Opinion
Case No. 2:11-cv-358-FtM-36SPC
11-01-2011
K-BEECH, INC., Plaintiff, v. JOHN DOES 1-57, Defendant.
REPORT AND RECOMMENDATION
TO THE UNITED STATES DISTRICT COURT
This matter comes before the Court on Motion to Quash, Motion for Protective Order, and Motion to Dismiss Complaint by John Doe #52 with ISP #96.228.186.170 (Doc. #11) filed on September 26, 2011. Plaintiff filed its response in opposition (Doc. # 22) on October 24, 2011. The Motion is now ripe for review. Defendant John Doe #52 moves pro se for relief from this Court.
The Court is unaware whether John Doe #52 is male or female. The Court will use the personal pronoun "he" throughout.
On March 18, 2011, Plaintiff Patrick Collins, Inc. filed the instant copyright infringement action (Doc. #1) alleging that each John Doe Defendant is liable for direct copyright infringement in violation of 17 U.S.C. § § 106 and 501 and contributory copyright infringement. Concurrently, Plaintiff filed a Motion for Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference (Doc. #2) in order to take early discovery. As grounds for taking early discovery, Plaintiff alleged that each of the Defendants' acts of copyright infringement occurred using an Internet Protocol ("IP") address traced to a physical address located within the Middle District of Florida. Plaintiff requested that the Court allow it to serve Federal Rule 45 subpoenas on certain Internet Service Providers ("ISPs") to obtain identifying information for the John Doe Defendants such as their addresses so that Plaintiff may complete service of process on them.
The Complaint was later amended to substitute K-Beech, Inc. as the Plaintiff.
This case involves the alleged illegal download of Plaintiff's movies through a BitTorrent peer-to-peer file sharing protocol. Plaintiff brings suit in this case against 57 John Doe Defendants who are the alleged individual file sharers. Plaintiff asserted that the first step in this case is learning the identity of the subscribers whose IP addresses were used to commit an infringement.
On June 29, 2011, this Court granted Plaintiff's request to take early discovery (Doc. #5) and allowed Plaintiff to serve each of the ISPs with a Rule 45 subpoena commanding each ISP to provide Plaintiff with the true name, address, telephone number, e-mail address, and Media Access Control address of the Defendant to whom the ISP assigned an IP address as set forth in Exhibit A to that Motion. Apparently these subpoenas were served on the Internet Service Providers, which in turn gave notice to their "customers" - ie, the John Doe Defendants - that the ISP had received the subpoena.
John Doe #52 filed the instant motion to quash the subpoena, motion for protective order, and motion to dismiss the complaint, asserting that while he resides in New Port Richey, Florida, his ISP carrier (Verizon) is located in Texas and that his ISP carrier sent him a letter to his home address informing him that they had received a subpoena seeking his name and address and other information from the attorney representing Plaintiff in this matter. Plaintiff now moves the Court to (1) dismiss/quash the subpoena directed to Verizon; (2) for a protective order limiting the disclosures by the ISP pending further review and argument; (3) to dismiss the complaint for lack of jurisdiction over the person; (4) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a cause of action; and (7) failure to join indispensable parties.
John Doe #52's Request to Quash/Dismiss the Subpoena Directed to Verizon and for Protective
Order
In support of his Motion, Defendant John Doe #52 asserts a litany of objections, including that the Plaintiff does not have sufficient evidence to pursue this lawsuit and that Plaintiff is abusing the legal system. As previously explained in this Court's June 29, 2011 Order allowing the subpoenas to be issued in this matter, Plaintiff has made a good cause showing to this Court for early discovery in Internet infringement cases. A court may authorize early discovery before the Rule 26(f) conference for the parties' and witnesses' convenience and in the interests of justice. Fed. R. Civ. Proc. 26(d). Pursuant to Federal Rule 26(b), courts may order discovery of any relevant matter for good cause. Courts who have dealt with these sorts of cases generally consider whether a plaintiff has shown "good cause" for the early discovery. Patrick Collins Inc. v. Does 1-1219, No. C10-04468LB, 2010 WL 5422569, *2 (N.D. Cal. Dec. 28, 2010) (collecting cases and standards). "A plaintiff who is unaware of the identity of the person who has wronged her can . . . proceed against a 'John Doe' . . . when discovery is likely to reveal the identity of the correct defendant." Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592 (1st Cir. 2011). "In Internet infringement cases, courts routinely find good cause exists to issue a Rule 45 subpoena to discover a Doe defendant's identity, prior to a Rule 26(f) conference, where a plaintiff makes: (1) a prima facie showing of infringement, (2) there is no other way to identify the Doe Defendant, and (3) there is a risk an ISP will destroy its logs prior to the conference." UMG Recording, Inc. v. Doe, 2008 WL 4104214, *4 (N.D. Cal. 2008). In addition, some courts also analyze a defendant's First Amendment right to privacy in determining whether to allow the discovery. In these cases, courts require Plaintiff to (4) specify the discovery requested, (5) demonstrate a central need for the subpoenaed information to advance the asserted claims, and (6) establish that the party's expectation of privacy does not outweigh the need for the requested discovery. Sony Music Entertainment v. Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004).
