Call of The Wild V Does (Resp. To EFF Amicus)

Case 1:10-cv-00455-BAH Document 19 Filed 01/13/11 Page 1 of 5
UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA
CALL OF THE WILD MOVIE, LLC )

)
Plaintiff, )
)
v. ) CA. 1:10-cv-00455-RMU
)
DOES 1 – 1,062 )
)
Defendants. )
_______________________________________)
PLAINTIFF’S OPPOSITION TO MEMORANDUM OF AMICI CURIAE [DOC. NO. 18]
Plaintiff submits this opposition to the memorandum and authorities submitted by certain
amici curiae in support of third party Time Warner Cable’s motion to quash or modify subpoena.
To briefly summarize Plaintiff’s case, Plaintiff has identified certain Defendants who
have unlawfully copied and distributed Plaintiff’s motion picture, “Call of the Wild” (the
“Movie”), over the Internet. When it filed its Complaint, Plaintiff was only able to identify the
Doe Defendants by their Internet Protocol (“IP”) and the date and time of alleged infringement.
The only way that Plaintiff can determine Defendants’ actual names is from the Internet Service
Providers (“ISPs”) to which Defendants subscribe and from which Defendants obtain Internet
access, as this information is readily available to the ISPs from documents they keep in the
regular course of business.
Plaintiff’s Complaint was filed on March 19, 2010 and named Does 1-358 as Defendants.
[Doc. No. 1]1 Plaintiff then filed a Motion for Leave to Take Discovery Prior to the Rule 26(f)

1
Plaintiff’s First Amended Complaint was filed on May 12, 2010 and named Does 1-1,062 as
Defendants. [Doc. No. 6]
1
Conference, which was granted by this Court on April 15, 2010. [See Doc. Nos. 2, 4]
Thereafter, Plaintiff served subpoenas on the non-party ISPs.
In response to the subpoena served on it, Time Warner Cable (TWC) filed a motion to
quash or modify the subpoena, which is still pending. [See Doc. No. 7] As part of its Motion,
TWC asserted numerous arguments that have no relevance on a motion to quash and for which it
has no standing to assert, namely that the Doe Defendants are improperly joined and that the
Court lacks personal jurisdiction over the Doe Defendants. The amici primarily advance these
same arguments and also argue that the First Amendment somehow provides protection to the
Doe Defendants’ alleged copyright infringement activities. However, none of these arguments
justify quashing any subpoena or any other action by the Court.
Most significantly, these exact arguments have been addressed and rejected in the
Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG v. Does 1-4,577, No. 1:10-cv-00453-
RMC and West Bay One, Inc. v. Does 1-1,653, No. 1:10-cv-00481-RMC cases pending in front
of Judge Collyer. There, Judge Collyer accepted numerous briefings and held a hearing on the
exact same arguments from the exact same amici and from TWC. Judge Collyer dispelled with
the arguments related to personal jurisdiction and the First Amendment and ordered “that, at this
juncture, the numerous Doe Defendants are not severed due to misjoinder.” [Doc. No. 17-1; see
Doc. No. 15-1 (hearing transcripts)] At the time Judge Collyer made her orders, those cases
were at the same juncture this case is now.
For the convenience of the Court, Plaintiff hereby adopts, relies upon, and incorporates
by reference Plaintiff’s previously filed briefs and the briefs filed by the plaintiffs in the cases in
front of Judge Collyer. Attached as Exhibit 1 hereto is Plaintiff’s previously submitted
2
opposition to various motions to quash and motions to dismiss 2, which includes a statement of
good cause addressing the joinder issue (Doc. No. 20 in West Bay One, Inc. v. Does 1-1,653, No.
1:10-cv-00481-RMC).3 This opposition addresses all of the issues raised by the amici.
First, on the joinder issue, to briefly summarize Plaintiff’s position, because of the nature
of the “torrent” file sharing alleged by Plaintiff, all Doe Defendants have jointly engaged in the
same series of transactions to infringe Plaintiff’s copyrights. Further, because Plaintiff is still
conducting discovery to identify the Doe Defendants, any severance under Rule 20 is premature.
Second, on the personal jurisdiction issue, to briefly summarize Plaintiff’s position, the
amici and TWC have no standing to assert personal jurisdiction arguments, an issue that is
completely irrelevant on a motion to quash. Further, any analysis of the Court’s personal
jurisdiction over a particular Doe Defendant is premature until Plaintiff names that Doe
Defendant. See Sony Music Entm’t, Inc. v. Does 1–40, 326 F.Supp.2d 556, 567-568 (S.D.N.Y.
2004) (rejecting the exact same argument to quash a subpoena based on personal jurisdiction,
holding that such a determination was premature).4
Lastly, on the First Amendment issue, to briefly summarize Plaintiff’s position, the amici
and TWC again have no standing to assert personal jurisdiction arguments, an issue that should
be reserved for the Doe Defendants. Further, a person using the Internet to distribute or
download copyrighted material without authorization is not entitled to have their identity
protected from disclosure under the First Amendment. See Interscope Records v. Does 1-14, 558

2
Plaintiff’s opposition to these motions was sent to the Court via the generic email, as the
motions to quash and motions to dismiss have not been docketed yet.
3
A nearly identical brief was filed in Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG v.
Does 1-4,577, No. 1:10-cv-00453-RMC (Doc. No. 29).
4
It should also be noted that the documents filed by the amici in this case were exactly the same
as those filed by the same amici in Sony Music Entertainment Inc. v. Does 1-40.
3
F.Supp.2d 1176, 1178 (D. Kan. 2008); see also Arista Records LLC v. Does 1-19, 551 F. Supp.
2d 1, 8-9 (D.D.C. 2008) (Kollar-Kotelly, C.) (finding that the “speech” at issue was that doe
defendant’s alleged infringement of copyrights and that “courts have routinely held that a
defendant’s First Amendment privacy interests are exceedingly small where the ‘speech’ is the
alleged infringement of copyrights”); Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001)
(“computer users do not have a legitimate expectation of privacy in their subscriber information
because they have conveyed it to another person—the system operator”); Sony Music Entm’t,
Inc. v. Does 1–40, 326 F.Supp.2d 556, 566 (S.D.N.Y. 2004) (“defendants have little expectation
of privacy in downloading and distributing copyrighted songs without permission”); Arista
Records, LLC v. Doe No. 1, 254 F.R.D. 480, 481 (E.D.N.C. 2008); U.S. v. Hambrick, 55 F.
Supp. 2d 504, 508 (W.D. Va. 1999), aff’d, 225 F.3d 656 (4th Cir. 2000).
Lastly, Plaintiff has already shown good cause to obtain the discovery, as Plaintiff cannot
identify the Doe Defendants and prosecute its case without the discovery. Additionally, Plaintiff
has made a prima facie showing that the Doe Defendants did infringe Plaintiff’s copyrights,
showing that Plaintiff’s suit can withstand a motion to dismiss. Therefore, the Court should deny
TWC’s motion, disregard the amici’s briefs and involvement in this case, and at least allow
Plaintiff the opportunity to conduct discovery and obtain evidence to prove the copyright
infringement and irreparable harm in this case.
4
Respectfully Submitted,
CALL OF THE WILD MOVIE, LLC

DATED: January 13, 2011
By: /s/
Thomas M. Dunlap (D.C. Bar # 471319)
Nicholas A. Kurtz (D.C. Bar # 980091)
DUNLAP, GRUBB & WEAVER, PLLC
1200 G Street, NW Suite 800
Washington, DC 20005
Telephone: 202-316-8558
Facsimile: 202-318-0242
tdunlap@dglegal.com
nkurtz@dglegal.com
Attorney for the Plaintiff
5
Case 1:10-cv-00455-BAH Document 19-1 Filed 01/13/11 Page 1 of 56

CALL OF THE WILD MOVIE, LLC )

)
Plaintiff, )
)
v. ) CA. 1:10-cv-00455-RMU
)
DOES 1 – 1,062 )
)
Defendants. )
_______________________________________)
PLAINTIFF’S OPPOSITION TO MOTIONS TO QUASH/MOTIONS TO DISMISS

