Zambezia Film Pty Ltd. v. Does 1-65

Filing 23

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 8/29/2013: The Court, in its discretion, denies Defendant Doe #55's motion to vacate and quash 13 . Further, the Court, in its discretion, denies Defendant Doe #55's motion to sever for improper joinder 13 . Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ZAMBEZIA FILM PTY, LTD.,
Plaintiff,
v.
DOES 1-65,
Defendants.

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Case No. 13 C 1321

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On February 19, 2013, Plaintiff Zambezia Film Pty Ltd. (“Zambezia”) filed the present
copyright infringement action against Defendant John Does 1-65 pursuant to the United States
Copyright Act of 1976. See 17 U.S.C. § 101, et seq. This lawsuit involves Zambezia’s effort to
protect its copyrighted, animated motion picture, “Adventures in Zambezia,”1 from numerous
unknown individuals who are allegedly copying and distributing the movie on the Internet using
the BitTorrent protocol. Zambezia maintains that thus far it has only been able to identify the
Doe Defendants by their Internet Protocol (“IP”) addresses. As such, the Court granted
Zambezia’s motion for expedited discovery to serve subpoenas on the Doe Defendants’ Internet
Service Providers (“ISPs”). Before the Court is Defendant John Doe #55’s motion to vacate the

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“Zambezia (also known as Adventures in Zambezia) is a South African 3D computeranimated comedy-drama adventure film. Directed by Wayne Thornley and written by Andrew
Cook, Raffaella Delle Donne, and Anthony Silverston, it is the first film produced by Triggerfish
Animation Studios and distributed by CMG and Sony Pictures in English territories. It tells the
story of a young falcon bird who leaves the desolate desert where he lives with his father to
discover action and adventure in the big city of Zambezia.”
http://en.wikipedia.org/wiki/Zambezia_(film) (last visited on August 28, 2013).

Court’s April 4, 2013, order granting Zambezia’s motion for expedited discovery and to quash
the subpoena served on his ISP. See Fed.R.Civ.P. 45(c)(3)(A). Also, Defendant Doe # 55
moves to sever for improper joinder pursuant to Federal Rules of Civil Procedure 20 and 21. For
the following reasons, the Court, in its discretion, denies Defendant’s motion to vacate and
quash. Further, the Court, in its discretion, denies Defendant Doe #55’s motion to sever for
improper joinder.
BACKGROUND
In its Complaint, Zambezia alleges that Defendants, whose true identities are unknown at
this time, acted in a collective and interdependent manner via the Internet in the unlawful
reproduction and distribution of its copyrighted motion picture, “Adventures in Zambezia,” by
means of the interactive “peer-to-peer” file transfer technology protocol called BitTorrent. (R. 1,
Compl. ¶ 4.) Zambezia further alleges that this present lawsuit involves one “swarm” in which
numerous Defendants engaged in mass copyright infringement of “Adventures in Zambezia.”
(Id. ¶ 5.) According to Zambezia, each Defendant illegally uploaded and shared the motion
picture within this swarm. (Id.) In addition, Zambezia contends that each Defendant was a
willing and knowing participant in the swarm and engaged in such participation for the purpose
of infringing Zambezia’s copyrighted work. (Id. ¶ 6.) Also, Zambezia alleges that by
participating in the swarm, each Defendant participated in the same transaction, occurrence, or
series of transactions or occurrences as the other Defendants in the same swarm. (Id. ¶ 7.)
Before turning to Defendant Doe #55’s motion, a description of the BitTorrent protocol is
in order:
BitTorrent is a software protocol that facilitates the practice of
peer-to-peer file sharing used to distribute large amounts of data over the internet.
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To share information using BitTorrent, an initial file-provider (the “seeder”)
elects to share an initial file, called a “seed,” with a torrent network. The file to
be distributed is divided into segments called “pieces.” Other users (“peers”)
intentionally connect to the seed file to download it. As each peer receives a new
piece of the file, the peer also immediately becomes a source of that piece for
other peers, relieving the original seeder from having to send that piece to every
peer requesting a copy. This is the key difference between BitTorrent and earlier
peer-to-peer file sharing systems: “BitTorrent makes file sharing a cooperative
endeavor.”
...
After a peer completely downloads the file, it continues to transmit pieces
of the file to other users until it disconnects from BitTorrent. As additional peers
request and receive pieces of the same file, each user becomes a part of the
network from which the file can be downloaded. As more users join the network,
the speed and efficiency of downloads increases. The group of seeders and peers
uploading and downloading the identical file are called a “swarm.” While
connected to the swarm, users continuously download pieces of the file until they
have obtained a complete file and continuously upload pieces of the file to other
users in the swarm. Even after a user exits the swarm, the identical file pieces
that the user downloaded from other users and then shared with peers continue to
circulate throughout the swarm. BitTorrent swarms can survive continuously for
months or even years.
Osiris Entm’t, LLC v. Does 1-38, No. 13 C 4901, 2013 WL 4478908, at *1 (N.D. Ill. Aug. 20,
2013) (citation omitted); see also Malibu Media, LLC v. John Does 1-6, ___F.R.D. ___, 2013
WL 2150679, at *1-2 (N.D. Ill. May 17, 2013).
I.

