Cobbler Nevada, LLC v. Does 1-30
Filing
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OPINION AND ORDER severing Doe Defendants 2-30 and granting in part and denying in part 2 Motion for leave to serve third party subpoenas as to Doe defendants. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COBBLER NEVADA, LLC,
Plaintiff,
Case No. 15-12771
vs.
Paul D. Borman
United States District Judge
DOES 1-30,
Defendant.
_______________________________________/
OPINION AND ORDER (1) SEVERING DOE DEFENDANTS 2-30; AND
(2) GRANTING IN PART PLAINTIFF’S MOTION FOR LEAVE TO SERVE THIRD PARTY
SUBPOENAS AS TO DOE DEFENDANT 1 (ECF NO. 2)
On August 6, 2015, Plaintiff Cobbler Nevada, LLC filed an action against thirty Doe
Defendants, identified only by their subscriber Internet Protocol addresses (“IP addresses”),
alleging that these Doe Defendants unlawfully downloaded and/or shared Plaintiff’s copyrighted
motion picture “The Cobbler”. (ECF No. 1). The same day, Plaintiff filed a Motion for Leave to
Serve a Third-Party Subpoenas Prior to a Rule 26(f) Conference. (ECF No. 2). In the Motion
for Leave to Serve Third-Party Subpoenas, Plaintiff seeks to discover information regarding the
thirty Doe Defendants’ identities through subpoenas to the Internet Service Providers (“ISP”)
associated with the Doe Defendants’ IP addresses.
For the reasons set forth below, the Court finds that Doe Defendants 2-30 are improperly
joined to this action and SEVERS them pursuant to Federal Rule of Civil Procedure 21. Further,
the Court will grant in part Plaintiff’s Motion for Leave to a Serve Third-Party Subpoena Prior to
a Rule 26(f) Conference as to Doe Defendant 1.
I. BACKGROUND
Historically, in these copyright infringement actions involving peer-to-peer (“P2P”) file
sharing technology, the copyright holders would sue the networks themselves, i.e. Napster.1 See
Evan Hoole, Comment, An Uncomfortable Threesome: Permissive Party Joinder, BitTorrent,
and Pornography, 63 Emory L.J. 1211, 1220-21 (2014). However, as file sharing technology
has progressed, this litigation strategy became more tenuous and difficult. As a result, the
copyright holders began to sue the individual users of P2P networks, at times suing “hundreds,
and even thousands, of users in a single suit.” Id. (citation omitted).
The most recent and popular type of P2P network is called “BitTorrent.” BitTorrent
allows a large number of peers to quickly share large files by breaking up the files into thousands
of pieces. “BitTorrent protocol works by facilitating the distribution of data between users,
allowing them to exchange pieces of a file with one another so that they can eventually assemble
those pieces into a complete copy of that file.” Sean B. Karunaratne, Note, The Case Against
Combating BitTorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits, 111
Mich. L. Rev. 283, 289 (2012). The process begins with a “tracker” which helps peers locate
other peers offering the desired movie or content and then a “swarm” of peers join together in
the downloading the file. The swarm includes both “leechers,” who are in the process of
downloading bits of the file, and “seeds,” who are peers that have a complete copy of the desired
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“P2P technology is a ‘software architecture’ that allows for the ‘decentralized’ sharing
of data files” with the individual computers connecting to one another to download stored files
rather than connecting to a centralized server.” Evan Hoole, Comment, An Uncomfortable
Threesome: Permissive Party Joinder, BitTorrent, and Pornography, 63 Emory L.J. 1211, 1216
(2014).
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file. Id. “The key difference between BitTorrent and other peer-to-peer file-sharing systems is
that BitTorrent makes file sharing a cooperative endeavor.” Id. at 290. Thus, copyright holders
have pursued the mass lawsuit model that was rejected by courts in earlier P2P litigation on the
basis that the joinder of many defendants in copyright actions involving BitTorrent networks or
swarms is proper because their claims arise out of the same transaction, occurrence or series of
transactions or occurrences as required under Fed. R. Civ. P. 20(a)(2). Id.
