Patrick Collins, Inc. v. Doe

Filing 1

COMPLAINT against John Doe (Filing fee $ 350 receipt number 0541-8505220) filed by Patrick Collins, Inc.. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet)(Martin, Lionel)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

PATRICK COLLINS, INC.,

JURY TRIAL DEMANDED

Plaintiff,

Civil Action No. 4:11-CV-3126

v.
COMPLAINT
JOHN DOE,
Defendant.
Plaintiff, Patrick Collins, Inc., sues John Doe, who is the subscriber of IP address
64.91.174.236 and alleges:
Introduction
1.

This matter arises under the United States Copyright Act of 1976, as amended, 17

U.S.C. §§ 101 et seq. (the “Copyright Act”).
2.

Through this suit, Plaintiff alleges Defendant is liable for:

•

Direct copyright infringement in violation of 17 U.S.C. §§ 106 and 501; and

•

Contributory copyright infringement.
Jurisdiction And Venue

3.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

1331 (federal question); and 28 U.S.C. § 1338 (patents, copyrights, trademarks and unfair
competition).
4.

The Defendant’s acts of copyright infringement occurred using Internet Protocol

address 64.91.174.236 (“IP address”) traced to a physical address located within this District,
and therefore this Court has personal jurisdiction over the Defendant because (a) Defendant

committed the tortious conduct alleged in this Complaint in the State of Texas, and (i) Defendant
resides in the State of Texas and/or (ii) has engaged in substantial and not isolated business
activity in the State of Texas.
5.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c), because:

(i) a substantial part of the events or omissions giving rise to the claims occurred in this District;
and, (ii) the Defendant resides (and therefore can be found) in this District and resides in this
State; additionally, venue is proper in this District pursuant 28 U.S.C. § 1400(a) (venue for
copyright cases) because Defendant or Defendant’s agent resides or may be found in this
District.
Parties
6.

Plaintiff, Patrick Collins, Inc., is a corporation organized and existing under the

laws of the State of California and has its principal place of business located at 8015 Deering
Avenue, Canoga Park, California.
7.

Defendant is known to Plaintiff only by IP address 64.91.174.236.

8.

An IP address is a number that is assigned by an Internet Service Provider (an

“ISP”) to devices, such as computers, that are connected to the Internet.
9.

The ISP to which Defendant subscribes, EarthLink, can correlate the Defendant’s

IP address to the Defendant’s true identity.
Factual Background
I.

Plaintiff Owns the Copyright to a Motion Picture

10.

Plaintiff is the owner of United States Copyright Registration number

PA0001740759 (the “Registration”) for the motion picture entitled “Prison Girls” (the “Work”).
11.

The Work was registered on or about April 6, 2011.

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12.

A copy of an internet screen shot from the U.S. Copyright Office’s website

evidencing, among other things, Plaintiff’s ownership of the Registration and the registration
date is attached as Exhibit A.
II.

Defendant Used BitTorrent To Infringe Plaintiff’s Copyright

13.

BitTorrent is one of the most common peer-to-peer file sharing protocols (in

other words, set of computer rules) used for distributing large amounts of data; indeed, it has
been estimated that users using the BitTorrent protocol on the internet account for over a quarter
of all internet traffic. The creators and user’s of BitTorrent developed their own lexicon for use
when talking about BitTorrent, which can be found on www.Wikipedia.org.
14.

The BitTorrent protocol’s popularity stems from its ability to distribute a large file

without creating a heavy load on the source computer and network. In short, to reduce the load
on the source computer, rather than downloading a file from a single source computer (one
computer directly connected to another), the BitTorrent protocol allows users to join a "swarm"
of host computers to download and upload from each other simultaneously (one computer
connected to numerous computers).
A.

Defendant Installed a BitTorrent Client onto his or her Computer

15.

Defendant installed a BitTorrent Client onto his or her computer.

16.

A BitTorrent “Client” is a software program that implements the BitTorent

protocol. There are numerous such software programs including µTorrent and Vuze, both of
which can be directly downloaded from the internet. See www.utorrent.com and http://new.vuzedownloads.com/.
17.

