Breaking Glass Pictures v. Does 1-8

Filing 5

Memorandum and Order severing plaintiff's claims. The plaintiff is ordered to notify the Court on or before 14 October 2013 as to which defendant shall remain in the case. Judge Lesley Wells(C,KA)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

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.
: CASE NO. 1:13 CV 00800
BREAKING GLASS PICTURES,
:
:
Plaintiff, : MEMORANDUM AND ORDER
:
-vs:
:
:
DOES 1-8,
:
:
Defendants.
-----------------------------------------------------UNITED STATES DISTRICT JUDGE LESLEY WELLS
In April 2013, plaintiff Breaking Glass Pictures filed this lawsuit against 8 Doe
defendants, who allegedly infringed the plaintiff’s copyright by transferring copies of a
film entitled “6 Degrees of Hell” using a peer-to-peer file sharing protocol called
BitTorrent. Upon review of the complaint and attached exhibits, the Court concludes sua
sponte that the Doe defendants are improperly joined pursuant to Federal Rule of Civil
Procedure 20(a)(2). The plaintiff’s claims are severed, and the plaintiff is ordered to
notify the Court on or before 14 October 2013 as to which defendant shall remain in the
case.
I. Discussion
In April 2013, the plaintiff Breaking Glass Pictures filed this case and eight others
in the Northern District of Ohio, alleging copyright infringement of a motion picture
entitled “6 Degrees of Hell” (“Motion Picture”). Plaintiff’s counsel is the same in each

case, and the complaints are identically pled. The nine cases were assigned to five
different district court judges, and the progress in each case has varied. Seven of the
cases remain open at various stages of litigation, and two were dismissed without
prejudice.
In each case, the plaintiff alleges that the defendants infringed on the plaintiff’s
intellectual property rights by illegally transferring copies of the Motion Picture through
the use of an interactive "peer-to-peer" ("P2P") file sharing protocol called BitTorrent.
The BitTorrent protocol allows internet sharing of computer files through what is known
as a “swarm,” whereby individual participants share bits and pieces of a particular file
until the entire file is downloaded. This process occurs with a certain degree of
anonymity, as members of the swarm are identified only by an internet protocol (“IP”)
address. Consequently, none of the complaints identify any particular defendant, and no
defendant has been served to date. The complaints differ only with respect to the IP
addresses associated with the BitTorrent users who allegedly shared copies of the
Motion Picture.
Judge James S. Gwin, faced with two lawsuits virtually identical to the present
case, concluded as a matter of judicial discretion that the defendants were improperly
joined. In determining whether joinder was appropriate under Federal Rule 20(a)(2),
Judge Gwin reasoned as follows:
Plaintiff’s complaint says that “every John Doe infringer, in concert with its John
Doe swarm members, is allowing others to steal” and that “each John Doe acts in
an interactive manner with other John Does.” Despite Plaintiff’s statements, it is
not at all clear that Defendants were part of the same transaction or occurrence.
“Merely alleging that the Doe defendants all used the same file-sharing protocol,
BitTorrent, to conduct copyright infringement of plaintiff’s film without any
indication that they acted in concert fails to satisfy the arising out the . . . same
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series of transactions or occurrences requirement.” Furthermore, a defendant’s
participation in a swarm does not mean that the defendant is always present and
active in the swarm. Plaintiff’s IP address exhibits indicate that Defendants
accessed the swarm at different times, on different days, using different
BitTorrent clients. This suggests that Defendants were not wrapped up in a single
factual occurrence.
Beyond the joinder analysis, this Court is unconvinced that Plaintiff has even
pleaded a prima facie case of copyright infringement. Here, Plaintiff provided only
an IP address snapshot, and seeks to use that information to justify their suit.
Given the nature of BitTorrent protocols, an individual could access the swarm,
download a small piece of the copyrighted material that could be useless, and
then leave the swarm without ever completing the download. To this end, the
mere indication of participation weakly supports Plaintiff’s conclusions.
Breaking Glass Pictures v. Does 1-84, Case No. 1:13-cv-00806, at 6 (N.D. Ohio 25
June 2013) (citations omitted). Having independently considered the relevant law and
the facts of this case, the Court agrees with the reasoning set forth in Judge Gwin’s
opinion and accordingly adopts it.
II. Conclusion
For the reasons stated above, the plaintiff’s claims are severed. The plaintiff is
ordered to notify the Court on or before 14 October 2013 as to which defendant shall
remain in the case.

IT IS SO ORDERED.
/s/ Lesley Wells
UNITED STATES DISTRICT JUDGE
Date: 4 October 2013

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