District Court Judge Thomas L. Ludington has summarized BitTorrent technology:
Briefly, here's how BitTorrent works. A file transfer begins “when one user
accesses the Internet through an ISP and intentionally makes a digital file of a
work available to the public from his or her computer. This file is referred to as
the first ‘seed.’ Other users, who are referred to as ‘peers,’ then access the
Internet and request the file. These users engage each other in a group, referred to
as a ‘swarm,’ and begin downloading the seed file. As each peer receives portions
of the seed, that peer makes those portions available to other peers in the swarm.”
Pac. Century Int'l, Ltd. v. Does 1-48, C 11-3823 MEJ, 2011 WL 4725243, at *3 n.
1 (N.D.Cal. Oct.7, 2011) (internal citations omitted).
Patrick Collins, Inc. v. John Does 1-28, No. 12-13670, 2013 WL 359759, *3 (E.D. Mich. Jan 29,
2013). “BitTorrent’s key, as noted, is reciprocity–a peer not only downloads but automatically
uploads pieces to other peers.” Id. “To keep the torrent operating at maximum capacity, the
BitTorrent protocol uses a process called pipelining. Every active peer in a torrent maintains a
continuously refreshed queue of requests for pieces, so that no connection is ever left idle after
any one piece is downloaded.” Id. (citation omitted).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 20(a)(2) allows the joinder of 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
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(B) any question of law or fact common to all defendants will arise in the action.” FED. R. CIV.
P. 20(a)(2). “The purpose of [Rule 20] is to promote trial convenience and expedite the final
determination of disputes, thereby preventing multiple lawsuits. Single trials generally tend to
lessen the delay, expense and inconvenience to all concerned.” Patrick Collins, Inc. v. John
Does 1-21, 282 F.R.D. 161, 166 (E.D. Mich. 2012) (citation omitted), report and
recommendation adopted, 11-15232, 286 F.R.D. 319, 2012 WL 4498373 (E.D. Mich. Sept. 28,
2012). The remedy for improper joinder is severance under Rule 21, pursuant to which “the
court may at any time, on just terms, add or drop a party. The court may also sever any claim
against a party.” FED. R. CIV. P. 21.
“The transaction or occurrence test of Rule 20(a) ‘is similar to the transaction-or[-]
occurrence test of Rule 13(a) for compulsory counterclaims, which has been construed as
requiring a ‘logical relationship’ between the claims.’” Patrick Collins, Inc. v. John Does 1-28,
No. 12-13670, 2013 WL 359759, * 5 (E.D. Mich. Jan 29, 2013) (quoting In re EMC Corp., 677
F.3d 1351, 1356 (Fed. Cir. 2012)). “The logical relationship test is satisfied if there is
substantial evidentiary overlap in the facts giving rise to the cause of action against each
defendant. In other words, the defendants’ allegedly infringing acts, which give rise to the
individual claims of infringement, must share an aggregate of operative facts.” In re EMC
Corp., 667 F.3d at 1356. However, “even if a plaintiff’s claims arise out of the same transaction
and there are questions of law and fact common to all defendants, ‘district courts have the
discretion to refuse joinder in the interest of avoiding prejudice and delay, ensuring judicial
economy, or safeguarding principles of fundamental fairness.’” Id. at 1360 (quoting Acevedo v.
Allsup’s Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010)).
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III. ANALYSIS
A.
Different Approaches in this District
In two previous actions involving BitTorrent technology in which multiple Doe
defendants were named this Court granted the plaintiffs’ motions for leave to serve third-party
subpoenas prior to Rule 26(f) conferences and did not reach the issue of whether joinder was
proper. See TCYK, LLC v. John Does 1-9, No. 13-14322, ECF No. 9; Patrick Collins v. Does 130, No. 11-15236, ECF No. 7. However, in light of the most recent proliferation of cases filed in
this district involving BitTorrent technology and in recognition of the split in this district
regarding whether a single swarm may justify joinder, the Court finds it appropriate to formally
address whether joinder in this action is justified.
As noted above, there is a split in this District regarding the treatment of motions seeking
leave to serve third-party subpoenas in BitTorrent litigation in advance of a Rule 26 conference.
Faced with such a motion courts will either: (1) allow the permissive joinder of multiple Doe
defendants and grant the motion for leave to serve third-party subpoenas, or (2) find joinder of
multiple Doe defendants improper and/or deny the motion for leave to serve third-party
subpoenas.