Once installed on a computer, the BitTorrent “Client” serves as the user’s

interface during the process of uploading and downloading data using the BitTorrent protocol.

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B.

The Initial Seed, Torrent, Hash and Tracker

18.

A BitTorrent user that wants to upload a new file, known as an “initial seeder,”

starts by creating a “torrent” descriptor file using the Client he or she installed onto his or her
computer.
19.

The Client takes the target computer file, the “initial seed,” here the copyrighted

Work, and divides it into groups of bits known as “pieces.”
20.

The Client then gives each one of the computer file’s pieces, in this case, pieces

of the copyrighted Work, a random and unique alphanumeric identifier known as a “hash” and
records these hash identifiers in the torrent file.
21.

When another peer later receives a particular piece, the hash identifier for that

piece is compared to the hash identifier recorded in the torrent file for that piece to test that the
piece is error-free. In this way, the hash identifier works like an electronic fingerprint to identify
the source and origin of the piece and that the piece is authentic and uncorrupted.
22.

Torrent files also have an "announce" section, which specifies the URL (Uniform

Resource Locator) of a “tracker,” and an "info" section, containing (suggested) names for the
files, their lengths, the piece length used, and the hash identifier for each piece, all of which are
used by Clients on peer computers to verify the integrity of the data they receive.
23.

The “tracker” is a computer or set of computers that a torrent file specifies and to

which the torrent file provides peers with the URL address(es).
24.

The tracker computer or computers direct a peer user’s computer to other peer

user’s computers that have particular pieces of the file, here the copyrighted Work, on them and
facilitates the exchange of data among the computers.
25.

Depending on the BitTorrent Client, a tracker can either be a dedicated computer

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(centralized tracking) or each peer can act as a tracker (decentralized tracking).
C.

Torrent Sites

26.

“Torrent sites” are websites that index torrent files that are currently being made

available for copying and distribution by people using the BitTorrent protocol.
numerous

torrent

websites,

including

www.TorrentZap.com,

There are

www.Btscene.com,

and

www.ExtraTorrent.com.
27.

Upon information and belief, Defendant went to a torrent site to upload and

download Plaintiff’s copyrighted Work.
D.

Uploading and Downloading a Work Through a BitTorrent Swarm

28.

Once the initial seeder has created a torrent and uploaded it onto one or more

torrent sites then other peers begin to download and upload the computer file to which the torrent
is linked (here the copyrighted Work) using the BitTorrent protocol and BitTorrent Client that
the peers installed on their computers.
29.

The BitTorrent protocol causes the initial seed’s computer to send different pieces

of the computer file, here the copyrighted Work, to the peers seeking to download the computer
file.
30.

Once a peer receives a piece of the computer file, here a piece of the Copyrighted

Work, it starts transmitting that piece to the other peers.
31.

In this way, all of the peers and seeders are working together in what is called a

“swarm.”
32.

Here, Defendant participated in a swarm and directly interacted and

communicated with other members of that swarm through digital handshakes, the passing along
of computer instructions, uploading and downloading, and by other types of transmissions.

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33.

In this way, and by way of example only, one initial seeder can create a torrent

that breaks a movie up into hundreds or thousands of pieces saved in the form of a computer file,
like the Work here, upload the torrent onto a torrent site, and deliver a different piece of the
copyrighted Work to each of the peers. The recipient peers then automatically begin delivering
the piece they just received to the other peers in the same swarm.
34.

Once a peer, here the Defendant, has downloaded the full file, the BitTorrent

Client reassembles the pieces and the peer is able to view the movie. Also, once a peer has
downloaded the full file, that peer becomes known as “an additional seed” because it continues
to distribute the torrent file, here the copyrighted Work.
E.

Plaintiff’s Computer Investigators Identified the Defendant’s IP Addresses as an
Infringer in a Swarm That Was Distributing Plaintiff’s Work

35.

