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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS MEDIA PRODUCTS, INC. Plaintiff, v. DOES 1-120 Defendants. ) ) ) ) ) ) ) ) ) ) )

Case No.: 3:12-cv-30100-KPN

JOHN DOE 30’S PARTIAL OPPOSITION (AND PARTIAL CONCURRENCE) TO JOHN DOE 120’S MOTION TO SEVER In country where high roads intersect, join hands with your allies. - Sun-Tzu, Art of War John Doe 120 eschews the principles of the Art of War, and instead of joining hands with his allies, seeks to divide them. John Doe 30 (hereinafter “JD30”) prefers to cast his lot with Sun Tzu. JD30 respectfully disagrees (in part) with his co-Defendant John Doe 120, and thus partially opposes his Motion to Dismiss for Improper Joinder (ECF 15) as it applies to JD30 and any other non-moving Defendants. While JD30 reserves the right to seek dismissal on other grounds, JD30 disagrees that joinder is improper, and believes that at this point, he and other Defendants are best served by continued joinder. I. INTRODUCTION

While JD30 appreciates that John Doe 120 may objectively believe that he was doing all other defendants a service by requesting severance on their behalf, JD30 respectfully disagrees with John Doe 120’s strategy. JD30 supports John Doe 120’s Motion as it pertains to John Doe 120 and his individual right to seek his own severance from the case. Thus JD30 concurs with

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John Doe 120’s Motion in part. Simultaneously, JD30 requests that the Court deny John Doe 120’s Motion to the extent that it seeks severance of any Defendants except for John Doe 120 himself. If John Doe 120 prefers to “go it alone” in separate litigation, then JD30 will not second guess his preference as it applies to him alone. Regardless, John Doe 120 should not be deemed to speak for any other Defendants. If this Court severs all of the defendants, the Plaintiff will then likely file 120 separate claims, forcing each of the 120 defendants to stand alone facing a much larger, and wellfinanced, opponent, causing unnecessary expense to all parties involved, including JD30. Further, 120 individual cases would clog the court system. This is not mere speculation: The resulting litigation morass would be strikingly similar to that of the copyright infringement litigation campaign waged by Righthaven LLC from 2010 to 2012, spanning more than 275 lawsuits in Nevada, Colorado and South Carolina.1 That campaign would have come to an end far more efficiently, quickly, and cheaply had the cases not been firewalled from one another in hundreds of separate suits, where defense attorneys were not immediately and automatically notified of the various motions and other papers affecting identically situated defendants. Learning the lessons of Righthaven, joinder in this action is more efficient because of the large number of defendants involved, yet facing identical legal issues. Taking into consideration the impact of expense, time, fairness, and the best interests of the Defendants, as well as that of the Court, JD30 respectfully disagrees with his co-Defendant. If the Court agrees to sever John Doe 120 from the action, the Court should leave the other 119 Defendants joined together for their mutual common benefit, unless they affirmatively seek individual severance.
1

See David Kravets, Newspaper Chain’s New Business Plan: Copyright Suits, Wired (July 22, 2010 3:29 PM), http://www.wired.com/threatlevel/2010/07/copyright-trolling-for-dollars/; David Kravets, Copyright Troll Righthaven Goes on Life Support, (Sept. 7, 2011 12:59 PM), http://www.wired.com/threatlevel/2011/09/righthaven-on-life-support/.
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II.