The majority of the judges in this District find the joinder of multiple Doe Defendants
permissible and grant the motions seeking leave to serve third-party subpoenas. In the oft cited
case of Patrick Collins, Inc. v. John Does 1-28, No. 12-13670, 2013 WL 359759 (E.D. Mich. Jan
29, 2013), after allowing the plaintiff to serve third-party subpoenas, three Doe defendants
moved to quash the subpoenas and sever and Judge Ludington addressed the issue of whether the
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Doe defendants were properly joined to the action after. Patrick Collins, Inc. v. John Does 1-28,
No. 12-13670, 2013 WL 359759, * 5 (E.D. Mich. Jan 29, 2013).
Judge Ludington denied the motions to sever and reasoned that:
in the universe of possible transactions, at some point, each Defendant
downloaded a piece of the Movie, which had been transferred through a series of
uploads and downloads from the Initial Seeder, through other users or directly, to
each Defendant, and finally to IPP [plaintiff’s investigator].
Therefore, each Defendant is logically related to every other Defendant because
they were all part of a series of transactions linked to a unique Initial Seeder and
to each other. This relatedness arises not merely because of their common use of
the BitTorrent protocol, but because each Defendant affirmatively chose to
download the same Torrent file that was created by the same initial seeder,
intending to: 1) utilize other users’ computers to download pieces of the same
Movie, and 2) allow his or her own computer to be used by other peers and
Defendants in the same swarm.
Id. (quoting Patrick Collins, Inc. v. John Does 1-21, 282 F.R.D. 161, 165 (E.D. Mich. 2012),
report and recommendation adopted, 11-15232, 286 F.R.D. 319, 2012 WL 4498373 (E.D. Mich.
Sept. 28, 2012)).
Then Magistrate Judge, now District Court Judge, Laurie Michelson also held that
joinder of multiple Doe defendants in a BitTorrent action was permissible under Rule 20(a)(2) in
Third Degree Films v. Does 1-36, No. 11-15200, 2012 WL 2522151 (E.D. Mich. May 29, 2012).
Judge Michelson concluded that there was clearly a common question of law or fact as to all
defendants that would arise in the action and then went on to examine whether the plaintiff had
adequately pled a right to relief against defendants arising from the same series of transactions or
occurrences. Id. at *4-5. She concluded that “the question in this case is whether Plaintiff has
sufficiently pled that each defendant’s act of infringement– downloading and uploading pieces of
a digital version of the Work – share ‘an aggregate of operative facts’ or, restated, whether
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Plaintiff has sufficiently pled ‘shared, overlapping facts’ giving rise to the claim of infringement
against each of the defendants.” Id. at * 5 (quoting In re EMC Corp., 677 F.3d 1351, 1358). The
court acknowledged that while it was likely that the defendants did not directly upload to or with
each other during the swarm (which lasted 69 days), the nature of a BitTorrent swarm is such
that “while a peer directly uploads to only a small number of peers, those peers in turn upload
pieces to other peers that later join the swarm. Thus, a defendant’s ‘generation’ of peers – peers
that a defendant likely directly uploaded to – helped pass on pieces of the Work to the next
‘generation’ of active peers.” Id. at *9. Accordingly, Judge Michelson concluded that “it is
beyond dispute that the initial seeder indirectly uploaded pieces of the Work to every peer in the
swarm – no matter when they joined.” Id. (citation omitted).2
On the other hand, other courts in this District have held that multiple Doe defendants
were improperly joined in BitTorrent infringement actions because allegations that the Doe
defendants participated in the same BitTorrent “swarm” were not sufficient to plausibly show
that the defendants were engaged in the same transaction or occurrence or series of transactions
or occurrences under Rule 20(a)(2).
For example, in Patrick Collins, Inc. v. John Does 1-23, No. 11-15231, 2012 WL
1019034 (E.D. Mich. Mar. 26, 2012), District Court Judge George Caram Steeh granted a
motion to quash in part and severed Doe defendants 2-23. Judge Steeh noted that the alleged
swarm activity involved 23 different defendants, 4 different ISPs, and the “swarm” lasted nearly
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However, this will not always be true of “swarm” behavior, as there are possible
scenarios in which the earlier behavior of a peer does not contribute to or “pave the way for later
participants to obtain the file.” Karunaratne, 111 Mich. L. Rev. at 295-96 (setting forth
examples).
