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LHF Productions Inc. v. Does

United States District Court, E.D. Virginia, Richmond Division

December 22, 2016

LHF PRODUCTIONS, INC., Plaintiff,
v.
JOHN DOES 1-25, Defendants.

          MEMORANDUM OPINION

          M. Hannah Lauck United States District Judge.

         This matter comes before the Court on six motions: (1) the Motion to File Under Seal and to Proceed Anonymously (the "Motion to Seal") filed by Defendant John Doe 25, (ECF No. 6); (2) the Motion to Sever filed by John Doe 25, (ECF No. 6-3);[1] (3) the Motion to Quash filed by Defendant Sir Edward Thomas, Sr., (ECF No. 7); (4) the Motion for Miscellaneous Relief filed by Plaintiff LHF Productions, Inc. ("LHF"), (ECF No. 13); (5) the Second Motion to Extend Time Pursuant to Federal Rule of Civil Procedure 4(m) (the "Second Motion to Extend Time") filed by LHF, (ECF No. 15); and, (6) the Third Motion to Extend Time Pursuant to Federal Rule of Civil Procedure 4(m) (the "Third Motion to Extend Time") filed by LHF, (ECF No. 16).

         LHF responded to the Motion to Seal, the Motion to Sever, and the Motion to Quash. Neither John Doe 25 nor Thomas filed replies to LHF's responses or responses to LHF's motions, and the time to do so has expired. The matters are ripe for disposition. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1338(a).[2] The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process.

         For the reasons that follow, the Court will grant: (1) the Motion to Sever, (ECF No. 6-3); and, (2) the Second Motion to Extend Time, (ECF No. 15). The Court will deny as moot: (1) the Motion to Quash, (ECF No. 7); (2) the Motion to Seal, (ECF No. 6); (3) the Motion for Miscellaneous Relief, (ECF No. 13); and, (4) the Third Motion to Extend Time, (ECF No. 16). The Court will sever and dismiss without prejudice all defendants except John Doe 1 from this action and will quash any subpoenas issued pursuant to its May 26, 2016 Order, (ECF No. 5), to the extent the subpoenas pertain to Defendants John Does 2-25.

         I. Factual and Procedural Background

         A. Allegations in the Complaint

         On May 13, 2016, LHF filed its Complaint for Copyright Infringement against John Does 1-25 in this Court.[3] (ECF No. 1.) The Complaint listed 25 John Doe defendants ("the Defendants"), identified by their Internet Protocol ("IP") addresses, who had allegedly infringed on LHF's copyrighted work, the motion picture London Has Fallen ("the Movie"), in violation of the United States Copyright Act, 17 U.S.C. §§ 101, etseq. To establish personal jurisdiction in this District, LHF used "geolocation technology" to trace the IP addresses of all the Defendants to a point of origin within this District.

         The Complaint alleges that, using a network called a "BitTorrent protocol" ("BitTorrent"), the Defendants "reproduced, distributed[J and offered to distribute" the Movie without LHF's consent or permission. (Compl. 2-3.) The Defendants' alleged use of BitTorrent occurred over the span of one week: March 8, 2016, to March 14, 2016. LHF contends that BitTorrent differs from a Peer-to-Peer protocol in that it facilitates data-sharing among individuals and "makes even small computers with low bandwidth capable of participating in large data transfers." (Id. at 2.) In BitTorrent, the initial shared file is called a "seed, " and other users on the network are called "peers." When peers connect to the network and request the seed, they receive different pieces of the seed data from other peers who have already downloaded the file. Each peer thus "becomes a part of the network from which the file can be downloaded." (Id.) This group of peers is called a "swarm." LHF claims that with BitTorrent, "every downloader [is] also an uploader" of the shared file, and every member of a swarm serves as a source for the seed file, so long as the member remains online at the time other peers download the file. (Id. at 2-3.) Furthermore, "because of the nature of the swarm downloads ... every [peer] is [downloading seed data] from many [ISPs] in numerous jurisdictions." (Id. at 3.) Uploading one seed file to a BitTorrent network "can result in nearly instantaneous worldwide distribution of that single [file] to a limitless number of people." (Id.)

         LHF asserts that "each Defendant deliberately participated in a swarm and/or reproduced and/or distributed the same seed file" of the Movie, and thereby "participated in a collective and interdependent manner with other Defendants" to infringe LHF's copyright. (Id. at 5-6.) LHF states that because all the Defendants participated in the "same swarm" using BitTorrent, all the Defendants participated in the "same transaction, occurrence[, ] or series of transactions or occurrences as the other Defendants in the swarm." (Id. at 6.) LHF seeks declaratory, injunctive, and monetary relief.

         On May 19, 2016, LHF filed a Motion for Leave to Serve Third Party Subpoenas in order to ascertain the identities of the John Doe defendants associated with the IP addresses. LHF sought leave to serve limited discovery on the Internet Service Providers ("ISPs") from which the Defendants obtain Internet access in order to determine the Defendants' identities. On May 26, 2016, the Court granted LHF's Motion and allowed LHF to serve subpoenas under Federal Rule of Civil Procedure 45[4] seeking "information sufficient to identify each defendant, including name, address, telephone number, email address, and Media Access Control address." (Order 2.)