TABLE OF CONTENTS
I. INTRODUCTION ........................................................................................................................1
II. ARGUMENT ..............................................................................................................................2
A. STANDARDS ON MOTIONS TO QUASH..................................................................2
B. PLAINTIFF HAS ALREADY SHOWN GOOD CAUSE TO OBTAIN DISCOVERY
AND HAS MADE A PRIMA FACIE SHOWING THAT DEFENDANTS DID
INFRINGE PLAINTIFF’S COPYRIGHTS ........................................................................4
C. DOE DEFENDANTS’ ARGUMENTS ARE MISPLACED..........................................6
1. Quashing the subpoena or dismissing a particular Doe Defendant based on personal
jurisdiction grounds would be premature ......................................................................6
2. Any argument that a Doe Defendant did not engage in the alleged infringement is
inappropriate on a motion to quash..............................................................................14
3. Doe Defendants’ arguments related to joinder does not justify quashing the
subpoena or dismissing a Doe Defendant and are generally inappropriate at this stage
of the proceedings ........................................................................................................15
D. DOE DEFENDANTS HAVE NOT SHOWN THAT THE INFORMATION
REQUESTED IS PRIVILEGED OR CONFIDENTIAL ..................................................16
III. CONCLUSION........................................................................................................................17
i
TABLE OF AUTHORITIES
Cases
A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76 (2d Cir.1993)...............................................12
Amobi v. D.C. Dept. of Corrections, 257 F.R.D. 8 (D.D.C. 2009) ............................................. 3-4
Arista Records, LLC v. Doe No. 1, 254 F.R.D. 480 (E.D.N.C. 2008) ..........................................17
Arista Records LLC v. Does 1-16, 2009 WL 414060 (N.D.N.Y February 18, 2009)................. 6-7
Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1 (D.D.C. 2008) ..................................... 16-17
Caroline Records, Inc., et al. v. Does 1-175, Case No. 04 2028 (D.D.C.) ....................................17
Covad Commun’ns Co. v. Revonet, Inc., No. 09-MC-102, 2009 WL 3739278
(D.S.D. Nov. 4, 2009) ..........................................................................................................3
Fonovisa, Inc. v. Does 1-9, 2008 WL 919701 (W.D.Pa.)................................................................4
Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) ..................................................................................17
Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017 (Fed.Cir. 1986) ...................................4
Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir. 1961)...........................................4
Interscope Records v. Does 1-14, 558 F.Supp.2d 1176 (D. Kan. 2008)........................................16
Jazini v. Nissan Motor Co., 148 F.3d 181 (2d Cir.1998)...............................................................12
Johnson v. Gmeinder, 191 F.R.D. 638 (D.Kan.2000) .....................................................................3
Lions Gate Films, Inc., et al. v. Does 1-5, Case No. 05-386 (EGS) (D.D.C.) ...............................17
London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153 (D. Mass. 2008) .....................................6
Metro-Goldwyn-Mayer Pictures Inc., et al. v. Does 1-10, Case No. 04-2005 (JR) (D.D.C.) .......17
Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395 (D.C.Cir. 1984)................................4
Novak v. Capital Mgmt. & Dev. Corp., 241 F.R.D. 389 (D.D.C. 2007).........................................3
ii
PDK Labs, Inc. v. Friedlander, 103 F.3d 1105 (2d Cir. 1997) ......................................................12
Sony Music Entm’t, Inc. v. Does 1–40, 326 F.Supp.2d 556 (S.D.N.Y. 2004)..............6, 13, 16, 17
Thomas v. Marina Assocs., 202 F.R.D. 433 (E.D.Pa.2001) ............................................................3
Twentieth Century Fox Film Corp., et al. v. Does 1-9, Case No. 04-2006 (EGS) (D.D.C.) .........17
UMG Recordings, et al. v. Does 1-199, Case No. 04-093 (CKK) (D.D.C.) .................................17
U.S. v. Hambrick, 55 F.Supp.2d 504 (W.D. Va. 1999) .................................................................17
U.S. v. Int’l Bus. Mach. Corp., 83 F.R.D. 97 (S.D.N.Y. 1979).......................................................4
Warner Bros. Records, Inc. v. Does 1-6, 527 F.Supp.2d 1 (D.D.C. 2007)....................................17
Washington v. Thurgood Marshall Academy, 230 F.R.D. 18 (D.D.C. 2005) .................................3
Webster Industries, Inc. v. Northwood Doors, Inc., 234 F.Supp.2d 981 (N.D. Iowa 2002) ... 10-11
Westinghouse Electric Corp. v. City of Burlington, 351 F.2d 762 (D.C.Cir. 1965) .......................4
Windsor v. Martindale, 175 F.R.D. 665 (D.Colo.1997) ..................................................................3
Zwebner v. John Does Anonymous Foundation, Inc., 2001 WL 210173 (D.Or. 2001)............ 9-10
Statutes
Fed. R. Civ. P., Rule 4 ................................................................................................................. 8-9
Fed. R. Civ. P., Rule 5 .....................................................................................................................9
Fed. R. Civ. P., Rule 12 ...................................................................................................................9
Fed. R. Civ. P., Rule 17 ...................................................................................................................9
Fed. R. Civ. P., Rule 26 ...................................................................................................................2
Fed. R. Civ. P., Rule 41 .................................................................................................................11
Fed. R. Civ. P., Rule 45 ...................................................................................................................2
iii
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Plaintiff submits this opposition to numerous motions filed as purported motions to quash
and/or motions to dismiss and requests that the Court consider this opposition to apply to all
similar motions already filed and that will be filed in the future.
To briefly summarize Plaintiff’s case, Plaintiff has identified certain Defendants who
have unlawfully copied and distributed Plaintiff’s motion picture, “Call of the Wild” (the
“Movie”), over the Internet. At this point, Plaintiff has only been able to identify the Doe
Defendants by their Internet Protocol (“IP”) and the date and time of alleged infringement. The
only way that Plaintiff can determine Defendants’ actual names is from the Internet Service
Providers (“ISPs”) to which Defendants subscribe and from which Defendants obtain Internet
access, as this information is readily available to the ISPs from documents they keep in the
regular course of business.
Plaintiff’s complaint was filed on March 19, 2010 and named Does 1-358 as Defendants.
[Doc. No. 1] Plaintiff then filed a Motion for Leave to Take Discovery Prior to the Rule 26(f)
Conference, which was granted by this Court on April 15, 2010. [See Doc. Nos. 2, 4]
Thereafter, Plaintiff served subpoenas on the non-party ISPs.
In response to the subpoenas, the ISPs contacted their subscribers for which Plaintiff
identified an infringing IP address on the date and time of alleged infringement. Various Doe
Defendants have filed motions to quash the subpoenas and/or dismiss pursuant to Fed. R. Civ. P.
12(B)(2). As of the filing of this opposition, Plaintiff’s counsel is aware of three such motions,
1
none of which have been placed on the Court’s docket.1 Because the motions all present nearly
identical arguments, all of which do not provide good cause for quashing the subpoena or
dismissing a particular Doe Defendant, Plaintiff requests that the motions and any similar future
motions be denied in their entirety.
II. ARGUMENT
The Doe Defendants advance a number of arguments in their motions: (1) the Court lacks
personal jurisdiction over them, (2) they deny the allegations against them, and (3) joinder of the
multiple Doe Defendants is improper. However, all of these arguments are misplaced and
improper at this stage of the proceedings.
A. STANDARDS ON MOTIONS TO QUASH
A person served a discovery subpoena may move either for a protective order under Rule
26(c) or for an order quashing or modifying the subpoena under Rule 45(c)(3). Rule 26(c)
authorizes district courts, upon a showing of “good cause” by “a party or by the person from
whom discovery is sought” to “make any order which justice requires to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” Rule 45(c)(3)
provides that the court may quash or modify the subpoena if it requires disclosure of privileged
or other protected matter, if no exception or waiver applies, or if it subjects a person to undue
burden.

