Case 5:12-cv-03146-LS Document 14 Filed 01/31/13 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`PATRICK COLLINS, INC.,
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`Plaintiff
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`vs.
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`JOHN DOES 1-11, 13-18, and 20-23,1 :
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`Defendants
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`CIVIL ACTION
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`NO. 12-3146
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`M E M O R A N D U M
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`STENGEL, J.
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`January 31, 2013
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`Plaintiff Patrick Collins, Inc., originally brought this action against twenty-three
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`John Doe defendants alleging that they had infringed its copyright in the motion picture
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`entitled “Busty Construction Girls” by reproducing and distributing it over the internet
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`using a peer-to-peer file-sharing protocol called BitTorrent. The John Does are
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`identified only by internet protocol (“IP”) addresses corresponding to the internet
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`connections alleged to have been used to infringe the plaintiff’s copyright.
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`I granted the plaintiff’s earlier motion for leave to file third-party subpoenas on the
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`Internet Service Providers (“ISP”) servicing the IP addresses identified in the complaint
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`to help determine the identity of the defendants. The plaintiff reached a settlement with
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`two of the defendants, and voluntarily dismissed its claims against them.
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`John Doe #13 filed a pro se “joint motion to sever defendants and/or quash the
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`subpoena.” Because the joinder of the John Doe defendants is proper and quashing the
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`subpoena would be inappropriate at this time, I will deny the motion.
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`1 The plaintiff voluntarily dismissed its claims against Defendants John Doe #12 and #19. See
`Documents #8 and #10.
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`Case 5:12-cv-03146-LS Document 14 Filed 01/31/13 Page 2 of 9
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`I. BACKGROUND
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`BitTorrent is one of the most common peer-to-peer file sharing protocols, i.e., set
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`of computer rules, used for distributing large amounts of data. See Compl. ¶ 14. It has
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`been estimated that users using the BitTorrent protocol on the internet account for over a
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`quarter of all internet traffic. Id. Its popularity stems from its ability to distribute a large
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`file without creating a heavy load on the source computer and network. To reduce the
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`load on the source computer, the BitTorrent protocol allows users to join a “swarm” of
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`host computers to download and upload from each other simultaneously. Id. at ¶ 15.
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`Here, it is alleged that each defendant installed a BitTorrent “Client” onto his
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`computer. A “Client” is a software program that implements the BitTorrent protocol.
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`Id. at ¶¶ 16-17. Once installed, the BitTorrent Client serves as the user’s interface
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`during the process of uploading and downloading data using the BitTorrent protocol. Id.
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`at ¶ 18. A BitTorrent user that wants to upload a new file, known as an “initial seeder,”
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`starts by creating a “torrent” descriptor file using the Client he installed onto his
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`computer. The Client takes the target computer file, the “initial seed,” here the “Busty
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`Construction Girls” movie, and divides it into identically sized groups of bits known as
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`“pieces.” Id. at ¶¶ 19-20. The Client then gives each one of the pieces a random and
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`unique alphanumeric identifier known as a “hash” and records these hash identifiers in
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`the torrent file. When other users, known as “peers,” receive a particular piece, the hash
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`identifier for that piece is compared to the hash identifier recorded in the torrent file for
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`that piece. Thus, the hash identifier works like an electronic fingerprint to identify the
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`source of the piece and that the piece is authentic and uncorrupted. Id. at ¶¶ 21-22.
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`When peers download the torrent file, the BitTorrent protocol signals that those
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`peers are seeking to download the original file, and the seeder begins to distribute pieces
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`2
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`Case 5:12-cv-03146-LS Document 14 Filed 01/31/13 Page 3 of 9
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`to those users. Once a peer has downloaded a piece, it serves as a source of that piece to
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`other peers possessing the torrent and seeking to download the original file. When a
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`peer has downloaded all of the pieces, the client program continues to distribute the file.
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`In this way, the initial seeder and peers serve to share and distribute the original file in
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`an activity known as a “swarm.” See Compl. ¶¶29-32.
