AF Holdings LLC v. Does 1-29

Filing 1

COMPLAINT against Does 1-29, filed by AF Holdings LLC. (Filing fee $ 350 receipt number 4056209) Assigned to Judge John R. Tunheim per Master List and referred to Magistrate Judge Janie S. Mayeron. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet) (akl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

AF HOLDINGS LLC,
CASE NO.
Plaintiff
Judge:
v.
Magistrate Judge:
DOES 1 – 29,
COMPLAINT
Defendants

JURY TRIAL DEMANDED

Plaintiff AF Holdings LLC, through its undersigned counsel, hereby files this Complaint
requesting damages and injunctive relief, and alleges as follows:
NATURE OF THE CASE
1.

Plaintiff files this action for copyright infringement under the United States

Copyright Act and a related civil conspiracy claim under the common law to combat the willful
and intentional infringement of Plaintiff’s copyrighted creative works. Defendants, whose
names Plaintiff expects to ascertain during discovery, illegally reproduced and distributed
Plaintiff’s copyrighted Video by acting in concert via the BitTorrent file sharing protocol and,
upon information and belief, continue to do the same. Plaintiff seeks a permanent injunction,
statutory or actual damages, award of costs and attorneys’ fees, and other relief.
THE PARTIES
2.

Plaintiff, AF Holdings LLC, is a limited liability company organized and existing

under the laws of the Federation of Saint Kitts and Nevis.
3.

The unique copyrighted work at issue in this case is an adult video entitled

“Sexual Obsession” [hereinafter “Video”]. The Video was available for download from well-

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known BitTorrent piracy sites within days of its publication and was among the most popular
adult video downloads on a highly popular BitTorrent site−the appropriately named “Pirate
Bay”.
4.

Defendants’ actual names are unknown and unascertainable to Plaintiff. Instead,

each Defendant is known to Plaintiff only by an Internet Protocol address (“IP address”), which
is a number assigned to devices, such as computers, connected to the Internet. In the course of
monitoring Internet-based infringement of its copyrighted content, Plaintiff’s agents observed
unlawful reproduction and distribution occurring among IP addresses listed on Exhibit A,
attached hereto, via Bit Torrent protocol. Plaintiff believes that the Defendants’ identities will be
revealed in discovery, at which time Plaintiff will seek leave of the Court to amend this
Complaint to identify Defendants. Further, Plaintiff believes that the information gathered in
discovery will allow Plaintiff to identify additional Defendants not listed in the Exhibit A, as
infringement monitoring is ongoing.
JURISDICTION AND VENUE
5.

This Court has subject matter jurisdiction over the copyright infringement claim

under 17 U.S.C. §§ 101, et seq., (the Copyright Act), 28 U.S.C. § 1331 (actions arising under the
laws of the United States), and 28 U.S.C. § 1338(a) (actions arising under an Act of Congress
relating to copyrights). This Court has supplemental jurisdiction over the civil conspiracy claim
under 28 U.S.C. § 1367(a) because it is so related to Plaintiff’s copyright infringement claim,
which is within this Court’s original jurisdiction, that the two claims form part of the same case
and controversy under Article III of the United States Constitution.
6.

This Court has personal jurisdiction because upon information and belief, all

Defendants either reside or committed copyright infringement in the State of Minnesota.
Plaintiff used geolocation technology to trace IP addresses of each Defendant to a point of origin
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within the State of Minnesota. This Court also has personal jurisdiction over non-resident
Defendants under the Minnesota long-arm statute, Minn. Stat. § 543.19 (1)(a), because they
downloaded copyrighted content from or uploaded it to Minnesota residents, thus committing a
tortious act within the meaning of the statute, and because they participated in a civil conspiracy
to commit copyright infringement with Minnesota residents.
7.

Venue is properly founded in this judicial district pursuant to 28 U.S.C.

§§ 1391(b) and/or 1400(a) because Defendants reside in this District, may be found in this
District, or a substantial part of the events giving rise to the claims in this action occurred within
this District.
8.

Joinder of Defendants is proper because all Defendants participated in the same

civil conspiracy to commit copyright infringement, which was comprised of series of
transactions involved in the distribution of the Video. The series of transactions in this case
involved exchanging pieces of the Video file with other Defendants in the group of individuals
who were sharing pieces of the file among one another (i.e. the torrent swarm) to obtain a
complete copy of the Video. The nature of the BitTorrent distribution protocol necessitates a
concerted action by many people in order to disseminate files, such as the Video, and Defendants
intentionally engaged in this concerted action with other Defendants and other yet unnamed
individuals by entering the torrent swarm. The Defendants are properly joined even if they were
not engaged in the swarm contemporaneously because they have contributed to the chain of data
distribution. Defendants also share the same questions of law with respect to copyright
infringement, including but not limited to:
(A) Whether the Plaintiff is the copyright holder of the Video;
(B) Whether “copying” has occurred within the meaning of the Copyright Act;

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(C) Whether entering a torrent swarm constitutes a willful act of infringement;
(D) Whether entering a torrent swarm constitutes a civil conspiracy; and
(E) Whether and to what extent Plaintiff has been damaged by the Defendant’s conduct.
BACKGROUND
9.