1
Plaintiff has also received an email from a Doe Defendant acting in pro per that purports to be
a motion, but Plaintiff’s counsel is unaware if this email qualifies as a motion or has been filed
with the Court.
2
“Ordinarily a party does not have standing to object to a subpoena served on a non-party,
but a party does have standing to object to a subpoena served upon a non-party which requires
the production of privileged information.” Covad Commun’ns Co. v. Revonet, Inc., No. 09-MC-
102, 2009 WL 3739278, at *3 (D.S.D. Nov. 4, 2009) (citing E.E.O.C. v. Danka Indus., Inc., 990
F. Supp. 1138, 1141 (E.D.Mo.1997)); Washington v. Thurgood Marshall Academy, 230 F.R.D.
18, 21 (D.D.C. 2005) (Facciola, J.) (“A motion to quash, or for a protective order, should
generally be made by the person from whom the documents or things are requested.” [citing 9A
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2459 (2d ed.1995)]).
However, that standing to object should limited to only challenging the subpoena on the
grounds that it requires disclosure of information “privileged at common law or by statute or
rule” and not any other grounds. See Windsor v. Martindale, 175 F.R.D. 665, 668
(D.Colo.1997). “The general rule is that a party has no standing to quash a subpoena served
upon a third party, except as to claims of privilege relating to the documents being sought.” Id.
(citation omitted); see also Johnson v. Gmeinder, 191 F.R.D. 638, 639 n. 2 (D.Kan.2000);
Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (E.D.Pa.2001); Novak v. Capital Mgmt. & Dev.
Corp., 241 F.R.D. 389, 394 (D.D.C. 2007) (Facciola, J.) (stating that “[t]o make a legitimate
claim of privilege the Defendants would have had to show some reason to believe that the
subpoena threatened the disclosure of information that was protected by a privilege that these
Defendants could claim”) (emphasis added); Amobi v. D.C. Dept. of Corrections, 257 F.R.D. 8,
9-10 (D.D.C. 2009) (Facciola, J.) (holding that District of Columbia Department of Corrections
had no right to claim work product or attorney-client privilege with regard to United States
Attorney’s Office’s files relating to former corrections officer’s criminal prosecution for
3
assaulting inmate, and thus did not have standing to object to subpoena served on USAO by
officer seeking files in connection with officer’s civil rights action against Department).
The burden of persuasion in a motion to quash a subpoena is borne by the movant, and
the “burden is particularly heavy to support a ‘motion to quash as contrasted to some more
limited protection.’” Westinghouse Electric Corp. v. City of Burlington, 351 F.2d 762, 766
(D.C.Cir. 1965) (denying a motion to quash supported by two affidavits); US. v. Int’l Bus. Mach.
Corp., 83 F.R.D. 97, 104 (S.D.N.Y. 1979); Horizons Titanium Corp. v. Norton Co., 290 F.2d
421, 425 (1st Cir. 1961); see Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403-04
(D.C.Cir. 1984). The district court must balance “the relevance of the discovery sought, the
requesting party’s need, and the potential hardship to the party subject to the subpoena.” Heat &
Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1024 (Fed.Cir. 1986) (citing Deitchman v.
E.R. Squibb & Sons, Inc., 740 F.2d 556, 560, 564 (7th Cir. 1984)).
Additionally, on a motion to quash a subpoena, the merits of a defendant’s defenses are
not at issue. See Fonovisa, Inc. v. Does 1-9, 2008 WL 919701, *8 (W.D.Pa.) (stating that “[i]f
Doe # 3 believes that it has been improperly identified by the ISP, Doe # 3 may raise, at the
appropriate time, any and all defenses, and may seek discovery in support of its defenses”).
B. PLAINTIFF HAS ALREADY SHOWN GOOD CAUSE TO OBTAIN DISCOVERY
AND HAS MADE A PRIMA FACIE SHOWING THAT DEFENDANTS DID
INFRINGE PLAINTIFF’S COPYRIGHTS.
The court has already determined that Plaintiff has met its threshold burden to obtain
further information about the Doe Defendants by identifying the Doe Defendants with sufficient
specificity and showing that Plaintiff’s suit can withstand a motion to dismiss. As more fully set
4
out in Plaintiff’s Motion for Leave to Take Discovery Prior to the Rule 26(f) Conference [See
Doc. Nos. 2, 4], Plaintiff identified the unique IP address for each Defendant, along with the date
and time of alleged infringement and ISP that provided Internet access to each Defendant and
assigned the unique IP address to the Defendant, from information provided to it by Guardaley,
Limited. This information was obtained by Guardaley’s proprietary tracing software program to
trace the IP address for each Defendant, as detailed in the declarations of Benjamin Perino and
Patrick Achache. However, Plaintiff is unable to obtain the true identity of the Doe Defendants
without issuing subpoenas to the non-party ISPs, and the Defendants must be identified before
this suit can progress further. Therefore, Plaintiff has already demonstrated good cause for the
requested information.
Further, Plaintiff has made a prima facie evidentiary showing that the IP addresses it has
identified and subpoenaed to various ISPs did make an unlawful download of Plaintiff’s Movie
on a specific date and time. Again, Plaintiff utilized proprietary technology developed and
instituted by Guardaley that detects the unauthorized distribution of movies and other
audiovisual content and files over online media distribution systems. See Achache Declaration
(filed as Exhibit B to Plaintiff’s Motion for Leave to Take Discovery [Doc. No. 2-2]) ¶ 4.
Accordingly, Defendants’ IP addresses at the time of the alleged infringement were included in
this case because they were offering files corresponding to Plaintiff’s Movie for unlawful
transfer or distribution. See id. at ¶ 8. In fact, Guardaley actually downloaded Plaintiff’s Movie
from the IP address assigned to these Defendants, just as it does with all Doe Defendants. See
id. at ¶ 9. Lastly, Guardaley confirmed that the files that Defendants distributed were actually
Plaintiff’s Movie by watching both and comparing them. Id. at ¶¶ 16-17.
5
C. DOE DEFENDANTS’ ARGUMENTS ARE MISPLACED.
1. Quashing the subpoena or dismissing a particular Doe Defendant based on
personal jurisdiction grounds would be premature.
The Doe Defendants argue that this Court lacks personal jurisdiction over them.
However, the determination of the Court’s jurisdiction over a particular Doe Defendant is
premature at this time, when Plaintiff is still conducting discovery to ascertain the identities of
the Defendants and has not yet named any Defendant.
In a similar case, Sony Music Entm’t, Inc. v. Does 1–40, 326 F.Supp.2d 556, 567-568
(S.D.N.Y. 2004), that court rejected a similar argument to quash a subpoena based on personal
jurisdiction, holding that such a determination was premature.2 The court stated that it had
discretion to allow discovery to determine the basis for personal jurisdiction and that without the
identifying information sought by the plaintiffs in the subpoena to an ISP, “it would be difficult
to assess properly the existence of personal jurisdiction over the Doe defendants.” Id. at 567.
The court stated that such an analysis would require more of “an evaluation of the contacts
between the various defendants and the forum state” and concluded by “holding at this stage that
personal jurisdiction is lacking would be premature.” Id.; see London-Sire Records, Inc. v. Doe
1, 542 F.Supp.2d 153, 180-181 (D. Mass. 2008) (stating that affidavit of doe defendant claim she
was not a resident of the forum state was an insufficient basis to disallow discovery); see also
Arista Records LLC v. Does 1-16, 2009 WL 414060, *7 (N.D.N.Y February 18, 2009) (denying