In this case, the Court found that Plaintiff had satisfied the above-listed factors. First, Plaintiff made a concrete showing of a prima facie claim of copyright infringement. Plaintiff attached a screen shot of a copyright database showing that Plaintiff holds the copyright for the motion picture "Virgins 4." Further, Plaintiff's research has indicated that the movie has been infringed upon and was able to isolate the transactions and the IP addresses being used on the peer-to- peer network to reproduce, distribute, display, or perform Plaintiff's copyrighted work. (Doc. #1, Ex. D and Doc. #3 Declaration of Tobias Fieser). "Moreover, the use of P2P systems to download and distribute copyrighted music has been held to constitute copyright infringement." Sony Music, 326 F. Supp. 2d at 565-66. Second, Plaintiff established that it lacks any other means of obtaining the subpoenaed information. Plaintiff only has the IP addresses and cannot locate any further information. Rather, once the IP addresses, plus the date and time of the detected and documented infringing activity are provided to the ISP, the ISPs can access the identifying information of the subscriber. It appears that Plaintiff had taken all of the steps it can to identify John Doe #52. Third, Plaintiff through the Declaration of Tobias Feiser informs the Court that "[m]any ISPs only retain the information sufficient to correlate an IP address to a person at a given time for a very limited amount of time." (Doc. #3, ¶ 11). Thus, there is a chance that the ISPs will destroy the logs needed by Plaintiff. Fourth, Plaintiff has sufficiently described John Doe #52 by listing the IP address assigned to him on the day Plaintiff alleges the Defendant engaged in the infringing conduct in a chart attached to the Motion. (Doc. #2, Ex. A). Fifth, Plaintiff has demonstrated the need for the subpoenaed information in order to advance its claims as there appears no other means of obtaining this information and the information is needed in order to prosecute Plaintiff's viable claim for copyright infringement. Sixth, and finally, Plaintiff's interest in knowing Defendant's true identities outweighs Defendant's interests in remaining anonymous. The Court found that Plaintiff has a strong legitimate interest in protecting its copyrights and it has been held that copyright infringers have no legitimate expectation of privacy in the subscriber information they provide to ISPs. "[A] number of other jurisdictions who have deemed that a file sharer's First Amendment right to anonymity is "exceedingly small." Call of the Wild Movie, LLC v. Does 1-1062 et al., 770 F. Supp. 2d 332, 348 (D.D.C. 2011).
Plaintiff is entitled to the information requested in the subpoena from ISP Verizon so that it may effect proper service of process on the Defendant after his true identity is known. Therefore, the Court respectfully recommends that the instant motion to quash and motion for protective order be denied as the subpoena issued in this case was proper.
John Doe #52's Request to Dismiss the Complaint for Lack of Jurisdiction and Failure to State a
Cause of Action
With regard to the portion of the Motion that requests the Court to dismiss Plaintiff's Complaint for lack of jurisdiction, the Court finds that jurisdiction is proper in this matter. With regard to personal jurisdiction, due process requires the Plaintiff to show that the Defendant has "minimum contacts" with the forum, thereby ensuring that "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). This Court will have personal jurisdiction over Defendant where the allegedly tortious conduct occurred within the State of Florida and where Defendant resides in the State of Florida and/or has engaged in substantial and not isolated business activity within the State. Here, Plaintiff took care to ensure that the IP addresses at issue in this case could be traced to a physical address located within this District. By his own admission, Defendant John Doe #52 resides at an address in the Middle District of Florida in New Port Richey, Florida. (Doc. #22, ¶1). Thus, this Court may exercise personal jurisdiction over Defendant.
With regard to subject matter jurisdiction, a district court has an "independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 1240 (2006). In every case, a district court must enjoy at least one of three bases for subject-matter jurisdiction, which include (1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. 1332. Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997). Here, the issue arises under the U.S. Copyright Act of 1976 (17 U.S.C. §§ 101 et seq.). The Court thus properly exercises federal jurisdiction over this claim.
Defendant also requests that the Court dismiss Plaintiff's Complaint for failure to state a cause of action. In deciding a motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiffs. Christopher v Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). However, dismissal for failure to state a claim upon which relief may be granted does not require appearance, beyond a doubt. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561- 563, S. Ct. 127 S. Ct. 1955, 167 L. Ed 2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement" to relief requires more than labels, conclusions, and a formulaic recitation of the cause of actions elements. Bell Atlantic, 550 U.S. 544, 561- 563.
