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 F

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u.s. DISTRICT COURT
NORTI:IERN DISTRICT OF TEXAS
UNITED STATES DISTRICT CURT
NORTHERN DISTRICT OF TE
S
DALLAS DIVISION

LFP INTERNET GROUP LLC,
Plaintiff,

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FILED

FEB I 0 2011

CLERK, U.S.·
By

Civil No.1 0-cv-2095-F

v.

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DOES 1-3,120,
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Defendants,
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ORDER SEVERING DOES 2-3,120; QUASHING SUBPOENAS; AND
DISMISSING ALL PENDING MOTIONS AS MOOT

Plaintiff, LFP Internet Group, LLC, filed its Original Complaint on October 17,2010,
against Does 1-3,120 alleging copyright infringement of the motion picture, "This Ain't
Avatar XXX," via the internet. When Plaintiff filed the suit it did not know the names ofthe
alleged infringers, but had identified the Internet Protocol ("IP") addresses assigned to each
Defendant by his or her Internet Service Provider ("ISP"). To discover the actual names of
the Doe Defendants in this case, Plaintiff filed a Motion for Leave to Take Discovery Prior
to Rule 26(f) Conference, which the Court granted. See Docket No.8. Plaintiff subpoenaed
the ISPs who provide service to the identified IP addresses seeking information sufficient to
identify each Doe Defendant, including their names, current (and permanent) addresses,
telephone numbers, email addresses, and Media Access Control addresses. This case was
transferred to this Court on January 26, 2011. See Docket No. 40.

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Upon inspection ofPlaintiff' s Complaint, the Court finds that Doe Defendants 2-3,120
have been improperly joined. For the reasons stated below, the Court finds that all
Defendants except Doe 1 should be SEVERED from this action.
DISCUSSION
In its Complaint, Plaintiff alleges that "Defendants collectively participated, via the
internet, in the unlawful reproduction and distribution of Plaintiffs copyrighted motion
picture, 'This Ain't Avatar XX¥, , by means of file transfer technology called, BitTorrent."
Docket No.1 at 1-2. According to the Complaint, the BitTorrent software allows a user to
log onto a private website, select a reference file containing the desired movie, and load that
reference file onto a computer program designed to read such files. After the reference file
is loaded, the BitTorrent program is able to employ the BitTorrent protocol to initiate
simultaneous connection to hundreds of other users possessing and "sharing" copies of the
digital media in the reference file, in this case, Plaintiff s motion picture. The program then
coordinates the copying ofthe film to the user's computer from the other users "sharing" the
film. As the film is being copied to the user's computer, the downloaded pieces are
immediately made available to other users seeking to obtain the file. Plaintiff alleges that
this is how each Defendant simultaneously reproduced and/or distributed the motion picture.
However, there are no allegations in Plaintiff s Complaint that the Defendants are in
any way related to each other, or that they acted in concert or as a group in their allegedly
offending actions. The Complaint only alleges that "each Defendant, without the permission