2
Though the court’s decision primarily responded to arguments advanced by amicus
organizations, the court did recognize that a letter to the Court from an attorney for a Jane Doe
joined the arguments in the amici’s filing, including an objection to the subpoena based on lack
of personal jurisdiction, and a letter from the Jane Doe explicitly contested personal jurisdiction.
Sony Music Entm’t, Inc. v. Does 1–40, 326 F.Supp.2d at 567, fn. 8.
6
argument that court lacked personal jurisdiction over doe defendants, stating that “[w]ithout the
identifying information, an assessment of personal jurisdiction would be idle speculation”).
Here, quashing the subpoena based on personal jurisdiction would likewise be premature.
Plaintiff has not yet received any of the identifying information sought from the ISPs for these Doe
Defendants. Allowing Plaintiff to obtain the information from the ISPs is important for numerous
reasons.
First, obtaining the information from the ISPs gives Plaintiff verification of the address
associated with each Doe Defendant’s ISP account. As the ISPs are the only ones that can verify the
link between a particular IP address on a given date and time with one of its customers, Plaintiff’s only
method to obtain this verified evidence is from the ISPs in response to the subpoenas. Because Plaintiff
would otherwise be entitled to discovery to challenge the moving Doe Defendants’ declarations and
because identifying discovery is already in progress, Plaintiff should at least be entitled to complete its
discovery to independently verify the moving Doe Defendants’ assertions.
Second, the information sought from the ISPs gives more information than simply the name and
address of the Doe Defendants. Most importantly, the information provided by the ISPs in response to
the subpoenas gives the definitive connection between the IP address and the associated ISP customer.
Again, the ISPs are the only ones with this information, as most ISPs assign IP addresses dynamically
and are the only ones with the logs to determine the customer associated with an IP address at a specific
date and time in the past.
For some of the moving Doe Defendants, getting this information from the ISP is critical, as
some Doe Defendants have not stated the IP address associated with their ISP account that Plaintiff has
alleged to infringe Plaintiff’s movie. Because Plaintiff has not received this information from the ISP
yet, Plaintiff has no way to connect those Doe Defendants with any particular IP address.
7
For the anonymous moving Doe Defendants that did provide an IP address, Plaintiff still needs
the production from the ISP. Again, as the ISPs are the only ones that can verify the link between a
particular IP address on a given date and time with one of its customers, Plaintiff’s only method to
obtain this verified evidence is from the ISPs in response to the subpoenas.
Further, as requested in the subpoenas, some ISPs are able to provide the Doe
Defendants’ modem’s Media Access Control (MAC) number, which provides Plaintiff with
further evidence to substantiate its case. None of the moving Doe Defendants has provided this
information.
It must be noted that the moving Doe Defendants have not cited a single legal basis or authority
where a motion to dismiss a Doe defendant was granted before the plaintiff actually specifically named
that Doe defendant. While the omnibus motion attempts to discredit Plaintiff’s allegations and primarily
relies on the assumption that the geographical location techniques are conclusive, which they have
proven not to be, it does so without regard to the timing of its motion. In the end, the motions do not
provide a single authority applicable to the stage of this case – when Plaintiff is still proceeding against
Doe Defendants.
The plain language of the Federal Rules of Civil Procedure contemplates that a defendant can
only respond to the complaint when that defendant has been named as a party and after a summons has
been issued and served on a defendant (or service is waived by the defendant). For example, Rule 4
states that a summons must “name the court and the parties” and “be directed to the defendant.” Fed. R.
Civ. P. 4(a)(1)(A) and (B) (emphasis added).
Only then can the provisions of the Federal Rules of Civil Procedure, such as when a defendant
must file a responsive pleading or motion, take effect. Therein, one of the things the summons must do
is advise the defendant of the obligation to “appear and defend” and state the time the defendant has for
8
doing so, whether after being served with the summons or by waiving service. See Fed. R. Civ. P.
4(a)(1)(D). The timeframe in which a defendant has to “appear and defend” therefore does not start
until, at the earliest, a summons specifically names the defendant and is directed to that defendant.3
Accordingly, moving Doe Defendants’ motions to dismiss should be denied because there is no
authority that they were even permitted to file them. As stated in Fed. R. Civ. P. 12(b):
Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following
defenses by motion: . . . (2) lack of personal jurisdiction…A motion asserting any
of these defenses must be made before pleading if a responsive pleading is
allowed. … If a pleading sets out a claim for relief that does not require a
responsive pleading, an opposing party may assert at trial any defense to that
claim. No defense or objection is waived by joining it with one or more other
defenses or objections in a responsive pleading or in a motion.
Fed. R. Civ. P. 12(b) (emphasis added).
The language clearly contemplates that a motion to dismiss for lack of personal jurisdiction is
only appropriate if a responsive pleading is required or allowed. A responsive pleading is not yet
required of the anonymous Doe Defendants because their deadline to appear and defend has not even
started. They are not yet named parties to the case, and no summons has been issued with their names or
directed at them. [See Docket Entry of 5/27/10 (“SUMMONS Not Issued….”)]
The only case Plaintiff’s counsel could find similar to this topic is inapplicable and easily
distinguishable. In Zwebner v. John Does Anonymous Foundation, Inc., 2001 WL 210173 (D.Or.
2001), the court allowed an unnamed and unserved doe defendant to file an answer. Id. at *3 (as the
judge noted, “[n]either the parties, nor I, have found any cases on the issue faced here”). However, there

3
While the Federal Rules of Civil Procedure do not explicitly define “party,” the plain language of
multiple provisions suggests that a person is only a party to a case when that person is identified and
specified by name in the case. For example, Fed. R. Civ. P. 17 states that an “action must be prosecuted
in the name of the real party in interest,” and Fed. R. Civ. P. 5 contemplates service of papers on “every
party” wherein the general provisions for service contemplate that the party’s identity must be known
(See Fed. R. Civ. P. 5(b)(2)).
9
the plaintiff alleged a specific alias name for the doe defendant, and the doe defendant’s answer
admitted using the alias name as described in the Complaint. See id. Accordingly, it was established
that the person who filed the answer was definitively the doe defendant because that defendant admitted
committing the alleged acts.
That is not the case here. The moving Doe Defendants have not admitted to engaging in the
activities alleged by Plaintiff, and they have not even admitted to owning the IP addresses associated
with the infringing activity. Rather, the moving Doe Defendants generally assert the exact opposite –
that they did not engage in any infringing activity.
In fact, the court in Zwebner recognized this distinction when it noted that a Massachusetts court
declined to allow the unnamed defendant to file a motion to dismiss based on lack of personal
jurisdiction in a companion case:
Plaintiff suggests that in a similar case filed by plaintiff in Massachusetts and

currently pending there, the court rejected French’s attempt to appear in the case. The
pleadings in that case show that plaintiff named as defendants Robert Villasenor and John
Does 1-100. In the Complaint, plaintiff alleges that John Doe 1 used the alias
“InternetZorro” when communicating over the Internet. Plaintiff also alleges that
Villasenor published statements about plaintiff on the JDAF website, which plaintiff
contends is controlled by French. Plaintiff further alleges that French published “a series
of innuendos” about plaintiff on the Internet and that InternetZorro published “numerous
false and defamatory statements about Zwebner.” [¶] French filed a motion to dismiss
contending that the court lacked personal jurisdiction over him. The court declined to
hear French’s motion because French was not a party to the action. [¶] Thus, unlike in the
present case, French did not appear and answer admitting he was InternetZorro, and the
precise question at issue here was not addressed by the Massachusetts court.
2001 WL 210173 at fn. 2.
Although not as analogous to this case, and not dealing with anonymous defendants, Webster
Industries, Inc. v. Northwood Doors, Inc., 234 F.Supp.2d 981 (N.D. Iowa 2002) provides another
example of a court refusing to entertain a motion to dismiss based on lack of personal jurisdiction
because it was premature. There, a named defendant, China Hardwood Imports, attempted to make a
10
“special appearance” to contest service of process and jurisdiction based on attempted service and a
letter from plaintiff entitled “Notice of Intent to File Written Application for Default.” See id. at 987-
988. The court noted that there was not yet any attempt by the plaintiffs to actually invoke the court’s
personal jurisdiction over China Hardwood Imports, as the plaintiff had not yet filed any application for
default, so the court did not even entertain the merits of that defendant’s motion to dismiss for lack of
personal jurisdiction. See id at 988.
Similarly here, Plaintiff has not attempted to invoke the Court’s personal jurisdiction over any
particular Doe Defendant. Plaintiff has not named any Defendant or sought any action by the Court over
any particular Doe Defendant. Rather, Plaintiff has only requested discovery from the third-party ISPs.
Overall, the moving Doe Defendants’ authorities are completely inapplicable. Every authority
deals with a named defendant. Therein, all of the motions to dismiss fail on the basic premise of
timing.4 The Court should not dismiss any Doe Defendant until Plaintiff has actually named that person
to the lawsuit.
Additionally, Plaintiff already has a deadline to name and serve all defendants in this case. It
would not prejudice any Doe Defendant to allow Plaintiff to complete its discovery within that time.
Further, it would not make practical sense to dismiss particular Doe Defendants on a piecemeal basis
before that time.5

4
Not only would allowing the Doe Defendants to interject themselves by way of responsive pleadings
or motions to dismiss impinge on Plaintiff’s right and discretion to choose which Defendants to name, it
would also impinge upon Plaintiff’s ability to voluntarily dismiss the case before it actually names the
Doe Defendants and serves them. See Fed. R. Civ. P. 41(a)(1)(A)(i).
5
Judge Collyer has ruled in a similar case pending in this Court that arguments related to personal
jurisdiction and joinder are premature until Plaintiff actually names any Defendants. [West Bay One,
Inc. v. Does 1-1,653, CA. 1:10-cv-00481-RMC, Doc. No. 36 at p. 5, fn. 2 (“John Doe #2 also asserts that
the Court lacks personal jurisdiction over him and that joinder of the numerous Doe defendants here is
improper. Mr. Doe #2 may raise these issues with the Court when he has been identified and Plaintiff
names him as a defendant in this case.”)]
11
While the moving Doe Defendants’ declarations generally state that the do not reside in the
jurisdiction or do regular business here, even if these statements are true, they do not conclusively
establish that the Court lacks personal jurisdiction over them.6 The Court could still have jurisdiction
over these Doe Defendants because they could have specifically directed their alleged infringing
activities to the District of Columbia by downloading or uploading Plaintiff’s copyrighted work with
another Doe Defendant based in the District of Columbia or because they committed the infringing
activities while visiting the jurisdiction.
For example, one of the moving Doe Defendants could have downloaded or uploaded Plaintiff’s
movie from/to a non-moving, still unidentified Doe Defendant who does have personal jurisdiction in
Washington, D.C. If the discovery were to show that connection, Plaintiff would have a good faith
argument to assert personal jurisdiction over that moving Doe Defendant based on that activity directed
at this jurisdiction. Therefore, because Plaintiff has not received all of the identifying information from
all of the Does, it is premature to dismiss any Doe Defendant at this time simply because that Doe
Defendant may reside outside of the jurisdiction.
Additionally, it is interesting to note that none of the Doe Defendants’ declarations state
anything about them visiting the jurisdiction. While most state that they do not reside in the
district or conduct regular business in the district, the declarations do not disclaim that they
occasionally visit the jurisdiction. Further, Plaintiff’s allegations state a specific date and time

