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STEVENS LAW OFFICE, PLC Ryan J. Stevens (AZ Bar No. 026378) 309 N. Humphreys Street, Ste. 2 Flagstaff, Arizona 86001 Phone: (928) 226-0165 Fax: (928) 752-8111 stevens@flagstaff-lawyer.com Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PATRICK COLLINS, INC., Plaintiff. v. JOHN DOES 1-54, Defendants. Case No. 2:11-CV-01602-PHX-GMS

PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANT DOE NO. 6S OMNIBUS MOTION TO (1) QUASH SUBPOENA PURSUANT TO FED. R. CIV. P. 45(C)(3) OR IN THE ALTERNATIVE ISSUE A PROTECTIVE ORDER; AND (2) MOTION TO SEVER DEFENDANTS FOR MISJOINDER

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TABLE OF CONTENTS Introduction...5-8 A. Doe 6s Motion is Critically Flawed....6 B. Doe 6s Purpose is to Make Litigation Prohibitively Expensive.........7 II. Facts.........8-13 A. Data Retention and Dynamic IP Issues Weigh in Favor of Joinder................8 B. Suing Defendants Individually Is NOT in Their Best Interests..9 C. Doe 6s Motion Does Not Comply With the Rules and Should Be Denied on That Basis Alone....10 D. Plaintiff is Entitled to Recovery.10 E. The Way BitTorrent Works, Infringers Continue to Distribute Filed Indefinitely.11 F. Same Swarm BitTorrent Infringement is Logistically Related.11 G. Doe 6s Computer Arguments Cut Against Him...12 III. Legal Standard for Joinder13-16 A. The Infringement Occurred Through a Series of Transactions.....................13 1. The Logical Relationship Test.13 2. The Infringement Occurred Through a Series of Transactions15 B. The Defendants Are Jointly and Severally Liable.........15 a. Contributory Infringement is a Jury Question.16 1. There Are Common Issues of Fact and Law16 IV. Legal Argument.17-21 A. Courts Overwhelmingly Support Joinder; And, The Cases Cited by Defendant Have Been Expressly Dismissed..17 1. The Cases Relied Upon By Doe 6 Have Been Distinguished In Such a Way As Would Make Joinder Proper Here.........18 B. Doe 6s Reliance on Judge Gibneys Sua Sponte Order is Unjustified20 C. Joinder is Required By Fed.R.Civ.P. 1.21 V. Conclusion..21 I.

