IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.

1:12-CV-01953-WYD-MEH MALIBU MEDIA, LLC Plaintiff, v. BRIAN BATZ and DOES 1-2, 4-13 and 15-42 Defendants.
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DEFENDANT DOE #41’S BRIEF IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6), 20(a), OR ALTERNATIVELY TO SEVER AND DISMISS PURSUANT TO FED. R. CIV. P. 20(b) AND 21 _____________________________________________________________________________ Defendant John Doe #41 (“Doe 41”) identified at Internet Protocol (“IP”) address 75.171.215.82 on May 15, 2012 at 12:30 UTC hereby submits to the Court its Brief in Support of the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6), 20(a), Or Alternatively To Sever And Dismiss Pursuant to Fed. R. Civ. P. 20(b) and 21.1 INTRODUCTION Malibu Media’s Amended Complaint against Doe 41 is one of dozens of lawsuits against hundreds of defendants who are alleged to have infringed Plaintiff’s purported copyrights in pornographic movies. The context in which Malibu Media asserts its claims against Doe 41 should be the lens through which the claims are evaluated. This context was expressed in recent
1

Pursuant to the Court’s Order dated October 23, 2012, Doe 41 has been allowed to proceed anonymously through at least the adjudication of this Motion.

weeks by The Honorable Magistrate Judge Drodz of the Eastern District of California when he stated in an Order addressing his reconsideration and denial of a motion by Malibu Media to engage in expedited discovery: The court has additional concerns regarding plaintiff's request for expedited discovery. A great number of similar cases have been filed in the past several months in this and other District Courts, many of which appear to be simply using the federal courts as an avenue to collect money. As one judge aptly observed: The Court is familiar with lawsuits like this one. [Citations omitted.] 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 nuisancevalue 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 plaintiff's 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 settlement — making 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. Malibu Media, LLC v. John Does 1 through 10, No. 2:12-cv-3623-ODW (PJWx), 2012 U.S. Dist. LEXIS 89286, at *8-9 (C.D. Cal. June 27, 2012). See also Malibu Media, LLC v. Does 1-5, No. 12 Civ. 2950(JPO), 2012 WL 2001968, at *1 (S.D. N.Y. June 1, 2012) ("This court shares the growing concern about unscrupulous tactics used by certain plaintiffs, particularly in the adult films industry, to shake down the owners of specific IP addresses from which copyrighted adult films were allegedly downloaded."). Malibu Media v Does 1-13, No. 2:12-cv-01513 JAM DAD, 2012 U.S. Dist. LEXIS 148215, at *4 n.2 (E.D. Cal. Oct. 15, 2012) (Drozd, Magistrate Judge) (emphasis added); see also Malibu Media v Does 1-59, No. 2:12-cv-2481 JAM DAD, 2012 U.S. Dist. LEXIS 146888, at *8-9 n.3 2

(E.D. Cal. Oct. 11, 2012) (Drozd, Magistrate Judge) (emphasis added). In this district, The Honorable William J. Martinez sua sponte has dismissed without prejudice defendants, in the same position as Doe 41 here, concluding that they have been improperly joined as defendants. See, e.g., Malibu Media, LLC v. Does 1-28, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2599-WJM-MEH, 2012 WL 4755358, at *1 (D. Colo. Oct. 5, 2012). In the context in which the claims against Doe 41 arise, the conclusory, vague and confusing allegations in the Amended Complaint which are at odds with allegations in other Complaints carefully should be scrutinized under the plausibility standards of Twombly and Iqbal as applied in this Circuit and dismissed for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). To the extent the alleged direct and/or contributory infringement claims against Doe 41 are not dismissed pursuant to Rule 12(b)(6), the claims against Doe 41 should be dismissed pursuant to Fed. R. Civ. P. 20 for improper joinder. To the extent the claims against Doe 41 are not dismissed pursuant to Rules 12(b)(6) and 20(a), the claims against Doe 41 should be severed and dismissed pursuant to Fed. R. Civ. P. 20(b) and 21. LEGAL STANDARDS I. PLEADING STANDARD BASED ON IQBAL/TWOMBLY. To survive a motion to dismiss under Fed. R. Civ. P. 12(b), a plaintiff must put forth sufficient “[f]actual allegations . . . to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, a complaint must contain enough allegations of fact, taken as true, to state a claim for relief that is facially plausible. D. Al-Owhali v. Holder, 687 F.3d 1236, 1239-40 (10th Cir. 2012) (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1937 (2009). A claim has facial plausibility when “the plaintiff pleads factual content that 3

allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The [plaintiff’s] allegations must be enough that … the plaintiff plausibly (not just speculatively) has a claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). A complaint’s “basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court.” Twombly, 550 U.S. at 558 (quoting 5 C. Wright and A. Miller, Fed. Prac. & Proc. § 1216, pp. 235-36 (3d ed. 2004)). Determining whether a complaint states a plausible claim for relief will be a “context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Iqbal, 129 S. Ct. at 1950). Conclusory allegations are not to be considered in analyzing the plausibility of a claim. Iqbal, 129 S. Ct. at 1949-51. ‘“The plausibility standard is not akin to a “probability requirement” but it asks for more than a sheer possibility that a defendant has acted unlawfully.’” Vaninetti v. Western Pocahontas Properties, No. 11-cv-02308-LTB-MEH, 2012 WL 4359302, at *1 (D. Colo. Sept. 24, 2012) (Babcock, J.) (quoting Iqbal). In ruling on Doe 41’s 12(b)(6) motion to dismiss, this Court “may properly consider facts subject to judicial notice such as court files and matters of public record, as well as documents referred to in the complaint if the documents are central to the plaintiff’s claim and their authenticity is not disputed.” Id. (citing Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 n.1 (10th Cir. 2004)). II. LEGAL STANDARD FOR DISMISSAL BASED ON IMPROPER JOINDER. Where the Court finds improper joinder under Fed. R. Civ. P. 20, the Court may dismiss any improperly joined parties from the suit. See, e.g., Malibu Media, LLC v. Does 1-28, Order

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Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2599-WJM-MEH, 2012 WL 4755358, at *1 (D. Colo. Oct. 5, 2012) (Martinez, J.). Even if the Court finds joinder to be proper under the circumstances, it may sever the remaining Defendants pursuant to the Court’s discretionary authority set forth in Fed. R. Civ. P. 20(b) and 21. Id. at *3. That is, even if the specific requirements of Rule 20 are satisfied (they are not in this case), the Court may sever claims under Rule 20 if joinder would violate fundamental fairness or cause undue prejudice to any party. Desert Empire Bank v. Ins. Co. of N. A., 623 F.2d 1371, 1375 (9th Cir. 1980); see also Third Degree Films v. Does 1-47, No. 1210761-WGY, 2012 WL 4498911, (D. Mass. Oct. 2, 2012) (reversing the court’s previous position of approval to disapproval of swarm joinder in mass copyright infringement cases involving alleged BitTorrent downloads of adult movies and severing and dismissing defendants on the basis of Rule 20(b)). ARGUMENT2 I. PLAINTIFF’S CLAIMS OF COPYRIGHT INFRINGEMENT BASED ON CONCLUSORY, VAGUE AND CONFUSING ALLEGATIONS DO NOT SUPPORT CLAIMS FOR DIRECT OR CONTRIBUTORY INFRINGEMENT. Plaintiff alleges two separate claims for copyright infringement. The first claim is for “Direct Infringement” under 17 U.S.C. § 106. Amended Complaint ¶¶ 49-55. The second claim is for “Contributory Infringement” under 17 U.S.C. § 504. Amended Complaint ¶¶ 56-65. Neither claim is supported by the conclusory, vague and confusing allegations of the Amended Complaint and the attached exhibits.

2

Doe 41 reserves, preserves and does not waive any and all defenses to plaintiff’s claims whether or not raised in this motion to dismiss. 5

A.

The Amended Complaint Does Not Sufficiently Or Plausibly Allege That Malibu Media Validly Owns The Purported Copyrights At Issue.

Ownership of the copyright allegedly infringed is an essential element of a copyright infringement claim. La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009). Plaintiff bears the burden of proof on ownership. Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005). While 17 U.S.C. § 410(c) states in part that: “In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate,” there is nothing in the Copyright Act to suggest that copyright registrations are, after a certain period of time, incontestable; thus, prima facie presumption in favor of facts alleged in copyright registration cannot be transformed into conclusive presumption. Estate of Hogarth v Edgar Rice Burroughs, Inc., No. 00 CIV. 9569 (DLC), 2002 WL 398696, at *25 (S.D. N.Y. Mar. 15, 2002), aff’d, costs/fees proceeding, motion denied, 342 F3d 149 (2nd Cir 2003); cert. denied, 541 US 937 (2004). A finding of invalidity of copyright registrations for any reason provides a sufficient basis for a determination of “no infringement.” Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 109 (2nd Cir. 2002) (“Based on the evidence in this case, the jury could have reasonably concluded that the copyright registrations were invalid because Modlin was not an author of FormFree or Superbill Express or because the copyright registrations contained material inaccuracies.”). The Amended Complaint alleges in conclusory fashion that “Plaintiff Owns the Copyright to the Motion Pictures” and attaches screen shots of Registrations issued by the Copyright Office [Amended Complaint ¶ I. 13-14]. However, the statements on the 6