To satisfy the pleading requirements of Fed. R. Civ. P. 8, a complaint must simply give the defendants fair notice of what the plaintiff's claim is and the grounds upon which it rests. Id. at 555; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002). Although the pleading standard announced in Fed R. Civ. P. 8 does not require "detailed factual allegations," it does demand more than an unadorned, "the-defendant-unlawfully-harmed-me accusation." Sinaltrainal v. Coca-Cola Co., 578 F. 3d 1252, 1268 (11th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed 2d 868 (2009). Furthermore, unwarranted deductions of fact in a complaint are not admitted as true for the purpose of testing the sufficiency of the allegations. Sinaltrainal, 578 F. 3d at 1268 (citing Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)). The facts as pled must state a claim for relief that is plausible on its face. Sinaltrainal, 578 F. 3d at 1268 (citing Iqbal, 129 S. Ct. at 1950). Dismissal is warranted under Fed. R. Civ. P. 12(b)(6) if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue which precludes relief. Simplexgrinnell, L.P. v. Ghiran, 2007 WL 2480352 (M.D. Fla. August 29, 2007) (citing Neitzke v. Williams, 490 U.S. 319, 326, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Brown v. Crawford County, Georgia, 960 F.2d 1002, 1009-10 (11th Cir. 1992).
Here, the Defendant has not provided the Court with any legal argument for why Plaintiff's Complaint should be dismissed, other than simply asserting that Plaintiff's complaint fails to state a claim. Defendant makes only broad and sweeping allegations that Plaintiff lacks a "scintilla of evidence to back up the outrageous claims of the complaint." (Doc. #11, ¶18). Without any legal argument by the Defendant, the Court has little basis on which to grant Defendant's motion. In any event, the Court notes, rather, that Plaintiff has raised an issue of federal law and has pled sufficient facts to warrant a finding that Plaintiff's claim for relief is plausible on its face.
Defendant has also alleged that there is First Amendment protection from the discovery of the identity of persons who communicate anonymously online. Though Defendant's Motion is unclear, the Court construes Defendant's First Amendment argument as being co-mingled with Defendant's "failure to state a cause of action" argument. The Court notes that, though not directly stated by the Defendant, there are two relevant First Amendment questions raised here: First, are the Defendant's BitTorrent activities covered by the First Amendment right to engage in anonymous speech? Second, if the First Amendment protects BitTorrent activity, does the Plaintiff's need for the Defendant's identifying information override that protection?
At the outset, the Court notes that copyright infringement is not protected by the First Amendment. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555-57, 105 S. Ct. 2218, 85 L. Ed. 2d 588 (1985) (discussing copyright, the fair use doctrine, and the First Amendment). While copyright infringement is not afforded First Amendment protection, file-sharing does involve some aspects of expressive communication, which is protected. While file-sharers engage in expressive activity when they interact with other users on BitTorrent, "the ultimate aim of such users is not to communicate a thought or idea, but to obtain movies and music for free." Call of the Wild Movie, LLC v. Does 1-1,062, et al., 770 F. Supp. 2d 332, 349 (D.D.C. 2011) (internal citations omitted). The First Amendment interest, then, though implicated, is minimal. Thus, the Court must assess whether the Plaintiff's subpoena should override the Defendant's First Amendment rights. See id. (holding that an internet file-sharer's First Amendment right to anonymity is exceedingly small and the owner's need for information subpoenaed outweighed defendants' minimal First Amendment rights to anonymous speech). As discussed above, Plaintiff has adequately demonstrated a prima facie claim of copyright infringement against the Defendant. Further, Plaintiff's request for identifying information is narrowly tailored and specific, designed merely to allow Plaintiff to obtain the information needed to prosecute its lawsuit. Indeed, until such information is conveyed, the Plaintiff has no way of serving Defendant with the Complaint and Summons, an issue the Defendant himself raises. Upon balancing the Defendant's First Amendment rights to anonymity and the Plaintiff's need for the identifying information, the Court finds that the Plaintiff's need overrides the Defendant's right to use BitTorrent anonymously. The Defendant's asserted First Amendment right to anonymity in this context does not shield him/her from allegations of copyright infringement. The Plaintiff therefore may obtain from Verizon information identifying the Defendant.
Improper Venue
Defendant additionally alleges that venue is improper in this District. A civil action founded on a federal question may be brought in: (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. 1391(b). In general, the party challenging venue bears the burden of proof. See Pilkington v. United Airlines, Inc., 855 F. Supp. 1248, 1249 (M.D. Fla. 1994).
Since Plaintiff has taken steps to the best of its ability to ensure that all Defendants reside within the State of Florida, and since Defendant himself admits residency in the State, the Court recommends that venue is proper.
