Case 2:12-cv-02084-MMB Document 29 Filed 10/16/12 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MALIBU MEDIA, LLC Plaintiff v. JOHN DOES 1 14, Defendants Hon. Michael M. Baylson Civil No.: 2:12-cv-02084-MMB

BRIEF IN OPPOSTION TO PLANTIFF'S SECOND MOTION FOR EXTENSION OF TIME TO EFFECT SERVICE, AND IN SUPPORT OF DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND/OR SANCTIONS COMES NOW Defendant John Doe 6, by and through counsel, and pursuant to Federal Civil Rules of Procedure 11, 20, 26, and 45 files this Objection to Plaintiff's Second Motion for an Extension of Time to Effect Service and respectfully submits to the Court as follows: I. INTRODUCTION

Plaintiff is a producer of pornography, making its works available on the internet. Defendant John Doe 6 has previously filed a Motion to Quash the subpoena directed to his ISP, Comcast Cable Communications (Comcast). See Doc. No. 11. A hearing on the above motion was held on September 18, 2012, and this Court granted in part and denied in part. See Docs. No. 23 & 24. This Court made very clear that in its opinion, a bellwether trial will be necessary to resolve the issues that have arisen repeatedly in these cases. Toward that end, the Court issued a very specific and detailed scheduling order. See Doc. No. 24. That Order very clearly stated Within ten (10) days, Plaintiff shall effectuate service of the

Case 2:12-cv-02084-MMB Document 29 Filed 10/16/12 Page 2 of 6 Complaint on the Defendants and file an affidavit of service or memorandum advising the Court as to why service has not been made on any Defendant, and how Plaintiff intends to proceed with regard to that Defendant. See Doc. 24, Para. 4. On October 15, 2012, Plaintiff filed a Second Motion for Extension of Time Within Which It Has to Serve John Doe Defendants. See Doc. No. 28. According to this Motion, the Plaintiff has not received the identifying information concerning John Doe 6. John Doe 6 vigorously opposes Plaintiff's Motion, and moves for relief from Plaintiff's deleterious inactions and active evasion from facing the trial which is long overdue. II. PLAINTIFF'S SECOND MOTION FOR EXTENSION OF TIME SHOULD BE DENIED.

When this Court ruled on the John Doe defendants' various motions, it issued a very clear and specific Order with detailed instructions about relevant time-frames. Specifically, when this Court ordered that the Plaintiff had ten days to effect service upon the various John Does. See Doc. 24, Para. 4. That Order was issued on October 3, 2012 however, the tenth day fell on a Saturday, thereby buying the Plaintiff an extra two days to comply with the Court's directive. Yet, here we are twelve days after the Court's ruling with John Doe 6 still not served, and the Plaintiff asking for thirty more days1. This delay is outrageous, and clearly leaves the impression that the Plaintiff is less than enthusiastic about actually trying these cases. Indeed, taking these cases to trial is not consistent with the so-called copyright troll business model raise the spectre of statutory damages to obtain quick settlements. See James DeBriyn, Shedding Light on Copyright Trolls: An Analysis of Mass Copyright Litigation in the Age of Statutory Damages, 19 UCLA Ent. L. Rev. 79 (2012) (These types of lawsuits are not intended as a scare tactic to deter file
1 Plaintiff has filed similar motions in the companion cases, 12-2078 and 12-2088, clearly indicating that it has done nothing on any of the cases pending before this Court.

Case 2:12-cv-02084-MMB Document 29 Filed 10/16/12 Page 3 of 6 sharing, but are used to encourage quick settlements.) Plaintiff, in effect, says that the ten days the Court gave them was not enough to get the Defendant's identifying information, a claim which strains credulity. However, Plaintiff knew on Friday, October 12 (day nine of the ten day period) that it had not received the names. Yet, Plaintiff waited until after 6:00PM on Monday the 15 th (effectively, more than two full days) before making this motion, and then has the audacity to suggest that an additional full month is necessary to effect service enlarging the the period for service to 41 days in total (from October 3 to November 14, Plaintiff's proposed due date). However, this maneuver has an secondary effect on the Defendants and the Court which very clearly evidences the Plaintiff's blatant attempt to undermine this Court's clear directive to advance this case a timely trial. The Court's October 3 Order directs that the Defendants have fourteen days from service to file an answer, plead, or move in response. See Doc. 24, Para. 5. The Court also directed that written discovery should proceed within fourteen days of service. See Doc. 24, Para. 6. After the written discovery has been promulgated, the parties have fourteen days to serve objections to written discovery, and seven days to confer and attempt to resolve objections concerning discovery. See Doc. 24, Para. 7. Assuming the parties take advantage of the full time periods under the Court's order, the conference could take place no later than December 5. However, this Court has ordered a Rule 16 pre-trial conference for November 28. See Doc. 27. The purpose of this conference is to rule on any disputes about discovery. See Doc. 24, Para. 8. Should the Plaintiff be permitted to finagle the Court's carefully crafted schedule in this way, discovery will just be beginning and the Rule 16 hearing will be meaningless, necessitating further delays. This chicanery manages to avoid the thing Plaintiff fears most judicial oversight of its settlement machine. 3

