Case: 1:12-cv-09041 Document #: 12 Filed: 12/21/12 Page 1 of 9 PageID #:45

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION R&D FILM 1, LLC, Plaintiff, v. DOES 1 103, Defendants. ) ) ) Case No.: 12-cv-9041 ) ) ) Judge Ronald A. Guzman ) ) Magistrate Judge Jeffrey Cole )

PLAINTIFFS SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO TAKE DISCOVERY PRIOR TO RULE 26(f) CONFERENCE As directed by the Court, Plaintiff submits this Supplemental Memorandum that joinder is proper in this matter, particularly at this stage of the proceeding. This case involves a copyright owners effort to protect its copyrighted movie The Divide from numerous unknown individuals, who are illegally copying and distributing the work on the Internet. Plaintiff has been harmed as a result of copyright infringement by numerous residents in this District and has no viable option other than to file suit to prevent further theft of its movie. JOINDER IS PROPER

Fed. R. Civ. P. 20 permits joinder when any right to relief is asserted against [defendants] jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and any question of law or fact common to all defendants will arise in the action. Rule 20(a) not only permits permissive joinder when there is the same transaction or occurrence, it also permits joinder when a Plaintiff has pled (a) series of transactions or occurrences or (b) joint or several liability. Plaintiff respectfully requests this Court to consider that the majority of decisions in the Northern District have found joinder appropriate in copyright infringement BitTorrent actions. Joinder is proper in this case because each of the Defendants used the BitTorrent protocol to

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download from or distribute to each of the other Defendants, as a part of the same (identical) transaction or through a series of transactions, the same (identical) torrent file (computer file) containing Plaintiffs copyrighted movie. In Pacific Century International v. Does 1-31, Case No. 11-cv-9064 (N.D. Ill. 2011), Judge Leinenweber concluded that joinder was proper and that at least at this stage, Plaintiffs allegations that the anonymous Defendants participated in the same swarm (at varying times spanning just over one month) sufficiently allege that they were involved in a series of transactions to warrant joinder under Rule 20. (Copy attached as Exhibit A). In the present case, the targeted dates cover a span of about three months (from early July 2012 to late September 2012). Exhibit B to Complaint. As explained below, the law of joinder does not require that joined infringers participate in the same series of uploads and downloads within a particularly limited period of time. Judge Leinenweber referred to previous cases in which similar conclusions were reached. In particular, Digital Sin, Inc. v. Does 1-176, No. 12-cv-126, 2012 WL 263491, at *5 (S.D.N.Y. Jan. 30, 2012) (finding joinder appropriate at this stage); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 252-53 (N.D. Ill. 2011) (Castillo, J.)(An examination of each of these requirements shows that joinder is proper at this time.); First Time Videos, LLC v. Does 1-76, 276 F.R.D. 254, 257 (N.D. Ill. 2011) (Bucklo, J.)(At this stage, joinder is appropriate.); Hard Drive Prods., Inc. v. Does 1-44, No. 11 C 2828, at 3 (N.D. Ill. Aug. 9, 2011) (Holderman, J.) (same). See also Sunlust Pictures, LLC v. Does 1-75, 12 C 1546, 2012 WL 3717768 (N.D. Ill. August 27, 2012) (Tharp, J.) (joinder is appropriate in this case because [Plaintiff] has alleged sufficient facts to provide a basis for joinder of all the defendants.) Judge Leinenweber recognized the split of authority over whether it is appropriate to join many anonymous defendants alleged to have participated in a single downloading swarm in a single unit. Compare, e.g., In re BitTorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765, at *11 (finding joinder inappropriate due to insufficient allegations that the defendants actually shared file bits with one another); Lightspeed Media Corp. v. Does 1-1000, No. 10-C-5604,