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TABLE OF AUTHORITIES Adobe Systems, Inc. v. Canus Prod., Inc., 173 F. Supp.2d 1044, 1055 (C.D. Cal. 2001).12 Berlin Media Art E.K. v. Does 1-144, 2011 WL 4056167 (E.D. CA. 2011)..14 Broadcast Music, Inc. v. TLM Investments, Inc., 2010 WL 2891524, *6 (D. AZ 2011)...5 Call of the Wild, 770 F.Supp.2d at at 343.12 Call of the Wild v. Does 1-331, 274 F.R.D. 334 (D.D.C. 2011).13 Call of the Wild v. Does 1-1062, 770 F.Supp.2d 332, 344 (D.D.C. 2011)....1, 6, 14 Camelot Distribution Group v. Does 1-1210, 2011 WL 4455249, *3 (E.D.Cal. 2011)14 Costar Group, Inc. v. Loopnet, Inc., 164 F. Supp.2d 688, 696 (M.D. 2001).11 Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997).10 De Dios v. Intl Realty & Investments, 641 F.3d 1071, 1076 (9th Cir. 2011).4 Donkeyball Movie, LLC v. Does 1-171, 2011 WL 1807452 (D.D.C. 2011)13 First Time Videos, LLC v. Does 1-76, 2011 WL 3586245 (N.D. IL 2011)..1, 16 First Time Videos, LLC v. Does 1-500, --- F.Supp.2d ----, 2011 WL 3498227 (N.D.Ill.,2011)16 Hard Drive Productions, Inc. v. Does 146, 2011 U.S. Dist. LEXIS 67314 (N.D. Cal. 2011)....11, 15 Hard Drive v. Does 1-55, 2011 WL 4889094, (N.D.Ill 2011).16 Hard Drive Productions, Inc. v. Does 1-188, 2011 WL 3740473 *4, (N.D. Cal. 2011).............................................................................................................................10 K-Beech Incorporated v. John Does 1-54, Case No. CV-11-01604-PHX-NVW (D. Ariz. 2011)6 Liberty Media Holdings, LLC v. Does 1-62, 2011 WL 1869923 (S.D.Cal.2011).14, 15 Maverick Entertainment Group, Inc. v. Does 1-2115, 2011 WL 1807428 (D.D.C. 2011)......13 MCGIP, LLC v. Does 1149, 2011 WL 3607666, at 3 (N.D.Cal. 2011).11 MCGIP v. Does 1-316, 2011 WL 2292958 (N.D. Ill. 2011).16 New Sensations, Inc. v. Does 1-1,474, 2011 WL 4407222, (N.D.Cal. 2011)..11, 15 New Sensations, Inc. v. Does 1745, 2011 WL 2837610 (N.D. Cal. 2011)...11, 15 NuImage, Inc. v. Does 1-22,322, 2011 WL 3240562 (D.D.C. 2011)13 Pacific Century Intern., Ltd. v. Does 1-48, *6 (N.D. Cal. 2011).10, 11, 15 Patrick Collins, Inc. v. Does 1-35, 11-cv-00406 (E.D. VA 2011) (Dkt. 15)17 Patrick Collins, Inc. v. John Does 1-2590, 2011WL 4407172, * 6 (N.D. Cal. 2011)..10, 11, 14 Raw Films, Ltd. v. John Does 1-32, Case No. 3:11-cv-00532 (E.D. Va. 2011)16 United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966).....9

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Voltage Pictures, LLC v. Does 1-5000, 79 Fed.R.Serv.3d 891 (D.D.C. 2011).13 Voltage Pictures, LLC v. Vazquez, 2011 WL 5006942 (D.D.C. 2011)....2, 13 West Coast Productions, Inc. v. Does 1-5829, 275 F.R.D. 9 (D.D.C. 2011)..13

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I.

INTRODUCTION

This Courts decision will become widely cited precedent that will affect the rights of copyright holders across all segments of society. Doe 6 simply cannot demonstrate any prejudice from being joined together with other Defendants at this early stage of the

lawsuit. For this reason, the overwhelming majority of courts have denied as premature
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motions to sever prior to discovery. First Time Videos, LLC v. Does 1-76, 2011 WL 3586245 (N.D. IL 2011) (citing a long list of cases holding joinder is proper). See Call of the Wild v. Does 1-1062, 770 F.Supp.2d 332, 344 (D.D.C. 2011) (holding the putative defendants are currently identified only by their IP addresses and are not named parties. Consequently, they are not required to respond to the plaintiffs' allegations or assert a defence. The defendants may be able to demonstrate prejudice [after being named], but they cannot. . . before that time.) Here, a ruling that conclusively establishes that motions to quash will be denied, will deter Doe 6 and other similar movants from filing motions with an improper purpose. Toward that end, the Court in Voltage Pictures, LLC v. Vazquez, 2011 WL 5006942 (D.D.C. 2011) held this week that a Doe Defendant does not have a

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sufficiently protectable legally cognizable interest in the litigation prior to being named
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in a joined BitTorrent copyright infringement suit to file a motion. A similar definitive ruling here will make these cases much more manageable. As explained below, throughout this year, in a series of decisions, Courts across the country have developed a rule that permits joinder in BitTorrent cases where, as here, (1) the complaint clearly explains how BitTorrent works through a series of

