TCYK, LLC v. DOES 1-87
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 10/9/2013:Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TCYK, LLC,
Plaintiff,
v.
DOES 1–87,
Defendants.
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No. 13 C 3845
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff TCYK, LLC, brings a complaint for copyright infringement against eighty-seven
unnamed “John Doe” defendants 1 who, it alleges, unlawfully acquired and transferred the
plaintiff’s copyrighted motion picture, “The Company You Keep” (the “Movie”). The Court
previously granted the plaintiff leave to subpoena the nonparty Internet Service Providers (the
“ISPs”) from which the Doe defendants obtain Internet access in order to discover the Doe
defendants’ true identities, prohibiting the plaintiff from publishing the identities of the Doe
defendants in any way without the Court’s leave. Now before the Court are three motions by
three defendants that seek to quash the subpoenas, sever and dismiss the defendants, and impose
a protective order. For the reasons that follow, the motions are denied.
BACKGROUND
The Doe defendants are currently known to the plaintiff only by the Internet Protocol
(“IP”) addresses assigned to them by their ISPs. The plaintiff issued third-party subpoenas to the
ISPs requesting information sufficient to identify the true identity of each of the Doe defendants.
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The plaintiff has voluntarily dismissed eight of the eighty-seven Doe defendants. See Dkts. 21,
23. None of the dismissed defendants filed any of the motions under consideration here.
Some of those defendants, after being notified of the subpoena by their ISP, have moved to
quash the subpoenas or to sever and dismiss the Doe defendants as improperly joined. The
following motions are before the Court:
John Doe No. 74, IP address 98.212.180.132, moves to quash the subpoena and
for a protective order on the grounds that the subpoena violates his or her privacy,
is overbroad, would not lead to relevant or admissible information, and does not
suitably verify the basis of the request. Doe No. 74 additionally argues that it
would violate his or her due process rights to be subject to discovery without
having first been served with a complaint. Dkt. 16.
Ashley Sierra, on behalf of IP address 71.239.76.10, moves to quash the subpoena
because it violates Illinois Supreme Court Rule 224, which governs certain
discovery procedures in Illinois state courts, and the Electronic Communications
Privacy Act (“ECPA”), 18 U.S.C. §§ 2701–2703, which prohibits disclosure of
the contents of electronic communications except in some circumstances. Dkt. 18.
John Doe No. 22, IP address 76.16.62.222, moves to sever and dismiss Does 2–87
because joinder is improper under the Federal Rules of Civil Procedure. Dkt. 19.
DISCUSSION
The arguments asserted in these motions have been examined at length in other opinions
issued by courts in this district and elsewhere. This Court’s discussion is therefore brief.
I.
The BitTorrent Protocol
The plaintiff alleges that each of the defendants used the BitTorrent protocol to download
and distribute its Movie. This Court described the BitTorrent protocol in an earlier order in this
case. See TCYK, LLC v. Does 1–87, 13 C 3845, 2013 WL 3465186 (N.D. Ill. July 10, 2013)
(Dkt. 12). Other courts in this district have also explained how BitTorrent is used to download
media. See, e.g., Malibu Media, LLC v. John Does 1–6, 85 Fed. R. Serv. 3d 1187 (N.D. Ill.
2013); Malibu Media, LLC v. Reynolds, 12 C 6672, 2013 WL 870618 (N.D. Ill. Mar. 7, 2013).
To briefly summarize, BitTorrent is a software protocol that facilitates peer-to-peer file
sharing used to distribute large data files over the Internet. An initial file-provider (the “seeder”)
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shares an initial file (the “seed”) with a torrent network. Other users (“peers”) intentionally
connect to the seed file to download it. Each peer receives a segment (a “piece”) of the file, then
immediately becomes a source of that piece for other peers, relieving the seeder from having to
send that piece in response to every new request. 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.
The group of seeders and peers uploading and downloading an identical file is called a “swarm.”
After a peer downloads the whole file, it continues to transmit pieces to other users until it
disconnects, after which the pieces can continue to circulate throughout the swarm. The plaintiff
alleges that each of the Doe defendants participated in the same BitTorrent swarm to download
and distribute its Movie.