Motion to Vacate and Quash
First, the Court addresses Defendant Doe #55’s motion to vacate and quash. Federal

Rule of Civil Procedure 45 provides that a court shall quash or modify a subpoena if it requires
disclosure of privileged or protected information or subjects a person to undue burden. See
Fed.R.Civ.P. 45(c)(3)(A); Northwestern Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 935 (7th Cir.
2004). “A party has standing to move to quash a subpoena addressed to another if the subpoena
infringes upon the movant’s legitimate interests.” United States v. Raineri, 670 F.2d 702, 712

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(7th Cir. 1982). The party seeking to quash a subpoena has the burden of establishing Rule
45(c)(3)(A)’s requirements. See Pacific Century Int’l, Ltd. v. Does 1-37, 282 F.R.D. 189, 193
(N.D. Ill. 2012). Motions to quash are within the sound discretion of the district court. See
Griffin v. Foley, 542 F.3d 209, 223 (7th Cir. 2008).
In his motion, Defendant Doe #55, who is represented by counsel, argues that the Court
should vacate its April 4, 2013, order granting Zambezia’s request to serve third-party subpoenas
upon the unidentified Defendants’ ISPs because Zambezia failed to establish good cause to
conduct this expedited discovery. See Deckers Outdoor Corp. v. P’ships and Unincorporated
Assoc., No. 13 C 2167, 2013 WL 1337616, at *10 (N.D. Ill. Mar. 27, 2013) (“To determine
whether to authorize expedited discovery in a particular case, courts generally apply a ‘good
cause’ standard.”). In particular, Defendant Doe #55 argues that the Court should vacate its
order because Zambezia is a “copyright troll” who has filed “multitudes of copyright suits solely
to extort quick settlements.” Needless to say, calling Zambezia a copyright troll and alleging
that it is trying to extort a settlement does little to support Defendant’s argument that Zambezia
did not establish good cause for the expedited discovery. See Hard Drive Prods., Inc. v. Doe,
283 F.R.D. 409, 410 (N.D. Ill. 2012) (“In deciding a motion for expedited discovery, the Court
evaluates ‘the entirety of the record to date and the reasonableness of the request in light of all
the surrounding circumstances.’”) (citation omitted).
Next, Defendant Doe #55 argues that Zambezia did not establish that it had good cause to
conduct expedited discovery because in a similar lawsuit, Zambezia Film Pty Ltd. v. Does 1-45,
13 C 1747, Zambezia presented the same declaration in support of its expedited discovery
request, and in that case, Judge Tharp denied Zambezia’s motion because he determined that he

