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Digital Sin, Inc v. Does 1-27

June 6, 2012

DIGITAL SIN, INC.,
PLAINTIFF,
v.
DOES 1-27,
DEFENDANTS.



The opinion of the court was delivered by: Jesse M. Furman, District Judge:

OPINION AND ORDER PERMITTING LIMITED EXPEDITED DISCOVERY PURSUANT TO A PROTECTIVE ORDER

Plaintiff Digital Sin, Inc. ("Digital Sin") brings this action, alleging copyright and contributory infringement, against 27 defendants whose identities are unknown to Digital Sin at this time. (Compl. ¶¶ 1-2 (Docket No. 1)). For now, Digital Sin identifies each defendant solely by the Internet Protocol ("IP") address assigned to the defendant by his or her Internet Service Provider ("ISP"). (Compl. ¶ 7, Ex. A). On the same day it filed the complaint, plaintiff filed an ex parte motion for expedited discovery - namely, for leave to serve subpoenas pursuant to Rule 45 of the Federal Rules of Civil Procedure on various ISPs for information sufficient to identify each defendant, including name, current and permanent address, e-mail address, and Media Access Control address. (Pl.'s Mot. (Docket No. 3)). For the reasons stated below, the motion for leave to take expedited discovery is GRANTED, but subject to a protective order.

BACKGROUND

The following background is drawn from plaintiff's complaint and materials submitted in support of its motion, and is accepted as true for purposes of this motion. Digital Sin, a California corporation, produced a motion picture (the "Video") and released it on digital video disc through various vendors, including www.cduniverse.com, in January 2012. (Compl. ¶ 8).

In its complaint, Digital Sin identifies the Video only by copyright registration number, but plaintiff's business is the production and distribution of pornographic movies and other cases brought by plaintiff, some of which are discussed below, have involved pornographic movies, so it seems safe to assume that the Video is a pornographic movie. (Compl. ¶ 8). Plaintiff alleges that defendants copied the Video using torrent software - the most common of which is BitTorrent - which enables users to share files online. (Compl. ¶ 5).

To the extent relevant here, BitTorrent enables users to download an electronic file in small pieces or blocks from multiple other users. (Nicolini Decl. ¶¶ 10-15; Id. Ex. I (Docket No. 5)). Each content file is divided into those blocks by an associated "torrent" file, which is identified by a unique hash number - an alphanumeric sequence corresponding only to that torrent file. (Id. ¶ 9; Compl. ¶ 11). Thus, even if two separate torrent files were created to share the same copyrighted work, the torrents would have separate hash numbers. (Nicolini Decl. ¶ 25). While downloading the file from other users, the user simultaneously uploads to other BitTorrent users the portions of the file he or she has already downloaded. (Id. ¶ 11; Compl. ¶ 9). The group of interacting users who share the same file is known colloquially as a "swarm." (Nicolini Decl. ¶ 11). The users who constitute a "swarm" must expose their own IP addresses to one another as part of the sharing process. (Id. ¶ 26; Compl. ¶ 12).

A BitTorrent user's decision to join a "swarm" by downloading the torrent file and participating in the sharing of the file is, according to a declaration submitted by plaintiff in support of its motion, a "deliberate act." (Nicolini Decl.¶ 16.) The user derives a benefit from the interconnected architecture of the BitTorrent protocol - namely the increased speed, efficiency, and reliability of his or her downloading activity. (Id. Ex. I ("The more popular a large video, audio or software file, the faster and cheaper it can be transferred with BitTorrent.")). This benefit is heightened as more and more users participate in a single "swarm." (Id.). Thus, even though a user may not know the identities of the others with whom he or she is cooperating, and cannot choose with whom he or she connects to upload and download the file at issue, the user is continuously connecting to other members of the "swarm," and thus benefits from the joint sharing activities of the other participants in the "swarm."

In the present case, Digital Sin alleges that the 27 Doe defendants traded (that is, simultaneously downloaded and uploaded) the Video as part of a single "swarm" and within a limited period of time. (Compl. ¶ 13). Moreover, plaintiff alleges that the defendants traded not only the same copyrighted work, but the same file of that work, as identified by the file's hash number. (Id. ¶¶ 11, 13; Pl.'s Mem. of P. & A. at 5-6). Copyright Enforcement Group ("CEG"), a California company hired by Digital Sin to assist in enforcing its copyrights, was able to obtain the IP addresses of the Doe defendants at or about the time of the alleged infringement. (Nicolini Decl. ¶ 32). Using publicly available geolocation software, CEG further determined that the IP addresses very likely belong to individuals located in New York, and specifically in this District. (Id. ¶¶ 27, 29, 32-33; Compl. ¶ 14, Ex. D).