Registrations that Malibu Media was an “employer for hire” conflicts with statements in the public records and filings in this and other cases that can be judicially noticed and considered by this Court in the context of this 12(b)(6) motion. Those conflicts raise questions as to the plausibility of Plaintiff’s assertions of ownership. A defect in Malibu Media’s ownership in the alleged “Works” would not be the first time that courts of this district were confronted by an entity whose business is suing alleged infringers that purported to have standing to file mass litigation in an effort to extract settlements. See, e.g., Righthaven v. Wolf, 813 F. Supp. 2d 1265 (D. Colo. 2011) (dismissing all cases for plaintiff’s lack of standing).3 This Court can take judicial notice of the public records of the California Secretary of State which state that Malibu Media, an entity assigned Entity Number 201103910088, was organized on February 8, 2011. See Exhibit 1 (Screenshot of California Secretary of State website page re Malibu Media and certified copy of Malibu Media LLC filing dated February 8, 2011). With the exception of the “Work” named “Just the Two of Us” which was first published on November 18, 2011, the formation of Malibu Media was well after the dates of first publication of each of the “Works” Doe 41 is alleged to have infringed. See Amended Complaint, Exhibits A, B and C at 40 (dates of first publication, for example, were 10/23/2009, 11/20/2009, 3/22/2010). Since the public records reflect that Malibu Media did not exist at the time the “Works” were created or first published, it could not have plausibly contracted for the “Works” as “employer for hire” as set forth on each of the Registrations appended to the Amended Complaint as Exhibit B. See Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 413 (7th Cir. 1992) (explaining that the Seventh Circuit, in promoting a bright-line rule, has
3

In an effort to maximize judicial economies and efficiencies, all of the Righthaven cases pending in this district were assigned to The Honorable John Kane. 7

held that the parties must sign the work-for-hire agreement before the copyrighted work is created in order for the work-for-hire agreement to be valid: "The writing must precede the creation of the property in order to serve its purpose of identifying the (noncreator) owner unequivocally."); see also 17 U.S.C. 101 (definition of “A work made for hire”); Peregrine v. Lauren Corp., 601 F. Supp. 828, 829 (D. Colo. 1985) ("Section 101(1) defines a 'work made for hire' as 'a work prepared by an employee in the scope of his or her employment….'").4 That same bright-line rule should apply if the author/creator of the Works could not have been an employee of Malibu Media because it appears from public records that the films were created months and years before Malibu Media ever existed. The allegation that Malibu Media is the owner of the copyrights in the “Works” because Malibu Media, a California limited liability company, was an employer for hire, is further made
4

In the event that this motion to dismiss is not granted, discovery will be necessary to get to the bottom of Malibu Media’s claimed ownership of the copyrights and whether there was any fraud on the Copyright Office when Malibu Media submitted applications that stated that “Malibu Media LLC, employer for hire” was the author of the “Works.” See Amended Complaint Exhibit B (Registrations that each state: “Authorship on Application: Malibu Media LLC, employer for hire….”). Further, in other lawsuits filed by Malibu Media relating to the same “Works” that are at issue here, it was alleged that certain of the “Works” alleged to be infringed here were not subject to Registrations at the time the other lawsuits were filed. See Complaint Exhibit B at 12-13 filed in Malibu Media LLC v John Does 1-29, Case 1:12-cv-00397-WJMMEH (stating that “X-Art Siterip #1” unregistered titles included, as examples, “Carlie Big Toy Orgasm” and “Jennifer Naughty Angel”). Although filed more than five months before the present action, the Complaint in Case 1:12-cv-00397-WJM-MEH alleges that the same “SHA-1 hash value of 121AC0B46088E7C235A23D4379BE65A1840E9B77 (the ‘Unique Hash Number’)” was associated with the alleged copying of the “Works” at issue in this case. Compare Amended Complaint ¶ 42 in this action with Complaint ¶ 40 in Case 1:12-cv-00397WJM-MEH. This appears to suggest that rather than taking action to protect its alleged copyrights by taking action to have the “Works” removed from websites that were the subject of alleged BitTorrent copying, Malibu Media registered additional movies in the hopes of ensnaring additional defendants and subjecting them to greater potential liability and embarrassment and thus greater settlements. This identity of adult films alleged in this case with adult films alleged in other cases will be further addressed in connection with impropriety of joinder based on the “swarm” theory. 8

suspect by allegations in other cases [allegations omitted in this case] that the very same “Works” were authored by “a national or domiciliary of a treaty party; the Works were first published in a foreign nation that is a treaty party.” See Complaint ¶ 13 in Case 1:12-cv-00397WJM-MEH. As addressed above, the records of the California Secretary of State reflect that all of that happened before Malibu Media, LLC existed as an entity.5 B. Plaintiff’s Claims Are Barred By Plaintiff’s Authorization, Permission Or Consent To Doe 41’s Alleged Copying Of Plaintiff’s Alleged “Works.”6

Even assuming that Malibu Media was the author of and owns the purported copyrights at issue and that the pornographic movies at issue are subject to copyright protection, a claim for infringement requires the copying of a protected work without the consent, authorization or permission of the owner. See Schmidt v. Holy Cross Cemetary, Inc., No. 92-2436-JWL, 1993 WL 512414, at *2 (D. Kan. Nov. 2, 1993) (reciting the elements of copyright infringement). In the context of this case, Plaintiff’s bare and conclusory allegation that it “did not authorize, permit or consent to Defendants’ copying of its Works” [Amended Complaint ¶ 52] is belied by the allegations in its complaints in other civil actions that Malibu Media knew months before Doe 41 is alleged to have copied the “Works” in May 2012 that the Works were available on websites and accessible and subject to copying through use of BitTorrent programs. See, e.g., Complaint filed February 15, 2012 in Malibu Media LLC v John Does 1-29, Case 1:12-cv00397-WJM-MEH, ¶2 (“Throughout this Complaint the word ‘Works’ refers to 57 movies
5 6