Plaintiff retained IPP, Limited (“IPP”) to identify the IP addresses that are being

used by those people that are using the BitTorrent protocol and the internet to reproduce,
distribute, display or perform Plaintiffs’ copyrighted works.
36.

IPP used forensic software named INTERNATIONAL IPTRACKER v1.2.1 and

related technology enabling the scanning of peer-to-peer networks for the presence of infringing
transactions.
37.

IPP extracted the resulting data emanating from the investigation, reviewed the

evidence logs, and isolated the transactions and the IP addresses associated therewith for the file
identified by the SHA-1 hash value of 3OX5G63GDEMAHWC4L4JD7XK6C6XUMQJS (the
“Unique Hash Number”).
38.

The IP addresses, Unique Hash Number and hit dates show Defendant had copied

a piece of Plaintiff’s copyrighted Work identified by the Unique Hash Number, and was
distributing it to other peers in a BitTorrent sward on:
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a. on 4/21/2011 at 13:37 UTC via their IP address 64.91.174.236;
b. on 4/22/2011 at 3:26 UTC via their IP address 64.91.174.236; and
c. on 4/23/2011 at 3:07 UTC via their IP address 64.91.174.236
39.

Through the transaction(s), the Defendant’s computer used its IP address to

connect to the investigative server from a computer in this District in order to transmit a full
copy, or a portion thereof, of a digital media file identified by the Unique Hash Number.
40.

IPP’s agent analyzed each BitTorrent “piece” distributed by Defendant and

verified that re-assemblage of the piece(s) using a BitTorrent Client results in a fully playable
digital motion picture of the Work.
41.

IPP’s agent viewed the Work side-by-side with the digital media file that

correlates to the Unique Hash Number and determined that they were identical, strikingly similar
or substantially similar.
Miscellaneous
42.

All conditions precedent to bringing this action have occurred or been waived.

43.

Plaintiff has retained counsel and is obligated to pay said counsel a reasonable

attorney fee for its services.
COUNT I
Direct Infringement Against Defendant.
44.

The allegations contained in paragraphs 1-43 are hereby re-alleged as if fully set

forth herein.
45.

Plaintiff is the owner of the copyrighted Work which contains an original work of

authorship.
46.

By using the BitTorrent protocol and a BitTorrent Client and the processes

described above, Defendant copied one or more of the constituent elements of the copyrighted
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Work that are original.
47.

Plaintiff did not authorize, permit or consent to Defendant’s copying of its Work.

48.

As a result of the foregoing, Defendant violated Plaintiff’s exclusive right to:

(A)

Reproduce the Work in copies, in violation of 17 U.S.C. §§ 106(1) and 501;

(B)

Redistribute copies of the Work to the public by sale or other transfer of

ownership, or by rental, lease or lending, in violation of 17 U.S.C. §§ 106(3) and 501;
(C)

Perform the copyrighted Work, in violation of 17 U.S.C. §§ 106(4) and 501, by

showing the Work’s images in any sequence and/or by making the sounds accompanying the
Work audible and transmitting said performance of the Work, by means of a device or process,
to members of the public capable of receiving the display (as set forth in 17 U.S.C. § 101’s
definitions of “perform” and “publically” perform); and
(D)

Display the copyrighted Work, in violation of 17 U.S.C. §§ 106(5) and 501, by

showing individual images of the Work nonsequentially and transmitting said display of the
Work by means of a device or process to members of the public capable of receiving the display
(as set forth in 17 U.S.C. § 101’s definition of “publically” display).
49.

Defendant’s infringements was committed “willfully” within the meaning of 17

U.S.C. § 504(c)(2).
50.