Case 2:12-cv-02084-MMB Document 29 Filed 10/16/12 Page 4 of 6 In essence, the longer the Plaintiff can avoid laying its cards upon the table, the more profitable its shadow business. Already, the Court's decision to schedule a bellwether trial is rippling through the media and presumably the Plaintiff is aware of the intense scrutiny that this trial will generate 2. Therefore, John Doe 6 vigorously opposes the Plaintiff's request for a thirty day extension. Proposed alternatives shall be laid out in the section immediately to follow. III. THE COURT MUST ASSUME GREATER OVERSIGHT OF PLAINTIFF'S SHADY PRACTICES SANCTIONS, INCLUDING DISMISSAL, ARE AMONG THE COURT'S OPTIONS.

On October 3, this Court issued a very detailed and specific Order concerning the manner in which this case is to be tried. In Paragraph 4 of that Order, the Court stated Within ten (10) days, Plaintiff shall effectuate service of the Complaint on the Defendants and file an affidavit of service or memorandum advising the Court as to why service has not been made on any Defendant, and how Plaintiff intends to proceed with regard to that Defendant. See Doc. 24, Para. 4. However, in Plaintiff's Second Motion filed last night, they failed to file a memorandum in compliance with the Court's October 3 Order. In fact, Plaintiff's only attempt to excuse its deleterious conduct can be found in Paragraphs 3 and 5 of its Motion it hasn't gotten the name yet, and cannot effect service until it does. See Doc. 28, Paras. 3 & 5. In Paragraph 4, Plaintiff states that it has forwarded the Court's October 3 Order to Comcast, but does not

2 See US judge orders piracy trial to test IP evidence, http://www.bbc.com/news/technology-19887765 (vistied October 16, 2012); Sarah Jacobsson Purewal, Pivotal piracy case could put copyright trolls out of business, http://www.pcworld.com/article/2011423/pivotal-piracy-case-could-put-copyright-trolls-out-ofbusiness.html (visited October 16, 2012); Graham Martin, Judge Calls Copyright Trolls Bluff, Sets Trial Date, http://lawyerist.com/judge-calls-copyright-trolls-bluff-sets-trial-date/ (visited October 16, 2012); Timothy B. Lee, Judge tells copyright troll to put up or shut up on porn lawsuits, http://arstechnica.com/tech-policy/2012/10/judge-tells-copyright-troll-to-put-up-or-shut-up-on-pornlawsuits/ (visited October 16, 2012).

Case 2:12-cv-02084-MMB Document 29 Filed 10/16/12 Page 5 of 6 indicate when it did so this is a very telling omission.3 Clearly, if Comcast received the Order on October 3 or 4 and failed to reply timely, Plaintiff would surely note all the relevant dates of communication and be well within its rights to lay the blame squarely on Comcast's shoulders. That is has not spelled out the dates in question suggests that the cause of the delay was simply that Plaintiff failed to act. Furthermore, Plaintiff cites the wrong Order in its Second Motion. In Paragraph 5, the Plaintiff refers to the August 20 Order, granting a pro forma extension of time while Motions to Quash were pending. The August 20 Order did not require a proper memorandum to be filed with any motion for extension, unlike the Court's October 3 Order, which superseded the August 20 Order. By specifically referring to the August 20 Order as the Order which controls the time limits, but which has no clause directing that memoranda be filed to support any delay, Plaintiff is yet again trying to avoid the scrutiny that this Court is placing it under. All of the above amply demonstrates that Plaintiff is doing its level best to remain in the shadows, almost goading the Court to dismiss its Complaint on procedural grounds and thus to avoid a precedential ruling that could dismantle what Judge Wright of the Central District of California calls essentially an extortion scheme. Malibu Media v. John Does 1 10, 2:12-cv-3623 (C.D. Cal., June 27, 2012) (attached hereto as Exhibit A). 4 Therefore, this Court should assume a greater than usual level of supervision over the case and hold the Plaintiff accountable for its deleterious actions. Although Defendant does not have a transcript of the September 18 hearing, Counsel distinctly recalls the Court stating
3 Counsel for John Doe 6 has placed a call to Comcast's legal department to inquire precisely when the Order was transmitted to them. As of this filing, Counsel has not received a return call from Comcast. Should additional information be received that the Court must be made aware of, Counsel will file an amendment to this filing. 4 Counsel for John Doe 6 is in an awkward position. On the one hand, Doe 6 would be thrilled with a dismissal on procedural grounds, as it ends the case and the dice need not be rolled. On the other hand, Counsel must also argue what is obvious that this tactic appears to be an end-run by the Plaintiff to end the case and avoid the scrutiny that this case is already generating.