6
To avoid dismissal for lack of personal jurisdiction under Rule 12(b)(2), when such motions are
brought before discovery and decided without an evidentiary hearing, a plaintiff need only make a prima
facie showing that personal jurisdiction exists. PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d
Cir. 1997); A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79 (2d Cir.1993). A plaintiff may rely
entirely on factual allegations, Jazini v. Nissan Motor Co., 148 F.3d 181, 184 (2d Cir.1998) and will
prevail even if defendants make contrary arguments, A.I Trade, 989 F.2d at 79. In resolving such
motions, the court will read the complaints and affidavits in a light most favorable to the plaintiff. PDK
Labs, 103 F.3d at 1108.
12
associated with each IP address for each Doe Defendant. It is quite telling that none of the Doe
Defendants’ declarations make any mention of Doe Defendants’ location on that date and time.
Obviously, if a Doe Defendant engaged in the infringing activity while visiting the jurisdiction,
Plaintiff would have a good faith argument that the Court has jurisdiction over that Doe
Defendant.
Lastly, the moving Doe Defendants argue that Plaintiff knows, or is able to determine, each Doe
Defendant’s geographic location without receiving the identifying information from the ISPs. However,
that is simply not true.
The exact same argument and technique was specifically rejected in Sony v. Does 1-40.7 There,
the plaintiffs opposed this technique and stated that “the geographical designations fall ‘far short’ of 100
percent accuracy and are ‘often extremely inaccurate.’” 326 F. Supp. 2d at 567. The court went on to
state that “[a]ssuming personal jurisdiction were proper to consider at this juncture, the techniques
suggested by amici, at best, suggest the mere ‘likelihood’ that a number of defendants are located
outside of New York. This, however, does not resolve whether personal jurisdiction would be proper.”
Id. at 567-568.
Similarly here, the moving Doe Defendants have not established that their techniques
conclusively establish the location of any particular Doe Defendant. In fact, the website cited in the
omnibus motion (http://whatismyipaddress.com/) provides the following disclaimer when a user clicks
on “Additional IP Details”: “This information should not be used for emergency purposes, trying to find
someone’s exact physical address, or other purposes that would require 100% accuracy.” (emphasis
added). Additionally, that very same website has a page dedicated “How accurate is GeoLocation?”

7
It should be noted that the issues raised, arguments presented, and technique used for the omnibus
motion mirrors what was filed in Sony Music Entertainment Inc. v. Does 1-40.
13
which states: “Determining the physical location down to a city or ZIP code, however, is more difficult
and less accurate because there is no official source for the information, users sometimes share IP
addresses and Internet service providers often base IP addresses in a city where the company is basing
operations. [¶] Accuracy rates on deriving a city from an IP address fluctuate between 50 and 80
percent, according to DNS Stuff, a Massachusetts-based DNS and networking tools firm.” See
http://whatismyipaddress.com/geolocation-accuracy.8
Therefore, the arguments and techniques raised by the moving Doe Defendants that
Plaintiff knows or could know the exact location of every Doe Defendant is simply not true.
Overall, it is premature for the Court to make any decision related to personal jurisdiction until
after Plaintiff obtains the information from the ISPs and names a particular Doe Defendant.
2. Any argument that a Doe Defendant did not engage in the alleged
infringement is inappropriate on a motion to quash.
To the extent any Doe Defendant argues that he did not engage in the infringing activity,
this argument is misplaced and does not address the requirements for a motion to quash. Again,
the merits of the case, or Doe Defendant’s defenses, are not at issue at this stage of the case. The
court only considers the relevance of the discovery sought, the requesting party’s need, and the
potential hardship to the party subject to the subpoena.
Here, Plaintiff has already demonstrated good cause for the subpoena in that the
information is absolutely necessary in this case so that Plaintiff can ascertain the true identities of
the alleged infringing Doe Defendants and that Plaintiff can only obtain the information by

8
As just one example of the potential inaccuracy with the techniques argued by the moving Doe
Defendants, when Plaintiff’s counsel went on to the website (http://whatismyipaddress.com) from their
Leesburg, Virginia office, it showed up as Warrenton, Virginia.
14
issuing subpoenas to the ISPs. In contrast, Doe Defendants have not shown any annoyance,
embarrassment, oppression, or any undue burden or hardship they would incur if the information
is divulged to Plaintiff. Additionally, Doe Defendants cannot claim that the subpoena is
unreasonable or oppressive, because they are not the ones responding to the subpoenas. Lastly,
Doe Defendants have not shown why quashing the subpoenas is necessary when other, more
limited methods are available to address any concerns.
3. Doe Defendants’ arguments related to joinder does not justify quashing the
subpoena or dismissing a Doe Defendant and are generally inappropriate at
this stage of the proceedings.
The Doe Defendants argue that the joinder of the Defendants is improper in this case.
However, joinder is proper at this time.
In two similar pending cases in front of Judge Collyer, an order to show cause hearing
was conducted wherein Judge Collyer ruled that joinder was proper at this stage of the
proceedings and “that, at this juncture, the numerous Doe Defendants are not severed due to
misjoinder….” [West Bay One, Inc. v. Does 1-1,653, CA. 1:10-cv-00481-RMC, Doc. No. 25;
Achte/Neunte Boll Kino Beteiligungs GMBH & Co. KG v. Does 1-2,094, CA No. 1:10-cv-00453-
RMC, Doc. No. 34] For the convenience of the Court and the parties, Plaintiff has attached the
Statement of Good Cause filed in the West Bay One, Inc. v. Does 1-1,653, CA. 1:10-cv-00481-
RMC [Doc. No. 20] as Exhibit 1 hereto and hereby incorporates those arguments and authorities
in opposition to the Doe Defendants’ arguments related to joinder in this case.9

9
A nearly identical Statement of Good Cause was also filed in Achte/Neunte Boll Kino
Beteiligungs GMBH & Co. KG v. Does 1-2,094, CA No. 1:10-cv-00453-RMC [Doc. No. 39].
15
To summarize the argument in opposition to the joinder argument, any consideration of
joinder is premature and inappropriate at this stage. See Sony Music Entm’t, Inc. v. Does 1–40,
326 F.Supp.2d at 568 (stating that “discussion of joinder is not germane to the motions to quash
before the Court, as the remedy for improper joinder is severance, see Fed.R.Civ.P. 21, and not
the quashing of the subpoena at issue here”).
D. DOE DEFENDANTS HAVE NOT SHOWN THAT THE INFORMATION
REQUESTED IS PRIVILEGED OR CONFIDENTIAL.
Doe Defendants only have standing to assert that the subpoena requests privileged or
confidential information. However, such an argument has no basis in law or in fact for this
case.10
As further detailed in Plaintiff’s Motion [Doc No. 2], a person using the Internet to
distribute or download copyrighted music without authorization is not entitled to have their
identity protected from disclosure under the First Amendment. See Interscope Records v. Does
1-14, 558 F.Supp.2d 1176, 1178 (D. Kan. 2008); see also Arista Records LLC v. Does 1-19, 551
F. Supp. 2d 1, 8-9 (D.D.C. 2008) (Kollar-Kotelly, C.) (finding that the “speech” at issue was that
doe defendant’s alleged infringement of copyrights and that “courts have routinely held that a
defendant’s First Amendment privacy interests are exceedingly small where the ‘speech’ is the
alleged infringement of copyrights”); Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001)
(“computer users do not have a legitimate expectation of privacy in their subscriber information
because they have conveyed it to another person—the system operator”); Sony Music Entm’t,
Inc. v. Does 1–40, 326 F.Supp.2d 556, 566 (S.D.N.Y. 2004) (“defendants have little expectation

