IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.

1:12-CV-01953-WYD-MEH MALIBU MEDIA, LLC Plaintiff, v. BRIAN BATZ and DOES 1-2, 4-13 and 15-42 Defendants.
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DEFENDANT DOE #41S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6), 20(a), OR ALTERNATIVELY TO SEVER AND DISMISS PURSUANT TO FED. R. CIV. P. 20(b) AND 21 _____________________________________________________________________________ Defendant John Doe #41 (Doe 41) identified at Internet Protocol (IP) address 75.171.215.82 on May 15, 2012 at 12:30 UTC moves the Court to dismiss Doe 41 from the instant case because Plaintiffs Amended Complaint has failed to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). To the extent the alleged direct and/or contributory copyright infringement claims against Doe 41 are not dismissed pursuant to Rule 12(b)(6), the claims against Doe 41 should be dismissed pursuant to Fed. R. Civ. P. 20 for improper joinder. To the extent the claims against Doe 41 are not dismissed pursuant to Rules 12(b)(6) and 20(a), the claims against Doe 41 should be severed and dismissed pursuant to Fed. R. Civ. P. 20(b) and 21. Doe 41 has submitted to the Court an accompanying Brief in Support of the Motion to Dismiss more fully discussing the arguments set forth below:

1.

Malibu Medias Amended Complaint against Doe 41 is one of dozens of lawsuits

against hundreds of defendants who are alleged to have infringed Plaintiffs purported copyrights in pornographic movies. The context in which Malibu Media asserts its claims against Doe 41 should be the lens through which the claims are evaluated. This context was expressed in recent weeks by The Honorable Magistrate Judge Drodz of the Eastern District of California when he stated in an Order addressing his reconsideration and denial of a motion by Malibu Media to engage in expedited discovery: The court has additional concerns regarding plaintiff's request for expedited discovery. A great number of similar cases have been filed in the past several months in this and other District Courts, many of which appear to be simply using the federal courts as an avenue to collect money. As one judge aptly observed: The Court is familiar with lawsuits like this one. [Citations omitted.] These lawsuits run a common theme: plaintiff owns a copyright to a pornographic movie; plaintiff sues numerous John Does in a single action for using BitTorrent to pirate the movie; plaintiff subpoenas the ISPs to obtain the identities of these Does; if successful, plaintiff will send out demand letters to the Does; because of embarrassment, many Does will send back a nuisancevalue check to the plaintiff. The cost to the plaintiff: a single filing fee, a bit of discovery, and stamps. The rewards: potentially hundreds of thousands of dollars. Rarely do these cases reach the merits. The federal courts are not cogs in a plaintiff's copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial. By requiring Malibu to file separate lawsuits for each of the Doe Defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlement making this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it. Malibu Media, LLC v. John Does 1 through 10, No. 2:12-cv-3623-ODW (PJWx), 2012 U.S. Dist. LEXIS 89286, at *8-9 (C.D. Cal. June 27, 2012). See also Malibu Media, LLC v. Does 1-5, No. 12 Civ. 2950(JPO), 2012 WL 2001968, at *1 (S.D. N.Y. June 1, 2012) ("This court shares the growing concern about unscrupulous tactics used by certain plaintiffs, particularly in 2

the adult films industry, to shake down the owners of specific IP addresses from which copyrighted adult films were allegedly downloaded."). Malibu Media v Does 1-13, No. 2:12-cv-01513 JAM DAD, 2012 U.S. Dist. LEXIS 148215, at *4 n.2 (E.D. Cal. Oct. 15, 2012) (Drozd, Magistrate Judge) (emphasis added). 2. To survive a motion to dismiss under Fed. R. Civ. P. 12(b), a plaintiff must put