Notably, plaintiff does not allege that any of the Works contains a copyright notice. The issue of whether Doe 41 actually copied any of Plaintiff’s “Works” is not ripe for consideration at this stage of the case. Thus, for purposes of this motion, it will be assumed, as alleged in the Amended Complaint, that the “Works” were copied using the IP address which was assigned to Doe 41 as a customer of CenturyLink. As addressed in many similar cases, there are many issue involved in analyzing the ramifications of the “ownership” of an IP address. 9

contained on the subject website.”); ¶ 15 (“Plaintiff registered 11 of the 57 movies contained on the subject website with the United States Copyright Office.”); ¶ 29-30 (“‘Torrent Sites’ are websites that index torrent files that are currently being made available for copying and distribution by people using the BitTorrent protocol …. Upon information and belief, each defendant went to a torrent site to upload and download Plaintiff’s copyrighted Works”). With knowledge that “Torrent Sites” were making its “X-Art Siterip #1” Works available for copying, Plaintiff apparently did nothing to protect its Works. Rather, Malibu Media permitted the “Torrent Sites” to continue to make the “X-Art Siterip #1” Works available for copying. The allegations of the Amended Complaint and companion complaints reveal that the only actions taken by plaintiff were to register additional movies that comprised the “X-Art Siterip #1” Works, to retain the services of IPP, Limited to monitor copying and track the Unique Hash Number, and to commence litigation against unsuspecting defendants who may or may not have used their IP address to copy the Works. Amended Complaint ¶¶ 31-46. The Amended Complaint fails to allege that Plaintiff did anything to have torrent sites remove or otherwise disable or take down the “X-Art Siterip #1” Works from the torrent websites. See generally, Amended Complaint. Under these circumstances, Plaintiff cannot plausibly allege that it did not authorize, consent or permit the copying of its Works.7

7

Should this case not be dismissed against Doe 41 and other defendants, these facts and additional facts that may be revealed during the discovery process may give rise to estoppel defenses against Malibu Media. A plaintiff is estopped from asserting a copyright claim “if he has aided the defendant in infringing or otherwise induced it to infringe or has committed covert acts such as holding out ... by silence or inaction.” Field v. Google, Inc., 412 F. Supp. 2d 1106, 1115-17 (D. Nev. 2006) citing Quinn v. City of Detroit, 23 F. Supp. 2d 741, 753 (E.D. Mich. 1998). 10

C.

Plaintiff’s Claim Of Contributory Infringement Should Be Dismissed.

“For contributory infringement, a plaintiff must allege (i) direct copyright infringement by a third-party; (ii) knowledge by the defendant of the direct infringement; and (iii) material contribution to the infringement.” Shell v. American Family Rights Association, No. 09–cv– 00309–MSK–KMT, 2012 WL 4476641, at *14 (D. Colo. Sept. 28, 2012). Because Malibu Media cannot plausibly be the owner of the alleged copyrights at issue, the contributory infringement claim should be dismissed for the same reason that the direct infringement claim is subject to dismissal. Also, apart from issues of ownership, for many of the same reasons that Doe 41 should be dismissed for improper joinder (discussed below), the claim of contributory infringement should be dismissed. Plaintiff ‘s Amended Complaint in this action alleges that Doe 41’s IP address is located in Denver and that Doe 41’s IP address was associated with a download of “X-Art Siterip #1” on May 15, 2012. Amended Complaint, Exhibit A. The Amended Complaint also alleges through Exhibit A that certain of the IP addresses of the other Doe Defendants are located in Denver but most are located in other locales such as Silverthorne, Littleton, Aurora, Thornton, Rocky Ford, Colorado Springs and Paonia. Amended Complaint, Exhibit A. The Amended Complaint further alleges through Exhibit C that the Unique Hash Value was detected as being associated with the various IP addresses as early as May 15, 2012 and as late as July 5, 2012. In other lawsuits filed in this district involving the alleged downloading of Works from “X-Art Siterip #1,” the same Unique Hash Value referenced in this case was detected as being associated with the various IP addresses of the Doe defendants in those cases as early as November 21, 2011 and

