Professional Documents
Culture Documents
18 Plaintiff filed this copyright infringement action on August 19, 2010. In order to
19 investigate the identify of defendants, Plaintiff obtained leave from the Court to serve a subpoena
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on AT&T, the Internet service provider that controls the ip addresses from which the
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infringement occurred. [Order Granting Plaintiff Leave to Take Early Discovery, Docket No.
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10.] Subsequently, an unidentified individual filed an anonymous Motion to Dismiss, claiming
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24 to be a potential defendant. [Docket No. 16] Plaintiff opposed the Motion and Moved to Strike
25 the improperly filed Motion to Dismiss. [Docket No. 18] The Magistrate Judge to whom the
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Clerk of the Court had assigned the matter, struck the Filer’s Consent to Proceed before a
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Magistrate Judge and ordered the Clerk to reassign the matter to a District Court Judge. [Docket
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1
Reply to Filer’s Opposition to Motion to Strike
C-10-3647 (WHA)
Case3:10-cv-03647-WHA Document26 Filed04/15/11 Page2 of 10
1 No. 22] The unidentified filer submitted an Opposition to the Motion to Strike and Plaintiff
2 replies here. The Filer did not notice a date for a motion hearing on his Motion to Dismiss and
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recognizing the futility in noticing a hearing where the Filer is appearing pro per and refuses to
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identify himself, Plaintiff did not notice a hearing for the Motion to Strike. Nonetheless, Plaintiff
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is prepared to appear should the Court calendar oral argument.
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7 ARGUMENT
11 Plaintiff’s arguments for striking Filer’s Motion to Dismiss, rather the Filer focuses on the merits
12 of the arguments advanced in his improperly filed Motion. He strings together a series of
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hearsay discussions from pro-piracy websites, briefs filed in other cases, and other miscellaneous
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sources, none of which address the issue at hand – whether it is proper for a non-party to submit
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an anonymous motion to dismiss on behalf of yet-to-be identified Defendants. He cannot, and
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17 the document must be struck.
18 Although the Filer now claims that Plaintiff has subpoenaed records of his identity from
19 AT&T2, this renders the Filer a potential non-party witness – not a potential defendant. The Filer
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provides no authority supporting a position that a non-party witness is permitted to file a motion
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to dismiss in order to prevent the discovery of his identity. The proper manner in which to seek
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such relief is to file a motion to quash or a motion for protective order.
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24 The non-party witness did not provide his ip address or otherwise identify a Defendant
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26
1
27 As the Filer submitted papers anonymously, Plaintiff does not know the Filer’s gender.
28 Plaintiff refers to the Filer in the masculine, while recognizing the Filer may be female.
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Reply to Filer’s Opposition to Motion to Strike
C-10-3647 (WHA)
Case3:10-cv-03647-WHA Document26 Filed04/15/11 Page3 of 10
1 Doe he believes he may replace, claiming AT&T did not provide the information. However,
2 Filer could have easily contacted AT&T to obtain this information. Several other AT&T
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subscribers whose information Plaintiff subpoenaed contacted Plaintiff’s attorney and provided
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their ip addresses. [Declaration of D. Gill Sperlein in Support of Reply at ¶3] The Filer makes
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clear that the actual reason he filed anonymously is because he did not want Plaintiff to know
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7 who filed the motion. Specifically, he wrote, “I am acting anonymously in order in ensure that
8 all the Does in this case are treated equally and that my actions do not subject me to possible
9 retaliation by Plaintiff by means of selective prosecution.” [Opposition to Motion to Strike, p. 2,
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¶3] This is not a proper reason for proceeding anonymously, even if the Filer were a party to the
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action. For the reasons set forth in Plaintiff’s Motion to Strike and unrebutted in the Filer’s
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Opposition, a litigant is entitled to know who seeks to direct the outcome of litigation by filing
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14 motions with the Court.
15 Chief Magistrate Judge James, recognizing that the Filer is not entitled to file anonymous
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papers with the Court, struck the Filer’s Consent to Proceed before Magistrate Judge. [Docket
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No. 22] If the Filer, as a non-party witness whose identity has been subpoenaed, has concerns
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about the process, the proper course of action is to file a motion to quash in the Northern District
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20 of Texas (the Court from which the subpoena issued) or, after conferring with the Plaintiff, to file
21 a motion for protective order in this Court. Plaintiff would stipulate to a protective order.