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`II. DISCUSSION
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`A. Motion to Sever
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`John Doe #13 argues that the plaintiff has improperly joined twenty-three
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`defendants in this action because the defendants’ involvement arose from distinctly
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`separate transactions that involved separate sets of facts and defenses. Because there is
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`no nexus between him and the other defendants, he requests that I “sever and dismiss all
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`the defendants.” I disagree and will deny his request.
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`Federal Rule of Civil Procedure 20(a)(2) permits joinder of numerous defendants
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`in one action if “any right to relief is asserted against them jointly, severally, or in the
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`alternative with respect to or arising out of the same transaction, occurrence, or series of
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`transactions or occurrences; and any question of law or fact common to all defendants
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`will arise in the action.” See FED.R.CIV.P. 20(a).
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`The Court of Appeals for the Third Circuit has not directly interpreted Rule 20(a),
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`but it has held that events comprising the same transaction or occurrence bear a “logical
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`relationship” to one another and involve the same factual issues or the same factual and
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`legal issues. Transamerica Occidental Life Ins. Co. v. Aviation Office of Am., Inc., 292
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`F.3d 384, 390 (3d Cir. 2002). Thus, the impulse under the Federal Rules is “toward
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`entertaining the broadest possible scope of action consistent with fairness to the parties;
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`joinder of claims, parties, and remedies is strongly encouraged.” Hagan v. Rogers, 570
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`Case 5:12-cv-03146-LS Document 14 Filed 01/31/13 Page 4 of 9
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`F.3d 146, 152 (3d Cir. 2009) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S.
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`715, 724 (1966)). Rule 20(a)’s purpose is to promote trial convenience and expedite the
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`final determination of disputes, thereby preventing multiple law suits. See Al Daraji v.
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`Monica, No. 07-cv-1749, 2007 U.S. Dist. LEXIS 76205, *10 (E.D. Pa. Oct. 12, 2007).
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`The rule is designed to promote judicial economy and reduce inconvenience, delay, and
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`added expense. Id.
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`Here, the plaintiff alleges that each of the defendants participated in the same
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`swarm, sharing and distributing the plaintiff’s motion picture. See Compl. ¶ 33. The
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`plaintiff retained a computer investigation firm, which used forensic software to track
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`and identify BitTorrent activity involving a specific copy of the movie that was
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`identified by its own “Unique Hash Number.” Id. ¶¶ 36-39. The investigation identified
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`twenty-three IP addresses, corresponding to the defendants here, that participated in the
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`same swarm by transmitting a separate piece of this version of the movie using the
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`BitTorrent protocol. Each IP address connected to a server established by the plaintiff’s
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`investigator and transmitted a piece of the same copy of a file constituting the plaintiff’s
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`movie. Id. ¶¶ 40-41. The pieces are then reassembled resulting in a fully playable
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`digital motion picture of the plaintiff’s work. Id. By participating in the same swarm,
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`the defendants are each alleged to have directly infringed the plaintiff’s copyright in the
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`movie and to have “induced, caused, or materially contributed to the infringing conduct”
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`of the other defendants. Id. ¶ 55.
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`The plaintiff’s allegation that the defendants downloaded and shared the same file,
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`were part of the same swarm, and are contributorily liable for each other’s infringement
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`is sufficient to establish that the claims against each defendant are logically related and
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`arise out of the same transaction, occurrence, or series of transactions and occurrences.
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`Case 5:12-cv-03146-LS Document 14 Filed 01/31/13 Page 5 of 9
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`Further, the infringement claims contain common questions of law and fact regarding
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`the defendants by virtue of the use of BitTorrent to transmit the same copy of the
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`plaintiff’s motion picture. Thus, joinder is appropriate at this stage of the litigation.
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`Accordingly, I will deny Defendant John Doe #13’s motion to sever without prejudice.2
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`B. Motion to Quash
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`John Doe #13 next argues that the subpoena should be quashed because the
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`plaintiff does not have legal legitimacy to request early discovery of the defendants’
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`identities. He insists that this information infringes upon his privacy interests as
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`protected under the First Amendment of the United States Constitution. Again, I must
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`disagree.
