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Patrick Collins, Inc v. John Doe 1

November 20, 2012

PATRICK COLLINS, INC.,
PLAINTIFF,
v.
JOHN DOE 1,
DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

The Plaintiff, Patrick Collins, Inc. ("Collins") commenced this action against John Does 1 through 9, pursuant to 17 U.S.C. § 106 and § 501, alleging direct and indirect copyright infringement of the Plaintiff's film "Gangbanged." Presently before the Court are objections to a Report and Recommendation of United States Magistrate Judge Gary R. Brown dated May 1, 2012, addressing an application by the Plaintiff in the above-captioned litigation for immediate discovery, pursuant to Federal Rules of Civil Procedure ("Fed. R. Civ. P.") 45 for a subpoena directed at specific non-party Internet Service Providers ("ISPs") to obtain identifying information about subscribers to the named Internet Protocol ("IP") addresses in order to identify the anonymous John Doe Defendants. For the reasons set forth below, this Court adopts the Report and Recommendation in its entirety.

I. BACKGROUND

A. The BitTorrent Protocol

Prior to delving into the specific facts and circumstances surrounding the instant case, a brief explanation of the BitTorrent protocol and other technical terms may provide a useful foundation for the relevant disputes.

The Court's explanation of the BitTorrent protocol is primarily drawn from Judge Brown's explanation as well as that in Next Phase Distribution, Inc. v. John Does 1-27, No. 12-CV-3755, 2012 WL 3117182, at *1 (S.D.N.Y. Jul. 31, 2012) and DigiProtect USA Corp. v. Does, No. 10-CV-8760, 2011 WL 4444666, at *3 (S.D.N.Y. Sep. 26, 2011). BitTorrent is a peer-to-peer protocol that allows users to transfer large files on the Internet. First, the protocol breaks a single large file into a series of smaller distributable pieces. Then, an initial file-provider (the "Initial Seeder") intentionally elects to distribute the pieces to third parties. Other users ("Peers") on the network download a small "torrent" file that contains directions on where to find the seeder as well as an index of the pieces. The torrent file is loaded into BitTorrent software, and the software follows the directions in the torrent file to connect to the Seeder. When Peers connect to the Seeder, they download random pieces of the file being seeded. When a piece of the file has been downloaded, the Peer automatically begins sharing that piece with other Peers. Once a Peer downloads all of the pieces of the file, BitTorrent reassembles the pieces so that the Peer can view the entire file. The Seeders and Peers that share the same file, and are downloading and uploading that file to and from each other, are collectively called a "swarm." If a Peer with the completed file (obtained either through the same swarm, a different swarm, or any other method) chooses to share that file with an already active swarm, that Peer becomes a Seeder. BitTorrent also uses a "tracker" that tracks the pieces of the files as those pieces are shared among various computers. This tracking feature allows an entity such as the Plaintiff to identify the IP addresses from which the films were downloaded, the subscribers to which have become the Defendants in the instant case.

An IP address is a "numeric label[] specific to a computer network that serve[s] to identify and locate that network on the Internet, but not to further identify the defendant. In fact, a single IP address may host one or more devices operated or owned by multiple users (for example, a computer or handheld tablet), each communicating on the same network, such as with a wireless router or a business intranet." Media Prods., Inc. v. John Does 1-26, No. 12-CV-31719, 2012 WL 3866492, at *1 (S.D.N.Y. Sep. 4, 2012).

B. The Present Action

The Plaintiff claims to be the owner of a copyright registered for the pornographic film "Gangbanged." The Defendants are internet users who allegedly each downloaded some or all of the Plaintiff's work using the BitTorrent Peer-to-Peer sharing protocol between November 17, 2011 and January 26, 2012. On March 8, 2012, the Plaintiff commenced the present suit, alleging direct and indirect copyright infringement against each of the anonymous John Doe Defendants. In its complaint, the Plaintiff identified each of the Defendants only by their IP addresses.

Over the past year, the Plaintiff has filed a number of similar lawsuits, in this district and others, involving dozens, if not hundreds, of defendants. In re BitTorrent Adult Film Copyright Infringement Cases, No. 12-CV-1154, 2012 WL 1570765, at *1 n.1 (E.D.N.Y. May 1, 2012) (collecting cases). On March 12, 2012, the Plaintiff moved for leave to serve third party subpoenas to the Defendants' alleged ISPs to obtain the name, address, phone number, and email address belonging to the accounts associated with the IP addresses contained in the complaint.

On May 1, 2012, Judge Brown issued an Order & Report and Recommendation regarding the instant matter and three related matters pending before other courts in this district. Judge Brown granted the Plaintiff's motion in part and allowed the Plaintiff to serve subpoenas pursuant to Fed. R. Civ. P. 45 on the ISPs to obtain the name, address, and Media Access Control address for only the Defendant John Doe 1 in each case. The Plaintiff was explicitly forbidden from seeking the telephone numbers and email addresses of these individuals. Furthermore, Judge Brown instructed the ISPs to produce the information directly to the Court, not to the Plaintiff, and directed that the submission be made ex parte and under seal.

Judge Brown also made the following recommendations relevant to the instant case: (1) that the complaints as to all the Defendants other than John Doe 1 be dismissed without prejudice; and (2) that Plaintiff and its counsel be directed that any future action of a similar nature in this district be filed as separate actions against each John Doe defendant.

On, May 10, 2012, the Plaintiff voluntarily dismissed the Defendants John Does 2 through 9. On May 16, 2012, the Plaintiff filed objections to Judge Brown's Report and Recommendation on the following grounds: (1) that the Plaintiff did not and will not engage in improper litigation tactics; (2) an IP address is likely to identify the actual infringer; and (3) joinder is appropriate in this action as well as similar future actions.

After reviewing the Plaintiff's objections, this Court adopts the Report and Recommendation in its entirety.

II. DISCUSSION

A. Legal ...


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