The Bicycle Peddler, LLC v. DOES 1-12

Filing 18

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 7/9/2013:Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THE BICYCLE PEDDLER, LLC
Plaintiff,
v.
DOES 1-12
Defendants.

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No. 13 C 2372

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff The Bicycle Peddler, LLC, brings a complaint for copyright infringement
against twelve unnamed “John Doe” defendants who, it alleges, unlawfully acquired and
transferred Plaintiff’s copyrighted motion picture “Trade of Innocents” (the “Movie”). Plaintiff
alleges that it observed the defendants accessing the Movie using BitTorrent protocol, but it has
thus far been able to identify the defendants only by their Internet Protocol (“IP”) addresses and
the dates and times when they accessed the movie. Plaintiff now moves for leave to subpoena the
non-party Internet Service Providers (the “ISPs”) from which the Doe defendants obtain internet
access in order to discover the Doe defendants’ true identities. For the reasons explained below,
the Court grants Plaintiff’s motion for leave to take early discovery. However, the Plaintiff may
not publish the identities of the Doe defendants in any way without further leave of court.
BACKGROUND
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. 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.” Sean B. Karunaratne, The Case Against Combating
BitTorrent Piracy through Mass John Doe Copyright Infringement Lawsuits, 111 Mich. L. Rev.
283, 290 (2012) (hereafter, The Case Against Mass Joinder). It is “architecturally impossible for
any peer on the network to take without giving.” Id. at 288.
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.
Plaintiff alleges that the Doe defendants each joined the same BitTorrent swarm to
download and upload the Movie. The Plaintiff retained Crystal Bay Corporation (the
“Investigator”) to identify the IP addresses of those BitTorrent users who were copying and
distributing the Movie. The Investigator used forensic software to isolate swarms distributing the
Movie, and produced an exhibit showing the IP addresses of twelve Doe defendants who joined
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the same swarm and shared identical copies of the Movie. The Investigator confirmed that each
of the Doe defendants was in the same swarm because each downloaded file was identified by
the same “hash checksum.” A hash checksum is a string of alphanumeric characters generated by
applying a mathematical algorithm to a digital file; any differences in the digital file will cause
the algorithm to produce a different result. The Investigator then used geolocation functionality
to confirm that each of the IP addresses it identified was located in Illinois. Although IP
addresses do not reveal the names or the contact information of the subscribers, they do reveal
the location of the internet line used for the transaction, and the Plaintiff confirmed that the
internet lines appear to be located in cities and towns within this district. The Investigator also
reported that each Doe defendant participated in the swarm between December 2, 2012, and
February 12, 2013. Some of the Doe defendants participated in the swarm within minutes of one
another, but others participated days or months apart from one another. For example, Doe 1
participated in the swarm more than 70 days after Doe 12 had participated.
Plaintiff seeks leave to subpoena the ISPs associated with the IP addresses it has
identified as belonging to users who participated in the swarm. Plaintiff will ask the ISPs to
provide information sufficient to identify each Doe defendant.
DISCUSSION
Fed. R. Civ. P. 26(d) prohibits parties from seeking discovery “from any source” before
the parties have conferred in accordance with Rule 26(f), except when authorized by the Federal
Rules of Civil Procedure, stipulation, or a court order. District courts have broad discretion in
managing the discovery process. See James v. Hyatt Regency Chicago, 707 F.3d 775, 784 (7th
Cir. 2013). Courts “evaluate a motion for expedited discovery ‘on the entirety of the record to
date and the reasonableness of the request in light of all the surrounding circumstances.’” Ibarra
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v. City of Chicago, 816 F. Supp. 2d 541, 554 (N.D. Ill. 2011) (quoting Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. O’Connor, 194 F.R.D. 618, 624 (N.D. Ill. 2000)). Under the
circumstances at hand, it is reasonable to allow the Plaintiff the opportunity to discover the Doe
defendants’ true identities prior to any Rule 26(f) conference. The Plaintiff seeks to discover
only the names, mailing addresses, telephone numbers, e-mail addresses, and MAC addresses1 of
the Doe defendants. The Plaintiff needs this expedited discovery because it will otherwise be
unable to maintain this litigation, as it has no other way of identifying the defendants. And the
defendants will not be burdened by the Plaintiff’s requests, as their ISPs, rather than the
defendants themselves, will be required to respond to the subpoenas.
One issue that bears further discussion is the Plaintiff’s joinder of multiple Doe
defendants in a single civil complaint. A plaintiff may join defendants in a suit presenting any
question or law or fact common to all defendants if “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.” Fed. R. Civ. P. 20(a)(2)(A). There is a split
of authority nationally and within this district over whether it is appropriate to join in a single
lawsuit many anonymous defendants who are alleged to have participated in a single BitTorrent
swarm. Compare, e.g., Malibu Media, LLC v. Does 1-6, --- F.R.D ----, 2013 WL 2150679, *11
(N.D. Ill. May 17, 2013) (allowing joinder); Pacific Century Int’l v. Does 1-31, No. 11 C 9064,
2012 WL 2129003, *3 (N.D. Ill. June 12, 2012) (same); First Time Videos, LLC v. Does 1-76,
276 F.R.D. 254, 257 (N.D. Ill. 2011) (same); with Malibu Media, LLC v. Reynolds, No. 12 C
6672, 2013 WL 870618, *14 (N.D. Ill. Mar. 7, 2013) (rejecting joinder); Digital Sins, Inc. v.