BitTorrent is a modern file sharing method (“protocol”) used for distributing data

via the Internet.
10.

Traditional file transfer protocols involve a central server, which distributes data

directly to individual users. This method is prone to collapse when large numbers of users
request data from the central server, in which case the server can become overburdened and the
rate of data transmission can slow considerably or cease altogether. In addition, the reliability of
access to the data stored on a server is largely dependent on the server’s ability to continue
functioning for prolonged periods of time under high resource demands.
11.

In contrast, the BitTorrent protocol is a decentralized method of distributing data.

Instead of relying on a central server to distribute data directly to individual users, the BitTorrent
protocol allows individual users to distribute data among themselves by exchanging pieces of the
file with each other to eventually obtain a whole copy of the file. When using the BitTorrent
protocol, every user simultaneously receives information from and transfers information to one
another.
12.

In BitTorrent vernacular, individual downloaders/distributors of a particular file

are called peers. The group of peers involved in downloading/distributing a particular file is
called a swarm. A server which stores a list of peers in a swarm is called a tracker. A computer
program that implements the BitTorrent protocol is called a BitTorrent client. Each swarm is
unique to a particular file.

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13.

The BitTorrent protocol operates as follows. First, a user locates a small “torrent”

file. This file contains information about the files to be shared and about the tracker, the
computer that coordinates the file distribution. Second, the user loads the torrent file into a
BitTorrent client, which automatically attempts to connect to the tracker listed in the torrent file.
Third, the tracker responds with a list of peers and the BitTorrent client connects to those peers
to begin downloading data from and distributing data to the other peers in the swarm. When the
download is complete, the BitTorrent client continues distributing data to other peers in the
swarm until the user manually disconnects from the swarm or the BitTorrent client otherwise
does the same.
14.

The degree of anonymity provided by the BitTorrent protocol is extremely low.

Because the protocol is based on peers connecting to one another, a peer must broadcast
identifying information (i.e. an IP address) before it can receive data. Nevertheless, the actual
names of peers in a swarm are unknown, as the users are allowed to download and distribute
under the cover of their IP addresses.
15.

The BitTorrent protocol is an extremely popular method for transferring data.

The size of swarms for popular files can reach into the tens of thousands of unique peers. A
swarm will commonly have peers from many, if not every, state in the United States and several
countries around the world. And every peer in the swarm participates in distributing the file to
dozens, hundreds, or even thousands of other peers.
16.

The BitTorrent protocol is also an extremely popular method for unlawfully

copying, reproducing, and distributing files in violation of the copyright laws of the United
States. A broad range of copyrighted albums, audiovisual files, photographs, software, and other
forms of media are available for illegal reproduction and distribution via the BitTorrent protocol.

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17.

Efforts at combating BitTorrent-based copyright infringement have been stymied

by BitTorrent’s decentralized nature. Because there are no central servers to enjoin from
unlawfully distributing copyrighted content, there is no primary target on which to focus antipiracy efforts. Indeed, the same decentralization that makes the BitTorrent protocol an
extremely robust and efficient means of transferring enormous quantities of data also acts to
insulate it from anti-piracy measures.
ALLEGATIONS COMMON TO ALL COUNTS
18.

Plaintiff is the assignee and current owner of all right, title and interest worldwide

in the Video and all proprietary rights therein including, without limitation, all copyrights and all
past and future causes of action with respect to the same.
19.

Upon information and belief, Plaintiff received this assignment from the Video’s

author and/or assignees of the Video’s author.
20.

The Video has been granted a Certificate of Registration from the U.S. Copyright

Office (Reg. # PA0001725120).
21.

The Work is legally available for purchase to bona fide purchasers, but was

obtained by Defendants through illegal distribution means.
22.

Plaintiff employs proprietary peer-to-peer network forensic software to perform

exhaustive real time monitoring of BitTorrent-based swarms involved in distributing Plaintiff’s
copyrighted creative works. This software is effective in capturing data about the activity of
peers in a swarm and their infringing conduct.
23.

Defendants, without Plaintiff’s authorization or license, intentionally downloaded

a torrent file particular to Plaintiff’s Video, purposefully loaded that torrent file into their
BitTorrent clients, entered a BitTorrent swarm particular to Plaintiff’s Video, and reproduced
and distributed the Video to numerous third parties.
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24.