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transactions, (2) all of the defendants live in the district (eliminating long-arm issues and venue), (3) all of the defendants were part of the exact same swarm of peer infringers as evidenced by a unique cryptographic hash value, 1 and (4) Plaintiff pled that the Defendants are contributorily liable for each others infringement. A. Doe 6s Motion is Critically Flawed In support of Doe 6s motion, he: (1) blatantly mischaracterizes material

allegations in the Complaint; (2) proffers putative facts about the way the internet works
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which are just plain wrong; (3) fails to disclose to this Court that the cases upon which he relies have been expressly and repeatedly distinguished by the same courts which issued them in such a way that would make joinder proper here; (4) urges this Court to adopt a standard for when joinder should be permitted that is contrary to decisional authority established in the 9th Circuit; (6) falsely states that former cases involving Plaintiff used identical complaints; and (7) makes unfounded and erroneous assertions about Plaintiffs intentions of litigating this matter. As alleged in the Complaint, Plaintiffs movie was processed by a BitTorrent Client (a

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BitTorrent software program) which generated a torrent file. Plaintiffs investigators use
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the hash value as a digital fingerprint that enables Plaintiff to ensure that all of the infringements alleged in this suit arise from the exact same unique copy of Plaintiffs movie as evidenced by the cryptographic hash value. Significantly, many of Plaintiffs movies have been initially seeded several times. Each seeding produces its own

independent swarm. Here, Plaintiff has only sued Defendants in the exact same swarm.

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Significantly, among the erroneous assertions Doe 6 proffers is that Plaintiff has no intention of proceeding with this litigation past the discovery phase. Doe 6 is wrong. This suit was intentionally designed so that it could be litigated through trial as a joined case. And, Plaintiff fully intends to do so. 2 Further, for the record, Plaintiff will proceed against the Doe Defendants individually if this case is severed. B. Doe 6s Purpose is to Make Litigation Prohibitively Expensive

The purpose of Doe 6s motions is to make it logistically impossible and

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prohibitively expensive to sue copyright infringers. 3 Doe 6 admits this improper purpose by asserting that, absent joinder, Plaintiff would not otherwise bother to obtain the identities of the Doe Defendants. This evinces an intent to win by forcing the

Notwithstanding the foregoing, Fed.R.Civ.P. 4(m)s mandate that service be completed

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within 120 days, unless enlarged by several months, may make it necessary for Plaintiff to have to voluntarily dismiss this case without prejudice. If it does so, Plaintiff will refile the case as a joined case. This process allows the parties to cost-effectively discuss their disputes while ensuring that those Defendants who seek a confidential resolution are afforded that opportunity.
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According to Graham Seifert, one of the primary authors of these motions, [m]y

dream would be to have 10,000-20,000 people file all three documents to the lawyers and severely cripple the entire process. See http://lawvibe.com/uscg-sues-bittorrentusers-graham-syfert-of-affinity-law-firm-defends/. Not surprisingly, many of the

motions to quash are being downloaded from BitTorrent.

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expenditure of attorneys fees as opposed to on the merits. Additionally, Doe 6s request for a protective order that requires an attorney instead of Plaintiff to contact Doe Defendants is further evidence of Doe 6s improper purpose of making this case prohibitively expensive for Plaintiff. Rule 11 expressly prohibits a party or attorney from signing a paper with the intention of needlessly increasing the cost of litigation.
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Oddly, Doe 6 accuses

Plaintiff of an improper purpose for not doing that which the Ninth Circuit has held is
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sanctionable. See De Dios v. Intl Realty & Investments, 641 F.3d 1071, 1076 (9th Cir. 2011) (finding that there appears to be no legitimate reason for the filing of nine individual actions rather than a single action naming nine Defendants.) Further, the De Dios Court held that sanctions in the form of attorneys fees were warranted because Plaintiffs counsel unnecessarily multiplied the costs of litigation and the burden on the Court. Id. II. FACTS

A. Data Retention And Dynamic IP Issues Weigh In Favor of Joinder Just like the FBI, Plaintiff has learned through suits across the country that there are major deficiencies associated with many internet service providers ability to

Plaintiff has not complied with the safe harbor provisions in Rule 11 and is not seeking

sanctions; a strongly worded opinion discouraging these motions will suffice.