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as late as September 19, 2012. See, e.g., Malibu Media, LLC v. John Does 1-29, 1:12-cv-00397WJM-MEH; Malibu Media, LLC v. John Does 1-28, No. 1:12-cv-00834-DME-MEH; Malibu Media v. John Does 1-37, 1:12-cv-02595-WYD-MEH.8 Moreover, plaintiff alleges in this Amended Complaint and in other Complaints filed in this District that: “Torrent sites” are websites that index torrent files that are currently being made available for copying and distribution by people using the BitTorrent protocol. There “are numerous torrent websites, including www.TorrentZap.com, www.Btscene.com, and www.ExtraTorrent.com.” Amended Complaint ¶ 31; Complaint ¶ 30 filed in Malibu Media v. John Does 1-37, 1:12-cv02595-WYD-MEH. Although plaintiff further alleges that “[u]pon information and belief, each Defendant went to a torrent site to upload and download Plaintiff’s copyrighted Works [Amended Complaint ¶ 32], Malibu Media does not and cannot allege that each defendant downloaded and uploaded the Works from the same website. Plaintiff’s allegations are insufficient to plausibly allege contributory infringement by Doe 41 with the other Doe defendants. In a recent case finding joinder improper, The Honorable Magistrate Judge Dale A. Drodz of the Eastern District of California applied reasoning that warrants dismissal of the contributory infringement claim: Plaintiff’s log identifying the Doe defendants by IP addresses and the dates and times of their alleged unlawful activity reflects that the alleged unlawful activity occurred at disparate and distant locations over a span of at least two months. In this regard, “[p]laintiff has not shown that the defendants acted in concert simply by appearing [in] the same swarm at completely different times.” Hard Drive Productions, Inc. v. Does 1-90, No. C 11-03825 HRL,
8

Although undersigned counsel has not yet reviewed the dockets of District Courts in other Districts to ascertain whether Malibu Media has asserted claims against Doe or named defendants for allegedly copying works from “X-Art Siterip #1” with the same Unique Hash Value referenced in this case, it is believed likely that such lawsuits have been commenced. 12

2012 U.S. Dist. LEXIS 45509, 2012 WL 1094653, at *6-*7 (N.D. Cal. Mar. 30, 2012). Indeed, given the technical complexities of BitTorrent swarm functions, [footnote omitted] it appears unlikely that the 59 Doe defendants engaged in any coordinated effort or concerted activity. [citation omitted] Under these circumstances, permissive joinder under Federal Rule of Civil procedure 20(a)(2) is not warranted. [footnote omitted but recited above in Introduction]. Malibu Media v Does 1-59, No. 2:12-cv-2481 JAM DAD, 2012 U.S. Dist. LEXIS 146888, at *89 n.3 (Oct. 11, 2012) (Drozd, Magistrate Judge). Since Plaintiff cannot plausibly allege contributory infringement by Doe 41 with the other Doe defendants, the contributory infringement claim should be dismissed. II. IF NOT DISMISSED UNDER RULE 12(b)(6), DOE 41 SHOULD BE DISMISSED FOR IMPROPER JOINDER PURSUANT TO RULE 20(a). Plaintiff suggests that the Defendants participated in the same BitTorrent “swarm” for the purpose of unlawfully downloading and sharing Plaintiff’s copyrighted Works. (Amended Compl. ¶¶ 19, 37-46). But, as addressed above, federal district courts across the country have concluded that the mere alleged participation in a BitTorrrent protocol does not mean a Doe defendant participated in or contributed to the downloading of each other’s alleged copies of the work at issue. See Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1163 (N.D. Cal. 2011). A. Plaintiff’s Joinder Of Doe 41 With Brian Batz And Doe Defendants 12, 4-13, 15-40 And 42 Is Improper Because It Violates The “Same Transaction, Occurrence, Or Series Of Transactions” Test For Permissive Joinder Under Fed. R. Civ. P. 20(a)(2).

Plaintiff’s attempt to join unrelated Doe defendants in a single action based upon their alleged use of BitTorrent technology is improper because (1) it violates the “same transaction, occurrence, or series of transactions” test for permissive joinder under Fed. R. Civ. P. 20(a)(2) as

13

recognized by The Honorable William J. Martinez in this District and a growing body of federal district courts across the country; and (2) joinder under these circumstances is fundamentally unfair and will cause significant prejudice to each defendant, including Doe 41.9 Under Fed. R. Civ. P. 20(a)(2), permissive joinder of multiple defendants is appropriate where “(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Plaintiff baldly makes the conclusory assertion that each of the Defendants is jointly and severally liable for the “infringing” activities of the other defendants. However, Plaintiff alleges no facts to support the assertion that Doe 41 knew any of the other Doe defendants, communicated with the other Doe defendants, or in fact transferred copyright protected files to other Doe defendants. Plaintiff’s theory of joinder, therefore, rests upon a dubious argument that Doe 41’s alleged use of the BitTorrent protocol constitutes a series of transactions with the other Doe defendants under Rule 20(a)(2) in which the Defendants allegedly acted in concert with one another to infringe upon Plaintiff’s Works. That very argument has been rejected in both this