10
For those Doe Defendants who have identified themselves in their motions, the motion to
quash aspect of their motions must be denied as moot.
16
of privacy in downloading and distributing copyrighted songs without permission”); Arista
Records, LLC v. Doe No. 1, 254 F.R.D. 480, 481 (E.D.N.C. 2008); U.S. v. Hambrick, 55 F.
Supp. 2d 504, 508 (W.D. Va. 1999), aff’d, 225 F.3d 656 (4th Cir. 2000).
Additionally, Plaintiff is only seeking limited information sufficient to identify each Doe
Defendant, and Plaintiff will only use that information in this lawsuit. Therefore, the Doe
Defendants are protected from any improper disclosure or use of their information.
III. CONCLUSION
Overall, Doe Defendants have not demonstrated any reason to quash the subpoenas or
dismiss them at this stage of the proceedings. As fully laid out in Plaintiff’s Motion for Leave to
Take Discovery, which was granted by the court, courts have routinely allowed discovery to
identify “Doe” defendants in cases almost identical to this one. See, e.g., Metro-Goldwyn-Mayer
Pictures Inc., et al. v. Does 1-10, Case No. 04-2005 (JR) (D.D.C.) (Robertson, J.); Twentieth
Century Fox Film Corp., et al. v. Does 1-9, Case No. 04-2006 (EGS) (D.D.C.) (Sullivan, E.);
Lions Gate Films, Inc., et al. v. Does 1-5, Case No. 05-386 (EGS) (D.D.C.) (Sullivan, E.); UMG
Recordings, et al. v. Does 1-199, Case No. 04-093 (CKK) (D.D.C.) (Kollar-Kotelly, C.);
Caroline Records, Inc., et al. v. Does 1-175, Case No. 04 2028 (D.D.C.) (Lamberth, R.); see also
Warner Bros. Records, Inc. v. Does 1-6, 527 F.Supp.2d 1, 2 (D.D.C. 2007).
Plaintiff has shown good cause for obtaining information related to the Doe Defendants
from the non-party ISPs, especially when considering that these ISPs typically retain user
activity logs containing the information sought for only a limited period of time before erasing
the data. Therefore, the court should deny these motions and any similar future motions and at
17
least allow Plaintiff the opportunity to conduct discovery and obtain evidence to prove the
copyright infringement and irreparable harm in this case.
CALL OF THE WILD MOVIE, LLC

DATED: October 18, 2010
By: /s/
Telephone: 202-316-8558
Facsimile: 202-318-0242
tdunlap@dglegal.com
nkurtz@dglegal.com
Attorney for the Plaintiff
18
CERTIFICATE OF SERVICE
I hereby certify that on October 18, 2010, a true and correct copy of the foregoing
PLAINTIFF’S OPPOSITION TO MOTIONS TO QUASH/MOTIONS TO DISMISS was sent
via first-class mail as follows:
Carey N. Lening, Esq.

1325 G St. NW Ste 500
Attorney for Omnibus Motion Defendants
Patrick King, Esq.

47 Seaton Pl., NW
Attorney for Doe Defendant
Brian D. Geno, Esq.

Geno Law Firm, P.C.
Red Maple Court Office Condiminiums
10617 Jones Street, Suite 201-B
Fairfax, VA 22030
Attorney for Doe Defendant
I hereby certify that on October 18, 2010, a true and correct copy of the foregoing
PLAINTIFF’S OPPOSITION TO MOTIONS TO QUASH/MOTIONS TO DISMISS was sent
via electronic means, wherein after a reasonable time after sending I did not learn that it did not
reach the person to be served, to the following:
sadiusrex@yahoo.com
/s/ Nick Kurtz

Nicholas A. Kurtz
19
Case
Case1:10-cv-00455-BAH
1:10-cv-00481-RMCDocument
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WEST BAY ONE, INC., )

)
Plaintiff, )
)
v. ) CA. 1:10-cv-00481-RMC
)
DOES 1 – 2,000 )
)
Defendants. )
_______________________________________)
PLAINTIFF’S STATEMENT OF GOOD CAUSE

AS TO WHY DEFENDANTS 2 THROUGH 2,000
SHOULD NOT BE DISMISSED FOR MISJOINDER
UNDER RULE 20 OF THE FEDERAL RULES OF CIVIL PROCEDURE
Case
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TABLE OF CONTENTS
I. INTRODUCTION ........................................................................................................................1
II. BRIEF PROCEDURAL OVERVIEW........................................................................................2
III. APPLICABLE LEGAL STANDARDS ARGUMENT.............................................................3
IV. ARGUMENT.............................................................................................................................5
A. THE NATURE OF THE TORRENT ACTIVITY ALLEGED ......................................5
B. PLAINTIFF HAS APPROPRIATELY JOINED THE DOE DEFENDANTS AT THIS
STAGE OF THE CASE.......................................................................................................9
1. Plaintiff’s right to relief arises out of the same transaction, occurrence, or series of
transactions or occurrences ............................................................................................9
2. A question of law or fact common to all Doe Defendants will arise in the action ..12
C. SIMILAR CASES HAVE FOUND THAT ALLEGATIONS SIMILAR TO
PLAINTIFF’S DO NOT VIOLATE RULE 20 .................................................................13
D. THE PRIOR CASES DEALING WITH SIMILAR ALLEGATIONS CITED BY
AMICI ARE SIGNIFICANTLY DISTINGUISHABLE ..................................................16
E. ANY ACTION TAKEN PURSUANT TO RULES 20 OR 21 WOULD BE
PREMATURE ...................................................................................................................21
IV. CONCLUSION........................................................................................................................24
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TABLE OF AUTHORITIES
Cases
Androphy v. Smith & Nephew, Inc., 31 F. Supp. 2d 620 (N.D. Ill. 1998)....................................23
Arista Records, LLC v. Does 1-11, No. 1:07-CV-2828, 2008 WL 4823160
(N.D. Ohio Nov. 3, 2008) ............................................................................................16, 20
Arista Records LLC v. Does 1-16, Civ. No. 1:08-CV-765 (GTS/RFT), 2009 WL 414060
(N.D.N.Y. Feb. 18, 2009) ............................................................................................14, 15
Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1 (D.D.C. 2008) ............................... 15, 22-23
Arista Records, LLC v. Does 1-27, 584 F. Supp. 2d 240 (D. Me. 2008) .................... 13-16, 20, 24
BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888 (E.D. Pa. Apr. 2, 2004).. 16-17
Brereton v. Commc’ns Satellite Corp., 116 F.R.D. 162 (D.D.C. 1987) ..........................................5
Desert Empire Bank v. Insurance Co. of N. Am., 623 F.2d 1371 (9th Cir. 1980) ..........................3
DIRECTV, Inc. v. Barrett, 220 F.R.D. 630 (D. Kan. 2004) ........................................ 11-13, 20, 24
DIRECTV. Inc. v. Essex, No. C02-5503RJB, 2002 U.S. Dist. LEXIS 26923
(W.D. Wash. Nov. 13, 2002) ....................................................................................... 19-20
DIRECTV, Inc. v. Hosey, 289 F. Supp. 2d 1259 (D. Kan. 2003) .................................................19
DIRECTV, Inc. v. Russomanno, No. 03-2475, 2003 U.S. Dist. LEXIS 23403
(D.N.J. Nov. 12, 2003).......................................................................................................19
Disparte v. Corporate Executive Bd., 223 F.R.D. 7 (D.D.C. 2004) ................................................4
Fonovisa, Inc. v. Does 1-9, Civil Action No. 07-1515, 2008 WL 919701
(W.D. Pa. Apr. 3, 2008) .....................................................................................................16
Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974) ...................................................4
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MyMail, Ltd. v. America Online, Inc., 223 F.R.D. 455 (D.C.Tex. 2004).....................................11
Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004)....................2, 15, 23
Sprint Commc’ns Co., L.P. v. Theglobe.com, Inc., 233 F.R.D. 615 (D. Kan. 2006)....................11
Stanley Works v. Haeger Potteries, Inc., 35 F.R.D. 551 (N.D. Ill. 1964) .................................4, 10
United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966) .............................................4
Statutes
17 US.C. § 101 et seq............................................................................................................. passim
17 U.S.C. §106.............................................................................................................................XX
Fed. R. Civ. P. Rule 20 ..............................................................................................................3, 17
Fed. R. Civ. P. Rule 21 ....................................................................................................................3
iii
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
To briefly summarize Plaintiff’s allegations, Plaintiff has identified certain Defendants
who have unlawfully copied and distributed Plaintiff’s motion picture, “The Steam Experiment”
(a/k/a “The Chaos Experiment”) (the “Movie”), over the Internet. At this point, Plaintiff has
only been able to identify the Doe Defendants by their Internet Protocol (“IP”) address and the
date and time of alleged infringement. The only way that Plaintiff can determine Defendants’
actual identities is from the various non-party Internet Service Providers (“ISPs”) to which
Defendants subscribe and from which Defendants obtain Internet access. However, Plaintiff
cannot obtain this discovery without first filing a lawsuit against the anonymous Doe
Defendants.
Various organizations have argued, through an amicus curiae brief, that Plaintiff’s filing
of one lawsuit against all of the Doe Defendants constitutes improper joinder in violation of Rule
20 of the Federal Rules of Civil Procedure. In raising this issue with the court, the Amici rely on
previous, purportedly similar cases instituted against illegal downloaders of copyrighted
material. However, notwithstanding the fact that some courts have ruled, in prior seemingly
similar cases, that joining numerous Internet downloader copyright infringement defendants may
constitute improper joinder at this stage of the proceedings, the technological differences
between the file sharing services in this case compared to those prior cases are significantly
different.
As Plaintiff will demonstrate herein, because of the unique and true peer-to-peer nature of
the “torrent” file sharing alleged by Plaintiff in this case, all Doe Defendants have jointly
engaged in the same series of transactions to infringe on Plaintiff’s copyright. Further, because
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Plaintiff has not yet learned the identities of all Doe Defendants in this case, any severance under
Rule 20 is premature at this time. Overall, justice requires that Plaintiff be permitted to proceed
with its case as plead.
II. BRIEF PROCEDURAL OVERVIEW
Plaintiff filed its complaint against 2,000 Doe Defendants on March 23, 2010. [Doc. No.
1] Plaintiff then filed a Motion for Leave to Take Discovery Prior to the Rule 26(f) Conference,
which was granted by this Court on April 13, 2010. [See Doc. Nos. 3, 4]1 Pursuant to that order,
Plaintiff served the various ISPs with subpoenas to identify the Doe Defendants.
In response to the subpoena served on it, Time Warner filed a motion to quash, primarily
arguing that the number of IP requests was unduly burdensome in the time requested and that
Plaintiff should have to pay Time Warner’s costs for responding to the subpoena. [See Doc. No.
5] During the parties’ briefing on Time Warner’s motion to quash, various organizations filed a
motion for leave to file an amicus curiae brief, purportedly in support of Time Warner’s motion
to quash. [See Doc. No. 13]2
Seemingly in response to the amicus curiae brief, on June 7, 2010, this Court issued a
minute order requiring Plaintiff to show cause in writing no later than June 21, 2010 why Doe