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three months. Id. at *3. Judge Steeh concluded that earlier P2P file sharing cases were
analogous and held that it was implausible that the defendants ever connected with each other
given the three month time span of the swarm. Id. Judge Steeh further explained:
plaintiff’s complaint is devoid of any information concerning the number of users
in the swarm involved, which easily can reach numbers in the hundreds of
thousands. The nature of the BitTorrent protocol enables its users to share files in
a relatively quick time frame, ranging anywhere from fifteen minutes to a few
hours. The absence of information concerning the number of total users in the
swarm, coupled with the BitTorrent protocol’s ability to quickly share files
further demonstrates that it is implausible that any of the Doe defendants were
simultaneously sharing pieces of Plaintiff’s work.
Patrick Collins, No. 11-15231, 2012 WL 1019034, at * 4. Accordingly, because the allegations
did not plausibly allege that the Doe defendants had done anything more than merely use the
same file-sharing network to illegally download the same copyrighted work, the BitTorrent
action was indistinguishable from earlier P2P technology cases finding such claims insufficient
for proper joinder under Rule 20. Id. Judge Steeh further noted that the nature of a BitTorrent
infringement action “inevitably produces varying defenses that require severance.” Id. at * 5.
Thus, one could surmise that allowing such a joinder would create problems in case
manageability.
Judge Steeh also disagreed with other district courts which had held that the joinder issue
should be addressed after the Doe defendants were identified, holding that where a court has
determined that Doe defendants were improperly joined, “allowing plaintiff to proceed with its
lawsuit until the Doe defendants have been identified will pervert the joinder rules” and
ultimately encourage similar plaintiffs to improperly join defendants, and result in “lost revenue
of perhaps millions of dollars” to the courts through lost filing fees. Id. at *5 (citation omitted).
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District Court Judge David Lawson recently denied motions for leave to serve third-party
subpoenas in two cases also alleging copyright infringement of “The Cobbler.” Judge Lawson’s
order denying the motion noted that “the plaintiff has made no showing in any of its filings that
its attempt to join the [thirty] unidentified defendants named as Does 1-30 is procedurally
proper, because it has not cited any facts to suggest that the defendants were in any way involved
in the same transaction or occurrence, or even in any vaguely related series of transactions or
occurrences. FED. R. CIV. P. 20(a)(2)(A).” Cobbler Nevada, LLC v. Does 1-30, No. 15-11872,
ECF No. 4 (citing AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 998 (D.C. Cir. 2014)); see
also Cobbler Nevada, LLC v. Does 1-16, No. 15-12773, ECF No. 4 (Lawson, J., dismissing same
motion for same reasons).
District Court Judge Arthur Tarnow was assigned two cases involving the alleged
copyright infringement of “The Cobbler” and sua sponte severed all but the first Doe defendant
in each action. See Cobbler Nevada, LLC v. Does 1-20, No. 15-11853, ECF No. 5, Order
severing Defendant Does 2-20; see also Cobbler Nevada, LLC v. Does 1-30, No. 15-12781, ECF
No. 2, Order severing Defendant Does 2-30. In Judge Tarnow’s order severing all but the first
Doe defendant, he explained:
The question of whether participation in a single swarm justifies joinder “has
divided the courts, including judges of the Federal District Court for the Eastern
District of Michigan.” Patrick Collins, Inc. v. John Does 1-28, No. 12-13670,
2013 WL 359759, at *1 (E.D. Mich. Jan. 29, 2013) [(Ludington, J.)]. This Court
has previously contributed to the debate, holding defendants’ alleged participation
in a single swarm insufficient to satisfy Rule 20(a)(2)’s transaction or occurrence
requirement.
Cobbler Nevada, LLC v. Does 1-30, No. 15-12781, ECF No. 2, at * 2 (citation omitted). In his
Order, Judge Tarnow relied upon Judge Steeh’s analysis in Patrick Collins, examined above, and
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also upon three law review articles examining the subject. See Christopher Civil, Mass
Copyright Infringement Litigation: Of Trolls, Pornography, Settlement, and Joinder, 30
Syracuse J. Sci. & Tech. L. Rep. 2 (2014); Evan Hoole, Comment, An Uncomfortable
Threesome: Permissive Party Joinder, BitTorrent, and Pornography, 63 Emory L.J. 1211
(2014); Sean B. Karunaratne, Note, The Case Against Combating BitTorrent Piracy Through
Mass John Doe Copyright Infringement Lawsuits, 111 Mich. L. Rev. 283 (2012). Judge Tarnow
concluded that “[e]ven if Plaintiff had shown that certain defendants had participated in the
swarm simultaneously for some period of time, the Court would be forced to speculate as to
whether they contributed to each other’s downloading, since each active member of a swarm is
connected only to a small subset of the other members at any given time.” Cobbler Nevada, No.
