintiff

attorneys’ fees, litigation expenses (including fees and costs of expert witnesses), and other costs
of this action; and
6)

Judgment in favor of the Plaintiff against the Defendant, awarding Plaintiff

declaratory and injunctive or other equitable relief as may be just and warranted under the
circumstances.

Respectfully submitted,
Boy Racer Inc.
DATED: August 10, 2011
By:

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/s/ John Steele_______________
John Steele (Bar No. 6292158)
Steele Hansmeier PLLC
1111 Lincoln Rd, Suite 400,
Miami Beach, FL 33139
305.748.2102; Fax [phone]
[e-mail]
Attorney for Plaintiff