         B. John Doe 25's Motions

         On July 5, 2016, the defendant with the IP address 71.63.18.245, identifying him-or-herself as "John Doe #25" filed, pro se, the Motion to Seal and the Motion to Sever. The Motion to Seal requests that the Court allow John Doe 25 to proceed anonymously under a pseudonym to "protect Doe from harassment, injury, ridicule, and personal embarrassment." (Mot. Seal 2.) John Doe 25 asserts that courts have previously recognized "[t]he danger of damaged reputation of innocent individuals accused of copyright infringement of pornographic material as well as the risks of extortions to such individuals." (Id. at 3.)

         In the Motion to Sever, John Doe 25 argues that the Doe Defendants are improperly joined under Federal Rule of Civil Procedure 20[5] because the alleged infringement occurred among "unrelated defendants, at different times and locations, sometimes using different services, and perhaps subject to different defenses." (Mot. Sever 5.) Although styled as a Motion to Sever, the Motion to Sever also requests that the Court "Squash [sic] JDoe25 from the Plaintiffs Subpoena to Comcast Cable Communications, LLC, " (Mot. Sever 10), and includes extensive argument about why the subpoena should be quashed. John Doe 25 urges this Court to quash the subpoena because: (1) it is overbroad and ambiguous; (2) IP addresses do not "qualify as personal information[] capable of accurately identifying an individual, " (Id. at 7); (3) it subjects John Doe 25 to an undue burden "in being a target of this civil action, " (Id. at 9); and, (4) it violates basic fairness and due process because "it fails to sufficiently verify the validity of the information forming the basis of the request, " (Id. at 10).

         On July 12, LHF filed an Opposition to John Doe 25's Motion to Seal (the "Opposition to Motion to Seal") and an Opposition to John Doe 25's Motion to Sever (the "Opposition to Motion to Sever"). The Opposition to Motion to Seal includes a lengthy discussion of unauthenticated and inadmissible data purportedly collected by LHF, attached as Exhibit 2. LHF describes Exhibit 2 as "captured data [which] shows that 'Doe 25' has likely infringed over 200 copyrighted works since March 15, 2015, " and points to the "data" as support for its argument that "[a]pparently 'Doe 25' believes that he/she should be allowed to violate federal law with impunity and do it under a cloak of judicial anonymity." (Opp. Mot. Seal 2.) LHF contends that John Doe 25's Motion to Seal does not address the factors that the United States Court of Appeals for the Fourth Circuit has identified as relevant in determining whether a court should allow a party to proceed anonymously, noting that John Doe 25 merely states that he "wishes to avoid annoyance and criticism." (Opp. Mot. Seal 11-12.) LHF asks this Court to deny the Motion to Sever because: (1) John Doe 25 lacks standing because he is not a party to the action; (2) joinder is proper under Federal Rule of Civil Procedure 20 because "all the defendants face the same claim" and "[t]here are clearly commonalities in their joined, if not cooperative activity furthering the BitTorrent economy of piracy, " (Opp. Mot. Sever 8); and, (3) no basis to quash the subpoena exists. John Doe 25 did not reply to the Opposition to Motion to Seal or the Opposition to Motion to Sever.

         C. Sir Edward Thomas. Sr.'s Motion to Quash

         On July 8, 2016, Sir Edward Thomas, Sr., filed, pro se, a Motion to Quash. Thomas's short motion argued that the Court should quash the subpoena because neither he nor his wife has "any idea about this video or even the fact of how it was downloaded." (Mot. Quash 1.)

         On July 15, 2016, LHF filed an Opposition to Thomas's Motion to Quash (the "Opposition to Motion to Quash"). LHF contends that this Court should deny Thomas's Motion to Quash because it "simply presents no facts or arguments that address any of the available grounds for relief under Fed[eral] R[ule of] Civ[il] Procedure] 45." (Opp. Mot. Quash 3.) LHF asserts that because "the Motion effectively asks this Court to render a judgment on the merits of the case, " the Motion to Quash should be denied. (Id. at 4.) Thomas did not reply to the Opposition to Motion to Quash.

         D. LHF's Motion for Miscellaneous Relief

         On September 1, 2016, LHF filed the Motion for Miscellaneous Relief asking the Court to deny the Motion to File Under Seal, the Motion to Sever, and the Motion to Quash. LHF stated that "a prompt resolution on the ... pending motions [would] reduce the additional time" necessary to serve the Defendants. (Mot. Miscellaneous Relief 1-2.) No defendants have responded to the Motion for Miscellaneous Relief.

         E. LHF's Second Motion to Extend Time

         On October 6, 2016, LHF filed the Second Motion to Extend Time, requesting the Court to extend time to serve the Defendants because the ISP subject to the subpoena this Court authorized in its May 26, 2016 Order "has refused to provide information concerning the IP addresses at issue in this case until this Court rules on the pending Motion to Quash and Motion to Sever." (Mot. Extend Time 1.) LHF asked for an extension of sixty days "to complete depositions for identification purposes, ...


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