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`A court must quash a subpoena under certain circumstances, including when it
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`subjects a person to undue burden. See FED.R.CIV.P. 45(c)(3)(A)(iv) (emphasis added).
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`A court may quash or modify a subpoena if it requires disclosure of “a trade secret or
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`other confidential research, development, or commercial information” or requires a
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`nonparty to “incur substantial expense.” See FED.R.CIV.P. 45(c)(3)(B)(i) and (iii)
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`(emphasis added). It may also modify a subpoena if the serving party “shows a
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`substantial need for the testimony or material that cannot otherwise be met without undue
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`hardship.” See Fed. R. Civ. P. 45(c)(3)(C).
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`The defendant’s arguments do not raise valid grounds for quashing the subpoena
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`served on Comcast. Proceeding with discovery to obtain the identity of the defendants so
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`that they may be served is proper and within the scope of permissible discovery. See
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`2 Rule 21 of the Federal Rules of Civil Procedure grants the court authority to revisit the issue of
`misjoinder at any point in an action, either by motion or sua sponte. With this procedural
`protection in mind, I will deny the motion to sever the defendant without prejudice to his ability
`to raise the issue of misjoinder at a later time.
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`Case 5:12-cv-03146-LS Document 14 Filed 01/31/13 Page 6 of 9
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`Blakeslee v. Clinton County, 336 F. App’x 248, 250 (3d Cir. 2009) (discovery for the
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`purpose of identifying John Doe defendants is permissible). Moreover, the Federal Rules
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`of Civil Procedure permit parties to obtain discovery of “the identity and location of
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`persons who know of any discoverable matter.” See FED.R.CIV.P. 26(b)(1).
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`The plaintiff moved for leave to serve discovery prior to a Rule 26(f) conference.
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`See Document #4. At that time, the plaintiff showed that a subpoena seeking the
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`subscriber information associated with the allegedly infringing IP addresses would be the
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`only way for the plaintiff to identify the proper defendants in this case and proceed with
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`its claims against them. The information sought is thus highly relevant to the plaintiff’s
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`claims.
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`Defendant John Doe #13 also argues that the subpoena must be quashed because
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`disclosure of his identity is violative of his First Amendment right to engage in
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`anonymous online communication. The Constitution protects the right to engage in
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`anonymous communication, and that protection extends to the internet. See Reno v.
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`ACLU, 521 U.S. 844, 870 (1997). The First Amendment is implicated by civil
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`subpoenas seeking the identify of anonymous individuals. NAACP v. Alabama ex rel.
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`Patterson, 357 U.S. 449, 462 (1958). However, anonymous speech is not entitled to
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`absolute protection, particularly if the speech consists of copyright infringement. Harper
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`& Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555-56, 569 (1985).
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`The Court of Appeals for the Third Circuit has not yet articulated a standard for
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`balancing the need for discovery against the right to anonymous speech. Courts around
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`the country have applied standards that vary according to the nature of the protected
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`speech and the showing required to overcome that protection. One such test was adopted
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`Case 5:12-cv-03146-LS Document 14 Filed 01/31/13 Page 7 of 9
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`by the Court of Appeals for the Second Circuit. Arista Records LLC v. Doe, 604 F.3d
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`110, 119 (2d Cir. 2010). The test analyzes the following five factors to determine
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`whether the need for disclosure of an individual’s identity outweighs the right to
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`anonymity where the speech alleged is copyright infringement: (1) a prima facie claim of
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`infringement; (2) the specificity of the information sought from the ISP; (3) a lack of
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`alternative means of obtaining that information; (4) a “central need” for the information
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`in order to bring the claim; and (5) the expectation of privacy held by the objecting party.
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`Id. (quoting Sony Music Entertainment Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564-567
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`(S.D.N.Y. 2004)). Finding that the information sought by the plaintiff’s subpoena was
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`necessary to advance its claim, the court denied the motion to quash. Id. at 124.