ARGUMENT

Usually, it is an opponent, not an ally, who seeks to divide and conquer. John Doe 120 likely has his reasons for desiring severance, but at this point, a win on this minor point will be pyrrhic. Accordingly, JD30 takes the position that joinder is interests of judicial economy, and it is in the interest of all other Defendants to remain unified. If John Doe 120 can afford an individual defense or has other reasons for seeking severance, then he may stand alone if he likes. But, his motion speaks only for John Doe 120. Joinder is appropriate in order to prevent multiple identical lawsuits, extra expense to the parties, and loss of time to the court and the litigants. See Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 344 (D.D.C. 2011). In considering the propriety of joinder under Rule 20, courts tend to take a positive view of it as a mechanism of judicial economy. “[C]onsistent with fairness to parties; joinder of claims, parties, remedies is strongly encouraged.” United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966). In a joined case, Courts should not sever without considering how the act will affect all litigants and the judicial process. See Stanely Works v. Haeger Potteries, Inc., 35 F.R.D. 551, 554 (N.D. Ill. 1964); see also United Mine Workers, 383 U.S. at 724. Under this analysis, the Defendants should remain joined. Severance will negatively impact JD30, all other Defendants, and the Court as well. As another Court remarked, severance of such cases by fracturing them into dozens of identical actions before the same court “does not exactly resonate with practicality.” Arista Records LLC v. Does 1-27, 584 F. Supp. 2d 240, 251 (D. Me. 2008). If John Doe 120’s motion is granted as to him only, this one case will become only two. On the other hand, if the Court grants the motion as to all 120 defendants, this case will splinter into 120 individual lawsuits.

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JD30 has theories about possible flaws in the Plaintiff’s case, which present an opportunity for dismissal or summary judgment. However, JD30 questions his individual ability to afford to effectively mount a complete defense. If John Doe 120’s motion is granted, he will have condemned JD30 to respond to litigation that will be far more costly, resource-intensive, and burdensome than the instant joined action. On the other hand, 120 defendants banded together (or 119, as it may be), are in a better position to present a coordinated defense, with multiple Defendants pooling their resources (should other Defendants wish to do so) and creating an economy of scale for their defense. Joinder will reduce the litigation cost burden on joined defendants, will encourage the free flow of information among them, and will promote judicial economy. In addition to potentially saving defendants money in both legal fees and aggregate liability for a joint-and-several award of damages, in the event that the Plaintiff prevails, joinder will further the purpose of the Copyright Act in minimizing awards for duplicative claims over the same film. A. Joinder is desirable for JD30, because it prevents undue delay, is better for judicial economy, and allows for similar claims to be brought simultaneously. “[T]he two prongs of Rule 20(a) are to be liberally construed in the interest of convenience and judicial economy [...] in a manner that will secure the just, speedy, and inexpensive determination of the action.” Davidson v. District of Columbia, 736 F.Supp.2d 115, 119 (D.D.C.2010). The purpose of Rule 20 is to promote judicial economy and speed up the resolution of disputes, resulting in the elimination of unnecessary lawsuits. See Mosley v. General Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974). It seems that John Doe 120 seeks the opposite effect, and complete severance will result in scores of lawsuits and slower justice for all. Given the “strength in numbers” theory, if the Court were to grant complete severance and JD30 was then sued individually, he would move for the cases to be consolidated. By all rights,

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they should be – which would land all 120 Defendants right back where they are today – in a joined action. B. The Righthaven Litigation Provides Valuable Practical Guidance. The Righthaven cases filed in the U.S. District Courts for Nevada, Colorado, and South Carolina exemplify what happens if defendants are not joined together, and a Plaintiff simply monopolizes a docket. Rather than filing one Complaint joining the many defendants with causes of action based on virtually indistinguishable facts and law, Righthaven filed hundreds of similar infringement claims against numerous individual defendants, claiming that the defendants unlawfully copied hundreds of articles from various newspapers on websites throughout the country. In many of these suits, the only difference was the identity of the defendant. Many of Righthaven’s defendants chose to settle rather than come up with the high costs of individualized litigation. As a result, many of the cases were not challenged in court, despite Righthaven’s later-demonstrated lack of standing. Of those suits that did go before a judge, Righthaven did not win a single case. Every district where Righthaven brought suit determined that Righthaven lacked standing to bring copyright infringement claims. See, e.g., Righthaven, LLC v. Hoehn, 792 F.Supp. 2d 1138, 1147 (D.Nev. 2011); Righthaven, LLC v. Wolf, 813 F.Supp.2d 1265, 1273 (D.Colo. 2011); Righthaven, LLC v. Democratic Underground, LLC, 791 F.Supp.2d 968, 979 (D.Nev. 2011); Righthaven, LLC v. Eiser, 2012 WL 527569 (D.S.C. Feb. 16, 2012). However, the first Court to make this determination did not do so until after a year after Righthaven filed its first case. Had any of the cases been filed with joined Defendants, a comprehensive defense could have been mounted and the lack of standing issue would have surfaced sooner, at less of a cost to all the defendants involved. Even if this fundamental error were not discovered sooner in the litigation