Case 2:12-cv-02084-MMB Document 29 Filed 10/16/12 Page 6 of 6 that it would be disinclined to grant additional extensions for service, and on that basis Defendant vigorously opposes a thirty day extension. If the Court is disinclined to dismiss the complaint for lack of service, John Doe 6 would next recommend an ongoing monetary sanction for each day that service is not effected. Furthermore, sanctions in the form of attorney's fees for responding to the Plaintiff's Second Motion are appropriate 5. WHEREFORE, Defendant John Doe 6 respectfully requests that the Court enter an order denying the Plaintiff's Second Motion for Extension of Time and dismiss the complaint for failure to effect service; or in the alternative assume greater than usual oversight over the case by sanctioning the Plaintiff for its unjustified delay, and awarding attorney's fees. Respectfully submitted, /S/ CHARLES THOMAS, JR. Charles Thomas, Jr., Esq. Attorney for John Doe 6 Charles Thomas, Jr., Esq. The Thomas Firm 117 West Gay Street Suite 316 West Chester, PA 19380 877-397-3003 ct@thomastrials.com Attorney ID: 89781 CERTIFICATE OF SERVICE The undersigned hereby certifies that he filed the foregoing Motion to Quash and/or Sever on October 16, 2012 via the Court's CM/ECF filing system, thereby serving all parties of record. Respectfully submitted, /S/ CHARLES THOMAS, JR. Charles Thomas, Jr., Esq.
5 As was explained at the September 18 hearing, Counsel has only been retained for the purpose of the Motion to Quash the Court further indicated that it would order attorney's fees to the Defendants, even going so far as to describe the situation as a kind of contingent fee. Accordingly, Counsel has received no compensation for this filing, and under the circumstances an award of fees for filing objections to deleterious and sanctionable motions is appropriate.

Case 2:12-cv-03623-RGK-SS Document 7 Filed 06/27/12 Page 1Page 1 of 7 ID #:68 Case 2:12-cv-02084-MMB Document 29-1 Filed 10/16/12 of 7 Page

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MALIBU MEDIA, LLC, v. Plaintiff, Case No. 2:12-cv-3623-ODW(PJWx) ORDER

JOHN DOES 1 through 10, Defendants. This case concerns the alleged BitTorrent transfer of the pornographic film Blonde Ambition. Plaintiff Malibu Media, LLC filed suit for copyright infringement against ten Doe Defendants. Now, Malibu seeks leave to serve third party subpoenas prior to the Rule 26(f) conference. (ECF No. 5.) Generally, parties may not seek discovery from any source prior to the Rule 26(f) conference. Fed. R. Civ. P. 26(d). But exceptions are allowed by court order. Id. Malibu seeks an exception, contending that the anonymity afforded by the Internet cloaks all information about the infringers, save their IP addresses. (Mot. 2.) Without subpoenaing these infringers internet service providers (ISP), Malibu asserts there is no other way to reveal the infringers identities. (Mot. 5.) For the reasons discussed below, the Court GRANTS IN PART Malibus motion.1
Having carefully considered the papers filed in support of this motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.
1

Case 2:12-cv-03623-RGK-SS Document 7 Filed 06/27/12 Page 2Page 2 of 7 ID #:69 Case 2:12-cv-02084-MMB Document 29-1 Filed 10/16/12 of 7 Page

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I.