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Reply to Filer’s Opposition to Motion to Strike
C-10-3647 (WHA)
Case3:10-cv-03647-WHA Document26 Filed04/15/11 Page4 of 10
1 mention.
2 At subsection II (b), the Filer claims that in another case Plaintiff’s counsel threatened
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sanctions against a defendant “just because he used ghost written motion.” Actually, the case
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involved motions written surreptitiously by an attorney for a party claiming to appear pro per.
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The attorney publically stated the motion did not have merit but that the motions would “create
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7 more work for the people suing you, and therefore it will take more effort to reveal your
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Reply to Filer’s Opposition to Motion to Strike
C-10-3647 (WHA)
Case3:10-cv-03647-WHA Document26 Filed04/15/11 Page5 of 10
1 30% over the past year alone. More individuals now watch Plaintiff’s content via pirated sources
2 then do via legal or paid sources. [Ruoff Declaration at ¶4]
3 As revenue declines, cut-backs including layoffs naturally ensue. Plaintiff, a company
4 that generally employs about twenty people full time with benefits including health care and a
5 retirement plan, has laid off 15% of its full-time staff in the past year. [Id. at ¶5] Unfortunately,
6 the least skilled of the labor force, those least likely to find other work in a difficult economy, are
7 almost always the first to be laid off, losing not only their income, but also their health insurance.
8 Whoever distributed Plaintiff’s work to a worldwide group of peers through the Filer’s Internet
9 account is directly responsible for a portion of the damages Plaintiff and its employees have
10 suffered. Plaintiff deserves the opportunity to investigate its claims and bring suit against the
11 infringer.
12 If the Filer, or someone he is protecting, is responsible for the infringing activity, one can
13 understand why he would want the case dismissed. On the other hand, if the Filer honestly had
14 nothing to do with the infringement, then someone else accessed his account without his
15 permission. In such case, the Filer is a witness who will be able to help in the investigation to
16 discover who illicitly accessed his Internet account. As a non-party witness his name will never
17 be placed in the public record and his concerns about public disclosure are unfounded.
18 II. EVEN IF ADDRESSED ON THE MERITS, THE ANONOMOUS FILER’S
MOTION TO DISMISS SHOULD BE DENIED.
19 Although the Anonymous Filer’s Motion must be stricken, Plaintiff briefly addresses the
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merits of his Motion to Dismiss here. Although the Filer speaks of generally about fairness, he
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does not explain how he would be unfairly prejudiced if Plaintiff were permitted to discover his
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identity prior to evaluating jurisdiction and joinder. Unless the Filer is indeed the infringer or is
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24 deliberately trying to protect the identity of someone he knows to be the infringer, one would
25 expect cooperation in the investigation. Conversely, Plaintiff, the actual Defendants, and the
26 Court will be burdened by a multiplicity of actions which might otherwise be unnecessary if the
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determination of jurisdiction and joinder are delayed until Plaintiff identifies the Defendants.
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Reply to Filer’s Opposition to Motion to Strike
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Reply to Filer’s Opposition to Motion to Strike
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1 1316, 1321 (9th Cir. 1998)(“In tort cases, jurisdiction may attach if the defendant’s conduct is
2 aimed at or has an effect in the forum state.”). Copyright infringement may be characterized as
3 an intentional tort. See, Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc.,
4 106 F.3d 284, 289 (9th Cir. 1997), overruled on other grounds by Feltner v. Columbia Pictures
