Third Degree Films v. Does 1-47

286 F.R.D. 188, 83 Fed. R. Serv. 3d 1136, 104 U.S.P.Q. 2d (BNA) 2015, 2012 WL 4498911, 2012 U.S. Dist. LEXIS 142079
CourtDistrict Court, D. Massachusetts
DecidedOctober 2, 2012
DocketCivil Action No. 12-10761-WGY
StatusPublished
Cited by21 cases

This text of 286 F.R.D. 188 (Third Degree Films v. Does 1-47) 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
Third Degree Films v. Does 1-47, 286 F.R.D. 188, 83 Fed. R. Serv. 3d 1136, 104 U.S.P.Q. 2d (BNA) 2015, 2012 WL 4498911, 2012 U.S. Dist. LEXIS 142079 (D. Mass. 2012).

Opinion

MEMORANDUM & ORDER

YOUNG, District Judge.

I. INTRODUCTION

In recent months, this Court has grown increasingly troubled by “copyright trolling,”1 specifically as it has evolved in the adult film industry. The Court is not alone in its concern. Judges, scholars, and journalists alike have noted the recent trend—in[190]*190deed, new business mode2—-whereby adult film companies file mass lawsuits against anonymous Doe defendants, identified only by their IP addresses, alleging that each IP address reproduced its pornographic film via file sharing technology in a single swarm, thus infringing the company’s valid copyright and entitling the company to statutory damages.3

While it is without question that a valid copyright holder is entitled to seek protection of its intellectual property in federal court, it appears that in at least some of these cases, adult film companies may be misusing the subpoena powers of the court, seeking the identities of the Doe defendants solely to facilitate demand letters and coerce settlement, rather than ultimately serve process and litigate the claims.4 And while it is true that every defendant to a lawsuit must assess reputational costs in his or her determination of whether to settle or defend an action, the potential for embarrassment in being publicly named as allegedly infringing such salacious works as “Big Butt Oil Orgy 2” or “Illegal Ass 2,” may be playing a markedly influential role in encouraging a myriad of Doe defendants to settle once subpoenas are issued—a bargaining chip the adult film companies appear to well understand.5

Against this backdrop of mass lawsuits and potentially abusive litigation tactics, courts nationwide have become skeptical of allowing [191]*191the adult film companies unfettered access to the judicial processes of subpoenas and early discovery.6 Furthermore, many courts are eradicating these mass filings on the ground that joinder of tens, hundreds, and sometimes thousands of alleged infringers is improper,7 and some have admonished the plaintiff adult film companies for evading such substantial court filing fees as they have through the joinder mechanism.8 Still, a number of courts have upheld the joinder of Doe defendants as proper and efficient, issued subpoenas, and permitted early discovery.9

This Court takes this occasion to address the issue of whether joinder of Doe defendants who allegedly infringed a copyrighted film via file sharing technology in a single swarm is permissive under Federal Rule of Civil Procedure 20(a), and, if so, whether any protective measures ought be taken by the Court pursuant to its broad discretion under Federal Rule of Civil Procedure 20(b).

II. ANALYSIS

A. Procedural Posture

On April 28, 2012, Third Degree Films, Inc. (“Third Degree”) sued forty-seven Doe [192]*192defendants, identified only by their IP addresses. Compl. Copyright Infringement (“Compl.”), ECF No. 1. Two days later, Third Degree filed an emergency motion for expedited discovery, seeking to subpoena the respective Internet Service Providers (“ISPs”) to obtain the Doe defendants’ personal identifying information. Pl.’s Emergency Ex-Parte Mot. Early Disc., ECF No. 3. This Court granted the motion and issued a modified order, instructing the ISPs to notify the subscribers of the subpoena, allow them thirty days from the date of notice to move to quash or vacate the subpoena, and then disclose the subpoenaed information to Third Degree. Order Granting Pl.’s Emergency Ex-Parte Mot. Early Discovery, ECF No. 7.

Subsequently, several Doe defendants moved to quash the subpoena, sever the defendants, or dismiss the action. Def. Doe No. 44’s Mot. Quash (“Doe 44’s Mot.”), ECF No. 8; Mot. Quash & Mem. Supp. Mot. (“Doe 19’s Mot.”), ECF No. 9; Mot. Doe 10 Sever Dismiss Alt. Objection Inspection Mot. Quash (“Doe 10’s Mot.”), ECF No. 10; Def. Doe 34’s Mot. Quash, Issuance Protective Order, Dismiss Compl., Incorporated Mem. Law (“Doe 34’s Mot.”), ECF No. 13; Doe 12’s Mot. Sever & Dismiss, Alt., Mot. Quash Subpoena (“Doe 12’s Mot.”), ECF No. 16; Con-sol. Mot. Quash Subpoena Pursuant FRCP 45, Alt., Mot. Sever Pursuant FRCP 21 (“Doe 22’s Mot.”), ECF No. 18. Third Degree filed opposition briefs to the various motions. Opp’n (ECF No. 9) Doe’s Mot. Quash, ECF No. 19; Opp’n (ECF No. 8) Doe’s Mot. Quash, ECF No. 20; Opp’n (ECF No. 10 & 16) Mots. Sever, Dismiss, Alt. Mot. Quash Subpoena (“Pl.’s Opp’n Br.”), ECF No. 21; Opp’n (ECF No. 13) Doe’s Mot. Quash, Issuance Protective Order, Dismiss Compl., ECF No. 22; Opp’n (ECF No. 18) Doe’s Mot. Quash Sever, ECF No. 24.

Third Degree has notified the Court of dismissal with prejudice of the following Doe defendants to date: Doe 8, Doe 13, Doe 14, Doe 23, Doe 26, Doe 30, Doe 36, Doe 39, Doe 43 and Doe 46. Dismissal Prejudice Specific Does, ECF Nos. 25, 26, 27, 30. On September 7, 2012, Third Degree moved for a 120-day extension to serve the now-identified defendants with a complaint and summons. Pl.’s Mot. Enlargement Time Service, ECF No. 28.

B. Facts as Alleged

Third Degree produced and owns a valid copyright to the adult film, “MILF Wars: Lisa Ann Vs. Julia Ann” (the “Film”). Compl. ¶ 8. Without Third Degree’s authorization, Does 1-47 reproduced and distributed to the public at least a substantial portion of the Film using the BitTorrent file transfer protocol (“BitTorrent”). Id. ¶ 19.

As this Court previously described in Liberty Media Holdings, LLC v. Swarm Sharing Hash File AE340D0560129AFEE 8D78CE07F2394C7B5BC9C05,

BitTorrent is a peer-to-peer file-sharing protocol used for the distribution and sharing of data over the Internet, including files containing digital versions of motion pictures. BitTorrent is different from traditional peer-to-peer networks in that it organizes all users who wish to download a particular file into a collective distribution network, known as a “swarm.” Being part of a swarm allows users to simultaneously download and upload pieces of the media file from each other, rather than download the entire file from a single source.
File sharing through the BitTorrent network begins with a single individual, often referred to as a “seed” user or “seeder,” who intentionally chooses to share a particular file with a BitTorrent swarm. The original file in this ease contains the entire Motion Picture. Once the file has been shared by the seed user, other members of the swarm can download the original file, which creates an exact digital copy on the computers of the downloading users. Each user requesting to download the file becomes a member of the swarm and consequently receives pieces of the original file.

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286 F.R.D. 188, 83 Fed. R. Serv. 3d 1136, 104 U.S.P.Q. 2d (BNA) 2015, 2012 WL 4498911, 2012 U.S. Dist. LEXIS 142079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/third-degree-films-v-does-1-47-mad-2012.