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correlate a subscriber to an individual. 5 According to the FBI, 19% of its ISP lookup requests fail to yield a positive identity because the ISP deleted the correlating data. Id. Plaintiffs statistics are similar. Consequently, a rule requiring Plaintiff to sue John Doe defendants on an individual basis creates the substantial risk that the target will not be identified. Since costs are recoverable under 17 U.S.C. 505, one of the core purposes of the Copyright Act would be undermined in cases where the discovery failed to

identify a person.
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Internet Protocol addresses are frequently dynamic which means that the address used by any particular computer changes from time-to-time. Despite Plaintiffs best efforts not to do so, Plaintiff has sued the same person twice for downloading the same torrent file. In these situations, it is unclear if Plaintiff could recover its fees and costs for both suits from that defendant. Regardless of to whom these fees and costs are attributed, someone will be adversely affected by a rule requiring individual suits. B. Suing Defendants Individually Is NOT in Their Best Interests Courts routinely award the [attorneys] fees incurred by Plaintiffs copyright infringement cases. Broadcast Music, Inc. v. TLM Investments, Inc., 2010 WL

2891524, *6 (D. AZ 2011). For this reason, Courts hold that joinder in a single case of the putative defendants . . . is beneficial to the putative defendants. Call of the Wild

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Movie, LLC., 770 F.Supp.2d 332, 344 (D.D.C. 2011).

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See Statement Of Jason Weinstein Deputy Assistant Attorney General at

http://judiciary.house.gov/hearings/pdf/Weinstein01252011.pdf.
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C. Doe 6s Motion Does Not Comply with the Rules And Should Be Denied On That Basis Alone Just as the Court should here, less than two weeks ago, in K-Beech Incorporated v. John Does 1-54, Case No. CV-11-01604-PHX-NVW (D. Ariz. 2011), Judge Wake denied a Doe Defendants Motion to Quash Subpoena and held the Doe may not appear in this Court without stating his true name. He may move for leave to file his true name under seal, although such a motion must state sufficient grounds for remaining anonymous. See Order dated October 24, 2011, attached as Exhibit A. D. Plaintiff is Entitled to Recovery Doe 6 incorrectly implies that because Plaintiff obtained its copyright registration after Doe 6s infringement that Plaintiff is not entitled to recovery. Doe 6 is wrong. Plaintiff will still be able to recover statutory damages for copyright infringement from Doe 6 because Plaintiffs work was registered within three months of publication. See

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17 U.S.C. 412(2) and 17 U.S.C. 504. Further, Plaintiff uses the marks PATRICK
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COLLINS and ELEGANT ANGEL. Both marks are contained on the copy of the subject movie which was illegally distributed by Doe 6. PATRICK COLLINS is

protected under the common law and 15 U.S.C. 1125(a). ELEGANT ANGEL is protected by under the common law, 15 U.S.C. 1125(a) and 15 U.S.C. 1114 because it is registered, see U.S. Reg. No. 2329270. Plaintiff will be filing shortly an Amended Complaint that pleads: (a) direct copyright infringement, (b) contributory copyright infringement, (c) trademark infringement, (d) contributory trademark infringement; and

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(e) in the alternative, negligence.

Trebel actual damages, statutory damages and

attorneys fees are available under 15 U.S.C. 1117. E. The Way Bittorrent Works, Infringers Continue To Distribute Files Indefinitely BitTorrent continues to distribute data for a particular torrent file until the user commands its BitTorrent Client (software program) to stop distributing it. Many users never instruct the program to stop distributing data. According to BitTorrents own website: Seeding is where you leave your BitTorrent client open after you've finished your download to help distribute it (you distribute the file while downloading, but it's even more helpful if you continue to distribute the full file even after you have finished downloading). Chances are that most of the data you got was from seeds, so help give back to the community! It doesn't require much - BitTorrent will continue seeding until the torrent is removed. [Underlining added.] See http://www.bittorrent.com/help/guides/beginners-guide. F. Same Swarm BitTorrent Infringement is Logically Related The following description of BitTorrent and can describes be the found series at of

http://computer.howstuffworks.com/bittorrent2.htm, transactions:

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WHAT BITTORENT DOES

Unlike some other peer-to-peer downloading methods, BitTorrent is a protocol that offloads some of the file tracking work to a central server (called a tracker). Another difference is that it uses a principal called titfor-tat. This means that in order to receive files, you have to give them. This solves the problem of leeching one of the developer Bram Cohens primary goals. With BitTorrent the more files you share with others, the faster your downloads are from multiple computers.