5 Television, 523 U.S. 340, 140 L. Ed. 2d 438, 118 S. Ct. 1279 (1998); Janel Russell Designs, Inc.
6 v. Mendelson & Assocs., 114 F. Supp. 2d 856, 862 (D. Minn. 2000). Plaintiff’s works
7 prominently display Io Group’s brand and the title of the works. [Ruoff Declaration at ¶6.] Each
8 work contains a label disclosing that age verification records for performers are maintained in
9 San Francisco, as required under 18 U.S.C § 2257. [Id.] Each of the works is registered with the
10 U.S. Copyright office (Id. at ¶7) thereby putting defendants on constructive notice of the facts in
11 the registration certificate, including Io Group’s location. (“Recordation of a document in the
12 Copyright Office gives all persons constructive notice of the facts stated in the recorded
13 document); See, Moldo v. Matsco, Inc. (In re Cybernetic Servs.), 239 B.R. 917, 922 (B.A.P. 9th
14 Cir. 1999). Thus, each infringing Doe had knowledge that his intentional acts would cause harm
15 in this district, fulfilling the requirements of Calder and thereby establishing personal
16 jurisdiction in this District.
17 b. The Court Will Be Better Equipped to Analyzed Joinder after Plaintiff Names
Defendants.
18 Similar to jurisdiction, a complete analysis of joineder will benefit from the information
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Plaintiff subpoenaed because AT&T likely assigned multiple ip addresses to the same individual.
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Like most residential Internet access providers, AT&T assigns ip addresses on a dynamic
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basis. Each time a user logs on to the Internet, AT&T may assign a different ip address.
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23 Therefore, it is very likely that several of the relevant ip addresses were assigned to the same
24 individual, even though he is currently identified as several different Does in the Complaint.
25 [Sperlein Declaration at ¶6.] This is not just a theoretical possibility. Plaintiff recently filed a
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very similar action against fifty Bell South subscribers. When Bell South provided subscriber
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information, Plaintiff discovered the ISP had assigned one subscriber three different ip addresses
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Reply to Filer’s Opposition to Motion to Strike
C-10-3647 (WHA)
Case3:10-cv-03647-WHA Document26 Filed04/15/11 Page8 of 10
1 listed as three different Does in the Complaint. Three other subscribers were each assigned two
2 of the ip addresses identified in the complaint. In the Complaint, Plaintiff assigned each of these
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ip addresses a separate Doe number. [Id. at ¶7] In other words, in four cases, claims against the
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same defendant would have been severed into different cases had the Court ordered severance
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prior to identifying the subscribers. In this case, the infringer who used the Filer’s internet
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7 access account may someday be substituted for several of the Doe Defendants. Since the
8 defendants would suffer no prejudice if the issue of joinder is delayed until after production, it
9 seems exceedingly fair and practical to wait until Plaintiff identifies the Does before completing
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a joinder analysis. In this way, the Court can avoid the risk of severing claims against the same
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individual.
12
Independent of the fact that some of the Does are likely to be the same individual, joinder
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14 in this matter is permissible. While the Filer points out that some courts have severed claims
15 against multiple Does, other Courts have reached the opposite conclusion – especially at this
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early stage. Most recently, a District of Columbia District Court addressed the question of
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evaluating joinder prior to subpoenaing the ip subscriber’s identity and held, “[s]everance at this
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stage, however, as numerous other courts both in and outside this District have held, is
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20 premature”. Call of the Wild Movie, LLC, v. Does 1-1,062, 2011 Lexis 29153 at *13 (DDC
21 April1, 2011), Citing, Achte/Neunte Boll Kino Beteiligungs GMBH & Co, KG v. Does 1 - 4,577,
22 No. 10-cv-00453, ECF No. 34 (D.D.C. July 2, 2010) (Collyer, J.); West Bay One, Inc. v. Does 1-
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1653, No. 10-cv-00481, ECF No. 25 (D.D.C. July 2, 2010) (Collyer, J.); Arista Records LLC v.
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Does 1-19, 551 F. Supp. 2d 1, 11 (D.D.C. 2008) (Kollar-Kotelly, J.); London-Sire Records, Inc.
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v. Doe 1, 542 F. Supp. 2d 153, 161 n.7 (D. Mass. 2008); Sony Music Entm't, Inc. v. Does 1-40,
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27 326 F. Supp. 2d 556, 568 (S.D.N.Y. 2004). This is not only the most recent decision on this
28 issue, but the Court benefited from extensive amicus briefing from consumer groups including,
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Reply to Filer’s Opposition to Motion to Strike
C-10-3647 (WHA)
Case3:10-cv-03647-WHA Document26 Filed04/15/11 Page9 of 10
1 the Electronic Frontier Foundation, Public Citizen, the ACLU, and ACLU of the Nation’s
2 Capital. The Order offers the most detailed, complete, and thoughtful analysis of the issue to
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date.
