Patrick Collins, Inc. v. Does 1-38

941 F. Supp. 2d 153, 2013 U.S. Dist. LEXIS 38232, 2013 WL 1175245
CourtDistrict Court, D. Massachusetts
DecidedMarch 19, 2013
DocketCivil Action No. 12-10756-NMG
StatusPublished
Cited by11 cases

This text of 941 F. Supp. 2d 153 (Patrick Collins, Inc. v. Does 1-38) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patrick Collins, Inc. v. Does 1-38, 941 F. Supp. 2d 153, 2013 U.S. Dist. LEXIS 38232, 2013 WL 1175245 (D. Mass. 2013).

Opinion

ORDER ON REPORT AND RECOMMENDATIONS

NATHANIEL M. GORTON, District Judge.

Report and Recommendation accepted and adopted.

REPORT AND RECOMMENDATION ON MOTIONS TO QUASH AND TO SEVER

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The plaintiff, Patrick Collins, Inc. (“Patrick Collins”), is the registered owner of the copyright to the adult motion picture “Big Wet Brazilian Asses 7.” It has brought this action against 38 unidentified “Doe” defendants, claiming that each of them, acting without the permission or consent of the plaintiff, reproduced and distributed to the public at least a substantial portion of the copyrighted work using computer software known as “BitTorrent” file sharing technology. By its complaint in this action, Patrick Collins has asserted claims against the defendants for copyright infringement and contributory copyright infringement pursuant to the Federal Copyright Act, 17 U.S.C. §§ 101, et seq. The plaintiff is seeking both money damages and injunctive relief.

This case is part of what has been described as a “nationwide blizzard” of copyright infringement actions that have been filed by adult film producers against large numbers of Doe defendants identified only by their Internet Protocol (“IP”) addresses. See In re BitTorrent Adult Film Copyright Infringement Cases, Civil Action Nos. 11-3995(DRH)(GRB), 12-1147(JS)(GRB), 12-1150(LDW)(GRB), 12-1154(ADS)(GRB), 2012 WL 1570765, at *1 (E.D.N.Y. May 1, 2012) (slip op.). It also is one of a number of such actions that have been filed in this district by various adult video companies, all of which have been represented by the same counsel and involve virtually identical claims and filings. See SBO Pictures v. Does 1-41, Civil Action No. 12-10804-FDS, 2012 WL [156]*1565464182, at *1 (D.Mass. Nov. 5, 2012) (slip op.) (listing examples of similar cases). The plaintiffs in these cases typically file a complaint alleging that a large group of “Doe” defendants identified only by their IP addresses illegally reproduced and distributed a pornographic motion picture using BitTorrent technology as part of a single “swarm.” In order to identify the individuals associated with each of the IP addresses at issue, the plaintiffs then move for permission to serve Rule 45 subpoenas upon the Internet Service Providers (“ISPs”) responsible for assigning IP addresses to each of the Doe defendants. See id. (describing typical strategy used by adult film producers in similar copyright infringement cases filed in Massachusetts). The threat of disclosure typically triggers challenges to the subpoenas as well as early settlements by some of the Doe defendants.

This is the strategy that has been employed by Patrick Collins in this case. Following the filing of its complaint, Patrick Collins filed an ex parte motion for early discovery, and was granted permission to serve Rule 45 subpoenas upon the relevant ISPs. However, before any names were made public, the Doe defendants were given an opportunity to challenge the subpoenas or attempt to resolve the matter with the plaintiff. To date, Patrick Collins has reached settlements with four of the Doe defendants and has dismissed those defendants from the litigation with prejudice and without ever revealing their identities. Two of the Doe defendants, Doe Number 30 and a second Doe who is acting pro se and has not identified himself 1 by name, Doe number or IP address (“Pro Se Doe”), have filed motions to quash the subpoenas that were issued to their ISPs. Those motions are currently pending before the court.

Specifically, by his motion (Docket No. 10), Doe Number 30 is seeking an order quashing a subpoena that was served on Verizon in order to obtain his personally identifying information. Doe Number 30 contends that such an order is warranted under Fed.R.Civ.P. 45 because the harm that he would suffer as a result of such disclosure, and his interest in maintaining his privacy, outweigh the plaintiffs need for discovery. He also argues that under the circumstances of this case, Verizon is barred from disclosing his personally identifying subscriber information pursuant to 47 U.S.C. § 551.

In support of his motion (Docket No. 11), Pro Se Doe contends that the joinder of 38 defendants in this action is improper under Fed.R.Civ.P. 20 because the alleged infringement was committed by unrelated defendants who acted separately and may have different defenses, and because the alleged conduct took place at different times and in different locations. He also contends that under the circumstances of this ease, permitting joinder would create a substantial risk of unfairness to the individual Does. Accordingly, by his motion, Pro Se Doe is seeking an order severing the defendants and dropping Doe Nos. 2-38 from the litigation pursuant to Fed.R.Civ.P. 21. Because Pro Se Doe’s motion arises under Rules 20 and 21 rather than Rule 45, this court has construed it as a motion to sever rather than a motion to quash a subpoena.

For all the reasons detailed below, this court finds that while joinder of the defendants may be permissible under Fed.R.Civ.P. 20(a), the interests of justice and [157]*157judicial economy would best be served if all of the defendants except Doe Number 1 were severed and dropped from the case pursuant to Fed.R.Civ.P. 21. Accordingly, this court recommends to the District Judge to whom this case is assigned that Pro Se Doe’s motion to sever (Docket No. 11) be ALLOWED, and that Patrick Collins’ claims against all defendants except Doe Number 1 be dismissed without prejudice to refiling against each of the defendants individually. In light of this court’s recommendation that Doe Number 30 be dismissed from the case, this court further recommends that the “Motion to Quash Subpoena” (Docket No. 10) filed by that individual be DENIED AS MOOT.

II. OVERVIEW

Since the filing of this litigation in April 2012, courts in this district as well as elsewhere have become increasingly troubled by what some commentators have described as “copyright trolling,” whereby the owner of a valid copyright “files a mass copyright infringement lawsuit and subpoenas identifying information for anonymous Doe defendants, intending to send demand letters and achieve prompt settlements for limited amounts rather than intending to actually litigate the claims asserted.” Kick Ass Pictures, Inc. v. Does 1-25, C.A. No. 12-10810-MLW, 2013 WL 1497229, at *1 (D.Mass. Jan. 4, 2013). As one Judge in this District cautioned in a recent decision:

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941 F. Supp. 2d 153, 2013 U.S. Dist. LEXIS 38232, 2013 WL 1175245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patrick-collins-inc-v-does-1-38-mad-2013.