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A “MAC address” is a unique number assigned to the hardware of a particular computer or
other device. United States v. Schuster, 467 F.3d 614, 618 n. 1 (7th Cir. 2006).
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Does 1-245, No. 11 C 8170, 2012 WL 1744838, *2 (S.D.N.Y. May 15, 2012) (same); In re
BitTorrent Adult Film Copyright Infringement Cases, No. 11 C 3995, 2012 WL 1570765, *11
(E.D.N.Y. May 1, 2012) (same).
The disagreement among the courts centers on the question of whether claims against
multiple defendants who participated in the same BitTorrent swarm arise out of the same
transaction or series of transactions, as required for joinder under Rule 20(a)(2)(A). Though there
are substantial arguments on both sides of this issue, entering a sua sponte finding misjoinder of
the Doe defendants would, in my judgment, be inappropriate at this early stage of this
proceeding. The Plaintiff alleges that each Doe defendant deliberately participated in a
BitTorrent swarm that consisted of a series of transactions in which swarm participants shared
pieces of the same file with one another. When the Doe defendants allegedly joined the swarm,
they consented (implicitly, at least) both to download pieces of the Movie from other members of
the swarm and to upload pieces of the Movie to other swarm participants. For at least the period
that the defendants were connected to the swarm, that conduct easily appears to satisfy the “same
transaction” requirement for joinder. Even critics of mass joinder in copyright infringement cases
concede that joinder of defendants who participate contemporaneously in a swarm is plainly
appropriate. See, e.g., The Case Against Mass Joinder, supra, at 293.
But what of defendants who were part of the same swarm at different times? If John Doe
1 leaves the swarm before John Doe 10 joins, then Doe 1 could not, of course, have provided a
piece of the file to Doe 10 directly. That fact suggests to some that joinder of Does 1 and 10
would not be appropriate. See, e.g., The Case Against Mass Joinder at 294-95; Reynolds, 2013
WL 870618 at *13 (stating that joinder is appropriate where defendants accessed the swarm
simultaneously or within hours of one another); Digital Sins, Inc. v. Does 1-245, 2012 WL
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1744838 at *2 (rejecting joinder where defendants shared movie “in separate and isolated
incidents over the course of 59 days”). That argument, however, appears to overlook the fact that
the pieces of the file that Doe 1 distributed directly to other Does who were in the swarm
contemporaneously with Doe 1 were in turn subsequently distributed by them to the Does who
joined the swarm after Doe 1 left it; in the context of a swarm, there is only a single digital file
that is distributed among the members. Thus, it cannot be said that subsequent transfers of that
file are entirely “independent” of the earlier transfers; all of the transfers involve the very same
digital file and the earlier transfers of the pieces of that file facilitate the later transfers.
Moreover, nothing in Rule 20 suggests that joinder requires a direct transaction between every
defendant. To the contrary, the language of the Rule permitting joinder where there has been a
“series” of transactions seems expressly to contemplate that the transactional link between
parties may be more attenuated. These considerations have prompted a number of courts to
conclude that joinder in these cases may extend more broadly than contemporaneous
participation in a swarm would allow. See, e.g., Third Degree Films v. Does 1-47, 286 F.R.D.
188, 195 n. 11 (D. Mass. 2012) (“the Court holds that the interaction of the Doe defendants via
BitTorrent—even if indirect—is significant enough to bring them within the broad scope of
permissibly joined parties under Rule 20(a)”); Third Degree Films v. Does 1-36, No. 11 C
15200, 2012 WL 2522151, *9 (E.D. Mich. May 29, 2012) (“Therefore, Doe No. 10 plausibly
indirectly uploaded pieces of the work to, say, Doe No. 25 who participated in the swarm four
days later.”) (emphasis in original); Hanley v. First Investors Corp., 151 F.R.D. 76, 79 (E.D.
Tex. 1993) (“Imagine a number of ‘transactions or occurrences’ spread out through time and
place. They are not directly continuous, or else they would constitute one transaction or

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occurrence rather than a number of them. What would make them a ‘series?’ The answer is some
connection or logical relationship between the various transactions or occurrences.”).
As noted above, BitTorrent requires a cooperative endeavor among those who use the
protocol. Every member of a swarm joins that cooperative endeavor knowing that, in addition to
downloading the file, they will also facilitate the distribution of that identical file to all other
members of the swarm, without regard to whether those other members were in the swarm
contemporaneously or whether they joined it later. In that light, permitting joinder among noncontemporaneous swarm participants does not seem novel or extreme; the law governing joint
ventures and conspiracies, for example, clearly permits plaintiffs to proceed against groups of
defendants who engaged in a cooperative endeavor to facilitate an unlawful object whether or not
all of the members of the group took part in all of the actions of the group and without regard to
when the members joined the group. See, e.g., State of Ohio ex rel. Fisher v. Louis Trauth Dairy,
856 F. Supp. 1229, 1239-40 (S.D. Ohio 1994) (allowing joinder of all defendants who allegedly
participated in any of three overlapping conspiracies to violate the antitrust laws); Krehl v.
Baskin-Robbins Ice Cream Co., 78 F.R.D. 108, 116 (C.D. Cal. 1978) (where conspiracy
defendants share a common objective, it makes no difference that they join the “conspiracy at
different times and at different places, or that they [do] not personally know one another or all
details of the conspiracy everywhere”).
That is not to say that it would necessarily be appropriate to join in the same lawsuit
every participant in a long-running swarm that persisted indefinitely. These are analogies, and
may break down at the extremes, but for purposes of this issue, in this case, they suggest that it
would be premature to deny the plaintiff an opportunity to identify by name the potential
defendants in this suit. Here the Plaintiff has limited its complaint to participants who are likely
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located in this district and who participated in a swarm over a relatively brief time frame.2 For
these reasons, the Court will not sua sponte find misjoinder at this time and will grant the
Plaintiff leave of Court to issue the subpoenas it proposes. The Court recognizes, however, that
no defendant has had the opportunity to brief the joinder issue, and this ruling does not foreclose
any future challenge to the propriety of joinder in this case. The Doe defendants, after they have
been identified and served, may raise the issue if they so choose.
Though the Plaintiff may issue subpoenas to determine the Doe defendants’ true
identities, the Court will prohibit the Plaintiff from publishing the defendants’ identities in any
way without further leave. BitTorrent litigation often involves “matters of a sensitive and highly
personal nature,” Sunlust Pictures, LLC v. Does 1-75, No. 12 C 1546, 2012 WL 3717768, *5
(N.D. Ill. Aug. 27, 2012) (citing Southern Methodist Univ. Ass’n of Women Law Students v.
Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir. 1979)), and even where—as here—that is not a
factor, there remains a substantial possibility that the names turned over by ISPs will not
accurately identify the individuals who actually downloaded or shared the copyrighted material.
See, e.g., Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (estimating that
30% of the individuals whose names were disclosed to plaintiffs did not download the
copyrighted material). Balancing these concerns on one hand against the public’s interest in
knowing the defendants’ true identities, the Court finds that allowing the defendants to proceed
by pseudonym is appropriate at this preliminary stage of the litigation, when no defendant has

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Further, while many BitTorrent copyright infringement cases arise in the context of
pornographic movies, others, including this case, do not. Thus, none of the concerns that animate
many of the district court opinions rejecting joinder in BitTorrent cases involving pornographic
films—such as the potential for unfair, if not extortionate, settlement practices—are present in
this case. In any event, courts should be hesitant to fashion rules that may be based more on
distaste for the copyrighted works or the nature of a plaintiff’s business rather than on
application of neutral legal principles.
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been put on notice of this suit. Once defendants have received such notice, and had an
opportunity to seek such relief, the Court will revisit the issue of whether the names of the
defendants in this matter may be publicly disclosed.

Entered: July 9, 2013
John J. Tharp, Jr.
United States District Judge

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