1
The motion was granted and ordered entered by Judge John D. Bates, prior to the case being
reassigned. [See Doc. No. 4]
2
It should be noted that the issues raised, arguments presented, and declarations submitted by
Amici are exactly the same as those filed in Sony Music Entertainment Inc. v. Does 1-40, 326 F.
Supp. 2d 556 (S.D.N.Y. 2004). There, Amici similarly submitted their papers in the context of a
motion to quash a subpoena, and the court firmly rejected all of Amici’s arguments. See id. at
568.
2
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Defendants 2 through 2,000 should not be dismissed for misjoinder under Federal Rule of Civil
Procedure 20. [June 7, 2010 Minute Order]3
III. APPLICABLE LEGAL STANDARDS
The Federal Rules of Civil Procedure, specifically Rule 20, provide for the permissive
joinder of parties. As relevant to this case, Rule 20 states that “[p]ersons…may be joined in one
action as defendants if: (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.” Fed. R. Civ. P. Rule 20(a)(2).4
Rule 21 states that “[m]isjoinder of parties is not a ground for dismissing an action. On
motion or on its own, the court may at any time, on just terms, add or drop a party. The court
may also sever any claim against a party.” Fed. R. Civ. P. 21.

3
The amicus curiae brief also raised the issues of personal jurisdiction and the right to
anonymous speech, but the court’s minute order did not reference these issues. Accordingly,
Plaintiff has focused this statement on the issue of joinder as stated in the court’s order to show
cause minute order. To the extent the Court is evaluating the merits of these other issues,
Plaintiff respectfully requests an opportunity to submit additional responsive briefing.

4
Amici incorrectly state that three conditions must be met under Rule 20(a)(2) to join multiple
defendants, improperly separating subsection (a)(2)(A) into two separate requirements. [See
Doc. No. 13, at p. 22] However, the plain language of the statute states that these requirements
are disjunctive – “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.” Rule 20(a)(2)(A) (emphasis added); see also Desert Empire Bank
v. Insurance Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980) (“On a threshold level, Rule
20(a) imposes two specific requirements for the permissive joinder of parties: (1) a right to relief
must be asserted by, or against, each plaintiff or defendant relating to or arising out of the same
transaction or occurrence or series of transactions or occurrences; and (2) some question of law
or fact common to all parties must arise in the action.”).

3
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“Rules 20 and 21 are intended to promote trial convenience, to expedite the determination
of litigation, and to avoid multiplicity of suits.” Stanley Works v. Haeger Potteries, Inc., 35
F.R.D. 551, 554 (N.D. Ill. 1964) (emphasis added). These rules should be construed liberally, as
“[j]oinder of claims, parties and remedies is strongly encouraged.” United Mine Workers v.
Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138 (1966). Ultimately, a determination on the
question of joinder rests within the discretion of the trial court. See Mosley v. General Motors
Corp., 497 F.2d 1330, 1332 (8th Cir. 1974).
In satisfying the first prong of Rule 20(a), “a case by case approach is generally pursued.”
Id., 497 F.2d at 1333. In analyzing the first prong, Mosley found that “[n]o hard and fast rules
have been established under the rule.” Id. In looking at Rule 13(a) dealing with counterclaims
as guidance, that court adopted the same construction of the terms “transaction or occurrence”:
“[t]ransaction” is a word of flexible meaning. It may comprehend a series of

many occurrences, depending not so much upon the immediateness of their
connection as upon their logical relationship. Accordingly, all “logically related”
events entitling a person to institute a legal action against another generally are
regarded as comprising a transaction or occurrence. The analogous interpretation
of the terms as used in Rule 20 would permit all reasonably related claims for
relief by or against different parties to be tried in a single proceeding.
Id.; see Disparte v. Corporate Executive Bd., 223 F.R.D. 7, 10 (D.D.C. 2004) (stating that the
“logical relationship test is flexible”).5
As to the second prong of Rules 20(a), “[t]he rule does not require that all questions of
law and fact raised by the dispute be common….common questions have been found to exist in a
wide range of context.” Mosley, 497 F.2d at 1334.

5
In Mosley v. General Motors Corp., supra, the court found the plaintiffs had asserted a right to
relief arising out of the same transactions or occurrences where each of the ten plaintiffs alleged
that he had been injured by the same general policy of discrimination on the part of the
defendants, regardless of the fact that the different plaintiffs asserted claims for discrimination
occurring at different times for each plaintiff. 497 F.2d at 1333-1334.