BitTorrent is unique insofar as it distributes the burden of sharing files to all users:
What makes the BitTorrent protocol unique is that it distributes [the burden of] the sharing of files to all users who have downloaded or are in the process of downloading a file. Because BitTorrent breaks up and distributes files in hundreds of small chunks, you don't even need to have downloaded the whole file before you start sharing. As soon as you have even a piece of the file, you can start sharing that piece with other users. That's what makes BitTorrent so fast; your BitTorrent client starts sharing as soon as it downloads one chunk of the file (instead of waiting until the entire download has been completed). [Parenthetical added, emphasis added.]

See://lifehacker.com/285489/a-beginners-guide-to-bittorrent.

By causing all users to

distribute the file, BitTorrent ensures that all peers in a swarm materially aid every other peer. This critical fact makes BitTorrent different than every other peer-to-peer network and is why BitTorrent cases are distinguishable from previous peer-to-peer cases. G. Doe 6s Computer Arguments Cut Against Him On page 3, Doe 6 makes three bizarre arguments: (1) we cannot identify MAC addresses; and (2) IP addresses can be hidden by the use of VPN tunnels; and (3) IP addresses can be spoofed. MAC (media access control) addresses are used to identify the specific computers within a network that are using a Doe Defendants internet

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service. MAC addresses are never disseminated publically but only to the network administrator, here the ISPs. Plaintiff requested it via a subpoena to assist it to identify which computer Defendant used. As for hiding ones IP addresses through a VPN tunnel, it clearly did not happen here since Plaintiffs investigator recorded Doe 6s IP Address. Moreover, that this technology may exist merely underscores the problem with infringement. Finally, the assertion that an IP address can be spoofed in such a way as

to give a false positive is inconsistent with the fundamental rule governing the internet;
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viz. no two computers can be assigned the same IP address at the same time. If that was possible, the internet would crash. Moreover, at best, it is a defense. III. Legal Standard for Joinder Fed. R. Civ. P. 20(a)(2) states: Persons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. Under the Federal Rules generally, the impulse is toward the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). Here, Plaintiff pled that the actions arise

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from a series of transactions and that the Defendants are jointly and severally liable.
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A. The Infringement Occurred Through A Series of Transactions 1. The Logical Relationship Test

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The Ninth Circuit has interpreted the phrase same transaction, occurrence, or series of transactions or occurrences' to require a degree of factual commonality underlying the claims. Pacific Century Intern., Ltd. v. Does 1-48, *6 (N.D. Cal. 2011), citing Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). Typically, this means that a party must assert rights ... that arise from [logically] related activities-a transaction or an occurrence or a series thereof. Id. See also, Patrick Collins, Inc. v.

John Does 1-2590, 2011WL 4407172, * 6 (N.D. Cal. 2011) (using the logical
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relationship test and holding joinder is proper.) On page 4 of its Motion, by citing Hard Drive Productions, Inc. v. Does 1-188, 2011 WL 3740473 *4, (N.D. Cal. 2011), Doe 6 argues this Court should adopt a test that would require that all the Defendants were in a BitTorrent swarm at the exact same time. This rationale reads out of Rule 20 the series of transactions language and is legally inconsistent with 9th Circuit precedent. Moreover, Doe 6 fails to inform this Court that the Northern District of California has rejected this rationale in its last six opinions discussing the issue: While this period might seem protracted, such time periods can be somewhat arbitrary in BitTorrent-based cases as long as the alleged defendants participate in the same swarm, downloading and uploading the same file. * * * [E]ven after a Doe Defendant disconnects from the swarm, the parts of the file that he downloaded and uploaded will continue to be transferred to other Doe Defendants remaining in the swarm. Id. 12. Pacific Century Intern., Ltd. v. Does 1-48, *6 (N.D. Cal. 2011). Accord, Patrick Collins v. Does 1-2590, 2011 WL 4407172 (N.D. Cal. 2011); MCGIP, LLC v. Does 1 149, 2011 WL 3607666, at 3 (N.D.Cal. 2011); New Sensations, Inc. v. Does 1-1,474,

