TCYK, LLC v. DOES 1-44

Filing 42

ENTER MEMORANDUM OPINION AND ORDER: Defendants' motions to sever for improper joinder and/or quash third-party subpoenas, filed by two unspecified pro se John Does and Defendant Babafemi George [18, 19, and 24] are denied. John Doe 11s motion 21 is denied as moot, because Plaintiff has voluntarily dismissed John Doe 11 from the case without prejudice. See [30 and 41]. Signed by the Honorable Robert M. Dow, Jr on 2/20/2014. Mailed notice(tbk, )

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

TCYK, LLC,
Plaintiff,
v.
DOES 1 – 44,

Defendants.

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Case No. 13-cv-3825
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court are four separate motions to sever defendants for improper joinder
and/or quash third-party subpoenas, filed by two unspecified pro se John Does [18, 19], John
Doe 11 [21], and Defendant Babafemi George [24]. For the reasons stated below, the motions
filed by the two John Does and Babafemi George [18, 19, and 24] are denied. John Doe 11’s
motion [21] is denied as moot, because Plaintiff has voluntarily dismissed John Doe 11 from the
case without prejudice. See [30 and 41].
I.

Background
On May 23, 2013, Plaintiff TCYK, LLC (“TCYK”), a motion picture producer and

developer, brought this copyright infringement suit against forty-four John Does. TCYK alleges
that each Defendant illegally downloaded and/or uploaded a copy of TCYK’s motion picture
“The Company You Keep,” starring Robert Redford and Susan Sarandon, using computer
software known as BitTorrent. BitTorrent is a software protocol that facilitates internet filesharing.

Compared with the standard peer-to-peer file-sharing protocol in which one user

downloads a file directly from another, BitTorrent allows users to download different small
pieces of a file simultaneously from many users. Consequently, BitTorrent enables file-sharing
at relative high speeds.
As Judge Tharp explained:
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.”
TCYK, LLC v. Does 1-87, 2013 WL 3465186, at *1 (N.D. Ill. July 10, 2013) (quoting The
Case Against Combating BitTorrent Piracy through Mass John Doe Copyright
Infringement Lawsuits, 111 Mich. L. Rev. 283, 290 (2012)).
Each user who downloads the seed file becomes a potential source of a piece of
that file for peers who seek to download it subsequently. As more users download the
file, thereby increasing the number of sources from which potential downloaders can take
bits of that file, downloading speeds increase for future users. The users who download
and upload the same seed file are called, collectively, a “swarm.” Once a user who seeks
to download a file connects to (effectively joining) an existing swarm, he continuously
takes pieces of the seed file from the other users in the swarm until he has downloaded a
completed file. Those sources are, by definition, in the swarm because they have already
downloaded the seed file. And that new swarm member who joined the swarm to
download the file is now also a potential source of file bits for future downloaders who
join the swarm. Swarm members are only a potential source, because users must be

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logged in to the BitTorrent software to share files. Therefore, swarm members must be
logged in to the BitTorrent protocol simultaneously to be in the same swarm at the same
time. See Compl. ¶ 4; see also Malibu Media, LLC v. Reynolds, 2013 WL 870618, at *2
(N.D. Ill. Mar. 7, 2013).
TCYK alleges that John Does 1 – 44 participated in the same swarm to download
and/or upload an identical version (i.e., the same seed file) of The Company You Keep.
Plaintiff does not know the true names of the Defendants at this time. Instead, Plaintiff
knows the Internet Protocol (“IP”) address assigned to each Defendant by his or her
Internet Service Provider (“ISP”). Exhibit B to Plaintiff’s complaint is a spreadsheet that,
according to Plaintiff, captures the IP addresses, ISPs, and geographic locations of the
forty-four John Doe Defendants, as well as the date and time that each IP address
downloaded the common seed file. Plaintiff believes that discovery will lead to the true
names of the Defendants, at which time Plaintiff intends to amend its complaint with that
information.
To that end, Plaintiff has issued third-party subpoenas to the ISPs identified on
Exhibit B, seeking the identities and personal information associated with the
corresponding IP addresses. Several Defendants, having been informed of the subpoena
(and this lawsuit) by their ISP, now seek to quash the subpoena and/or sever all
defendants for improper joinder. More specifically:


An unspecified John Doe argues [18] that Plaintiff has improperly joined the
forty-four Defendants because Plaintiff does not allege that they participated in
the same swarm at the same time, such that Federal Rule of Civil Procedure
20(a)(2) requires the Court to dismiss forty-three of them from the case.

