United States District Court, D. Massachusetts
For Patrick Collins, Inc., Plaintiff: Marvin N. Cable, LEAD ATTORNEY, Law Offices of Marvin Cable, Northampton, MA.
For Doe 30, Defendant: Edward R. Molari, Boston, MA.
REPORT AND RECOMMENDATION ON MOTIONS TO QUASH AND TO SEVER
Judith Gail Dein, United States Magistrate Judge.
The plaintiff, Patrick Collins, Inc. (" Patrick Collins" ), is the registered owner of the copyright to the adult motion picture " Big Wet Brazilian Asses 7." It has brought this action against 38 unidentified " Doe" defendants, claiming that each of them, acting without the permission or consent of the plaintiff, reproduced and distributed to the public at least a substantial portion of the copyrighted work using computer software known as " BitTorrent" file sharing technology. By its complaint in this action, Patrick Collins has asserted claims against the defendants for copyright infringement and contributory copyright infringement pursuant to the Federal Copyright Act, 17 U.S.C. § § 101, et seq. The plaintiff is seeking both money damages and injunctive relief.
This case is part of what has been described as a " nationwide blizzard" of copyright infringement actions that have been filed by adult film producers against large numbers of Doe defendants identified only by their Internet Protocol (" IP" ) addresses.
See In re BitTorent Adult Film Copyright Infringement Cases, Civil Action Nos. 11-3995 (DRH)(GRB), 12-1147 (JS)(GRB), 12-1150 (LDW)(GRB), 12-1154 (ADS)(GRB), 2012 WL 1570765, at *1 (E.D.N.Y. May 1, 2012) (slip op.). It also is one of a number of such actions that have been filed in this district by various adult video companies, all of which have been represented by the same counsel and involve virtually identical claims and filings.
See SBO Pictures v. Does 1-41, Civil Action No. 12-10804-FDS, 2012 WL
5464182, at *1 (D. Mass. Nov. 5, 2012) (slip op.) (listing examples of similar cases). The plaintiffs in these cases typically file a complaint alleging that a large group of " Doe" defendants identified only by their IP addresses illegally reproduced and distributed a pornographic motion picture using BitTorrent technology as part of a single " swarm." In order to identify the individuals associated with each of the IP addresses at issue, the plaintiffs then move for permission to serve Rule 45 subpoenas upon the Internet Service Providers (" ISPs" ) responsible for assigning IP addresses to each of the Doe defendants. See id. (describing typical strategy used by adult film producers in similar copyright infringement cases filed in Massachusetts). The threat of disclosure typically triggers challenges to the subpoenas as well as early settlements by some of the Doe defendants.
This is the strategy that has been employed by Patrick Collins in this case. Following the filing of its complaint, Patrick Collins filed an ex parte motion for early discovery, and was granted permission to serve Rule 45 subpoenas upon the relevant ISPs. However, before any names were made public, the Doe defendants were given an opportunity to challenge the subpoenas or attempt to resolve the matter with the plaintiff. To date, Patrick Collins has reached settlements with four of the Doe defendants and has dismissed those defendants from the litigation with prejudice and without ever revealing their identities. Two of the Doe defendants, Doe Number 30 and a second Doe who is acting pro se and has not identified himself  by name, Doe number or IP address (" Pro Se Doe" ), have filed motions to quash the subpoenas that were issued to their ISPs. Those motions are currently pending before the court.
Specifically, by his motion (Docket No. 10), Doe Number 30 is seeking an order quashing a subpoena that was served on Verizon in order to obtain his personally identifying information. Doe Number 30 contends that such an order is warranted under Fed.R.Civ.P. 45 because the harm that he would suffer as a result of such disclosure, and his interest in maintaining his privacy, outweigh the plaintiff's need for discovery. He also argues that under the circumstances of this case, Verizon is barred from disclosing his personally identifying subscriber information pursuant to 47 U.S.C. § 551.
