Openmind Solutions, Inc. v. Does 1-2925

Filing 12

NOTICE by Electronic Frontier Foundation AMICUS CURIAE THE ELECTRONIC FRONTIER FOUNDATIONS REQUEST FOR JUDICIAL NOTICE (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G)(Mudd, Charles)

EXHIBIT A

Case 3:10-cv-00093-JPB -JES Document 44

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

WEST COAST PRODUCTIONS, INC.,
Plaintiff,
v.

CIVIL ACTION NO. 3:10-CV-93
(BAILEY)

DOES 1-2010,
Defendants.
ORDER
Plaintiff West Coast Productions, Inc. is the alleged owner of the copyright of the
hardcore pornographic film “Bomb Ass White Booty 14.” The plaintiff brought this suit for
copyright infringement against John Does 1-2010, individuals who allegedly illegally
downloaded and distributed “Bomb Ass White Booty 14.” When the suit was filed, the
plaintiff did not know the names of the alleged infringers, but had identified the Internet
Protocol (“IP) addresses of the computers associated with the infringement. To discover
the actual names of the Doe defendants in this case, the plaintiff subpoenaed the Internet
Service Providers (“ISPs”) who provide service to the identified IP addresses, and the ISPs
gave notice to their customers of the subpoena.
Upon inspection of the Complaint [Doc. 1] in the above-captioned case, however,
this Court now finds that the Doe defendants have been improperly joined. For the reasons
outlined below, the Court finds that all defendants except Doe 1 should be SEVERED from
this action.
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DISCUSSION
I.

Applicable Joinder
Federal Rule 20(a)(2) of Civil Procedure allows a plaintiff to join multiple defendants

in one action 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.
To remedy improperly joined parties, the court should not dismiss the action outright,
but “the court may at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21. The
court may act upon motion by a party or sua sponte. Id.
II.

Analysis
In its Complaint, the plaintiff appears to allege that joinder is based upon the Does’

use of some of the same ISPs and some of the same peer-to-peer (“P2P”) networks to
infringe the same copyright. (See [Doc. 1] at ¶¶ 3-5). “However, merely committing the
same type of violation in the same way does not link defendants together for purposes of
joinder.” Laface Records, LLC, v. Does 1-38, 2008 WL 544992, *2 (E.D. N.C. Feb. 27,
2008).
Moreover, several courts agree that where there is no allegation that multiple
defendants have acted in concert, joinder is improper. See BMG Music v. Does 1-4, 2006
U.S. Dist. LEXIS 53237, *5-6 (N.D. Cal. July 31, 2006) (sua sponte severing multiple
defendant in action where only connection between them was allegation they used same
ISP to conduct copyright infringement); Interscope Records v. Does 1-25, 2004 U.S. Dist.
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LEXIS 27782, *19 (M.D. Fla. Apr. 1, 2004 (magistrate judge recommended sua sponte
severance of multiple defendants in action where only connection between them was
allegation they used same ISP and P2P network to conduct copyright infringement).
Accordingly, this Court finds that the defendants’ alleged use of some of the same ISPs
and P2P networks to commit copyright infringement is, without more, insufficient for
permissive joinder under Rule 20.1
Further evidence of misjoinder is found in the undeniable fact that each defendant
will also likely have a different defense.

One district court finding improper joinder

explained it this way:
Comcast subscriber John Doe 1 could be an innocent parent whose internet
access was abused by her minor child, while John Doe 2 might share a
computer with a roommate who infringed Plaintiffs’ works. John Does 3
through 203 could be thieves, just as Plaintiffs believe, inexcusably pilfering
Plaintiffs’ property and depriving them, and their artists, of the royalties they
are rightly owed.
BMG Music v. Does 1-203, 2004 WL 953888, *1 (E.D. Pa. Apr. 2, 2004).
For this reason also, the Court finds joinder in this case improper. However, insofar
as Rule 21 states that misjoinder of parties is not a ground for dismissing an action, this
Court will not dismiss the Doe defendants. Instead, following Rule 21, this Court chooses
the route of severance. In fact, this Court will sever all Doe defendants except Doe 1. See
BMG Music v. Does 1-203, 2004 WL 953888 (E.D. Pa. Apr. 2, 2004) (upon motion for
reconsideration, court upheld its sua sponte order of severance of all but one Doe
defendant). Because all claims except Doe 1, whose ISP is AT&T WorldNet Services, will

1

In fact, in this case the plaintiff alleges that nineteen (19) ISPs were used. (See
[Doc. 1-1]. This allegation makes the propriety of joinder even more tenuous.
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be severed from this action, the subpoenas served in this action pertaining to any other
Doe defendant are no longer valid.
CONCLUSION
For the foregoing reasons, the Court finds that:
1.

All defendants except Doe 1 are hereby SEVERED from this action;

2.

The subpoenas served on AT&T WorldNet Services, Charter Communications,
Clearwire Corporation, Comcast Cable, Cox Communications, EarthLink, Frontier
Communications, Insight Communications Company, Optimum Online, Qwest
Communications, RCN Corporation, Road Runner, Road Runner Business, Sprint,
Sprint PCS, Time Warner Telecom, Verizon Internet Services, WideOpenWest, and
Windstream Communications are hereby QUASHED as to the severed defendants,
Does 2-2010. In this regard, the plaintiff SHALL NOTIFY the recipients of these
subpoenas that said subpoenas have been quashed.

3.

Plaintiff West Coast Productions, Inc. MAY, within thirty (30) days, file individual
amended complaints2 and submit filing fees for those defendants against whom they
wish to proceed;

4.

Upon election to proceed, Plaintiff’s Counsel SHALL SUBMIT to the Clerk of the

2

These amended complaints shall proceed only against Does with IP addresses of
computers located within the State of West Virginia. According to testimony presented to
the Court, there is a publicly-available website that allows the plaintiff to determine the
physical location of each Doe’s computer at the time of the alleged copyright infringements.
Specifically, Craig Goldberg, who supervises Time Warner Cable, Inc.’s subpoena
compliance team, testified that the physical location of any IP address can be determined
from a simple Google search. (Nov. 30, 2010, Hearing Transcript, at 21-26). Moreover,
it appears to the Court that the search for Does from West Virginia can be narrowed by
eliminating the Does with ISPs that do not provide internet service within the State.
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Court filing fees for each of the amended complaints against John Does 2-2010,
which cases shall be assigned separate civil action numbers;
5.

Civil Action No. 3:10-CV-93 SHALL BE assigned to John Doe No. 1 as an individual
defendant. The actions against all other defendants will be deemed to have been
filed as of September 24, 2010, the date of the filing of the original Complaint; and

6.

The pending motion [Doc. 7], as well as any filings that can be construed as
motions, in Civil Action No. 3:10-CV-93 are hereby DENIED AS MOOT.
It is so ORDERED.
The Clerk is hereby directed to transmit copies of this Order to counsel of record and

mail a certified copy to each interested party of record.
DATED: December 16, 2010.

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