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

Another unspecified John Doe makes the same argument [19] and, in the
alternative, argues that Plaintiff’s third-party subpoena to his ISP provider should
be quashed because the person to whom the IP address is assigned may not be the
only person who accessed the internet through that address.



Babafemi George, who purports to be a Defendant but does not identify himself
by John Doe number or IP address, seeks [24] to quash Plaintiff’s subpoena,
because – seemingly confused as to whom the subpoena is directed – he is not in
possession of the requested documents and has no knowledge of the alleged
infringement.

II.

Analysis
A.

Motion to Sever for Improper Joinder

Rule 20 of the Federal Rules of Civil Procedure governs permissive joinder of
defendants. It states: “Persons . . . may be joined 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.” Fed. R. Civ. P. 20(a)(2). John
Doe Defendants argue that Plaintiff has failed to allege that the forty-four Defendants in this case
engaged in either the same transaction or the same series of transactions. Although Plaintiff
alleges that Defendants participated in the same swarm (i.e., that they downloaded, and therefore
may also have distributed, the same seed file), Plaintiff acknowledges that Defendants may not
have participated in the swarm at the same time. See Compl. ¶ 4 (noting that a swarm member is
only a source of the file for future downloaders if the swarm member is online at the time that
the subsequent peer downloads the file). Plaintiff argues, however, that Defendants’ actions

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comprise the same series of transactions or occurrences for the purpose of Rule 20, by virtue of
the cooperative and interdependent nature of the BitTorrent platform.
Exhibit B to TCYK’s complaint sets out the exact dates and times at which the forty-four
Defendants allegedly downloaded the movie. The forty-four downloads took place over the span
of thirty days, from April 14, 2013 to May 14, 2013. Defendants argue that this underscores the
unrelatedness of their actions and the improbability that all forty-four participated in the swarm
simultaneously. Defendants argue that, absent an allegation that these forty-four users shared file
bits with each other, they cannot be considered to have participated in the same transaction. And
absent an allegation that they were necessary links in the file’s chain of custody, they cannot be
considered to have participated in the same series of transactions. Defendants contend that their
only connection to each other is that they each allegedly downloaded the same seed file, and that
they therefore did not engage in the “same transaction, occurrence, or series of transactions or
occurrences” within the meaning Rule 20.

Implicit in their argument is that – given the

likelihood that this swarm consisted of far more than the forty-four Defendants named in this suit
(sued here only because of their physical location in this district) – there is a possibility that not
one user among the forty-four Defendants shared a single file bit with another user in this group.
There is a split of authority in this district over the appropriateness of joining defendants
who are alleged to have participated in the same BitTorrent swarm. Compare, e.g., Reynolds,
2013 WL 870618 at * 2 (finding joinder improper because “[w]here 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, Inc. v. Does 1111, 2013 WL 3867656, at *3 (N.D. Ill. July 23, 2013) (“[T]he argument that joinder is
appropriate only if defendants participated in the same swarm at the same time . . . ignores the

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fact that permissive joinder under Rule 20(a) does not require that defendants act in concert with
each other, nor does it have as a precondition that there be a temporal distance or temporal
overlap.”) (internal citations and quotations omitted).