forth sufficient [f]actual allegations . . . to raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, a complaint must contain enough allegations of fact, taken as true, to state a claim for relief that is facially plausible. D. Al-Owhali v. Holder, 687 F.3d 1236, 1239-40 (10th Cir. 2012) (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1937 (2009). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The [plaintiffs] allegations must be enough that the plaintiff plausibly (not just speculatively) has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). A complaints basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court. Twombly, 550 U.S. at 558 (quoting 5 C. Wright and A. Miller, Fed. Prac. & Proc. 1216, pp. 235-36 (3d ed. 2004)). Determining whether a complaint states a plausible claim for relief will be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Iqbal, 129 S. Ct. at 1950). Conclusory allegations are not to be considered in analyzing the plausibility of a claim. Iqbal, 129 S. Ct. at 1949-51. The plausibility standard is not akin to a probability requirement but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Vaninetti v. Western Pocahontas Properties, No. 11-cv-02308-LTB-MEH, 2012 WL 4359302, at *1 (D. Colo. Sept. 24, 2012) (Babcock, J.) (quoting Iqbal). 3. In ruling on Doe 41s 12(b)(6) motion to dismiss, this Court may properly

consider facts subject to judicial notice such as court files and matters of public record, as well as documents referred to in the complaint if the documents are central to the plaintiffs claim and their authenticity is not disputed. Id. (citing Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 n.1 (10th Cir. 2004)). 4. Where the Court finds improper joinder under Fed. R. Civ. P. 20, the Court may

dismiss any improperly joined parties from the suit. See, e.g., Malibu Media, LLC v. Does 1-28, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2599-WJM-MEH, 2012 WL 4755358, at *1 (D. Colo. Oct. 5, 2012) (Martinez, J.). Even if the Court finds joinder to be proper under the circumstances, it may sever the remaining Defendants pursuant to the Courts discretionary authority set forth in Fed. R. Civ. P. 20(b) and 21. Id. at *3. That is, even if the specific requirements of Rule 20 are satisfied (they are not in this case), the Court may sever claims under Rule 20 if joinder would violate fundamental fairness or cause undue prejudice to any party. Desert Empire Bank v. Ins. Co. of N. A., 623 F.2d 1371, 1375 (9th Cir. 1980); see also Third Degree Films v. Does 1-47, No. 1210761-WGY, 2012 WL 4498911 (D. Mass. Oct. 2, 2012) (reversing the courts previous position of approval to disapproval of swarm joinder in mass copyright infringement cases involving alleged BitTorrent downloads of adult movies and severing and dismissing defendants on the basis of Rule 20(b)).

5.

Plaintiff alleges two separate claims for copyright infringement. The first claim is

for Direct Infringement under 17 U.S.C. 106. Amended Complaint 49-55. The second claim is for Contributory Infringement under 17 U.S.C. 504. Amended Complaint 56-65. Neither claim is supported by the conclusory, vague and confusing allegations of the Amended Complaint and the attached exhibits. 6. Ownership of the copyright allegedly infringed is an essential element of a

copyright infringement claim. La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009). Plaintiff bears the burden of proof on ownership. Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005). The Copyright Registrations submitted with the Amended Complaint as Exhibit B state that the authorship on the applications submitted to the Copyright Office was Malibu Media LLC, employer for hire. 7. This Court can take judicial notice of public records on file at the California

Secretary of States Office that reveal that Malibu Media LLC was not organized until February 8, 2011. See Exhibit 1 attached to supporting brief. This Court can take judicial notice of allegations in other civil actions involving certain of the pornographic films at issue here that state that the films were made in foreign lands in 2009 and 2010. See Complaint 13 in Case 1:12-cv-00397-WJM-MEH (The Works were authored by a national or domiciliary of a treaty party; the Works were first published in a foreign nation that is a treaty party.). Thus, despite plaintiffs conclusory allegation that it owns the alleged copyrights at issue, it is not plausible (and indeed not possible) that Malibu Media was the employer of the foreign persons who may have produced the films months and years before Malibu Media existed. Thus Malibu Media

cannot be the author by reason of employer for hire. See 17 U.S.C. 101(1); see also Peregrine v. Lauren Corp., 601 F. Supp. 828, 829 (D. Colo. 1985) ("Section 101(1) defines a 'work made for hire' as 'a work prepared by an employee in the scope of his or her employment.'"). A finding of invalidity of copyright registrations for any reason provides a sufficient basis for a determination of no infringement. Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 109 (2nd Cir. 2002) (Based on the evidence in this case, the jury could have reasonably concluded that the copyright registrations were invalid because Modlin was not an author of FormFree or Superbill Express or because the copyright registrations contained material inaccuracies.).1 8. Even assuming that Malibu Media was the author of and owns the purported