15-12781, ECF No. 2, at * 3 (citing Hoole, supra, at 1241).
B.
Present Action
The Court finds that for the reasons articulated by Judge Steeh in Patrick Collins, No. 1115231, 2012 WL 1019034, *4-5 and Judge Tarnow in Cobbler Nevada, No. 15-12781, at *2-4
(Order Severing Doe Defendants), defendants’ alleged participation in a single “swarm” is
insufficient to satisfy Rule 20(a)(2)’s transaction or occurrence requirement. The Court
concludes that Plaintiff has failed to satisfy Rule 20(a)(2) because Plaintiff’s allegations cannot
suffice to show a logical relationship between the defendants because it is possible that any one
defendant’s activity did not actually affect or pave the way for a later defendant to download the
copyrighted work. See Cobbler Nevada, No. 15-12781, ECF No. 2, at 3 (Tarnow, J.); see also
Karunaratne, 111 Mich. L. Rev. at 295-96 (setting forth examples of “swarm” behavior). Thus,
Plaintiff’s allegations merely evidence that the defendants all used the same file sharing network
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to commit infringement of the same copyrighted work and such claims are analogous to the
previous P2P actions where courts found such allegations insufficient to sustain permissive
joinder. Additionally, the Court finds that the very nature of a BitTorrent infringement will
“inevitably produce[] varying defenses that require severance.” Patrick Collins, No. 11-15231,
2012 WL 1019034, at * 5. Accordingly, the Court will SEVER Doe Defendants 2-30 from the
present action pursuant to Rule 21.
The Court will also grant in part Plaintiff’s motion for leave to serve third-party
subpoenas prior to a Rule 26(f) conference. The Court finds that Plaintiff has shown good cause
for early discovery as to Doe Defendant 1 by stating a plausible claim for copyright infringement
and specifically identifying the discovery sought. Further, the Court finds that Doe Defendant 1
does not have a reasonable expectation of privacy in his or her internet subscriber information.
See Safety Point Prods., LLC v. Does 1-57, No. 3:12-cv-601, 2013 WL 1398585, *2 (E.D. Tenn.
Apr. 5, 2013) (noting that “federal courts have consistently held that internet subscribers do not
have a reasonable expectation of privacy in their subscriber information – including their name
and address – as they have already conveyed such information to their ISPs.”). The Court also
finds that the information sought by Plaintiff is necessary to prosecute the Plaintiff’s claim and
otherwise unavailable. Additionally, the information is narrowly tailored such that:
(1)
Plaintiff shall attach a copy of this Order to the subpoena it issues to Doe
Defendant 1’s ISP;
(2)
Plaintiff’s subpoena to the ISP may seek only the following information regarding
Doe Defendant 1:
(A)
Full name, and
(B)
Residential address.
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(3)
Within seven (7) days of its receipt of the subpoena, the ISP shall reasonably
attempt to identify the subject Doe Defendant subscriber and provide him or her
with a copy of the subpoena and this Order.
(4)
The ISP shall have twenty-one (21) days from the service of the subpoena to
quash or otherwise object to the subpoena. Defendant Doe 1 shall have fourteen
(14) days from the receipt of the subpoena from the ISP to move to quash or
otherwise object to the subpoena. The ISP shall preserve any subpoenaed
information pending the resolution of any timely filed motion to quash. If no
motion to quash is filed by either the ISP or Doe Defendant 1 within the time
periods prescribed herein, the ISP shall produce to Plaintiff the information
identified in Paragraphs 2(A) and (B) above.
IV. CONCLUSION
For the reasons set forth above, the Court SEVERS Doe Defendants 2-30 from the
present action. The Court also GRANTS IN PART Plaintiff’s Motion for Leave to Serve a
Third-Party Subpoena Prior to a Rule 26(f) Conference as to Doe Defendant 1 (ECF No. 2).
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: December 1, 2015
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on December 1, 2015.
s/Deborah Tofil
Case Manager
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