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`Here, the complaint makes a prima facie claim of copyright infringement which
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`requires “(1) ownership of a valid copyright, and (2) copying of constituent elements of
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`the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340,
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`361 (1991). The plaintiff alleges that it owns the copyright in “Busty Construction Girls”
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`and that the defendants, through the use of BitTorrent, connected to the plaintiff’s
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`investigative server and copied elements of the movie.
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`Next, the subpoena is specific enough to give rise to a reasonable likelihood that
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`information facilitating service upon proper defendants will be disclosed if the ISP’s
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`comply. The subpoena seeks the name, address, telephone number, e-mail address, and
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`“Media Access Control” address, which identifies the specific equipment using the IP
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`address, of the subscriber to whom the served ISP assigned the specific IP addresses at
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`the dates and times of the alleged infringement. Although the provision of this
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`Case 5:12-cv-03146-LS Document 14 Filed 01/31/13 Page 8 of 9
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`information may not directly identify the proper defendants, it is sufficiently tailored to
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`lead to the identification of those individuals. The first and second factor thus weigh
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`against quashing the subpoena.
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`The third and fourth factors of the test also weigh against quashing the subpoena.
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`The plaintiff has previously shown that obtaining the subscriber information possessed by
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`the ISP’s is the only reasonable means of discovering the identity of the subscribers
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`whose IP addresses were used to commit the alleged infringement here.
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`Finally, courts analyzing the expectation of privacy possessed by internet users
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`engaging in online file-sharing have concluded that such expectation is at most minimal
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`because those individuals have already voluntarily given up certain information by
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`engaging in that behavior. See Malibu Media, LLC v. Doe, 2012 U.S. Dist. LEXIS
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`105768, *20-21 (E.D. Pa. July 30, 2012) (citing Raw Films, Ltd. v. John Does 1-15, 2012
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`U.S. Dist. LEXIS 41645, at *8 (E.D. Pa. March 23, 2012))(an internet user engaging in
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`peer-to-peer file sharing has a minimum expectation of privacy); Sony Music
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`Entertainment Inc., 326 F. Supp. 2d at 566-567. One court aptly summarized this
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`sentiment by stating that, “it is hard to understand just what privacy expectation he or she
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`has after essentially opening up the computer to the world.” Malibu Media, LLC, 2012
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`U.S. Dist. LEXIS 105768, *20-21 (quoting In re Verizon Internet Servs., Inc., 257 F.
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`Supp. 2d 244, 267 (D.D.C. 2003) rev’d on other grounds, Recording Indus. Ass’n of
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`America Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003)). This is
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`especially true because the internet subscribers have already voluntarily conveyed their
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`subscriber information, i.e., name, address, and phone number, to their internet service
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`provider.” Malibu Media, 2012 U.S. Dist. LEXIS 105768, at *8. This expectation of
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`privacy is even lower where the alleged transmissions include copyright protected works.
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`Sony Music Entertainment Inc., 326 F. Supp. 2d at 566-567.
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`Here, the defendants have already disclosed their personal information to their
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`ISP’s in order to set up their internet accounts. It is unreasonable, then, to assert a claim
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`of privilege or privacy which would serve as a basis for quashing a subpoenas under Rule
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`45. Even if the defendants retained a reasonable expectation of privacy in their
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`subscriber information, that interest is substantially outweighed by the need to disclose it
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`so that the plaintiff may proceed with bringing what appear to be non-frivolous claims of
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`copyright infringement that cannot be advanced by other means.
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`Accordingly, because I find that the information sought in the subpoena is relevant
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`to the plaintiff’s claims, and under the circumstances, the plaintiff’s right to pursue its
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`claims of infringement by means of discovering subscriber information outweighs the
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`defendant’s asserted rights to remain anonymous in connection with the alleged
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`infringing activity, I will deny the defendant’s motion to quash the subpoena.
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`An appropriate Order follows.
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