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could not rely on the declaration. When granting Zambezia’s expedited discovery motion in the
present action, the Court, exercising its discretion, not only relied on the declaration — but also
Zambezia’s detailed legal memorandum, counsel’s statements made in open court, and the
breadth and purpose of the discovery request — in concluding that Zambezia had good cause to
issue third-party subpoenas to the ISPs before the parties’ Rule 26(f) conference. See Ibarra v.
City of Chicago, 816 F.Supp.2d 541, 554 (N.D. Ill. 2011). Therefore, Defendant Doe #55’s
argument is unavailing and the Court denies his motion to vacate the April 4, 2013, order.
In addition, Defendant Doe #55 moves to quash the subpoena issued to his ISP because
the information it seeks is not relevant under Rule 26(b)(1). In particular, he argues that the
subpoena is not relevant because it seeks the person paying for the Internet service, namely, the
subscriber, who may not necessarily be the purported infringer. Defendant Doe #55’s argument
has been rejected by other courts in this district:
It is not a wild assumption on Plaintiff’s part that the subscriber may be the
alleged infringer or may lead to the alleged infringer. Without connecting the IP
address to a person, Plaintiff would have no way of prosecuting infringement of
its claimed copyright. The Court will not prohibit this discovery because it is less
than certain to identify the individual who Plaintiff really wants to find.
Malibu Media, LLC v. John Does 1-49, No. 12 C 6676, 2013 WL 4501443, at *2 (N.D. Ill. Aug.
22, 2013); reFX Audio Software, Inc. v. Does 1-111, No. 13 C 1795, 2013 WL 3867656, at *2
(N.D. Ill. July 23, 2013) (“Even if the customer associated with the IP address is not necessarily
the person who illegally download plaintiff’s software, the customer’s name is the first step in
identifying the proper defendant.”). The Court agrees that Defendant’s argument has no merit
especially in light of Rule 26(b)(1)’s broad definition of relevance. See Kodish v. Oakbrook
Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006) (“Requests for discovery are

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relevant if there is any possibility that the information sought may be relevant to the subject
matter of the action.”). Because Defendant Doe #55 has failed in his burden of establishing Rule
45(c)(3)(A)’s requirements, see Pacific Century Int’l, 282 F.R.D. at 193, the Court denies
Defendant’s motion to vacate and quash.
II.

Motion to Sever for Improper Joinder
Defendant Doe #55 also moves to sever for improper joinder. Rule 20 governs the

permissive joinder of parties and provides that multiple defendants may be joined in one action
where: (1) “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 (2) “any question of law or fact common to all defendants will arise in the
action.” Fed.R.Civ.P. 20(a)(2); see also Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680,
683 (7th Cir. 2012) (“Joinder that requires the inclusion of extra parties is limited to claims
arising from the same transaction or series of related transactions.”). The joinder of parties and
claims is strongly encouraged. See United Mine Workers of America v. Gibbs, 383 U.S. 715,
724, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). “Misjoinder occurs when the parties fail to satisfy
either of the requirements for permissive joinder under Rule 20.” McDowell v. Morgan Stanley
& Co., Inc., 645 F.Supp.2d 690, 694 (N.D. Ill. 2009). Rule 21 governs the misjoinder of parties
and allows the Court to add or drop a party or sever any claim against a party. See Wheeler, 689
F.3d at 683; Lee v. Cook County, Ill., 635 F.3d 969, 971 (7th Cir. 2011). It is well-settled that
district courts have broad discretion under Rule 21. See Chavez v. Illinois State Police, 251 F.3d
612, 632 (7th Cir. 2001) (appellate court “accord[s] wide discretion to a district court’s decision
concerning the joinder of parties”); Otis Clapp & Son, Inc. v. Filmore Vitamin Co., 754 F.2d