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2011 WL 4407222, (N.D.Cal. 2011); Hard Drive Productions, Inc. v. Does 146, 2011 U.S. Dist. LEXIS 67314 (N.D. Cal. 2011) New Sensations, Inc. v. Does 1745, 2011 WL 2837610 (N.D. Cal. 2011). 2. The Infringement Occurred Through a Series of Transactions The infringement occurred through a series of transactions. See Complaint: 39. The IP addresses, Unique Hash Number and hit dates contained within Exhibit A accurately reflect what is contained in the evidence logs, and show: (A) Each Defendant had copied a piece or pieces of Plaintiffs copyrighted Movie/Work identified by the Unique Hash Number and was simultaneously distributing that piece or pieces to the other Defendants who, in turn, were copying and distributing that piece and other pieces thereof for distribution to the other Defendants; and (B) Therefore, each Defendant acted in concert with the Defendants and was part of the same series of transactions which, taken together, resulted in the copying and distribution of complete copies of Plaintiffs work. B. The Defendants Are Jointly and Severally Liable Joinder is also proper because Plaintiff pled that each Defendant is contributorily liable for each of the other Defendants infringement. See Complaint at 54-59. It is, today, a given that one who. . . materially contributes to the infringing conduct of another, [is a] contributory infringer. Costar Group, Inc. v. Loopnet, Inc., 164 F.

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Supp.2d 688, 696 (M.D. 2001).

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At trial, Plaintiff will prove that said Defendant materially assists the downstream infringers direct infringement of Plaintiffs exclusive right to redistribute . . . the Work. . . . in violation of 17 U.S.C. 106(3) and 17 U.S.C. 501. Similarly, when a Defendant provides a piece of Plaintiffs copyrighted work to an upstream infringer,

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Plaintiff will prove that the upstream infringer both sends that piece to other infringers and will also assemble the entire Work. Accordingly, by delivering a piece to an upstream infringer, the Defendant is contributorily liable for materially assisting the upstream infringer to redistribute, perform and display the Work in violation of 17 U.S.C. 106(3)-(5) and 17 U.S.C. 501. a. Contributory Infringement is a Jury Question

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Since one of the grounds for permissive joinder is joint and several liability, should the Court hold that joinder is not permitted, then any such holding would effectively summarily adjudicate Plaintiffs claim for contributory infringement. Such a holding would be erroneous because contributory infringement is a question of fact for trial. Adobe Systems, Inc. v. Canus Prod., Inc., 173 F. Supp.2d 1044, 1055 (C.D. Cal. 2001). 1. There Are Common Issues of Fact and Law Rule 20(a)(2)(B) requires the plaintiffs' claims against the putative defendants to contain a common question of law or fact. Call of the Wild, 770 F.Supp.2d at at 343. The plaintiffs meet this requirement. Id. In each case, the plaintiff will have to establish against each putative defendant the same legal claims concerning the validity of the copyrights in the movies at issue and the infringement of the exclusive rights

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reserved to the plaintiffs as copyright holders. Id. The factual issues related to how
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BitTorrent works and the methods used by plaintiffs to investigate, uncover and collect evidence about the infringing activity will be essentially identical for each putative defendant. Id.