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at 2 (N.D. Ill. Mar. 31, 2011) (Manning, J.); CP Prods. Inc.v. Does 1-300, No. 10 C 6255, 2011 WL 737761, at * (N.D. Ill. Feb. 24, 2011) (Shadur, J.) (finding the violations separate and personal jurisdiction lacking). Nevertheless, Judge Leinenweber concluded that, at least at this stage, Plaintiffs allegations that the anonymous defendants participated in the same swarm sufficiently allege that they were involved in a series of transactions to warrant joinder under Rule 20. See MGCIP v. Does 1-316, No. 10 C 6677, 2011 WL 2292958, at *2 (N.D. Ill. 2011) (finding joinder proper at this stage and noting that the individual defendants could re-raise the joinder issue as named parties). The Court also noted that, unlike many of the cases where courts have found joinder improper, Plaintiff only sued Doe defendants whose IP addresses appear to be based in Illinois. Compare,CP Prods., Inc. v. Does 1-300, 2011 WL 737761, at *1 (objecting to the large number of defendants over which the court demonstrably lacked personal jurisdiction). (To the extent that Plaintiffs geolocation of the allegedly infringing IP addresses is incorrect, the defendants may interpose jurisdictional objections at the appropriate time.) With regard to certain contrary decisions, as noted above, in Lightspeed Media, No. 10-C5604, at 2 (N.D. Ill. Mar. 31, 2011), Judge Manning found that joinder was improper due to insufficient allegations that the defendants actually shared file bits (pieces) with one another. Moreover, the complaint in that action reportedly did not allege that any of the defendants were located in Illinois and did not provide a good faith basis for the allegation that on information and belief each Defendant may be found in this District and/or a substantial part of the acts of infringement complained of herein occurred in this District. The Court further indicated that many (if not all) of the 1,000 Defendants were not located in Illinois. Id., at 3. In the present case, based on information and belief, all of the Doe Defendants have IP addresses located in the Northern District of Illinois. See paragraphs 5 and 7 of the Complaint and Exhibit B to the Complaint. In addition, the present Complaint alleges that the Defendants shared pieces of the same file in that each new file downloader is receiving a different piece of the data

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from each user who has already downloaded the file that together comprises the whole. This piecemeal system with multiple pieces of data coming from peer members is usually referred to as a swarm. The effect of this technology makes every downloader also an uploader of the illegally transferred file(s). This means that every node or peer user who has a copy of the infringing copyrighted material on a torrent network must necessarily also be a source of download for that infringing file. Complaint, para. 3. See also, para. 15 of the Complaint on information and belief, each Defendant participated in a swarm and/or reproduced and/or distributed the same seed file of Plaintiffs Copyrighted Motion Picture in digital form with other Defendants. In particular, on information and belief, Defendants participated in a common swarm with other Defendants for the purpose of exchanging portions of infringing copyrighted material unique to the swarm. In DIRECTV, Inc. v. Collins, 244 F.R.D. 408 (S.D. Ohio 2007), a provider of subscription broadcast satellite services alleged piracy of its programming by purchasers of pirate access devices that descrambled satellite signals. Citing an analogy by Judge Coar, the court stated that the transactions by the individual Defendants were logically related to one another in the same way that purchases of milk from the grocery store are logically related to each other: each transaction involves a transaction for a similar purpose. Citing DIRECTV, Inc. v. Perez, 2003 WL 22682344, at *1 (N.D. Ill, Nov. 12, 2003). Id., at 3-4. The connection among the Defendants in the present action is hardly that tenuous. Each of the Defendants has directly interacted with each other Defendant, or has shared a piece of the file with each and every Defendant when downloading the movie. The Defendants are properly joined because their actions directly related back to the same initial seed of the swarm, and their alleged infringement further advanced the series of infringements that began with the initial seed and continued through other infringers. In doing so, the Defendants all acted under the same system. It is sufficient that the Defendants shared pieces that originated from the same (identical) file, and opened their computer to allow others to connect and receive those pieces. In short, all of the Defendants drank from the same bottle.