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738, 743 (7th Cir. 1985) (“Rule 21 gives the court discretion to sever any claim and proceed with
it separately if doing so will increase judicial economy and avoid prejudice to the litigants.”)
(citation omitted).
In his motion, Defendant Doe #55 asserts that joinder is improper because Zambezia’s
claims do not arise out of the same transaction, occurrence, or series of transactions or
occurrences as required by Rule 20(a)(1). More specifically, Defendant argues that Zambezia
has failed to properly allege joinder because it did not allege that the Doe Defendants accessed
the same swarm at or about the same time. There is a split of authority in this district whether
joinder is proper only if the plaintiff alleges that the defendants were part of the same swarm at
the same time. Compare Malibu Media, LLC v. Reynolds, No. 12 C 6672, 2013 WL 870618, at
*11 (N.D. Ill. Mar. 7, 2013) (“Where a swarm continues to exist for an extended period of time,
it is improbable that defendants entering a swarm weeks or months apart will actually exchange
pieces of data”) with reFX Audio Software, 2013 WL 3867656, at *3 (“the argument that joinder
is proper only if defendants participated in the same swarm at the same time ... ignores the fact
that permissive joinder under Rule 20(a) does not require that defendants act in concert with
each other”).
Looking to the plain language of Rule 20 and its origins, the Court agrees with those
courts that have concluded that Rule 20(a)(1) does not require a single transaction, direct
transactions, or temporal overlap, and thus defendants need not be in the same swarm at the same
time to be properly joined. See Malibu Media, ___F.R.D. ___, 2013 WL 2150679, at *8-9
(citing In re EMC Corp., 677 F.3d 1351, 1356-57 (Fed. Cir. 2012)); Malibu Media, 2013 WL
4501443, at *3; reFX Audio Software, 2013 WL 3867656, at *3. As Judge Gettleman recently

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explained:
[T]he argument that joinder is proper only if defendants participated in the same
swarm at the same time is also rejected. This argument ignores the fact that
permissive joinder under Rule 20(a) does not require that defendants act in
concert with each other, see United States v. Miss., 380 U.S. 128, 143, 85 S.Ct.
808, 13 L.Ed.2d 717 (1965), nor does it “have as a precondition that there be
temporal distance or temporal overlap.” Patrick Collins v. Does 1–21, 282 F.R.D.
at 167. All that is required is a logical relationship between the separate causes of
action. Does 1–6, 2012 WL 2150679 at *13 (citing In re EMC Corp., 677 F.3d
1351, 1358 (Fed.Cir. 2012)). To require plaintiffs to establish that the joined
defendants shared information directly with each other construes Rule 20 too
narrowly. Rule 20 is satisfied if defendants indirectly interact with one another
through participation in a single swarm. “[I]t is important to consider that while a
peer directly uploads to only a small number of peers, those peers in turn upload
pieces to other peers that later join the swarm. Thus, a defendant’s ‘generation’
of peers — peers that a defendant likely directly uploaded to — helped pass on
pieces of the [plaintiff’s software] to the next ‘generation’ of active peers.” Third
Degree Films v. Does 1–36, 2012 WL 2522151 at *9 (E.D. Mich. May 29, 2012).
reFX Audio Software, 2013 WL 3867656 at *3.
As such, based on the alleged conduct of each Doe Defendant, there are sufficient
allegations of aggregate conduct that fulfill Rule 20(a)(1)’s requirements. See Malibu Media,
___F.R.D. ___, 2013 WL 2150679, at *11. In particular, the allegations that support Rule
21(a)(1)’s “same transaction, occurrence, or series of transactions or occurrences” requirement,
include that each Doe Defendant used BitTorrent to copy and distribute the copyrighted work
without Zambezia’s permission, Defendants’ use of BitTorrent involved downloading and
uploading pieces of the copyrighted work in a swarm, and each Defendant had pieces of the
copyrighted work that had the same hash identifier. (Compl. ¶¶ 10, 11, 14, 20, 25, 38, 59.)
Hence, the Court denies Doe Defendant 55’s motion to sever.

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CONCLUSION
For these reasons, the Court, in its discretion, denies Defendant Doe #55’s to motion to
vacate and quash, as well as his motion to sever for improper joinder.
Dated: August 29, 2013

ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge

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