II.
Motions to Quash and Motion for a Protective Order
In federal court, procedural issues involving subpoenas are governed by Federal Rule of
Civil Procedure 45. Rule 45(a) allows the issuance of subpoenas to command a recipient to
produce documents in one’s “possession, custody, or control.” Courts must quash a subpoena
that (1) fails to allow a reasonable time for compliance, (2) requires a nonparty to travel more
than 100 miles, (3) “requires disclosure of privileged or other protected matter, if no exception or
waiver applies,” or (4) “subjects a person to undue burden.” Fed. R. Civ. P. 45(c)(3)(A). When
assessing whether a subpoena subjects a person to undue burden, it considers whether the
“burden of compliance with it would exceed the benefit of production of the material sought.”
Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 927 (7th Cir. 2004). The party moving to quash
bears the burden of showing that the subpoena falls into one of these impermissible categories.
Pac. Century Int’l, Ltd. v. Does 1–37, 282 F.R.D. 189, 193 (N.D. Ill. 2012) (citing Williams v.
Blagojevich, No. 05 C 4673, 2008 WL 68680, at *3 (N.D. Ill. Jan. 2, 2008)).
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Here, three defendants move to quash the subpoenas that TCYK, LLC, has issued to their
ISP. As a general rule, for a person to have standing to quash a subpoena issued to a nonparty,
that subpoena must implicate that person’s “legitimate interests.” See United States v. Raineri,
670 F.2d 702, 712 (7th Cir. 1982). Courts in this district disagree on whether an anonymous
defendant to a copyright infringement suit has standing to quash a subpoena issued to his or her
ISP. See reFX Audio Software, Inc. v. Does 1–111, 13 C 1795, 2013 WL 3867656, at *1 (N.D.
Ill. July 23, 2013). This Court concludes that the defendants have at least a minimal privacy
interest in the information requested by the subpoena, which includes their telephone numbers,
email addresses, and Media Access Control (MAC) addresses. See Sunlust Pictures, LLC v. Does
1–75, 12 C 1546, 2012 WL 3717768 (N.D. Ill. Aug. 27, 2012); Third Degree Films, Inc. v. Does
1–108, No. 11–3007, 2012 WL 669055, at *2 (D. Md. Feb. 28, 2012). Accordingly, the Court is
satisfied that they have standing.
One defendant argues that the subpoenas violate “Supreme Court Rule 224.” The Court
understands this as a reference to Illinois Supreme Court Rule 224, which governs pre-suit
discovery subpoenas used in Illinois trial courts to help plaintiffs identify responsible persons
and entities. The defendant’s reliance on this rule is misplaced. Rule 224 is merely “a tool for a
party to use to obtain information as a precursor to the filing of a civil action” in an Illinois state
trial court. Alemayehu v. Boeing Co., 10 C 3147, 2010 WL 3328278 (N.D. Ill. Aug. 18, 2010).
Rule 224 procedures “have no applicability in federal court.” Bond v. Wright Med. Tech., Inc.,
12-CV-597-DRH-DGW, 2012 WL 2413051 (S.D. Ill. June 26, 2012). As the Court has
explained, subpoena practice in federal court is governed by the Federal Rules of Civil
Procedure. The Illinois Supreme Court Rules provide no basis for quashing the subpoenas here.
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That defendant also argues that compliance with the subpoena would violate the
Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2702(a)(1). Section 2702(a)(1)
of ECPA provides that “a person or entity providing an electronic communication service to the
public shall not knowingly divulge to any person or entity the contents of a communication while
in electronic storage by that service.” The defendant’s invocation of § 2702(a)(1) is erroneous in
this context, as other courts have explained. See First Time Videos, LLC v. Does 1–500, 276
F.R.D. 241, 247–48 (N.D. Ill. 2011); Patrick Collins, Inc. v. Does 1–11, 11-CV-01776-AW,
2011 WL 5439045 (D. Md. Nov. 8, 2011). The subpoenas contested here do not seek the
contents of communications, such as the emails at issue in the case the defendant cites, In re
Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 612 (E.D. Va. 2008). Instead, these
subpoenas seek the names, addresses, telephone numbers, email addresses, and MAC addresses
of the subscribers associated with the IP addresses known to the plaintiff—information
pertaining to customer records, not the contents of communications. ECPA restricts the
disclosure of customer records in 18 U.S.C. § 2702(a)(3). Yet ECPA also provides an exception
under which an ISP “may divulge a record or other information pertaining to a subscriber or
other customer . . . to any person other than a government entity.” 18 U.S.C. § 2702(c)(6). Thus,
ECPA allows the disclosure of this type of customer information to non-government entities,
such as the plaintiff in this case. The ECPA challenge to the subpoena therefore fails.