copyrights at issue and that the pornographic movies at issue are subject to copyright protection, a claim for infringement requires the copying of a protected work without the consent, authorization or permission of the owner. See Schmidt v. Holy Cross Cemetary, Inc., No. 922436-JWL, 1993 WL 512414, at *2 (D. Kan. Nov. 2, 1993) (reciting the elements of copyright infringement). In the context of this case, Plaintiffs bare and conclusory allegation that it did not authorize, permit or consent to Defendants copying of its Works [Amended Complaint 52] is belied by the allegations in its complaints in other civil actions that Malibu Media knew months before Doe 41 is alleged to have copied the Works in May 2012 that the Works were

In the event that this motion to dismiss is not granted, discovery will be necessary to get to the bottom of Malibu Medias claimed ownership of the copyrights and whether there was any fraud on the Copyright Office when Malibu Media submitted applications that stated that Malibu Media LLC, employer for hire was the author of the Works. See Amended Complaint Exhibit B (Registrations that each state: Authorship on Application: Malibu Media LLC, employer for hire.). 6

available on websites and accessible and subject to copying through use of BitTorrent programs. See, e.g., Complaint filed February 15, 2012 in Malibu Media LLC v John Does 1-29, Case 1:12cv-00397-WJM-MEH, 2. With knowledge that Torrent Sites were making its X-Art Siterip #1 Works available for copying, Plaintiff apparently did nothing to protect its Works. Rather, Malibu Media permitted the Torrent Sites to continue to make the X-Art Siterip #1 Works available for copying. The allegations of the Amended Complaint and companion complaints reveal that the only actions taken by plaintiff were to register additional movies that comprised the X-Art Siterip #1 Works, to retain the services of IPP, Limited to monitor copying and track the Unique Hash Number, and to commence litigation against unsuspecting defendants who may or may not have used their IP address to copy the Works. Amended Complaint 31-46. The Amended Complaint fails to allege that Plaintiff did anything to have torrent sites remove or otherwise disable or take down the X-Art Siterip #1 Works from the torrent websites. See generally, Amended Complaint. Under these circumstances, Plaintiff cannot plausibly allege that it did not authorize, consent or permit the copying of its Works. 9. For contributory infringement, a plaintiff must allege (i) direct copyright

infringement by a third-party; (ii) knowledge by the defendant of the direct infringement; and (iii) material contribution to the infringement. Shell v. American Family Rights Association, No. 09cv00309MSKKMT, 2012 WL 4476641, at *14 (D. Colo. Sept. 28, 2012). Because Malibu Media cannot plausibly be the owner of the alleged copyrights at issue, the contributory infringement claim should be dismissed for the same reason that the direct infringement claim is subject to dismissal. Also, apart from issues of ownership, for many of the same reasons that

Doe 41 should be dismissed for improper joinder (discussed below), the claim of contributory infringement should be dismissed. 10. If the claims against Doe 41 are not dismissed pursuant to Rule 12(b)(6), the

claims should be dismissed for improper joinder pursuant to Rule 20(a). Plaintiffs attempt to join unrelated Doe defendants in a single action based upon their alleged use of BitTorrent technology is improper because (1) it violates the same transaction, occurrence, or series of transactions test for permissive joinder under Fed. R. Civ. P. 20(a)(2) as recognized by The Honorable William J. Martinez in this District and a growing body of federal district courts across the country; and (2) joinder under these circumstances is fundamentally unfair and will cause significant prejudice to each defendant, including Doe 41. See e.g. Malibu Media, LLC v. Does 1-28, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2599-WJM-MEH, 2012 WL 4755358 (D. Colo. Oct. 5, 2012); Third Degree Films, Inc. v. John Does 1-47, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2391-WJMMEH, 2012 WL 4005842 (D. Colo. Sept. 12, 2012); Malibu Media, LLC v. John Does 1-14, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2071-WJM-MEH, 2012 WL 3401441 (D. Colo. Aug. 14, 2012); Malibu Media v. Bill S. Felitti, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than Bill S. Felitti, No. 12-cv-1522-WJM, 2012 WL 3030304 (D. Colo. July 25, 2012); but see Patrick Collins, Inc. v. John Does 1-15, Order Denying Motion to Sever, No. 11-cv-02164-CMA-MJW, 2012 WL 415436 (D. Colo. Feb. 8, 2012) (finding swarm joinder proper). 8

11.