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IV. LEGAL ARGUMENT A. Courts Overwhelmingly Support Joinder; And, The Cases Cited by Defendant Have Been Expressly Distinguished The District of Columbia has issued the longest, most comprehensive, decisions concerning the issues, including joinder, raised in BitTorrent litigation. From most recent to oldest, the eight cases D.C. judges have adjudicated, which can be found on Westlaw, are as follows: (1) Voltage Pictures, LLC v. Vazquez, 2011 WL 5006942 (D.D.C. 2011) (opining joinder is proper and that Doe Defendants do not have standing to intervene in the discovery process prior to being named as a defendant); (2) NuImage, Inc. v. Does 1-22,322, 2011 WL 3240562 (D.D.C. 2011) (10 page opinion, permitting joinder but raising concerns about long-arm); West Coast Productions, Inc. v. Does 1-5829, 275 F.R.D. 9 (D.D.C. 2011) (11 page opinion, permitting joinder, holding long arm could be used, denying all motions to quash); Call of the Wild v. Does 1-331,

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274 F.R.D. 334 (D.D.C. 2011) (permitting joinder, holding long arm could be used,
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denying all motions to quash); Maverick Entertainment Group, Inc. v. Does 1-2115, 2011 WL 1807428 (D.D.C. 2011) (18 page opinion, permitting joinder, holding long arm could be used, denying all motions to quash); Voltage Pictures, LLC v. Does 15000, 79 Fed.R.Serv.3d 891 (D.D.C. 2011) (18 page opinion permitting joinder, holding long arm could be used, denying all motions to quash); Donkeyball Movie, LLC v. Does 1-171, 2011 WL 1807452 (D.D.C. 2011) (15 page opinion permitting joinder, holding long arm could be used, denying all motions to quash); Call of the Wild v. Does 1-1062, 770 F.Supp.2d 332 (D.D.C. 2011) (36 page opinion addressing all of the issues raised in

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pre-Doe identification BitTorrent litigation.) Significantly, the Call of the Wild Court denied all of the motions to quash, ruled in favor of copyright owners on the joinder issue, the free speech issue, the right to remain anonymous issue [Does who file motions do not have that right], allowed Plaintiff to use the long arm statute. All three Districts in California which have adjudicated joinder in BitTorrent copyright infringement cases hold that joinder is proper. In Camelot Distribution Group

v. Does 1-1210, 2011 WL 4455249, *3 (E.D.Cal. 2011), the Court conclude[d] that a
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decision regarding joinder would be more appropriately made after further development of the record. See also, Berlin Media Art E.K. v. Does 1-144, 2011 WL 4056167 (E.D. CA. 2011) (permitting discovery in joined case.) In Liberty Media Holdings, LLC v. Does 1-62, 2011 WL 1869923 (S.D.Cal.2011) the Court held [a]fter careful

consideration of the issue, . . . [i]n this case, the complaint sufficiently alleges that defendants are properly joined due to the use of BitTorrent, which necessarily requires each user to be an uploader as well as a downloader. 1. The Cases Relied Upon By Doe 6 Have Been Distinguished In Such A Way As Would Make Joinder Proper Here Six out of seven of the latest Northern District of California decisions have held that joinder was proper. In these six cases the Court expressly distinguished the

Districts prior decisions, upon which Doe 6 relied. See e.g. Patrick Collins v. Does 12590, 2011 WL 4407172 (N.D. Cal. 2011), noting that [r]ecently, courts in this District . . . have come to varying decisions about the proprietary of joining multiple defendants in BitTorrent infringement cases and finding:

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This Court has carefully reviewed such decisions and notes that they are highly dependent on the information the plaintiff presented regarding the nature of the BitTorrent file-sharing protocol and the specificity of the allegations regarding the Doe defendants' alleged infringement of the protected work. Both of these factors guide the Court's joinder analysis . . . [in concluding joinder is proper]. See also, New Sensations, Inc. v. Does 1-1,474, 2011 WL 4407222, (N.D.Cal. 2011) (same.) Accord Hard Drive Productions, Inc. v. Does 146, 2011 U.S. Dist. LEXIS 67314 (N.D. Cal. 2011) (same); New Sensations, Inc. v. Does 1745, 2011 WL 2837610 (N.D. Cal. 2011) (same, and opining Judge Howell of the D.C. Circuit has repeatedly held that in infringement actions joinder is proper [h]is analysis makes