Another defendant argues that the subpoena is overbroad and will not lead to relevant or
admissible information. The Court is not convinced. Federal Rule of Civil Procedure 26(b)(1)
allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to the
claim or defense of any party—including the . . . identity and location of persons who know of
any discoverable matter.” The Rules do not require information sought to be admissible so long
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as it “appears reasonably calculated to lead to the discovery of admissible information.” Fed. R.
Civ. Pro. 26(b)(1). Another court in this district explained in a similar context:
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, 12-CV-6676, 2013 WL 4501443, at *2 (N.D. Ill. Aug.
22, 2013); see also Zambezia Film Pty, Ltd. v. Does 1-65, 13 C 1321, 2013 WL 4600385, at *3
(N.D. Ill. Aug. 29, 2013); reFX Audio Software, Inc. v. Does 1–111, No. 13 C 1795, 2013 WL
3867656, at *2 (N.D. Ill. July 23, 2013). The fact that the customer identified by the ISP in
response to this subpoena may not be the infringer does not make the customer’s identity
irrelevant. The customer’s identity may be a “useful starting point for identifying the actual
infringer.” Malibu Media, LLC v. John Does 1–6, 85 Fed. R. Serv. 3d 1187. The subpoena is
calculated to lead to the identification of the infringer and will not be quashed just because the
customer identified might eventually succeed in defending against the plaintiff’s claim.
The defendant also argues that because the basis of the request has not been sufficiently
verified, it would violate the defendants’ due process rights to be subject to discovery without
first being served with a complaint. Federal Rule of Civil Procedure 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 to manage 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 v. City of Chicago, 816 F. Supp. 2d 541, 554 (N.D.
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Ill. 2011) (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O’Connor, 194 F.R.D. 618,
624 (N.D. Ill. 2000)). “For good cause, the court may order discovery of any matter relevant to
the subject matter involved in the action.” Fed. R. Civ. Pro. 26(b)(1). Good cause exists here
because the plaintiff is unable to proceed without expedited discovery because it has no other
way of identifying the defendants. See TCYK, LLC v. Does 1–87, 2013 WL 3465186, at *2. To
the extent that the defendant attacks the reliability or accuracy of the plaintiff’s method of
identifying the putative defendants’ IP addresses, it may mount such challenges in the course of
its defense. See Digital Sin, Inc. v. Does 1–176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (noting
that the true offender is often not the name listed on the ISP account). To the extent that the
defendant might be suggesting that the subpoena imposes an undue burden, the argument fails.
The undue burden referred to by Rule 45 is the burden on the subpoenaed party. See Malibu
Media, LLC v. John Does 1–49, 2013 WL 4501443, at *2 (citing Malibu Media, LLC v. John
Does 1–6, 85 Fed. R. Serv. 3d 1187); Malibu Media, LLC v. Reynolds, 2013 WL 870618, at *6.
Here, any burden of answering the subpoena falls on the ISP, not the defendants. These
arguments each having failed, the motions to quash are denied.
One defendant also seeks a protective order, claiming generally that his or her privacy
interests would be violated if the ISP provided the requested information to the plaintiff. The
Court notes that should the plaintiff wish to name this defendant in an amended complaint, it will
be constrained, as is every attorney who practices in this Court, by Rule 11(b), which states that
an attorney submitting a filing to the court certifies that it is not “presented for any improper
purpose, such as to harass” and that “the factual contentions have evidentiary support.” Fed. R.