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A. The Infringement Occurred Through a Series of Transactions For the word series to have any meaning in Rule 20(a), the rule must permit joinder to be proper when there is something other than a direct transaction. Series has been interpreted to mean a logically related fact pattern. [A]ll logically related events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence. The analogous interpretation of the terms as used in Rule 20 would permit all reasonably related claims for relief by or against different parties to be tried in a single proceeding. Absolute identity of all events is unnecessary. Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). Magistrate Judge Randon of the Eastern District of Michigan recently analyzed the facts in a similar case, taking considerable effort in his Report and Recommendation of April 5, 2012 to explain the allegations in the complaint and the applicable law. Judge Randon summarized the plaintiffs allegation that each Defendant copied the same pieces of the same file as follows: Plaintiff alleges that its investigator (IPP) was able to download at least one piece of the copyrighted Movie from each Defendant (Dkt. No. 1 at 8-10). It is important to understand the implications of this allegation before determining whether joinder is proper. If IPP downloaded a piece of Plaintiffs copyrighted Movie from each Defendant (and, conversely, each Defendant uploaded at least one piece of the Movie to IPP) then each Defendant had at least one piece of the Movie traceable via Hash Identifier to the same Initial Seeder on his or her computer and allowed other peers to download pieces of the Movie. By way of illustration: IPPs computer connected with a tracker, got the IP address of each of Defendants computers, connected with each Defendants computer, and downloaded at least one piece of the Movie from each Defendants computer. During this transaction, IPPs computer verified that each Defendants piece of the Movie had the expected Hash; otherwise, the download would not have occurred.

Patrick Collins, Inc. v. John Does 1-21, CIV.A. 11-15232, 2012 WL 1190840, at *4-5 (E.D. Mich. Apr. 5, 2012). (Copy attached as Exhibit B). Significantly, Judge Randon then explained that each Defendant obtained the pieces of Plaintiffs movie in one of four ways, all of which relate directly back to one individual seed.

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If Plaintiffs allegations are true, each Defendant must have downloaded the piece(s) each had on his or her computer in one, or more, of the following four ways: 1) the Defendant connected to and transferred a piece of the Movie from the initial seeder; or 2) the Defendant connected to and transferred a piece of the Movie from a seeder who downloaded the completed file from the initial seeder or from other peers; or 3) the Defendant connected to and transferred a piece of the Movie from other Defendants who downloaded from the initial seeder or from other peers; or 4) the Defendant connected to and transferred a piece of the Movie from other peers who downloaded from other Defendants, other peers, other Seeders, or the Initial Seeder. In other words, in the universe of possible transactions, at some point, each Defendant downloaded a piece of the Movie, which had been transferred through a series of uploads and downloads from the Initial Seeder, through other users or directly, to each Defendant, and finally to IPP. Id. Having limited the universe to four possibilities, the court correctly concluded the transaction was logically related. Therefore, each Defendant is logically related to every other Defendant because they were all part of a series of transactions linked to a unique Initial Seeder and to each other. This relatedness arises not merely because of their common use of the BitTorrent protocol, but because each Defendant affirmatively chose to download the same Torrent file that was created by the same initial seeder, intending to: 1) utilize other users computers to download pieces of the same Movie, and 2) allow his or her own computer to be used in the infringement by other peers and Defendants in the same swarm. Id. In this case as noted above, it is not necessary for each of the Defendants to have directly interacted with each other Defendant, or to have shared a piece of the file with each and every Defendant when downloading the movie. The Defendants are properly joined because their actions directly relate back to the same initial seed of the swarm, and their alleged infringement further advanced the series of infringements that began with that initial seed and continued through other infringers. As a result, the Defendants all acted under the same system. It is sufficient that the Defendants shared pieces that originated from the same (identical) file, and opened their computer to allow others to connect and receive those pieces. B. There are Common Issues of Fact and Law Rule 20(a)(2)(B) requires the claims against the putative defendants to contain a common

