Media Products, Inc. v. Does 1 - 175

Filing 11

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: In accordance with the foregoing, the claims against all of the "Doe" defendants are severed and all claims, except those against "Doe #1," are hereby DISMISSED without prejudice. So ordered." (Moore, Kellyann)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
MEDIA PRODUCTS, INC.,
)
Plaintiff,
)
Civil No.
)
12-11722-NMG
v.
)
)
DOES 1-175,
)
Defendants.
)
___________________________________)
MEMORANDUM & ORDER
GORTON, J.
This case is one of several copyright infringement actions
brought in this district by adult film producers against large
numbers of “Doe” defendants.1

The plaintiffs’ filings in these

cases are virtually identical and have been brought by the same
attorney.

On November 30, 2012, following the lead of other

sessions of this Court, this session ordered plaintiff to show
cause why its claims against each “Doe” defendant ought not be
severed under Fed. R. Civ. P. 20 and 21.
Having reviewed plaintiff’s response, this Court adopts the
reasoning ably propounded by Judge Saylor in New Sensations, Inc.
v. Does 1-175, Civ. No. 12-11721, 2012 WL 5389921 (D. Mass.

1

See, e.g. New Sensations, Inc. v. Does 1-175, Civ. No. 12-11721 (D.
Mass.), New Sensations, Inc. v. Does 1-83, Civ. No. 12-10944 (D. Mass.); Third
Degree Films v. Does 1-72, Civ. No. 12-10760 (D. Mass.); SBO Pictures v. Does
1-41, Civ. No. 12-10804 (D. Mass.); Third World Media, LLC v. Does 1-21, Civ.
No. 12-10947 (D. Mass.); PW Productons, Inc. v. Does 1-19, Civ. No. 12-10814
(D. Mass.); Paradox Pictures v. Does 1-20, Civ. No. 12-10815 (D. Mass.).

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November 2, 2012), which addresses substantially all of the
arguments raised by plaintiff.

The Court concludes that, for the

same reasons, joinder is neither proper under Rule 20(a), nor
advisable under Rule 20(b), and will exercise its discretion
under Rule 21 and sever all John Does except John Doe #1.
I.

Background
Plaintiff, Media Products, Inc. (“MPI”), is a California

corporation and the owner of the copyright for the pornographic
motion picture at issue in his Complaint.

Plaintiff avers that

each of the 175 Doe defendants has infringed plaintiff’s
copyright by “reproduc[ing] and/or distribut[ing] to the public,
at least a substantial portion of the Motion Picture.”

Plaintiff

alleges that other infringers using defendants’ Internet accounts
through “peer to peer” network BitTorrent also have illegally
reproduced the copyrighted work. Id.

The Doe defendants are

unknown to plaintiff, other than by the IP address assigned to
him or her by an Internet Service Provider (“ISP”).
As detailed in the New Sensations, Inc. decision, plaintiff
alleges that the “Doe” defendants are part of the same “swarm” of
BitTorrent users, meaning that the version of the copyrighted
work illegally downloaded by each “Doe” defendant may be traced
to the same file.

As such, plaintiff contends that its claims

against the “Doe” defendants ought to be joined because they
arise from the same transaction.

Plaintiff also avers that the

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175 “Doe” defendants identified are located within this judicial
district.
II.

Analysis
This Court joins in the reasoning set down by Judge Saylor

in New Sensations, Inc. and concludes that joinder of Does 2 175 is neither proper nor advisable under Rule 20. See 2012 WL
5389921, at *2-5.

To paraphrase that analysis but render it

relative to this case:
(1) because many “Doe” defendants participating in the
“swarm” are outside the district, in practice it would be
difficult to prove that each “Doe” defendant joined here
actually uploaded or downloaded a piece of the
copyrighted work from even one of the other “Doe”
defendants joined, and therefore plaintiff cannot prove
that each defendant is not merely committing the same
infringing activity in the same way, as Judge Spero found
insufficient in Hard Drive Productions, Inc. v Does 1188, 809 F. Supp. 2d 1150, 1157 (N.D. Cal. 2011);
(2) the “Doe” defendants are likely to have distinct
defenses based upon “particular operative facts,”
suggesting that under the “aggregate facts” test
sometimes employed joinder is also improper;
(3) those distinct defenses will result in multiple
“mini-trials” within the same case that reduce or
eliminate the judicial resources saved by joining them in
the same action; and
(4)
plaintiff
has
other
legal
or
technological
protections that it can pursue against “Doe” defendants
2 - 175 after they are severed, such that plaintiff’s
“piracy wins” policy argument is unpersuasive.

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ORDER
In accordance with the foregoing, the claims against all of
the “Doe” defendants are severed and all claims, except those
against “Doe #1,” are hereby DISMISSED without prejudice.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated May 21, 2013

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