The debate centers on whether

participation in a swarm constitutes the requisite “series of transactions or occurrences”
contemplated by Rule 20, in light of the interdependent quality about BitTorrent file sharing.
Rule 20 does not define “series of transactions or occurrences,” but there is momentum building
in this district in favor of the Federal Circuit’s recent articulation of the phrase’s meaning. See
Zambezia Film PTY, LTD. v. Does 1-65, 2013 WL 4600385, at *4 (N.D. Ill. Aug. 29, 2013); reFX
Audio Software, 2013 WL 3867656 at *3; Malibu Media, LLC v. John Does 1-6, 291 F.R.D. 191,
199-200 (N.D. Ill. May 17, 2013). To date, the Federal Circuit is the only federal court of
appeals that has addressed the issue.

Tracing the rule’s history, past application, and

interpretation of the phrase “transaction or occurrence” in other contexts, the Federal Circuit
noted that “the mere fact that a case involves independent actors as defendants does not
necessarily bring the case outside the scope of Rule 20.” See Malibu Media, 291 F.R.D. at 200
(quoting In re EMC Corp., 677 F.3d 1351, 1358 (Fed. Cir. 2012)). Citing both the Wright and
Miller treatise and Supreme Court case law, the Federal Circuit concluded that “independent
defendants satisfy the transaction-or-occurrence test of Rule 20 when there is a logical
relationship between the separate causes of action.” Id. at 1356. “The flexibility of this standard
enables federal courts to promote judicial economy by permitting all reasonably related claims
for relief by or against different parties to be tried in a single proceeding under the provisions of
Rule 20.” Malibu Media, 291 F.R.D. at 201 (quoting Charles Alan Wright, et al., Federal
Practice and Procedure § 1652 (3d ed. 1998).

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The Court acknowledges the strong arguments on both sides of the issue, but agrees with
the weight of the authority and growing trend in this district that participation in a swarm
qualifies as engaging in a “series of transactions or occurrences” for the purpose of Rule 20. As
other judges in this district have concluded, a user who connects to a swarm joins a “cooperative
endeavor.” TCYK, LLC, 2013 WL 3465186 at *1. Regardless of whether these forty-four
defendants contemporaneously participated in the swarm, shared bits of the seed file with each
other, or even shared bits of the file at all, each joined the swarm knowing that his participation
increased the swarm’s ability to disseminate a common seed file quickly and efficiently. The
Court therefore concludes that a logical relationship exists among the actions of the Defendants
such that joinder is proper. Moreover, joinder here serves the interest of judicial economy, which
underlies Rule 20. Wright et al., supra, § 1653. “At the pleading stage, it is more efficient to
join Doe Defendants in one action than to require separate lawsuits. Individual litigations, at
least at the early stages of litigation, would be needlessly expensive for both [Plaintiff] and the
courts and would frustrate the judicial efficiency policies at the heart of Rule 20.” Malibu
Media, 291 F.R.D. at 204-05. Accordingly, at this stage of the ligation, the Court denies
Defendants’ motions to sever for improper joinder.
B.

Motion to Quash Subpoena

Although none of the Defendants cite to a specific rule or rely on any authority as the
basis for their motions challenging the validity of Plaintiff’s subpoenas to Defendants’ ISPs,
motions to quash are governed by Rule 45 of the Federal Rules of Civil Procedure. Rule 45
provides that a court must quash or modify a subpoena that (1) fails to allow a reasonable time to
comply; (2) requires a person who is neither a party nor a party’s officer to travel more than 100
miles; (3) requires disclosure of privileged or other protected matter, if no exception or waiver