Insufficiency of Process and Service of Process
Defendant further moves this Court to dismiss the complaint against him on the basis of insufficient service of process. As Plaintiff points out in its Memorandum in Opposition to Defendant's Motion, Plaintiff never attempted to serve Defendant John Doe #52 because Plaintiff does not know Defendant's identity. Nevertheless, Defendant obviously received notice from his ISP Carrier, Verizon, so Defendant has not been prejudiced in any way. The Court thus recommends that Defendant's Motion to dismiss on this ground is insufficient and should be denied.
Failure to Join Indispensable Parties
The Defendant further alleges that the Complaint should be dismissed for failure to join indispensable parties. Defendant makes no argument indicating which individuals or corporations have been omitted contrary to Fed. R. Civ. P. 19. Under Rule 19, a person or entity must be joined if the issues in the case would not be fully adjudicated without that parties participation. Thus, the Court construes Defendant's Motion to Dismiss for Failure to Join Indispensable Parties as actually being a Motion to Dismiss for Improper Joinder, under Fed. R. Civ. P. 20. Indeed, Defendant labels the argument both "failure to join indispensible (sic) parties" (Doc. #11, p. 1) and "improper joinder" (Doc. #11, ¶12 and p. 6).
Under the Federal Rules:
[a]ll persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons (and any vessel, cargo or other property subject to admiralty process in rem) may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.Fed. R. Civ. P. 20(a). Joinder of parties is generally encouraged in the interest of judicial economy, subject to fulfillment of two prerequisites: the persons who join as plaintiffs or who are joined as defendants must be interested in claims that arise out of the same transaction or occurrence, or series of transactions or occurrences; and all the parties joined must share in common at least one question of law or fact. A.M. Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1323 (11th Cir. 2000).
In the present case, the Plaintiff alleges that Defendants John Does 1- 57 each used the BitTorrent file-sharing protocol to illegally distribute the Plaintiff's copyrighted work. Plaintiff further asserts that the nature of a BitTorrent protocol is that any "seed peer" that has downloaded a file prior to the time a subsequent peer downloads the same file is automatically a source for the subsequent peer so long as that first seed peer is online simultaneously. "This critical fact makes BitTorrent different than every other peer-to-peer network and is one of the reasons BitTorrent cases are distinguishable from previous peer-to-peer copyright cases." (Doc. #22, p. 9). Plaintiff has used a cryptographic hash value contained in the torrent descriptor as a digital fingerprint, which ensures that all of the infringements alleged in this suit arise from the same unique version of Plaintiff's movie. Further, Plaintiff alleges that its movies have been initially seeded several times. Each seeding produces its own independent swarm. Plaintiff limited the Defendants in this suit to those allegedly using the exact same swarm. Based on these allegations, the Plaintiff's claims against the Defendants are logically related. Each John Doe Defendant is a possible source for the Plaintiff's work, and may be responsible for distributing the movie to other John Doe Defendants, who are also using the same file-sharing protocol to copy the identical copyrighted material. While the Defendants may be able to rebut these allegations later, the Plaintiff has sufficiently alleged that its claims against the Defendants potentially stem from the same transaction or occurrence and are logically related.
Fed. R. Civ. P. 20(a)(2)(B) requires the Plaintiff's claims against the Defendants to contain a common question of law or fact. The Plaintiff meets this requirement. In each case, the Plaintiff will have to establish against each Defendant the same legal claims concerning the validity of the copyrights in the work at issue and the infringement of the exclusive rights reserved to the Plaintiff as the copyright holder. The Court recognizes that each Defendant may later present different factual and substantive legal defenses, but that does not defeat, at this stage of the proceedings, the commonality in facts and legal claims that support joinder under Rule 20(a)(2)(B).
The Court finds no prejudice to the Defendants at this stage in the litigation. In fact, the Court finds that joinder in a single case of the Defendants who allegedly infringed the same copyrighted material both promotes judicial efficiency and benefits the Defendants, who will be able to see the defenses, if any, raised by other John Does.
Finally, the Court is mindful that any rulings from this Court cannot be sent to John Doe #52's attention because his home address is unknown and the basis of his objection to the subpoena is that he should not be required to provide it. But by John Doe #52 not providing his address to the Court he does so to his own detriment as he will not have the opportunity to object to the Court's rulings. The Court cannot defend the case on John Doe #52's behalf though as it is Defendant's responsibility to provide the Court with his mailing address if he wishes to stay apprised of filings in this matter. The Court cannot inform litigants about case matters if a party refuses to provide an address.
Accordingly, it is now
RECOMMENDED:
Plaintiff's Motion to Quash, Motion for Protective Order, and Motion to Dismiss Complaint by John Doe #52 with ISP #96.228.186.170 (Doc. #11) be DENIED.
Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
Respectfully recommended at Fort Myers, Florida, this 1st day of November, 2011.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES MAGISTRATE JUDGE Copies: All Parties of Record