BACKGROUND

The BitTorrent protocol allows users to transfer files over the Internet. Like other file-sharing technology, BitTorrent may be used to legally upload or download computer filesand it may also be used to pirate copyrighted software, movies, music, and anything else that may exist on computer-readable media. But unlike other file-sharing technology, where users connect to each other or to a central repository to transfer files, files shared via BitTorrent exist in a swarm, with pieces of the whole file distributed among the users. The following example illustrates this technology: The original user posts a 100MB movie file on a BitTorrent tracker website. The file exists only on that users computerthe file is not uploaded to the tracker website; Other users discover this movie file through the tracker website and log onto the BitTorrent swarm to download this file; On the original users computer, BitTorrent software divides the 100MB movie file into 10,000 pieces, each representing a 10kB chunk; As downloaders log onto the BitTorrent swarm, these 10kB pieces are randomly distributedthe first piece to the first downloader, the fifth piece to the second downloader, etc.; After the initial pieces are transferred, additional pieces are randomly transferred to the downloadersthe first downloader may now have the first and 500th pieces; the second downloader may now have the second and 900th pieces, etc.; Once sufficient pieces have been distributed to downloaders in the swarm, the BitTorrent protocol will automatically transfer pieces between downloaders the first downloader may receive the 900th piece from the second downloader, the second downloader may receive the first piece from the first downloader, etc.;

Case 2:12-cv-03623-RGK-SS Document 7 Filed 06/27/12 Page 3Page 3 of 7 ID #:70 Case 2:12-cv-02084-MMB Document 29-1 Filed 10/16/12 of 7 Page

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The BitTorrent swarm becomes larger as more users log on and more pieces are distributed; Once every piece of the original file has been uploaded to the collective swarm, the original uploader may log offthe entire movie exists in pieces in the swarm; When a downloader has received all 10,000 pieces of the 100MB movie file, his BitTorrent software reassembles the pieces to reconstruct the original file on his computer; These completed downloaders may then log off, or may remain online to continue seeding the pieces of the file to other downloaders. There are several nuances about the BitTorrent protocol. First, every participant may upload and download pieces of the file. Second, these individual pieces are useless until a user has all of them; the user cannot reassemble the original file with even 99% of the pieces. Third, a user may log on and download just one piece (e.g., a 10kb piece) of the file and then log off, waiting to download the other pieces later or discarding the downloaded piece. Fourth, a user may restrict his BitTorrent software to only download pieces, and not upload. When Malibu discovered that its film was being pirated via BitTorrent, it hired IPP, Limited to investigate. (Fieser Decl. 11.) IPP logged onto the BitTorrent swarm for the film and downloaded various pieces of the movie file from the Defendants. (Id. 1719.) These pieces, when reassembled with other pieces, result in the copyrighted film. (Id. 2021.) By this investigation, IPP discovered the IP addresses of the 10 Doe Defendants, along with the date and time of the alleged infringing activity. (Id. 22.) /// /// /// ///

Case 2:12-cv-03623-RGK-SS Document 7 Filed 06/27/12 Page 4Page 4 of 7 ID #:71 Case 2:12-cv-02084-MMB Document 29-1 Filed 10/16/12 of 7 Page

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

II.

DISCUSSION

Malibu asks the Court to subpoena the ISPs owning these 10 IP addresses, to uncover their subscriber logs to identify the names and addresses of the 10 Doe Defendants. A. Third party subpoenas In lawsuits against Doe defendants, the plaintiff should ordinarily be allowed discovery to uncover their identities. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). But discovery may be denied if it is (1) clear that discovery would not uncover the identities, or (2) that the complaint would be dismissed on other grounds. Id. Under the first condition, Malibu represents that these ISP subscriber logs will lead to the individual infringers. (Mot. 5.) Assuming that is true, the subscriber may not be the actual infringer. For instance, a person may be the subscriber, but his roommate is the actual infringer. And the subscriber may have his home network configured to allow visitors, including strangers, to access the Internetand use BitTorrent. Further, the subscriber may be a business (e.g., a coffee shop), and Internet access may be open to all employees and customers. In some situations, the identity of the subscriber may yield the identity of the infringer; in others, the infringer may never be known. Although the Court is inclined to allow Malibu to conduct this discovery, the potential for abuse is very high. The infringed work is a pornographic film. To save himself from embarrassment, even if he is not the infringer, the subscriber will very likely pay the settlement price. And if the subscriber is a business, it will likely pay the settlement to save itself from the hassle and cost of complying with discovery even though one of its customers or employees is the actual infringer. /// /// /// ///