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question of law or fact. Judge Tharp recently issued an opinion stating that joinder was proper because the plaintiff allege[d] in its complaint that the defendants participated in the swarm simultaneously and that it observed the defendants transferring data from the Video between themselves. Sunlust Pictures, LLC v. Does 1-75, 12 C 1546, 2012 WL 3717768 at *4 (N.D. Ill. Aug. 27, 2012). Judge Tharp also found that the claims against the Doe Defendants clearly contained common questions of law and fact. As to the second requirement for joinder, this lawsuit appears to involve questions of law and fact common to all defendants, including whether Sunlust is a proper copyright holder, whether violations of the Copyright Act have occurred, and whether entering a BitTorrent swarm constitutes willful copyright infringement Rule 20 requires only that any question of law or fact [be] common to all defendants, not that every question of law or fact be common Accordingly, joinder is proper here, and the Court denies Does motion to sever for improper joinder. Id. Likewise, all of the Doe Defendants in this case participated in the same swarm. Similar cases in other districts have reached the same conclusion. The Plaintiff meets this requirement. 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 reserved to the plaintiffs as copyright holders. Nu Image, Inc. v. Does 1-3, 932, 2:11CV-545-FTM-29, 2012 WL 1255189 (M.D. Fla. Apr. 12, 2012). The factual issues related to how 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. Call of the Wild Movie v. Does 1-1,062, 770 F. Supp. 2d 332, 344-345 (D.D.C. 2011). Here, common questions of law and fact are present. Defendants are all accused of violating the same copyright laws. Additionally, the interconnectedness of using BitTorrent to complete the alleged acts creates common questions of fact. Consequently, we find that this low standard is satisfied. Malibu Media, LLC v. John Does 1-15, CIV.A. 12-2077, 2012 WL 3089383 (E.D. Pa. July 30, 2012). The fact that each Doe Defendant may later assert individual defenses that differ wildly does not mean that joinder is improper. Id.

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C. The Time Period for Infringement The nature of the BitTorrent protocol provides for continuous seeding and distribution of a movie long after it has downloaded. Without stopping the program by physically un-checking the automatic seeding, an alleged infringer likely will seed and distribute a movie for an extended period of time. As Judge Randon explained in his Report and Recommendation in Patrick Collins, Inc. v. John Does 1-21 (Exhibit B), even after an infringer has completed a download of the movie, he or she may distribute the movie for weeks after having received the download. [I]t is not that an infringer would wait six weeks to receive the Movie, it is that the infringer receives the Movie in a few hours and then leaves his or her computer on with the Client Program uploading the Movie to other peers for six weeks. Because the Client Programs default setting (unless disabled) is to begin uploading a piece as soon as it is received and verified against the expected Hash, it is not difficult to believe that a Defendant who downloaded the Movie on day one, would have uploaded the Movie to another Defendant or peer six weeks later. This consideration, however, is irrelevant since concerted action is not required for joinder. Id. 2012 WL 1190840 (E.D. Mich. Apr. 5, 2012). In this case, Plaintiffs investigator received a piece of the movie from the defendants when they were distributing it to others. The Southern District of New York in recognizing that the concept of joinder is adaptable to changing technological landscapes impacting the complexity of lawsuits stated, [w]hile the period at issue may therefore appear protracted by ordinary standards, the doctrine of joinder must be able to adapt to the technologies of our time. Malibu Media, LLC v. John Does 1-5, 12 CIV. 2954 NRB, 2012 WL 3641291 (S.D.N.Y. Aug. 24, 2012). The Michigan Court explained that time constraints should not impact that the infringements occurred through a series of transactions. [T]he law of joinder does not have as a precondition that there be temporal distance or temporal overlap; it is enough that the alleged BitTorrent infringers participated in the same series of uploads and downloads in the same swarm. Id.

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CONCLUSION In view of the Memorandum filed in support of the pending motion and this Supplemental Memorandum, Plaintiff respectfully requests the Court to grant the pending Motion for Leave to Take Discovery Prior to the Rule 26(f) Conference. Respectfully submitted, Dated: December 21, 2012 R&D FILM 1, LLC

By:

s/ Michael A. Hierl _ Michael A. Hierl (Bar No. 3128021) Todd S. Parkhurst (Bar No. 2145456) Hughes Socol Piers Resnick & Dym, Ltd. Three First National Plaza 70 W. Madison Street, Suite 4000 Chicago, Illinois 60602 (312) 580-0100 Telephone (312) 580-1994 Facsimile mhierl@hsplegal.com Attorneys for Plaintiff R&D Film 1, LLC

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