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sense.) 6
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Defendant also relies heavily on cases which cannot be found on Westlaw from Illinois. There are only four decisions which come up using Westlaw and the terms BitTorrent & joinder in Illinois; they are: Hard Drive v. Does 1-55, 2011 WL 4889094, (N.D.Ill 2011); First Time Videos, LLC v. Does 1-76 --- F.R.D. ----, 2011 WL 3586245 (N.D.Ill.,2011); First Time Videos, LLC v. Does 1-500, --- F.Supp.2d ----, 2011 WL 3498227 (N.D.Ill.,2011); MGCIP v. Does 1-316, 2011 WL 2292958 (N.D. Ill.
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See Pacific Century Intern v. Does, 2011 WL 5117428 (N.D. Cal. 2011) (a poorly

reasoned opinion holding that if Plaintiff admits additional discovery is needed to proceed against the correct person then joinder is improper.) Cf In Liberty Media Holdings, LLC v. Does 1-62, 2011 WL 1869923 (S.D.Cal.2011) (holding a claim for negligently letting others to use your internet could with stand a motion to dismiss). Here, Plaintiff intends to pursue each Doe Defendant.

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2011).

All four Illinois decisions held joinder is proper and expressly distinguish the

prior Illinois decisions, relied upon by Doe 6, on the exact same basis as did the California courts. B. Doe 6s Reliance on Judge Gibneys Sua Sponte Order is Unjustified Defendants reliance on the opinion of the Honorable Judge John Gibney, Jr. is unjustified. The case Raw Films, Ltd. v. John Does 1-32, Case No. 3:11-cv-00532 (E.D.

Va. 2011), and two identical cases involving Patrick Collins, Inc. and K-Beech, were
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decided sua sponte without Plaintiff being afforded the opportunity to brief the issue. At the time this decision was made, Judge Gibney was unaware that the majority of courts hold joinder is proper as evidenced by his finding pursuant to Rule 11 the joinder of unrelated defendants does not seem to be warranted by existing law. Id. at *5. He has since ruled alleging joinder is not sanctionable. Id. at Order. Unfortunately, Plaintiffs mistakenly assumed Judge Gibney was aware that Plaintiff had won the first and only joinder argument in that district after two hearings and two full sets of briefs. See Patrick Collins, Inc. v. Does 1-35, 11-cv-00406 (E.D. VA 2011) (Dkt. 15): [w]ithout prejudice to the ability of any defendant or third party to raise the joinder issue later in this litigation, the court finds on the present record that plaintiff has shown proper joinder of these putative defendants prima facie. That

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concern having been satisfied, the court follows the weight of authority in finding
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plaintiff is entitled to discovery at this stage to determine the identities of John Doe Defendants.

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In the cases before Judge Gibney, Plaintiff had been employing a litigation tactic of acquiescing in the relief it knows disingenuous movants seeking severance do not want; viz. voluntarily dismissing them and suing them individually. Through this

process, Plaintiff was able to reach agreements with numerous lawyers not to file these improper motions and that was its sole intent. C. Joinder is Required By Fed.R.Civ.P. 1

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Fed.R.Civ.P. 1 requires that Courts construe the rules to secure the inexpensive determination of every action. Fed.R.Civ.P. 20, the joinder rule, has the same purpose. Since jurisdiction and venue is proper in this District, if Plaintiff is forced to proceed individually, all of these cases would be filed in this District. Plaintiff would have to file notices of related cases. Thereafter, at every stage of the process, the litigants and the Court would be faced with additional work and many of the papers would be cut and paste duplicates of each other. V. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court deny the subject motion.

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DATED this 4th day of November, 2011.

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Respectfully submitted, /s/ Ryan J. Stevens g STEVENS LAW OFFICE, PLC 309 N. Humphreys Street, Suite 2 Flagstaff, Arizona 86001 Telephone: (928) 226-0165 Facsimile: (928) 752-8111 Email: stevens@flagstaff-lawyer.com Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on November 4, 2011 I electronically filed the foregoing document with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of record and interested parties through this system. By: /s/ Ryan J. Stevens

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