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or consent of the Plaintiff, has used, and continues to use, BitTorrent software to reproduce
and/or distribute Plaintiffs motion picture to hundreds of other BitTorrent users." Docket
No.1 at 5. The Federal Rules of Civil Procedure provide that multiple parties may 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.
Fed. R. Civ. P. 20 (a)(2).
Plaintiff makes no allegation in this case that the claims against the joined defendants
"arise out of the same transaction, occurrence, or series of transactions or occurrences."
Instead, it seems that the copyright infringement claim against each Defendant is based on
the individual acts of each Defendant. Plaintiff only alleges in its Complaint that each
defendant uses the same method for committing the infringement, but "merely committing
the same type ofviolation in the same way does not link defendants together for purposes of
joinder." West Coast Prods., Inc. v. Does 1-535, No. 3:10-CV-94 (N.D. W. Va. Dec. 16,
2010) (order severing all defendants from action except Doe 1) (quoting La/ace Records,
LLC v. Does 1-38,2008 WL 544992, *2 (E.D.N.C. Feb. 27, 2008)).
In fact, several courts agree that where there is no allegation that multiple defendants
have acted in concert, joinder is improper. See, e.g. Fonovisa Inc. et al. v. Does 1-41, No.
A-04-CA-550-L Y (W.D. Tex. Nov. 17,2004) (sua sponte dismissing without prejudice all
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but the first defendant in several cases filed by recording companies against numerous Does
accused of violating federal copyright laws by downloading music from an "online media
distribution system"); BMG Music v. Does 1-4, 2006 U.S. Dist. LEXIS 53237, *5-6 (N.D.
Cal. July 31,2006) (sua sponte severing mUltiple defendants in action where only connection
between them was allegation they used same ISP to conduct copyright infringement).
Accordingly, the Court finds that Defendants' alleged use ofthe BitTorrent software system
to commit copyright infringement is, without more, insufficient for permissive joinder under
Rule 20.
Additionally, permissive joinder is improper in this case because each Defendant will
also likely have a different defense. Another 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.

West Coast Prods., Inc., No. 3:1O-CV-94 (quoting BMG Music v. Does 1-203, 2004 WL
953888, * 1 (E.D. Pa. Apr. 2, 2004». Therefore, the Court finds joinder of Defendants 23,120 in this case improper.
However, Federal Rule ofCivil Procedure 21 states that "[m]isjoinder ofparties is not
a ground for dismissing an action. On motion or on its own, the court may at any time, onjust
terms, add or drop a party. The court may also sever any claim against a party." Fed. R.
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Civ. P. 21. Accordingly, the Court will sever all Defendants from this case except Doe 1.
Because all claims except Doe 1will be severed from this action, the subpoenas served in this
action pertaining to any other Defendant's ISP are no longer valid. Additionally, the Court
is ofthe opinion that the subpoena served pertaining to Doe 1 should be quashed pending this
Court's determination as to whether an attorney ad litem should be appointed to protect
Doe l' s interests.
CONCLUSION

For the forgoing reasons, the Court ORDERS that:
(1) All Defendants except Doe 1 are hereby SEVERED from this action;
(2) The subpoenas served on the ISPs listed in Exhibit A of Plaintiffs Complaint
(Docket No.1-I) are hereby QUASHED as to all Defendants, Does 1-3,120. Plaintiff
SHALL IMMEDIATELY NOTIFY the recipients of these subpoenas that said subpoenas
have been quashed;
(3) Within 30 days from the date ofthis order, Plaintiff may file individual complaints
against those Does whom they wish to proceed. Upon election to proceed, Plaintiff shall
submit to the Clerk of the Court filing fees for each of the complaints against those Does
whom Plaintiff wishes to proceed. Such cases will be assigned separate civil action numbers
and placed on this Court's docket;
(4) Civil Action No.3: 1O-cv-2095-F shall be assigned to Doe No.1 as an individual
defendant. The actions filed within 30 days of this Order against any other Doe Defendant

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severed from this case, will be deemed to have been filed as of October 17, 2010, the date
of the filing of the original Complaint;
(5) The pending Motion to Quash (Docket No. 24), as well as any filings that can be
construed as motions, in Civil Action No.3: 10-cv-2095-F are hereby DENIED AS MOOT.
The Court DENIES WITHOUT PREJUD ICE Plaintiff s Motion to Compel (Docket No. 41).
because there does not appear to be any objections filed by Doe 1, who is now the only
Defendant in this case, the Court is of the opinion the Motion to Compel is now moot,
however, Plaintiff is free to re-file the Motion to Compel if necessary; and
(6) The Clerk is directed to transmit copies of this Order to counsel of record and
mail a certified copy to each interested party of record.
It is so Ordered.

Signed this

/0 day of February, 2011.
tates District Judge

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