Case 2:12-cv-03623-RGK-SS Document 7 Filed 06/27/12 Page 5Page 5 of 7 ID #:72 Case 2:12-cv-02084-MMB Document 29-1 Filed 10/16/12 of 7 Page

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

As for the second Gillespie condition, Malibu has not shown sufficient facts to show that the complaint should not be dismissed. Malibu avers that the 10 Doe Defendants have each connected to the IPP server to transmit a full copy, or a portion thereof of Blonde Ambition. (Compl. 40.) But Malibu does not show which Doe Defendants transmitted a full copy, and which transmitted just one piece of the file. As noted above, individual BitTorrent file pieces are worthlessby themselves they can never be reconstructed into the original file. Nor do the individual file pieces resemble a partial movie clip: if a 10-minute movie file was split into 60 pieces by BitTorrent, the resulting pieces are not playable 10-second clips of the movie. If it is the case that a Doe Defendant logged onto the BitTorrent swarm, downloaded and then uploaded a single piece to the IPP server, and then logged off, all he has done is transmit an unusable fragment of the copyrighted work. Without the remaining pieces, this Doe Defendant cannot do anything with this scrap of data. At this stage, the Court declines to opine whether transmitting pieces of a copyrighted work using BitTorrent, without transmitting all of the pieces, constitutes copyright infringement. But the Court notes that Malibus case is weak if all it can prove is that the Doe Defendants transmitted only part of all the BitTorrent pieces of the copyrighted work. In sum, the Court finds that privacy concerns are balanced with the need for discovery by allowing Malibu to subpoena the ISP for John Doe 1. Though Malibu now has the keys to discovery, the Court warns Malibu that any abuses will be severely punished. B. Defendants are improperly joined Malibu offers no evidence justifying the joinder of the Doe Defendants. According to Malibu, these 10 Doe Defendants connected to the IPP server on different dates and times, and from different locations. (Compl. Ex. A.) The loose proximity of the alleged infringments (March 5, 2012April 12, 2012) does not show that these Defendants participated in the same swarm. As discussed above, a

Case 2:12-cv-03623-RGK-SS Document 7 Filed 06/27/12 Page 6Page 6 of 7 ID #:73 Case 2:12-cv-02084-MMB Document 29-1 Filed 10/16/12 of 7 Page

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

downloader may log off at any time, including before receiving all the pieces of the copyrighted work. Without evidence that these Does acted in concert, joinder is improperthe Doe Defendants should be severed and dismissed under Federal Rule of Civil Procedure 21. C. The economics of pornographic copyright lawsuits The Court is familiar with lawsuits like this one. AF Holdings LLC v. Does 11058, No. 1:12-cv-48(BAH) (D.D.C. filed January 11, 2012); Discount Video Center, Inc. v. Does 1-5041, No. C11-2694CW(PSG) (N.D. Cal. filed June 3, 2011); K-Beech, Inc. v. John Does 1-85, No. 3:11cv469-JAG (E.D. Va. filed July 21, 2011). These lawsuits run a common theme: plaintiff owns a copyright to a pornographic movie; plaintiff sues numerous John Does in a single action for using BitTorrent to pirate the movie; plaintiff subpoenas the ISPs to obtain the identities of these Does; if successful, plaintiff will send out demand letters to the Does; because of embarrassment, many Does will send back a nuisance-value check to the plaintiff. The cost to the plaintiff: a single filing fee, a bit of discovery, and stamps. The rewards: potentially hundreds of thousands of dollars. Rarely do these cases reach the merits. The federal courts are not cogs in a plaintiffs copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial. By requiring Malibu to file separate lawsuits for each of the Doe Defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlementmaking this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it. /// /// /// ///

Case 2:12-cv-03623-RGK-SS Document 7 Filed 06/27/12 Page 7Page 7 of 7 ID #:74 Case 2:12-cv-02084-MMB Document 29-1 Filed 10/16/12 of 7 Page

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

III.

CONCLUSION

For the reasons discussed above, Malibus Motion is GRANTED IN PART. Malibu may now subpoena Cox Communications for the identity of John Doe 1. The other Doe Defendants are hereby severed from this case. If Malibu chooses to refile against John Does 2-10, it must also submit a notice of related case. IT IS SO ORDERED. June 27, 2012 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE