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29 - Motion to Dismiss

29 - Motion to Dismiss

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Published by copyrightclerk
1:12-cv-07869
Flava Works
Motion to Dismiss
1:12-cv-07869
Flava Works
Motion to Dismiss

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Published by: copyrightclerk on Apr 12, 2013
Copyright:Attribution Non-commercial

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01/08/2014

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J. Curtis Edmondson, CSB# 236105Venture Commerce Center 3699 NW John Olsen PlaceHillsboro, OR 97124Phone: 503-336-3749Fax: 503-482-7418Email: jcedmondson @edmolaw.comAttorney for Defendant(s) DOE IP address 173.17.92.42IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ILLINOISFLAVA WORKS, INC.,Plaintiff,vs.JOHN DOES 1 to 293Defendants.)))))))))))))))))))Case No.: 1:12-CV-07869
NOTICE OF MOTION AND MOTION
TO DISMISS PLAINTIFF’S COMPL
AINTFOR COPYRIGHT INFRINGEMENTAND CONSPIRACY
(CONTESTED MOTION and ORALARGUMENT REQUESTED)DOE IP address 173.17.92.42MOTION TO DISMISSFRCP §12(b)(2)(3) and (7)Hon. JOAN H. LEFKOWHearing Date: May 16, 2013Hearing Time: 8:30 am
TO ALL COUNSEL AND THEIR ATTORNEYS OF RECORD:PLEASE TAKE NOTICE:
 Pursuant to the Federal Rules of Civil Procedure and the inherent power of this Court, theDefendant DOE IP address 173.17.92.42 hereby moves that this Court dismiss the complaintunder Fed Rules Civ Proc 12(b)(2)(3)(6) and (7). This motion will be heard on Thursday, May
Case: 1:12-cv-07869 Document #: 29 Filed: 03/28/13 Page 1 of 10 PageID #:401
 
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16
th
, at 8:30am in Courtroom 1925, Telephone Number: (312) 435-5832, United StatesCourthouse, 219 South Dearborn Street Chicago, IL, 60604.The basis for this motion is that DOE IP address 173.17.92.42, who is a resident of  Northern California, hereby moves that this Court to dismiss this complaint and to issue a
 protective order so that defendants can use “DOE
173.17.92.42
” to avoid the potential damage of 
his/her name associated with the pornography industry. Further, this Court should dismiss theentire complaint with prejudice since the means of obtaining the IP addresses exceeded the termsof the license agreement between Vuze and Flava Works, Inc. Defendant further seeks a protective order to protect his/her identity through these proceedings.This motion will be based on this notice, the relevant statutes, and the argument presentedherein.
I.
 
SUMMARY
 DOE IP address 173.17.92.42 respectfully requests that this Court dismiss
Plaintiff’s
 complaint as: 1) Flava Works, Inc. lacks personal jurisdiction over the Defendant, 2) FlavaWorksInc. has impermissibly joined this Defendant with 292 other Defendants in this single action; and3) Flava Works, Inc. has committed copyright misuse by exceeding the scope of their licenseagreement with VUZE by improperly using the VUZE software to:
…collect, or attempt to collect, personal information about Users or third 
 parties without their consent, or use the content on the Vuze Platform for anycommercial use, it being understood that the content available on the Vuze Platform is for personal, non-
commercial use only…”
Vuze Terms of Service, section 8.In short, Flava Works, Inc. has breached the terms of the Vuze license agreement bycollecting personal information from Bittorrent Swarms and using this information in a business
Case: 1:12-cv-07869 Document #: 29 Filed: 03/28/13 Page 2 of 10 PageID #:402
 
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commercial use. Given
Flava’s breach of their Vuze license agreement, it
would be inequitablefor this court to enforce an action for infringement when the party alleging the infringement itself exceeds the scope of its copyright license used to monitor the Bittorrent swarms.
II.
 
FACTUAL BACKGROUND
 This case is about the intersection of internet copyright infringement, pornography, andan economic business model that is a cyber version of a shakedown racket. See
United States v. Nardello
, 393 U.S. 286 (1969). Certain pornography companies, this Plaintiff included, suehundreds of alleged defendants with the goal that a percentage of the defendants
will “settle out”for only “a thousand”
. The case is then dismissed under FRCP Rule 41 before answers are filed.See
 Malibu Media, LLC v. John Does 1- 10
(CD CAL 2:12-cv-3623) attached as Exhibit A.Hon. Otis Wright has commented on this peculiar litigation model by stating:
“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 theidentities of these Does; if successful, plaintiff will sent out demand letters to theDoes; because of embarrassment, many Does will send back a nuisance-valuecheck 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 plaintiff’s copyright
-enforcement businessmodel. The Court will not idly watch what is essentially an extortion scheme, for a casethat plaintiff has no intention of bringing to trial. [. . .] If [plaintiff] desires to vindicateits copyright rights, it must do it the old fashioned way and earn it.
 Malibu Media, LLC.v. John Does 1 through 10
, No. 2:12-cv-3623 (CD Cal. 2012), attached as Exhibit A.Plaintiff, Flava Works, Inc., is like all other BitTorrent pornographic companies exceptthat Flava has disclosed that they use monitoring software (VUZE). But a closer inspectionshows that Flava is using VUZE outside the scope of the permitted license. In short, FlavaWorks
“captures” alleged infringers by itself 
committing the tort of copyright infringement. As
Case: 1:12-cv-07869 Document #: 29 Filed: 03/28/13 Page 3 of 10 PageID #:403

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