Civ. P. 11(b). Naming a defendant in violation of those certifications could subject the plaintiff
to sanctions. Fed. R. Civ. P. 11(c); see also Hard Drive Prods. v. Does 1–48, 11 CV 9062, 2012
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WL 2196038, at *6 (N.D. Ill. June 14, 2012). To further protect the defendants against potential
embarrassment or error in this case, this Court previously barred the plaintiff from publishing
their identities in any way without leave of the court. See TCYK, LLC v. Does 1–87, 2013 WL
3465186. If individual defendants are later named in an amended complaint, they may then move
to protect against the disclosure of their identities as appropriate. See, e.g., Malibu Media, LLC v.
Reynolds, 2013 WL 870618, at *7. The concerns the defendant expresses about harassment are
purely hypothetical at this juncture. Should the plaintiff harass the Doe defendants after it obtains
their contact information, the Court will consider their complaints and determine the appropriate
remedies at that time. Without further information to shows why the protections already in place
are insufficient to protect the defendants here, the request for a protective order is denied.
III.
Motion to Sever
One defendant argues that the defendants in this case are improperly joined and requests
that Does 2 through 87 be severed and dismissed from the case. Federal Rule of Civil Procedure
20(a)(2) permits people to 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.” Where the permissive joinder
requirements are not met, Rule 21 gives courts the discretion to add or drop a party, or sever any
claim against a party.
This Court has previously acknowledged that “[t]here 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.” TCYK, LLC v.
Does 1–87, 2013 WL 3465186, at *3 (collecting cases); Sunlust Pictures, LLC v. Does 1–75,
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2012 WL 3717768, at *3 (same). Substantial arguments exist on both sides of the split, but the
Court is persuaded that joinder is appropriate here. The way that the BitTorrent protocol operates
separates this case from the RIAA cases cited by the defendant. Even critics of mass joinder in
copyright lawsuits acknowledge, “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). “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.” TCYK, LLC v. Does 1–87, 2013 WL 3465186, at *3.
The complaint here alleges that each defendant “reproduced, distributed and offered to
distribute [the Movie] among other [d]efendants” and that all defendants participated in “the
same swarm,” reproducing “the same seed file.” Compl. ¶¶ 5, 14–15, Dkt. 1. The plaintiff
characterizes the defendants’ behavior as “collective and interdependent.” Id. ¶ 14. The
defendants allegedly participated in a swarm between May 1, 2013, and May 17, 2013. See
Compl. Ex. B, Dkt. 1-1. To the extent that temporal proximity supports joinder, courts have held
that a group of defendants who participated in the same swarm over comparable lengths of time
may be joined. See, e.g., Pac. Century Int’l v. Does 1–31, 11 C 9064, 2012 WL 2129003, at *2
(N.D. Ill. June 12, 2012) (joining defendants who allegedly participated in the same swarm for
over one month). In light of these allegations, the claims against the defendants here arise from
the same transaction or occurrence for the purposes of Rule 20(a), and the defendant is mistaken
to argue that the plaintiff fails to allege that the defendants downloaded the file from one another.
This case also satisfies the second requirement for permissive joinder by involving
common questions of law and fact for all defendants. Here, those questions include whether the
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plaintiff is the copyright holder, whether copying that violates the Copyright Act has occurred,
and whether participating in a BitTorrent swarm constitutes willful copyright infringement. See
Malibu Media, LLC v. John Does 1–6, 85 Fed. R. Serv. 3d 1187; Pac. Century Int’l v. Does 1–
31, 2012 WL 2129003, at *3; First Time Videos, LLC v. Does 1–76, 276 F.R.D. 254, 257–58
(N.D. Ill. 2011). The motion to sever is therefore denied. This does not foreclose future motions
to sever. If individual defenses later overwhelm the case, or the Doe defendants are able to show
that proceeding together will be inefficient or cause undue delay, the court retains broad
discretion under Rule 21 to sever such parties and proceed separately at that time. See Malibu
Media, LLC v. John Does 1–6, 85 Fed. R. Serv. 3d 1187.
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For the reasons set forth above, the motions to quash the subpoenas, sever and dismiss
the defendants, and impose a protective order are denied.
John J. Tharp, Jr.
United States District Judge
Date: October 9, 2013
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