Plaintiff has suffered actual damages that were proximately caused by the

Defendant’s infringements, including lost sales, price erosion and a diminution of the value of its
copyright.
WHEREFORE, Plaintiff respectfully requests that the Court:
(A)

Permanently enjoin Defendant and all other infringers who are in active concert or

participation with Defendant from continuing to infringe Plaintiff’s copyrighted Work;

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(B)

Order that Defendant delete and permanently remove the torrent file relating to

Plaintiff’s copyrighted Work from each of the computers under Defendant’s possession, custody
or control;
(C)

Order that Defendant delete and permanently remove the copy of the Work

Defendant has on the computers under Defendant’s possession, custody or control;
(D)

Award Plaintiff either its actual damages and any additional profits of the

Defendant pursuant to 17 U.S.C. § 504-(a)-(b); or statutory damages in the amount of $150,000
pursuant to 17 U.S.C. § 504-(a) and (c);
(E)

Award Plaintiff its reasonable attorneys’ fees and costs pursuant to 17 U.S.C. §

505; and
(F)

Grant Plaintiff any other and further relief this Court deems just and proper.
COUNT II
Contributory Infringement Against Defendant.

51.

The allegations contained in paragraphs 1-43 are hereby re-alleged as if fully set

forth herein.
52.

Plaintiff is the owner of the Registration for the Work which contains an original

work of authorship.
53.

By using the BitTorrent protocol and a BitTorrent Client and the processes

described above, Defendant copied the constituent elements of the copyrighted Work that are
original.
54.

By participating in the BitTorrent swarm with other infringers, the Defendant

induced, caused or materially contributed to the infringing conduct of the other peer infringers in
the swarm.
55.

Plaintiff did not authorize, permit or consent to Defendant’s inducing, causing or
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materially contributing to the infringing conduct of other peer infringers.
56.

Defendant knew or should have known that other BitTorrent users, here other

infringers would become members of a swarm with Defendant.
57.

Defendant knew or should have known that other BitTorrent users in a swarm

with it, here other infringers, were directly infringing Plaintiff’s copyrighted Work by copying
one or more of the constituent elements of the copyrighted Work that are original.
58.

Indeed, Defendant directly participated in and therefore materially contributed to

each other participants’ infringing activities.
59.

Defendant’s contributory infringements were committed “willfully” within the

meaning of 17 U.S.C. § 504(c)(2).
60.

Plaintiff has suffered actual damages that were proximately caused by the

Defendant and each of the infringers including lost sales, price erosion, and a diminution of the
value of its copyright.
WHEREFORE, Plaintiff respectfully requests that the Court:
(A)

Permanently enjoin Defendant and all other infringers who are in active concert or

participation with Defendant from continuing to infringe Plaintiff’s copyrighted Work;
(B)

Order that Defendant delete and permanently remove the torrent file relating to

Plaintiff’s copyrighted Work from each of the computers under Defendant’s possession, custody
or control;
(C)

Order that Defendant delete and permanently remove the copy of the Work

Defendant has on the computers under Defendant’s possession, custody or control;
(D)

Find that Defendant is jointly and severally liable for the direct infringement of

each other infringer that Defendant induced, caused or materially contributed to commit on

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infringement;
(E)

Award Plaintiff either its actual damages and any additional profits made by

Defendant pursuant to 17 U.S.C. § 504-(a)-(b); or statutory damages in the amount of $150,000
pursuant to 17 U.S.C. § 504-(a) and (c);
(F)

Award Plaintiff its reasonable attorneys’ fees and costs pursuant to 17 U.S.C. §

505; and
(G)

Grant Plaintiff any other and further relief this Court deems just and proper.
DEMAND FOR A JURY TRIAL

Plaintiff hereby demands a trial by jury on all issues so triable.
Respectfully submitted,

___/s/ Lionel Martin___________
Lionel Martin
Texas State Bar No. 24037032
Federal Id. No. 31342
19901 Southwest Freeway
Suite 131
Sugar Land, Texas 77479
Tel: [phone]
Fax: [phone]
ATTORNEY-IN-CHARGE FOR PLAINTIFF
OF COUNSEL:
GARCIA-MARTIN & MARTIN, P.C.
Melissa Garcia-Martin
Texas State Bar No. 24039035
Federal ID: 38613
19901 Southwest Freeway
Suite 131
Sugar Land, Texas 77479
Tel: [phone]
Fax: [phone]
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