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applies; or (4) subjects a person to undue burden. Fed. R. Civ. P. 45(c)(3)(A)(i)-(iv). The party
seeking to quash the subpoena bears the burden of demonstrating that it falls within one of the
Rule 45 categories. reFX Audio Software, 2013 WL 3867656 at *3; Pacific Century Int’l, Ltd. v.
Does 1-37, 282 F.R.D. 189, 193 (N.D. Ill. 2012). Ruling on motions to quash lies within the
sound discretion of the district court. See Griffin v. Foley, 542 F.3d 209, 223 (7th Cir. 2008).
One of the unspecified John Doe Defendants argues that the subpoenas should be
quashed, because the person to whom an IP address is assigned may not be the person who
actually downloaded TCYK’s movie. According to Defendant, an IP address is often associated
with a wireless router, not a specific computer. And the name associated with a particular IP
address is that of the person who pays the internet bill. Consequently, various people (family
members, roommates, opportunistic neighbors, patrons at an internet café) may be using the
internet under a single IP address at any given time. Defendant argues that the subpoenas should
be quashed on account of the uncertainty this creates and the potential unfairness to an innocent
IP addressee.
Construing this pro se Defendant’s motion liberally, he seems to argue that the subpoenas
impose an undue burden under Rule 45. To the extent that Defendant attempt to advance this
argument, he first needs standing to do so. “A party has standing to move to quash a subpoena
addressed to another if the subpoena infringes upon the movant’s legitimate interests.” Zambezia
Film PTY, 2013 WL 4600385 at *2 (quoting United States v. Raineri, 670 F.2d 702, 712 (7th Cir.
1982)). Here, we need not decide whether Defendant has standing to challenge the subpoena,
because he has not demonstrated that the subpoena imposes an undue burden on him. The Court
agrees with the position consistently taken by the other Judges in this district – namely, that a
subpoena directed at an ISP does not impose an undue burden on a defendant, because it does not

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require him to do anything. See reFX Audio Software, 2013 WL 3867656 at *3; Reynolds, 2013
WL 870618 at * 2; Sunlust Pictures, LLC v. Does 1-75, 2012 WL 3717768, at *2 (N.D. Ill. Aug.
27, 2012).
To the extent that Defendant is arguing that the information the subpoenas seek is not
relevant, and thus prohibited by Rule 26(b)(1), the Court also denies the motion to quash.
“Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s
claim or defense – including the existence, description, nature, custody, condition and location of
any documents or tangible things and the identity and location of persons who know of any
discoverable matter.” Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at
trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence. Id. Here, the information sought by the subpoenas is highly relevant to TCYK’s
claims. Even if the person associated with the IP address is not the person who allegedly
downloaded The Company You Keep, obtaining the IP addressee’s information is the logical first
step in identifying the correct party. Moreover, without the subpoenas TCYK would have no
way of prosecuting its copyright infringement claims. For these same reasons, the Court found
good cause to grant Plaintiff’s request to serve these third-party subpoenas prior to a Rule 26(f)
conference. See Court Order Granting Pl. Mot. for Leave to Take Discovery, June 27, 2013 [12].
Accordingly, and consistent with the approach taken by the other judges in this district, the Court
denies Defendant’s motion to quash, to the extent it argues that the information sought is
irrelevant. See e.g., Zambezia Film PTY, 2013 WL 4600385 at *2; reFX Audio Software, 2013
WL 3867656 at *2; Malibu Media, 291 F.R.D. at 197.
Finally, the Court denies Defendants’ motions to quash to the extent that Defendants
contend that they are not the persons who downloaded The Company You Keep at the respective

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IP address associated with their name. See e.g., Def. Babafemi George Mot. to Quash [24]
(noting that he is “unable to provide the plaintiff with the requested documents because the
defendant was not at home during the time and date in question and had no knowledge of the
alleged infringement”). That is a general denial of liability, which is not an appropriate basis for
quashing a subpoena. See Purzel Video GmbH v. Does 1-108, 2013 WL 6797364, at *4 (Dec. 19,
2013); Malibu Media, 291 F.R.D. at 197; First Time Videos, LLC v. Does 1-76, 276 F.R.D. 254,
256 (N.D. Ill. 2011) (collecting cases). Accordingly, Defendants’ motions to quash are denied.
III.

Conclusion
For the reasons stated above, Defendants’ motions to sever for improper joinder and/or

quash third-party subpoenas, filed by two unspecified pro se John Does and Defendant Babafemi
George [18, 19, and 24] are denied. John Doe 11’s motion [21] is denied as moot, because
Plaintiff has voluntarily dismissed John Doe 11 from the case without prejudice. See [30 and
41].

Dated: February 20, 2014

___________________________________
Robert M. Dow, Jr.
United States District Judge

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