Plaintiff observed Defendants’ activities in the torrent swarm specific to the

Video and created a log of IP address identifying each Defendant and the date and time of
Defendant’s activity, attached hereto as Exhibit A.
COUNT I – COPYRIGHT INFRINGEMENT
25.

Plaintiff hereby incorporates by reference each and every allegation contained in

the preceding paragraphs as if fully set forth fully herein.
26.

Defendants’ conduct infringes upon Plaintiff’s exclusive rights of reproduction

and distribution that are protected under the Copyright Act.
27.

Each Defendant knew or had constructive knowledge that their acts constituted

copyright infringement.
28.

Defendants’ conduct was willful within the meaning of the Copyright Act:

intentional, and with indifference to the Plaintiff’s rights.
29.

Plaintiff has been damaged by Defendants’ conduct, including but not limited to

economic and reputation losses. Plaintiff continues to be damaged by such conduct, and has no
adequate remedy at law to compensate the Plaintiff for all of the possible damages stemming
from the Defendants’ conduct.
30.

Plaintiff hereby reserves the right, pursuant to 17 U.S.C. § 504(c), to elect to

recover statutory damages for each infringement, in lieu of seeking recovery of actual damages.
31.

As Defendants’ infringement was intentional and willful, the Plaintiff is entitled

to an award of statutory damages, exemplary damages, attorneys’ fees, and the costs of the suit.
COUNT II – CIVIL CONSPIRACY
32.

That Plaintiff hereby incorporates by reference each and every allegation set forth

in the preceding paragraphs as though they were fully set forth herein.

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33.

That in using the peer-to-peer BitTorrent file distribution method, each Defendant

engaged in a concerted action with other Defendants and yet unnamed individuals to reproduce
and distribute Plaintiff’s Video by exchanging pieces of the Video file in the torrent swarm,
which injured the Plaintiff.
34.

That each of the Defendants downloaded a torrent file, opened it using a

BitTorrent client, and then entered a torrent swarm comprised of other individuals distributing
and reproducing Plaintiff’s Video.
35.

That participants in the torrent swarm have conspired to provide other individuals

with pieces of the Video in exchange for receiving other pieces of the same Video to eventually
obtain a complete copy of the file.
36.

That the Defendants did commit, and executed these acts in pursuance of the

infringement of Plaintiff’s exclusive rights of reproduction and distribution, as previously
delineated.
37.

That in furtherance of this civil conspiracy, Defendants committed overt tortious

and unlawful acts by using BitTorrent software to download the Video from and distribute it to
others, were willful participants in this joint activity, and did conspire and agree to commit such
acts.
38.

That as a proximate result of this conspiracy, Plaintiff has been damaged, as is

more fully alleged above.
JURY DEMAND
39.

Plaintiff hereby demands a jury trial in this case.

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PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests Judgment and relief as follows:
1)

Judgment against all Defendants that they have: a) willfully infringed Plaintiff’s

rights in federally registered copyrights pursuant to 17 U.S.C. § 501; and b) otherwise injured the
business reputation and business of Plaintiff by Defendants’ acts and conduct set forth in this
Complaint;
2)

Judgment in favor of the Plaintiff against Defendants for actual damages or

statutory damages pursuant to 17 U.S.C. § 504, at the election of Plaintiff, in an amount to be
ascertained at trial;
3)

Order of impoundment under 17 U.S.C. §§ 503 & 509(a) impounding all

infringing copies of Plaintiff’s audiovisual works, photographs or other materials, which are in
Defendants’ possession or under their control;
4)

On Count II, an order that Defendants are jointly and severally liable to the

Plaintiff in the full amount of the Judgment on the basis of a common law claim for civil
conspiracy to commit copyright infringement; for an award of compensatory damages in favor of
the Plaintiff and against Defendants, jointly and severally, in an amount to be determined at trial;
5)

Judgment in favor of Plaintiff against the Defendants awarding the Plaintiff

attorneys’ fees, litigation expenses (including fees and costs of expert witnesses), and other costs
of this action; and
6)

Judgment in favor of the Plaintiff against the Defendant, awarding Plaintiff

declaratory and injunctive or other equitable relief as may be just and warranted under the
circumstances.

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Respectfully submitted,
AF Holdings LLC
DATED: July 6, 2011
By:

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/s/ Paul Hansmeier
Paul Hansmeier (Bar No. 0387795)
Steele Hansmeier PLLC
161 N. Clark St., Suite 4700,
Chicago, IL 60601
312-880-9160; Fax [phone]
[e-mail]
Attorney for Plaintiff