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campaign, a joint defense may have resulted in the information resolving a large swath of disputes all at once, rather than piecemeal litigation of the same exact issue again and again. In addition, because Righthaven filed individual complaints against each defendant, numerous districts were unnecessarily clogged with separate but indistinguishable suits, causing further delay in the court system – not only regarding the copyright claims, but at inconvenience to the court calendar as a whole. In total, Righthaven filed nearly 300 separate lawsuits against different defendants, all alleging similar copyright violation claims. The numerous suits created a logistical quagmire for the court system, but more problematically, worked an injustice on the defendants. Had the defendants been joined in fewer actions, the court calendar would have been much lighter. If the Plaintiff in this case followed Righthaven’s example, it would have filed 120 actions in this District over this movie alone – thus likely delaying JD30’s ability to end the action, quickly or at all. C. The asymmetry of fighting one person at a time in this litigation will unfairly prejudice JD30 and his Co-Defendants. Actions such as this one are “costly[,] time consuming [,] … cumbersome and expensive.” In Re Charter Commc’ns, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 782 (8th Cir. 2005) (Murphy, J., dissenting). In such a litigation environment, the larger and more financially superior party is at a distinct advantage. Although the Defendant expects to prevail, joinder provides significant comfort to the joined Defendants in the event that the Plaintiff prevails. In cases like this one, where the Plaintiff seeks statutory damages, it seems quite foolish to ask for severance. The maximum damages in this case are $150,000 per work, not per Defendant. 17 USC § 504(C)(1); Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 313, 316 (S.D.N.Y. 2011) (“Congress intended for the Copyright Act to treat jointly and severally liable infringers the same way that

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the statute treats individually liable infringers. For any individually liable infringer, a plaintiff is entitled to one statutory damage award per work. For any two or more jointly and severally liable infringers, a plaintiff is entitled to one statutory damage award per work”). Accordingly, if the Court applies the Arista logic to this case, then the maximum exposure for each Defendant may be as much as $1,250.2 See Arista Records, 784 F. Supp. 2d at 316; Bouchat v. Champion Prods., 327 F. Supp. 2d 537, 553 (D. Md. 2003) (rejecting plaintiff’s claim for individual statutory damage awards against multiple joint tortfeasors in a copyright case). But see

Columbia Pictures TV v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284, 294 (9th Cir. 1997) (“[W]hen statutory damages are assessed against one defendant or a group of defendants held to be jointly and severally liable, each work infringed may form the basis of only one award, regardless of the number of separate infringements of that work.”); Mason v. Montgomery Data, Inc., 967 F.2d 135, 143-44 (5th Cir. 1992). Therefore, if John Doe 120 is correct, and the Defendants should be severed, then this would provide support for the proposition that every Defendant is liable for a separate statutory damages award. See Smith v. NBC Universal, 2008 U.S. Dist. LEXIS 15714 (S.D.N.Y. Feb. 28, 2008). “[W]here separate infringements for which two or more defendants are not jointly liable are joined in the same action, separate awards of statutory damages would be appropriate.” H.R. Rep. No. 94-1476, 94th Cong., 2d Sess., at 162, reprinted in 1976 U.S. Code Cong. and Admin. News 5778; Mason, 967 F.2d at 144"), rev'd on other grounds by Feltner v. Columbia Pictures TV, 523 U.S. 340 (1998) (finding a right to jury trial on question of damages). Often, defendants in cases like this complain about joinder. Such a strategy is legally and financially inadvisable. By consenting to joinder, defendants would