9

Another argument applied by the Courts against joinder is that it undermines judicial economy and seeks to use the considerable fact finding powers of the federal courts to inexpensively obtain identifying information of unrelated IP subscribers allegedly involved in the downloads for the purpose of coercing quick settlements. See, e.g., Malibu Media, LLC v. Does 1-28, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2599-WJM-MEH, 2012 WL 4755358, at *5 (D. Colo. Oct. 5, 2012) (“Courts across the country have observed that Plaintiff (and other companies involved in this type of litigation) do not seem interested in actually litigating their copyright claims. Rather, they appear to be using the federal courts only to obtain identifying information for the ISP owners and then attempting to negotiate a quick settlement.”). Since Doe 41 has been identified to plaintiff, that reason is of less significance in this case. 14

district and elsewhere. See, e.g., Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1163 (N.D. Cal. 2011). Any “pieces” of the work copied or uploaded by any individual Doe may have gone to any other Doe or to any of the potentially thousands who participated in a given swarm. The bare fact that a Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world. Hard Drive Prods., 809 F. Supp. 2d at 1163. In a string of recent Orders, involving cases that are nearly identical to the instant case, The Honorable William J. Martinez of the United States District Court for the District of Colorado, cited the following cases and adopted their reasoning to find that “swarm joinder” – the same theory of joinder alleged in the instant case - is improper. See Malibu Media, LLC v. Does 1-28, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2599-WJM-MEH, 2012 WL 4755358 (D. Colo. Oct. 5, 2012); Third Degree Films, Inc. v. John Does 1-47, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2391-WJM-MEH, 2012 WL 4005842 (D. Colo. Sept. 12, 2012); Malibu Media, LLC v. John Does 1-14, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2071-WJM-MEH, 2012 WL 3401441 (D. Colo. Aug. 14, 2012); Malibu Media v. Bill S. Felitti, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than Bill S. Felitti, No. 12-cv-1522-WJM, 2012 WL 3030304 (D. Colo. July 25, 2012); but see Patrick Collins, Inc. v. John Does 1-15, Order Denying Motion to Sever, No. 11-cv-02164-CMA-MJW, 2012 WL 415436 (D. Colo. Feb. 8, 2012) (finding swarm joinder proper). 15

A growing number of federal district courts now hold that swarm joinder is improper under Rule 20. Malibu Media, LLC v. John Does 1-23, 2012 WL 1999640, at *4 (E.D. Va. May 30, 2012) (“a plaintiff must allege facts that permit the court to at least infer some actual, concerted exchange of data between those defendants”); Digital Sins, Inc. v. John Does 1-245, No. 11 civ. 8170 (CM), 2012 WL 1744838, at *2 (S.D.N.Y. May 15, 2012) (holding that there is no concerted action between defendants that only utilized the same computer protocol to download a file); Lightspeed v. Does 1-1000, No. 10 C 5604, 2011 U.S. Dist. LEXIS 35392, at *4-7 (N.D. Ill. Mar 31, 2011) (concluding that Doe defendants using BitTorrent protocols were misjoined on the basis that the putative defendants were not involved in the same transaction or occurrence under Fed. R. Civ. P. 20(a)(2)(A)); SBO Pictures, Inc. v. Does 1-3036, No. 11-4220 SC., 2011 WL 6002620, at *3 (N.D. Cal. Nov. 30, 2011) (“The Court cannot conclude that a Doe Defendant who allegedly downloaded or uploaded a portion of the Motion Picture on May 11, 2011 [and] a Doe Defendant who allegedly did the same on August 10, 2011 … were engaged in the single transaction or series of closely-related transactions recognized under Rule 20”). The instant case involves an Amended Complaint that is nearly identical to the complaints in which Judge Martinez found joinder to be improper. Plaintiff Malibu Media essentially reuses the same complaint language, tweaking it to account for the specific Works, hash tags, IP addresses, and number of Doe Defendants who are allegedly involved. Like its previous complaints against other Does, Plaintiff alleges Doe 41 and the other defendants in the instant case utilized the BitTorrent protocol to participate in a BitTorrent “swarm” for the purpose of unlawfully downloading and sharing Plaintiff’s copyrighted work. Amended Complaint ¶¶ 20-22. As addressed above in connection with the contributory infringement 16

claim, Plaintiff’s Amended Complaint reveals that the Defendant Does’ alleged downloads or uploads of portions of Plaintiff’s Works occurred, if at all, at distinctly different UTC times, and in most cases, on different days and/or months. See Amended Complaint ¶¶ 33-37 and Exhibit A. Moreover, nothing in the BitTorrent protocol creates a relationship among any of the dozens of Defendant Does named in this suit. Even though Plaintiff claims that Defendants downloaded pieces of the same file, Plaintiff has not alleged facts that would allow the Court to infer that Defendants exchanged any piece of the relevant file with each other or actually acted in concert with one another. Doe 41 no more should be joined with the other Doe defendants named in this civil action than he should be joined with the Doe defendants in the other actions filed in this District that allege copying of the identical Works. See, e.g., Malibu Media LLC v John Does 129, Case 1:12-cv-00397-WJM-MEH. As in the cases in which Judge Martinez dismissed other Doe Defendants, there is no concerted action in the instant case between Defendants who at most “only utilized the same computer protocol to download a file.” See Malibu Media, LLC v. Does 1-28, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2599-WJM-MEH, 2012 WL 4755358, *2 (D. Colo. Oct. 5, 2012); see also Malibu Media v. Does 1-13, No. 2:12-cv-01513 JAM DAD, 2012 U.S. Dist. LEXIS 148215 *4 n.2 (E.D. Cal. Oct. 15, 2012) (Drozd, Magistrate Judge) (emphasis added); see also Malibu Media v. Does 159, No. 2:12-cv-2481 JAM DAD, 2012 U.S. Dist. LEXIS 146888, at *8-9 n.3 (E.D. Cal. Oct. 11, 2012) (Drozd, Magistrate Judge). Accordingly, the Court should find that the Doe defendants in the instant case who allegedly used BitTorrent protocols were “misjoined [because] the putative