In support of his motion (Docket No. 11), Pro Se Doe contends that the joinder of 38 defendants in this action is improper under Fed.R.Civ.P. 20 because the alleged infringement was committed by unrelated defendants who acted separately and may have different defenses, and because the alleged conduct took place at different times and in different locations. He also contends that under the circumstances of this case, permitting joinder would create a substantial risk of unfairness to the individual Does. Accordingly, by his motion, Pro Se Doe is seeking an order severing the defendants and dropping Doe Nos. 2-38 from the litigation pursuant to Fed.R.Civ.P. 21. Because Pro Se Doe's motion arises under Rules 20 and 21 rather than Rule 45, this court has construed it as a motion to sever rather than a motion to quash a subpoena.
For all the reasons detailed below, this court finds that while joinder of the defendants may be permissible under Fed.R.Civ.P. 20(a), the interests of justice and
judicial economy would best be served if all of the defendants except Doe Number 1 were severed and dropped from the case pursuant to Fed.R.Civ.P. 21. Accordingly, this court recommends to the District Judge to whom this case is assigned that Pro Se Doe's motion to sever (Docket No. 11) be ALLOWED, and that Patrick Collins' claims against all defendants except Doe Number 1 be dismissed without prejudice to refiling against each of the defendants individually. In light of this court's recommendation that Doe Number 30 be dismissed from the case, this court further recommends that the " Motion to Quash Subpoena" (Docket No. 10) filed by that individual be DENIED AS MOOT.
Since the filing of this litigation in April 2012, courts in this district as well as elsewhere have become increasingly troubled by what some commentators have described as " copyright trolling," whereby the owner of a valid copyright " files a mass copyright infringement lawsuit and subpoenas identifying information for anonymous Doe defendants, intending to send demand letters and achieve prompt settlements for limited amounts rather than intending to actually litigate the claims asserted." Kick Ass Pictures, Inc. v. Does 1-25, C.A. No. 12-10810-MLW, 2013 WL 80162, at *1 (D. Mass. Jan. 4, 2013). As one Judge in this District cautioned in a recent decision:
While it is without question that a valid copyright holder is entitled to seek protection of its intellectual property in federal court, it appears that in at least some of these cases, adult film companies may be misusing the subpoena powers of the court, seeking the identities of the Doe defendants solely to facilitate demand letters and coerce settlement, rather than ultimately serve process and litigate the claims. And while it is true that every defendant to a lawsuit must assess reputational costs in his or her determination of whether to settle or defend an action, the potential for embarrassment in being publicly named as allegedly infringing such salacious works as " Big Butt Oil Orgy 2" or " Illegal Ass 2," may be playing a markedly influential role in encouraging a myriad of Doe defendants to settle once subpoenas are issued -- a bargaining chip the adult film companies appear to well understand.
Third Degree Films v. Does 1-47, 286 F.R.D. 188, 190 (D. Mass. 2012) (footnotes omitted). Thus, courts around the country have become wary of allowing adult film companies to employ the mechanisms of the judicial process, such as early discovery and joinder, to carry out potentially abusive or coercive litigation strategies. See id. at 190-91.
Although the record before this court reveals no evidence of improper tactics or bad faith by Patrick Collins in this action, the fact that four settlements have occurred before any of the defendants have been identified in the public record illustrates how these types of cases create a strong tool for leveraging early settlements. Accordingly, this court remains mindful of the potential that these cases have for abuse, and it is against this backdrop that this court considers the Doe defendants' pending motions to quash and to sever.
III. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Patrick Collins is a California corporation and the owner of the copyright to the motion picture " Big Wet Brazilian Asses 7" (the " Motion Picture" ). (Compl. (Docket No. 2) ¶ ¶ 6, 8). The Motion Picture is widely available on DVD, and may be purchased through various vendors for
under $20. (Id. ¶ 8). Patrick Collins alleges that each of the 38 Doe defendants has infringed its copyright by using and continuing to use " an online media distribution system (sometimes referred to as a 'peer to peer' network or a 'P2P' network) to reproduce at least one copy of the Motion Picture, and to distribute to the public, including by making available for distribution to others, copies of the Motion Picture." (Id. ¶ 21). It further claims that each of the ...