DISCUSSION

In the last few years, copyright litigation involving the BitTorrent file-sharing protocol has proliferated in this District and elsewhere. Most courts have authorized the sort of expedited discovery being sought in this case to some degree. See, e.g., Digital Sin, Inc. v. John Does 1-176, - F.R.D. -, No. 12 Civ. 126 (AJN), 2012 WL 263491, at *1, nn.1-2 (S.D.N.Y. Jan. 30, 2012) (Nathan, J.) (citing cases). But, at various stages in the litigation, courts have identified, and disagreed about, at least two legal issues presented by these cases - namely, the permissibility, under Rule 20 of the Federal Rules of Civil Procedure, of joining multiple Doe defendants from the same BitTorrent "swarm" in a single suit; and whether the plaintiffs have pleaded sufficient facts to establish a prima facie case of personal jurisdiction over the Doe defendants given the means of identifying them. Before turning to Digital Sin's request for expedited discovery in this case, the Court will briefly address these two issues.

With respect to joinder, Rule 20 allows defendants to be joined in a single suit if "any right to relief is asserted against them . . . arising out of the same transaction, occurrence, or series of transactions or occurrences." Applying this Rule, many courts have concluded that where a plaintiff alleges a claim against members of the same BitTorrent "swarm," the defendants are properly joined due to the interconnected nature of the BitTorrent protocol. See, e.g., Digital Sin, 2012 WL 263491, at *5. Other courts have disagreed, concluding that defendants in BitTorrent cases "merely commit[ed] the same type of violation in the same way," which would not make joinder proper. E.g., Digital Sins, Inc. v. John Does 1-245, No. 11 Civ. 8170 (CM), 2012 WL 1744838, at *2 (S.D.N.Y. May 15, 2012) (McMahon, J.).

After careful review, this Court agrees with those courts that have concluded that where, as here, defendants are alleged to have copied a single work as part of the same "swarm" over a limited period of time, joinder is proper under Rule 20 - at least for this stage of the proceedings. As Judge Nathan explained in her own Digital Sin case, "it is difficult to see how the sharing and downloading activity alleged in the Complaint - a series of individuals connecting either directly with each other or as part of a chain or 'swarm' of connectivity designed to illegally copy and share the exact same copyrighted file - could not constitute a 'series of transactions or occurrences' for the purposes of Rule 20(a)." Digital Sin, 2012 WL 263491, at *5 (emphasis in original). Nevertheless, like other courts that have allowed BitTorrent cases against Doe defendants to proceed, this Court remains open to reconsidering the issue of joinder at a later date if raised by an ISP or defendant. Should an ISP or defendant raise different or conflicting defenses at a later date, the Court will also remain open to any request that it sever the claims against a particular defendant pursuant to Rule 21. The Court will consider the merits of any such request if or when it is made, and based upon the facts shown by the ISP or defendant. For present purposes, however, the Court concludes that Digital Sin has pleaded sufficient facts to allow defendants in this case to remain joined.

As noted, some courts have also addressed the issue of personal jurisdiction in cases involving BitTorrent, given the means by which the Doe defendants have been identified and joined. See, e.g., Digital Sins, Inc., 2012 WL 1744838, at *4-6; see also Digiprotect USA Corp. v. John/Jane Does 1-240, No. 10 Civ. 8760 (PAC), 2011 WL 4444666, at *2-4 (S.D.N.Y. Sept. 26, 2011); Digiprotect USA Corp. v. John/Jane Does 1-266, No. 10 Civ. 8759 (TPG), 2011 WL 1466073, at *3-4 (S.D.N.Y. Apr. 13, 2011). In the Digiprotect Cases, for example, Judges Griesa and Crotty rejected the plaintiffs' attempts to assert personal jurisdiction over defendants located around the country solely on the ground that they participated in a single swarm with a subset of defendants who resided in New York State. See Digiprotect USA Corp, 2011 WL 4444666, at *3; Digiprotect USA Corp. 2011 WL 1466073, at *4. By contrast, most courts have held that a plaintiff succeeds in making out a prima facie case of personal jurisdiction where, relying on geolocation software that can identify the likely geographical locations of IP addresses, the plaintiff alleges that all defendants reside in the state within which the court is located. See, e.g., Digital Sins, 2012 WL 1744838 , at *4 (citing cases).

This case is of the latter type. Specifically, relying on geolocation software, the plaintiff alleges that all Doe defendants reside in New York State, and more specifically within this District. (Compl. ¶ 2; Pl.'s Mem. of P. & A. at 5; Nicolini Decl. ¶ 27, 29, 32-33). Although this technology does not allow for the determination of the Doe defendants' locations with absolute certainty (Meier V.S. (attached to Complaint) at13; Nicolini Decl. ¶ 33), the Court concludes that these allegations are sufficient at this stage of the proceedings.*fn1 Furthermore, personal jurisdiction is a waivable defense, see, e.g., City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 133 (2d Cir. 2011), and the Court will not presume that any of the Doe defendants will assert it. Accordingly, for present purposes, the Court holds that plaintiff has alleged sufficient facts to establish personal ...


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