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defendants were not involved in the same transaction or occurrence under Fed. R. Civ. P. 20(a)(2)(A).” See id. III. IF NOT DISMISSED UNDER RULE 12(B)(6) AND/OR RULE 20(A), DOE 41 SHOULD BE DISMISSED FOR IMPROPER JOINDER PURSUANT TO RULES 20(B) AND 21. If the Court does not dismiss the case against Doe 41 under Rule 12(b)(6) and further finds that joinder under the instant facts meets the requirements of Rule 20(a), the Court should sever and dismiss Doe 41 pursuant to the Court’s discretionary authority under Fed. R. Civ. P. 20(b) and 21. A. Joinder Is A Poor Use Of Judicial Resources That Will Make For An Unwieldy Case Involving A Variety Of Individualized, Fact Intensive Defenses Involving Defendants Unrelated To Doe 41.

As Judge Martinez correctly recognized, “swarm joinder” will result in “difficult case management” because Doe defendants “are likely to present very different defenses to these claims based on their individual circumstances.” Malibu Media, LLC v. Does 1-28, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2599-WJM-MEH, 2012 WL 4755358, *3 (D. Colo. Oct. 5, 2012) (citing Lenon v. St. Paul Mercury Ins. Co., 136 F.3d 1365, 1371 (10th Cir. 1998)). For example, one Doe could be an innocent parent whose internet access was abused by a minor child, while another Doe might share a computer with a roommate who infringed Plaintiff’s works. Id. (citing Third Degree Films v. Does 1-3577, No. C 11-02768 LB, 2011 WL 5374569, at *4 (N.D. Cal. Nov. 4, 2011). Judge Martinez explains that “[t]he Court has already observed this to be true in the cases filed in this District. The Magistrate Judge assigned to all BitTorrent cases has noted that defendants are coming forward with a multitude of different defenses.” Id. If these

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cases were to actually go to trial they would involve factually intensive, individualized defenses that would require something akin to mini-trials for each Defendant. Reflecting on this dilemma, Judge Martinez concluded “the Court sees little, if any, judicial economy in allowing the claims to proceed together.” Id. at *4. Notably, even the District of Massachusetts has recently changed its position from approval to disapproval of “swarm joinder” and has exercised its broad discretion under Rule 20(b) to sever and dismiss 46 of 47 Doe defendants from a BitTorrent lawsuit: In recent months, this Court has grown increasingly troubled by “copyright trolling,” [footnote omitted] specifically as it has evolved in the adult film industry. The Court is not alone in its concern. Judges, scholars, and journalists alike have noted the recent trend – indeed, new business mode [footnote omitted]- whereby adult film companies file mass lawsuits against anonymous Doe defendants, identified only by their IP addresses, alleging that each IP address reproduced its pornographic film via file sharing technology in a single swarm, thus infringing the company’s valid copyright and entitling the company to statutory damages. [footnote omitted] * * *

Since its decision was issued in Liberty Media [Holdings LLC v. Swarm Sharing Hash File AE340D0560129AFEE8D78CE07F2 394C7B5BC9C05, 821 F. Supp. 2d 444 (D. Mass. 2011)], this Court has entertained a profusion of filings in the mass copyright infringement cases on its docket. Upon further reflection and a deeper understanding of the policy concerns at play, the Court now revisits and amends its holding in Liberty Media. The Court continues to maintain that joinder is technically proper under Rule 20(a). The Court now holds, however, that in light of its serious concerns regarding prejudice to the defendants as a result of joinder, it ought exercise the broad discretion granted it under Rule 20(b) and sever

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the Doe defendants in this action and in similar actions before this Court. * * * The Court acknowledges without reservation Third Degree’s right to assert copyright protection of the Film and to sue individuals who infringe on its intellectual property. But after careful weighing of the balance of potential injustices in this case and like cases, the Court determines that any efficiency gains and cost benefits to Third degree from joining the Doe defendants in a single action are substantially outweighed by the fairness concerns and inefficiencies at trial, the potential prejudice from what seems to be a developing pattern of extortionate settlement demands, and the evasion of thousands of dollars of filing fees. Third Degree Films v. Does 1-47, No. 12-10761-WGY, 2012 WL 4498911, (D. Mass. Oct. 2, 2012) (emphasis added). Agreeing with much of the reasoning discussed above, the

