A federal judge in New Jersey has allowed a copyright infringement suit to go forward against multiple John Does who allegedly collaborated in distribution of adult films on the Internet.
U.S. Magistrate Judge Michael Hammer bucked a trend by judges in New Jersey and elsewhere in favor of severing suits against users of BitTorrent, a peer-to-peer file-sharing protocol.
In Malibu Media v. John Does 1-11, decided April 11, Hammer disagreed with those judges that multiple John Does cause case management problems and fail to satisfy joinder requirements. He also refused to quash a subpoena against Comcast for the Does’ identities.
BitTorrent enables the download of large files like films and music videos by breaking them into hundreds or even thousands of bits that are downloaded separately and reassembled by a "swarm" of users. It reduces the burden on individual computers and allows downloads over a lower bandwidth.
Film companies, especially those that produce or own rights to adult films, such as Malibu Media and Patrick Collins, have been hiring companies to ferret out Internet protocol (IP) addresses and the states where they appear to be located and suing multiple swarm members, sometimes hundreds in one suit.
The suits have been criticized as attempts to shake down defendants by getting them to settle rather than face the embarrassment of being outed for downloading porn or the risk of penalties as high as $150,000 per film.
Plaintiffs typically seek to subpoena information early on from the Internet service providers (ISPs) — real name, address, email address and the Media Access Control address, which is used in ethernets.
Once the subpoenas are served, the ISPs tend to notify the targets, leading some Does to settle, others to hire lawyers to move to quash the subpoenas and some to go forward pro se.
Cases that are severed or where subpoenas are quashed are often dropped or discontinued soon after.
The case decided by Hammer has played out in standard fashion thus far.
On Dec. 19, Malibu Media sued 11 Does for direct and contributory infringement.
All were allegedly part of a swarm that downloaded copyrighted movies with names like Wild Things, Casual Sex and Black Lingerie Bliss.
The Malibu, Calif., company has filed similar cases around the country, more than 40 of them in New Jersey.
The complaint evidences the boiler-plate nature of the cases in alleging personal jurisdiction over the defendants because they "committed the tortious act alleged," or reside in or have "engaged in continuous and systematic business activity" in the Southern District of Indiana, another situs of the suits.
Malibu followed up with a Jan. 11 motion to serve subpoenas ahead of the Rule 26(f) conference, arguing it needed to act swiftly because Comcast might destroy its logs before that date.
Hammer granted the request on Jan. 22, requiring that the information obtained be used only for purposes of the suit, that copies of it be provided to any Does who appear in the case and that before naming a Doe in an amended complaint, Malibu "ensure it has sufficient factual basis for any assertions made."
The order pointed out that Hammer was "not finding that Plaintiff may rely solely on the fact that the person identified as the subscriber is associated with the Internet protocol address to prove that such a person engaged in the conduct alleged in Plaintiff’s complaint."
He also said he was not deciding at that point whether joinder or venue was appropriate or whether personal jurisdiction exists.
Subsequently, claims against three Does were dismissed after they settled on undisclosed terms.
Hammer’s opinion denied a pro se motion by Doe 10 to quash the subpoena.
In allowing joinder, he found Malibu adequately alleged the Does took part in the same series of transactions and it was likely that claims and defenses would feature "largely duplicative proof."
He noted the liberal approach to joinder in the Third Circuit, citing two cases from the Eastern District of Pennsylvania and one from New Jersey, decided by U.S. Magistrate Judge Douglas Arpert on Dec. 12.
Hammer did not mention that Arpert shifted his view on joinder in a March 28 ruling in which he attributed the change to "further reflection and analysis of recent authority."
Arpert was referring to a series of rulings starting last October by U.S. District Judge Faith Hochberg and Magistrate Judges Mark Falk and Joseph Dickson that severed Does and quashed subpoenas.
Falk pointed out that the infringer is not necessarily the IP subscriber but can be anyone with access to the subscriber’s wi-fi.
Hammer noted those contrary rulings but said the record was not developed enough at this point for an informed ruling on whether Malibu must show a "more precise causal connection" and he could revisit the issue later. He also mentioned that only eight Does remained.
Further, Hammer pointed out that even if the IP subscriber was not the infringer, there was no way to find out who was without that information.
Malibu’s attorney, Flemington solo Patrick Cerillo, did not return a call.