2

In the event that the Court awards the minimum statutory damages, each Defendant’s equal share of the damage award would be $6.25. Given this alone, it is difficult to understand why any defendant would prefer severance to joinder.
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seem to be able to take shelter in the theory that only one statutory damages award may be imposed upon the entire batch of defendants. Arguing to the contrary plays into the plaintiff’s hands by estopping the defendants from later claiming that only one statutory damages award should be imposed. This is not mere theory. In the past, when peer to peer copyright defendants stood alone against media companies, the outcome was financially disastrous. See Capital Records, Inc., v. Thomas-Rasset, 799 F. Supp. 2d 999, 1001 (D. Minn. 2011) ($1.5 million remitted to $54,000); Paramount Pictures Corp. v. Davis, 2006 U.S. Dist. LEXIS 50955 (E.D. Pa. July 26, 2006) (awarding damages of $50,000). Deprived of the ability to spread the costs of representation among defendants, cobble together a joint settlement, or to at least divide the impact of a verdict and monetary judgment, individual defendants forego great advantages available to group defendants. Those who seek severance fail to think more than one move ahead in the litigation chess game. Defendants who remain joined face a share of a damage award that is, cheaper than a classic Mai Tai at the Chicopee Huke Lau3. If John Doe 120 has his way, each and every Defendant will face statutory damages beginning with the cost of a very nice bicycle, and ranging up to the cost of tuition for a private school law degree. In terms of peril, JD30 is currently in danger of being run over by a clown on a unicycle. Sure, nobody wants to be run over by a clown on a unicycle, but it presents tolerable risk. Given the story to be told afterward, it might even be worth the minor scrape or bruse. On the other hand, John Doe 120 seems to want to push everyone out of the way of the clown on the unicycle, and into the way of a steaming locomotive.
3

The Huke Lau charges $7.00 for this cocktail. See Huke Lau menu, available at http://www.hukelau.com/pdf/dining%20room%20menu.pdf, last accessed July 26, 2012.
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John Doe 120 has every right to heroically dive in front of the locomotive. JD30 has no interest in such an act of sacrifice, and respectfully requests that this Court leave him unsevered, and that the Court leave the 119 remaining Defendants together with him so that they may enjoy strength in numbers, less impact from the litigation, and so that this Court may avoid 120 separate, but identical lawsuits. Should any other Defendants disagree, and seek severance, their motions should be evaluated individually and on their own merits. The Court should not presume, though, to sever Defendants who have not asked for it. The unintended consequences are likely to harm the severed defendants who have not sought this relief from the Court, rather than to benefit them. III. CONCLUSION

At this point, presumably, many of the John Does in this case do not even know that they are Defendants. These parties have not had an opportunity to consider a joint defense agreement or other means of equalizing the asymmetrical nature of the case. If they are severed without being heard, that option is taken from them without their input. This is neither just nor sensible. The other defendants’ rights to show that joinder is improper is not forfeit if the Court limits the John Doe 120’s requested relief only to him. Should other Defendants later prefer to stand alone, they may present their own motions to sever. However, if they seek alliances with their codefendants, they may find a distinct advantage to a unified front against the Plaintiff. While John Doe 120 may desire severance in the short term because it will mean a dismissal of Plaintiff’s claims, that dismissal would be without prejudice. Like entering the eye of a hurricane, the tempest of Plaintiff’s claims would shortly return after a brief respite – but on an individual basis, increasing the burden for both the Court and the Defendants, and all but prohibiting speedy resolution of the copyright infringements alleged. In the Righthaven cases,

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this kind of decentralized mass litigation led to an abusive model that persisted for months longer than justified, given that Plaintiff’s lack of standing. Requiring defendants to litigate each and every one of their cases individually begs for a reprise of Righthaven’s campaign, and will be to nobody’s advantage. The Court should grant John Doe 120’s motion, but only as it applies to John Doe 120. John Doe 120’s motion should be denied as to any other Defendant.

Respectfully submitted July 26, 2012 slMarc J. Randazza Marc J. Randazza, BBO #651477 mjr@randazza.com Randazza Legal Group 6525 W. Warm Springs Road, Suite 100 Las Vegas, NV 89118 (888) 667-1113 (305) 437-7662 (fax)

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CERTIFICATE OF SERVICE I hereby certify that on July 26, 2012, I electronically filed the foregoing document and attached proposed order with the Clerk of the Court using CM/ECF. The electronic case filing system sent a “Notice of Electronic Filing” to the attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means. __s/ Marc J. Randazza__________ Marc J. Randazza Managing Partner, Randazza Legal Group

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