Massachusetts District Court cited cases illustrating extraordinary judicial inefficiencies and unfairness to individual defendants should numerous Doe Defendants be forced to litigate in the same case: “The Court further agrees … that joinder of the Doe defendants would transform what appears to be a relatively straightforward case into a cumbersome procedural albatross.” Id. at *7 (citing Pacific Century Int’l, Ltd. v. Does 1-101, No. C-11-02533 (DMR), 2011 WL 5117424, at *3 (N.D. Cal. Oct. 27, 2011)) (internal quotations omitted). Based on that

reasoning, the Court severed all parties except Doe 1 from the case and dismissed the case without prejudice against Does 2-47 subject to Third Degree filing individual complaints against them within thirty days of the order. Id. at *10. Similarly, this Court should exercise its discretion and sever and dismiss Doe 41 from this case if the case is not otherwise dismissed pursuant to Rule 12(b)(6) or for misjoinder. Without severance in the instant case, this case will almost certainly become a “procedural 20

albatross” to the prejudice of each individual defendant and will require the Court to manage numerous mini-trials, with distinctly individualized, factually intensive and disparate defenses. B. Joinder Will Be Unduly Prejudicial To Doe 41 And Other Defendants, Who Each Will Be Forced To Proceed In One Action Even Though They Have Little More In Common Than Their Alleged Use Of BitTorrent.

If Doe 41 is forced to litigate with dozens of other defendants in a single case, it is likely to be unduly prejudicial to Doe 41 and the other defendants. Assuming the identity of the other defendants is revealed to Doe 41, Doe 41 would have to reveal his identity to the other defendants and thereby lose his anonymity in defending against plaintiff’s flawed claims. Further, Doe 41 will be forced to incur additional expense to serve all the other defendants with pleadings; the other defendants would each have a right to attend Doe 41’s and each other’s depositions, cross-examine each other’s (Doe 41’s and Plaintiff’s) witnesses, address the Court at each case management conference; mount factually intensive individualized defenses requiring mini-trials, retain their own expert witnesses, and ultimately if the case proceeds to trial - force jurors to keep track of each defendant and his or her respective defense. In short, whatever benefits might accrue from joinder are obliterated by the significant logistical burdens forced upon Doe 41 and the other defendants and the Court. See Malibu Media, LLC v. Does 1-28, Order Finding Joinder Improper and Dismissing Without Prejudice All Defendants Other Than John Doe 1, No. 12-cv-2599-WJM-MEH, 2012 WL 4755358, at *4 (D. Colo. Oct. 5, 2012). In contrast, Plaintiff will suffer no undue prejudice if the Court decides to require separate actions to be filed against Doe 41 and each defendant. Plaintiff will still be able to prosecute its claims. Indeed, the statute of limitations for a copyright infringement action is three

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years, which will allow Plaintiff sufficient time to refile the individual cases if it chooses to pursue them. See 17 U.S.C. § 507. Although Plaintiff might predictably object that requiring a separate filing fee for each action is burdensome, Judge Martinez has concluded that such a requirement is not undue prejudice: … because many of these Defendants are likely to assert fact-intensive defenses that are particular to his or her individual circumstances, each multidefendant case is likely to devolve into its own mini-litigation. Therefore, payment of a separate filing fee for its claim against each Defendant properly balances the Plaintiff’s right to protect its copyright with the Court’s interest in cost-efficient adjudication of cases. Id. at *4. CONCLUSION WHEREFORE, for the reasons stated herein, the Court should dismiss Doe 41 from this case pursuant to Rule 12(b)(6) for Plaintiff’s failure to state plausible direct and/or contributory copyright infringement claims against Doe 41 upon which relief can be granted. In the event that the Amended Complaint is not dismissed as against Doe 41 pursuant to Rule 12(b)(6), Doe 41 should be dismissed from this case for improper joinder. In the event that the case against Doe

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41 is not dismissed pursuant to Rule 12(b)(6) or for improper joinder under Rule 20(a), the claims against Doe 41 should be severed and dismissed pursuant to Rules 20(b) and 21. Dated: November 2, 2012. Respectfully submitted,

By: Marc D. Flink Marc D. Flink, #12793 Raj Chohan #42845 Baker Hostetler LLP 303 E. 17th Ave. Suite 1100 Denver, Colorado 80203 Telephone: 303-764-4119 mflink@bakerlaw.com rchohan@bakerlaw.com Attorneys for Defendant Doe #41

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CERTIFICATE OF SERVICE I hereby certify that on the 2ND day of November, 2012, the foregoing DEFENDANT DOE #41’S BRIEF IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6), 20(a), OR ALTERNATIVELY TO SEVER AND DISMISS PURSUANT TO FED. R. CIV. P. 20(b) AND 21 was filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following persons: Jason Kotzker Kotzker Law Group 9609 S. University Blvd. #632134 Highlands Ranch, CO 80163 and by sending a copy via regular U.S. Mail to: Brian Batz 2207 E. 102nd Avenue Thornton, CO 80229 s/ Marc D. Flink

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