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Malibu Media, LLC v. John Does 1-5

August 24, 2012

MALIBU MEDIA, LLC, PLAINTIFF,
v.
JOHN DOES 1-5, DEFENDANT.



The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge

This action represents but one installment in the wave of suits flooding the federal court system involving the alleged downloading of pornographic films via the peer-to-peer file-sharing protocol known as BitTorrent. In these actions, courts have been required to grapple with complex technological concepts and yet apply these concepts to familiar doctrines of civil procedure. Specifically, courts have had to determine whether defendants who allegedly participated in sharing the same copy of a film over the BitTorrent protocol -- but who did not necessarily share the file directly with one another - are properly joined as defendants pursuant to Federal Rule of Civil Procedure 20(a)(2).

Here, plaintiff Malibu Media, LLC brings suit against five individuals for allegedly downloading and uploading a copy of the film "Tiffany Sex with a Supermodel" (the "Film"). Presently before the Court is the motion of John Doe No. 4 ("Doe 4") to sever and dismiss on the ground that defendants are improperly joined. For the reasons stated below, Doe 4's motion is denied.

BACKGROUND*fn1

I.Overview of the BitTorrent Protocol

We begin by presenting a brief overview of the BitTorrent protocol. For purposes of this description, we rely heavily on the opinion of Magistrate Judge Mark A. Randon of the Eastern District of Michigan in Patrick Collins, Inc. v. Does 1-21, No. 11 Civ. 15232, 2012 WL 1190840 (E.D. Mich. Apr. 5, 2012), which in our view provides the most thorough judicial treatment to date of the technological issues relevant to the BitTorrent cases.

The file-sharing process begins when an "initial seeder" makes available a file representing a complete copy of the work to be distributed (e.g., the Film). The initial seeder shares the file through a "client program" that he has downloaded onto his computer and that is able to access the BitTorrent protocol. The file is broken into a number of "pieces," each of which is assigned a unique "hash identifier," meaning a randomly generated string of numbers and letters.*fn2 Id. at *2. A "Torrent file" is also created at this stage. The Torrent file contains information about the number and size of the pieces and the hash identifiers unique to each piece. Id. The Torrent file also contains the address of a tracker, which will serve to coordinate among all users who download the same Torrent file. See id. at *3-4.

When another user, or "peer," downloads the Torrent file, the tracker directs the peer's client program to the location of other BitTorrent users who have downloaded pieces of - or in the case of the initial seeder, simply possess - the desired file.*fn3

Id. at *3. Thus, the first person to download the Torrent file after it is created will download pieces only from the initial seeder. Id. at *2. After a peer's client program downloads a piece, it is stored locally on the peer's computer. Id. When the peer has downloaded all of the pieces of the desired file, the pieces will be reassembled into a complete copy of the original file and will be stored on the peer's computer for use. Id. at *3.

Notably, unless a peer has affirmatively inhibited his uploading capability, as soon as the peer downloads a piece, the piece automatically becomes available for upload to other users of the same Torrent file. Id. at *4. When a peer has downloaded all pieces of a file, the peer becomes a new "seeder" and will continue to make pieces of the file available for upload as long as his client program remains open and he does not take steps to prevent such uploading from occurring. See id. at *2. The group of peers that downloads and uploads pieces of a given file from each other, from seeders, and from the initial seeder is referred to as a "swarm." Id. at *3. The innovation of the BitTorrent protocol is that "[a]t any given moment, a peer may be simultaneously uploading [pieces to] and downloading pieces from . . . many different peers within the same swarm." Id. at *2. The ability of a peer to download pieces of a file simultaneously from any number of other members of his swarm increases the likelihood that he will be able to utilize the entirety of his downloading bandwidth while decreasing the uploading bandwidth that any given member of the swarm will be required to sacrifice. The protocol, in short, is highly efficient for its users.

The efficacy of BitTorrent is therefore dependent on users sharing the pieces of a file they have already downloaded. See id. at *4. To this end, BitTorrent has a built-in "tit-for-tat" incentive system that punishes users -- by means of a slower download speed - who inhibit or are otherwise restricted in their uploading capability. See Bram Cohen, Incentives Build Robustness in BitTorrent, at 3-4 (May 22, 2003), available at http://www.ittc.ku.edu/~niehaus/classes/750-s06/documents/BTdescription.pdf. Notwithstanding this incentive system, most BitTorrent client programs do offer f eatures that enable users to prevent or reduce the rate at which they upload files.

II.Factual Background

Plaintiff is the owner of a registered copyright for the Film. (Compl. ¶ 11.) Using forensic software, plaintiff's investigator identified each of the John Doe defendants, by their IP address, as having participated in a particular swarm sharing the Film over BitTorrent. (Fieser Decl. ¶¶ 17-20.) Specifically, each John Doe defendant allegedly uploaded at least one piece of the Film -- that is, one piece of a specific copy of the Film, identified by a hash identifier - to plaintiff's investigator on a date between November 23, 2011 and February 18, 2012. (Id. ¶¶ 18-20, Ex. B.) Plaintiff has traced the IP address of each John Doe defendant to a location within the jurisdiction of this Court. (Id., Ex. B.)

Plaintiff filed the instant complaint on April 13, 2012. The same day the complaint was filed, plaintiff filed an ex parte motion seeking leave to file subpoenas on the internet service providers ("ISPs") associated with the IP addresses of the John Doe defendants. On May 1, 2012, the Court granted plaintiff's motion, but subject to various protective conditions. (Docket no. 5.) One of these conditions was that a lock-up period was imposed during which the ISPs could not turn over defendants' information to plaintiff and defendants could present challenges to the subpoenas. (Id.)

Doe 4, appearing anonymously but through counsel, filed the instant motion on June 29, 2012. Doe 4 contends that the alleged participation of defendants in the same swarm is insufficient to justify their joinder pursuant to Federal Rule of Civil Procedure 20(a)(2). Doe 4 alternatively contends that, even if the formal criteria for joinder are satisfied, the Court should exercise its discretion and not permit the joinder of defendants given the nature of this ...


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