If the Court does not dismiss the case against Doe 41 under Rule 12(b)(6) and

further finds that joinder under the instant facts meets the requirements of Rule 20(a), the Court should sever and dismiss Doe 41 pursuant to the Courts discretionary authority under Fed. R. Civ. P. 20(b) and 21. Notably, the District of Massachusetts has recently changed its position from approval to disapproval of swarm joinder and has exercised its broad discretion under Rule 20(b) to sever and dismiss 46 of 47 Doe defendants from a BitTorrent lawsuit: In recent months, this Court has grown increasingly troubled by copyright trolling, [footnote omitted] 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 indeed, new business mode [footnote omitted]- 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 companys valid copyright and entitling the company to statutory damages. [footnote omitted] * * *

Since its decision was issued in Liberty Media [Holdings LLC v. Swarm Sharing Hash File AE340D0560129AFEE8D78CE07F2 394C7B5BC9C05, 821 F. Supp. 2d 444 (D. Mass. 2011)], this Court has entertained a profusion of filings in the mass copyright infringement cases on its docket. Upon further reflection and a deeper understanding of the policy concerns at play, the Court now revisits and amends its holding in Liberty Media. The Court continues to maintain that joinder is technically proper under Rule 20(a). The Court now holds, however, that in light of its serious concerns regarding prejudice to the defendants as a result of joinder, it ought exercise the broad discretion granted it under Rule 20(b) and sever the Doe defendants in this action and in similar actions before this Court. * * * The Court acknowledges without reservation Third Degrees right to assert copyright protection of the Film and to sue individuals who infringe on its intellectual property. But after careful weighing of the balance of potential injustices in this case and like cases, the Court determines that any efficiency gains and cost benefits to Third degree from joining the Doe defendants in a single action are substantially outweighed by the fairness concerns and inefficiencies at trial, the potential prejudice from what seems to be a 9

developing pattern of extortionate settlement demands, and the evasion of thousands of dollars of filing fees. Third Degree Films v. Does 1-47, No. 12-10761-WGY, 2012 WL 4498911, (D. Mass. Oct. 2, 2012) (emphasis added). WHEREFORE, for the reasons stated herein and in Doe 41's supporting brief, the Court should dismiss Doe 41 from this case pursuant to Rule 12(b)(6) for Plaintiffs failure to state plausible direct and/or contributory copyright infringement claims against Doe 41 upon which relief can be granted. In the event that the Amended Complaint is not dismissed as against Doe 41 pursuant to Rule 12(b)(6), Doe 41 should be dismissed from this case for improper joinder. In the event that the case against Doe 41 is not dismissed pursuant to Rule 12(b)(6) or for improper joinder under Rule 20(a), the claims against Doe 41 should be severed and dismissed pursuant to Rules 20(b) and 21. Dated: November 2, 2012. Respectfully submitted

By: /s/Marc D. Flink Marc D. Flink #12793 Raj Chohan #42845 Baker & Hostetler LLP 303 E. 17th Ave. Suite 1100 Denver, Colorado 80203 Telephone: 303-764-4119 mflink@bakerlaw.com rchohan@bakerlaw.com Attorneys for Defendant Doe #41

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CERTIFICATE OF SERVICE I hereby certify that on the 2ND day of November, 2012, the foregoing DEFENDANT DOE #41S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6), 20(a), OR ALTERNATIVELY TO SEVER AND DISMISS PURSUANT TO FED. R. CIV. P. 20(b) AND 21 was filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following persons: Jason Kotzker Kotzker Law Group 9609 S. University Blvd. #632134 Highlands Ranch, CO 80163 and by sending a copy via regular U.S. Mail to: Brian Batz 2207 E. 102nd Avenue Thornton, CO 80229 s/ Marc D. Flink

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