4
The Court noted that joinder requirements should be "liberally construed in the interest of
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convenience and judicial economy in a manner that will secure the just, speedy, and inexpensive
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7 determination of the action." Call of the Wild, 2011 Lexis 29153 * 13, Citing, Lane v. Tschetter,
8 No. 05-1414, 2007 U.S. Dist. LEXIS 49524, 2007 WL 2007493, at *7 (D.D.C. July 10, 2007)
9 (quoting Jonas v. Conrath, 149 F.R.D. 520, 523 (S.D. W.Va. 1993)); see also Davidson v.
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District of Columbia, 736 F. Supp. 2d 115, 119 (D.D.C. 2010). Further, the Court held that
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defendants in peer-to-peer infringement cases can logically be joined because they are actually
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trading pieces of movies with each other. Id. at *16. Though there are differences between bit
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14 torrent technology used in the Call of the Wild case and the eDonkey2000 technology used in
15 this case, the principle of speeding transmission by obtaining pieces of movies from many
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different peers is consistent through both technologies. [Ruoff Declaration at ¶8]
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There is a logical and permissible basis for joining these Defendants under the rules and
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good reason to delay further analysis until after Plaintiff identifies the Defendants.
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20 c. Practical Considerations Support Maintaining These Properly Joined Defendants in
One Suit.
21 The first line of “Dispute Resolution Procedures in the Northern District of California” a
22 pamphlet that every litigant must read, states, “It is the mission of this court to do everything it
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can to help parties resolve their disputes as fairly, quickly and efficiently as possible.” Dispute
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Resolution Procedures in the Northern District of California, rev. 3/09.
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Because litigation is uncertain and expensive, parties most often elect to settle disputes
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27 prior to litigation. However, in cases involving online copyright infringement, parties often
28 cannot engage in this preferred approach until the plaintiff first identifies the defendants.
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Reply to Filer’s Opposition to Motion to Strike
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Case3:10-cv-03647-WHA Document26 Filed04/15/11 Page10 of 10
1 Identifying the proper defendants early allows the parties to discuss settlement options that
2 become less practical once litigation costs rise. Allowing for the early discovery of defendants
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inures to the benefit of all parties and the Court.
4
In this matter AT&T contacted each subscriber to notify them that it would release their
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subscriber information unless the subscriber filed a motion to quash or motion for a protective
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7 order. [Opposition to Plaintiff’s Motion to Strike, Exhibit A] None have done so. Only the
8 Filer who submitted the anonymous Motion to Dismiss objected to the release of his information.
9 Once Plaintiff is able to interview the subscribers, dismiss the Does for which AT&T has no
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records, combine Does where AT&T assigned multiple ip address, and determine if any of the
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Defendants share the Filer’s desire to sever, the Court will have ample opportunity to consider
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arguments for and against joinder. A solution that considers the concerns of defendants who do
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14 not want to be severed, is to sever the claims of those defendants who request it, and allow the
15 others to proceed together. See e.g., Io Group, Inc. v. Does, 1-435, N.D. Cal, 10-4382 (DMR)
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Order Severing Plaintiff’s Claims against Defendant J.W., Docket No. 20 (Dec. 15, 2010).
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CONCLUSION
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The individual who anonymously filed a motion to dismiss in this matter is not a
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20 party to the case – but a non-party whose records have been subpoenaed. He filed the motion in
21 violation of the Federal Rules and it should be stricken. Plaintiff should be allowed to receive
22 the information subpoenaed from AT&T at which time the Court can perform a complete
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analysis of jurisdiction and joinder.
24
Respectfully Submitted,
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Dated: April 15, 2011 /s/ D. Gill Sperlein
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27 D. Gill Sperlein
THE LAW OFFICE OF D. GILL SPERLEIN
28 Attorney for Plaintiff
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Reply to Filer’s Opposition to Motion to Strike
C-10-3647 (WHA)