Indiana Intellectual Property Law News

Fort Wayne, IN – Copyright attorney Paul Nicoletti filed a lawsuit on behalf of Malibu Media in the Northern District of Indiana alleging copyright infringement of the pornographic movie “Romantic Memories.” It alleges the infringement occurred by downloading it using the Internet file sharing “bittorrent” protocol. The suit was against 14 as-yet-unnamed Indiana Defendants, John Does 1-14. “Romantic Memories” had been coded with a “Unique Hash Number,” and upon investigation, 14 Internet Protocol (“IP”) addresses were identified. Upon receiving permission from the court, Plaintiff served third party subpoenas on two Internet Service Providers (“ISPs”) to discover the names and other contact information of each Defendant.

Defendant John Doe No. 12, acting pro se, filed a Motion to Dismiss or Sever for Misjoinder and to Quash Plaintiff’s Subpoena. The court rejected the Motion to Dismiss on a technicality, noting that under local rules motions must be filed separately, and denied the Motions for Severance and to Quash.

Doe No. 12’s Motion to Quash under Fed. R. Civ. P. 45(a) argued that there was no evidence that any improper use of his IP address would be sufficient to support an assertion that he was responsible for such misuse. The Court acknowledged that Doe No. 12 had standing to object to the subpoena on the grounds that it would implicate his privacy interest. However, it went on to reject his argument as a mere denial of liability and not relevant to a Motion to Quash. Doe No. 12 further asserted that the subpoena should be quashed as a burden on his ISP. The court found that argument unpersuasive as 1) the subpoena would not burden Doe No. 12 personally and 2) Rule 45 only requires a court to quash a subpoena when it subjects a person to an undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iv). Further, the court held that no exception for privilege was applicable, as courts have consistently held that “there is no expectation of privacy in Internet subscriber information because it has already been exposed to a third party, the Internet Service Provider.”

Doe No.12’s Motion to Sever under either Federal Rule of Civil Procedure 20 or 21 argued, that there was no single transaction or series of transactions as is required for permissive joinder. Courts across the country are split regarding whether joining anonymous defendants alleged to have participated in a single BitTorrent “swarm” in a single suit is appropriate. The court here allowed joinder as the Plaintiff alleged a set of facts sufficient to support a finding that the separate actions were part of the same series of transactions, noting that the file sharing protocol required each participant to send and receive portions of the work in order to download and view the entire work. The second requirement for joinder under Rule 20, a “common question of law or fact,” was sufficiently pled by the Plaintiff’s assertion, without exception, of the same counts of copyright infringement against all Defendants. Discretionary severance under Rule 21 was also denied as unnecessarily cumbersome at this stage of the litigation.

Finally, the court issued a warning to plaintiffs in situations such as these, stating that “the litigation strategy Plaintiff has employed in this case has a history of becoming abusive and potentially giving rise to sanctions under Rule 11.” The court further cautioned plaintiffs against improperly leveraging a defendant’s reluctance to have his identity revealed to coerce a settlement.

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