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Lastly, the court should consider whether an order under Rule 21 would prejudice any
party or would result in undue delay. See Brereton v. Commc’ns Satellite Corp., 116 F.R.D.
162, 163 (D.D.C. 1987) (stating that Rule 21 must be read in conjunction with Rule 42(b), which
allows the court to sever claims in order to avoid prejudice to any party).
IV. ARGUMENT
A. THE NATURE OF THE TORRENT ACTIVITY ALLEGED.
Plaintiff has alleged, and Plaintiff has shown in its motion for expedited discovery, that
each and every Doe Defendant, without the permission or consent of the Plaintiff, has used an
online media distribution system to copy and distribute to the public, including by making
available for distribution to others, Plaintiff’s copyrighted Movie. [Doc. No. 1 (Complaint) at ¶
12] In doing so, each Defendant has violated Plaintiff’s exclusive rights of reproduction and
distribution, constituting infringement of Plaintiff’s exclusive rights protected under the
Copyright Act of 1976 (17 US.C. § 101 et seq.). Id.
As alleged, the manner of the illegal transfer of Plaintiff’s Movie by Doe Defendants has
been through a “BitTorrent protocol” (or “torrent”) peer-to-peer (P2P) network, which is
significantly different in its architecture than the older P2P protocols used by such networks as
Napster, Grokster, Kazaa, Limewire, and Gnutella. [Doc. No. 1 (Complaint) at ¶ 3; see also
Declaration of Patrick Achache filed concurrently herewith (“Achache Decl. 06/21/10”), ¶ 2]
The BitTorrent protocol used by the Doe Defendants to copy and distribute Plaintiff’s Movie
allow computers with low bandwidth capabilities to participate in large data transfers across a
network, which was more problematic with the older P2P protocols. [Doc. No. 1 (Complaint) at
¶ 3] Under the BitTorrent protocol, the initial file-provider intentionally elects to share or upload
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a file via a BitTorrent network. Id. This is called “seeding.” Id. Other users (“peers”) on the
network connect to the seeder to download. Id. As additional peers request the same file, each
additional user becomes a part of the network (or “swarm”) from where the file can be
downloaded, which means that such additional user’s computer is connected not only to the
seeder/uploader but also to other peer/downloaders. Id. Unlike the older P2P protocols, each
new file downloader is receiving a different piece of the data from each user who has already
downloaded that piece of data, all of which pieces together comprise the whole. Id. This means
that every “node” or peer user who has a copy of the infringing copyrighted material on such a
network—or even a portion of a copy—can also be a source of download for that infringing file,
potentially both copying and distributing the infringing work simultaneously. Id.
This distributed nature leads to a rapid viral spreading of a file through peer users, all of
whom are both uploading and downloading portions of the file simultaneously. [Doc. No. 1
(Complaint) at ¶ 4] As more peers join the swarm, the likelihood of a successful download
increases. Id. Because of the nature of the BitTorrent protocols, any peer that has downloaded a
file prior to the time a subsequent peer downloads the same file is automatically a possible, and
even likely, source of the file for the subsequent peer. Id. Essentially, because of the nature of
the swarm downloads as described above, every infringer is simultaneously stealing copyrighted
material through collaboration from many other infringers, through a number of ISPs, in
numerous jurisdictions around the country. See id.
One difference between this BitTorrent protocol and the older P2P network protocols
used by such networks as Napster, Grokster, Kazaa, Limewire, and Gnutella is how they locate
and trade bits of the files. Achache Decl. 06/21/10, ¶ 3. Napster, Grokster, Kazaa, Limewire,
Gnutella, etc. are file sharing networks. Id. Through a series of nodes, infringers are
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interconnected to a variety of people sharing a variety of files. Id. Most of the time they send
out a search request along the network and people who have files that meet the search criteria
answer back that they have it. Id. Then an individual will pick one of the search results and start
getting bits of the file from that particular person who has some available bandwidth for
transferring of the file. Id.
BitTorrent, on the other hand is file-focused. Achache Decl. 06/21/10, ¶ 4. Someone
who has a copy of the file creates a tracker and makes it available. Id. Rather than finding that
tracker by sending out search requests along a file sharing network, infringers find it on web
sites, via recommendations in chat rooms, in links posted to mailing lists, etc. Id. Then
everyone interested in sharing that specific file (either providing a copy they already downloaded
or getting a copy) can use the tracker to essentially create a network dedicated to sharing just that
specific file. Id.
The primary characteristic of BitTorrent is the notion of torrent, which defines a session
of transferring a single file to a set of peers. Achache Decl. 06/21/10, ¶ 5. Peers involved in a
torrent cooperate to replicate the file among each other using swarming techniques. Id. A user
joins an existing torrent by downloading a “.torrent” file and adding it to its client. Id. This file
contains meta-information on the file to be downloaded, e.g., the number of pieces, the SHA-1
hash values of each piece, and the IP address of the so-called tracker of the torrent. Id. The
tracker is the only centralized component of BitTorrent, but it is not involved in the actual
distribution of the file. Id. It only keeps track of the peers currently involved in the torrent and
collects statistics on the torrent. Id. When joining a torrent, a new peer asks the tracker for a list
of IP addresses of peers to connect to and cooperate with, typically 50 peers chosen at random in
the list of peers currently involved in the torrent. Id. This set of peers forms the peer set of the
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new peer. Id. The group of peers will share the file among each other. Id. Each peer knows
what pieces each other peer in its peer set has, and each peer helps the other to fulfill the
completion of the file. Id.
If a file is observed directly after its release, the network size increases from a few users
to the maximum amount in which all users are potential uploaders for the respective file.
Achache Decl. 06/21/10, ¶ 6. Within a small network, and depending on the upload bandwith of
each user and the size of the file shared, the plausibility that each user downloaded a part from
each other is very high. Id. Within Mr. Achache’s declaration, he illustrates an example where
Guardaley found several IP addresses sharing the same file with the same hash, same name,
same file size, and operating over the same ISP with not more than five hours between them on
two consecutive days. Id. All those infringers only had one specific file in connection, a file of
Plaintiff’s Movie. Id. Seeing the whole structure of the infringers from other ISPs sharing the
same file with the same hash value, it indicates that all of those individuals must have searched
for this file on a website like isohunt, mininova, the pirate bay, etc., and they all chose the same
file. Id.
Overall, there are a limited number of files of Plaintiff’s movie available on BitTorrent
protocols. Achache Decl. 06/21/10, ¶ 7. Accordingly, because of the nature of these protocols, it
is highly likely that all of the infringers of Plaintiff’s movie have been involved with the same
infringing file from the time of its initial seeding up to and including the present day. Id.6

6
The data already obtained by Guardaley could be completely analyzed by an external expert,
but such analysis would take at least 10 to 14 business days. Achache Decl. 06/21/10, ¶ 7.
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B. PLAINTIFF HAS APPROPRIATELY JOINED THE DOE DEFENDANTS AT
THIS STAGE OF THE CASE.
1. Plaintiff’s right to relief arises out of the same transaction, occurrence, or
series of transactions or occurrences.
As shown above, the nature of the infringement alleged in this case tends to show that all
Doe Defendants engaged in the same series of transactions and occurrences. Each Doe
Defendant is alleged to have participated in a swarm with other Doe Defendants, all of which
was targeted at one thing – illegally downloading/uploading Plaintiff’s copyrighted Movie. Even
though all of the Doe Defendants may not have participated on the very same day and time, all of
the events involving all of the Doe Defendants are logically related to the sharing of the seed file
(Plaintiff’s copyrighted Movie in digital form).
Again, this is significantly different from the prior cases involving copyright
infringement via P2P systems. In those earlier cases, the doe defendants utilized platforms such
as Napster, Grokster, Kazaa, and Limewire. Using those platforms, the infringer basically
copied a work from one other user. Each particular act of infringement involved a specific one-
on-one connection between two users for that specific file. Once the sharing of that file was
over, so presumably was the relationship between the infringers.
Further, because those cases dealt with multiple rights holders asserting claims for
multiple copyrighted works, the infringements tended to be more independent and unrelated acts
amongst the various doe defendants. For example, in the prior cases each doe defendant was
typically alleged to have downloaded a number of different songs—protected by a number of
different copyrights and owned by a number of different plaintiff copyright holders—from
various third-party infringers.
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Here, the use of a torrent P2P platform for the infringement of one copyrighted work is
an ongoing and continuous series of infringements. In order for each and every Doe Defendant
to obtain a download of Plaintiff’s Movie, each and every Doe Defendant must link to a seed file
of Plaintiff’s Movie. Because a seed file can only exist from another Doe Defendant, each Doe
Defendant is necessarily intertwined.
Overall, because of the swarm nature of the torrent file sharing, Plaintiff’s alleged facts
tend to show that the Doe Defendants acted in concert in an ongoing effort to infringe Plaintiff’s
work. Whether each Doe Defendant actually illegally downloaded, uploaded, and/or made
Plaintiff’s work available for others to infringe, all Doe Defendants acted together in the various
swarms.7
Amici summarily dismiss the distinction of the torrent protocol. [See Doc. No. 13
(Motion to File Amici Curiae Brief) at p. 24] Therein, Amici acknowledge that this protocol
“works by taking small fragments of a work from multiple people in order to assemble a copy”
but dismiss this distinction by claiming that the “individual Defendants still have no knowledge
of each other, nor do they control how the protocol works….” Id. However, it is unclear how
Amici can definitively say that the “individual Defendants still have no knowledge of each
other” [Doc. No. 13 (Motion to File Amici Curiae Brief) at p. 24] when each BitTorrent user can
see that portions of the file are being downloaded from (and uploaded to) tens, hundreds, or

7
In Stanley Works v. Haeger Potteries, Inc., 35 F.R.D. 551 (N.D. Ill. 1964), the court found that
the allegations made against the prospective defendants arose out of the same factual situation
and stated that “[i]t would seem that where the party to be added allegedly made possible that
infringement, induced it and contributed thereto, judicial economy would require that party’s
presence in the original infringement suit, as well.” Id. at 554. Here, while all Doe Defendants
acted in concert and contributed to distributing Plaintiff’s copyrighted Movie, each Doe
Defendant’s own acts of downloading and/or distributing Plaintiff’s Movie also constitutes an
infringement of Plaintiff’s exclusive rights of reproduction and distribution under the Copyright
Act of 1976. See generally 17 US.C. § 106.

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perhaps thousands of other users. Apparently, Amici are arguing that multiple defendants must
personally know each other before they can be joined in a lawsuit. That is not the requirement.
Notwithstanding Amici’s understanding of the nature of a torrent protocol, because of the
nature of the alleged protocols used to infringe on Plaintiff’s Movie, the Doe Defendants do have
knowledge that they are illegally downloading and/or distributing Plaintiff’s Movie to others.
While the Doe Defendants may not know the real identity of the other Doe Defendants, they may
know them by their anonymous user names or IP addresses.
Additionally, the fact that Plaintiff is alleging infringement of only one work tends to
show a relationship among all Doe Defendants. In MyMail, Ltd. v. America Online, Inc., 223
F.R.D. 455 (D.C.Tex. 2004), the court specifically held that joinder of unrelated defendants who
allegedly infringed the same patent was proper. The court stated:
A logical relationship exists if there is some nucleus of operative facts or

law….MyMail alleges that all defendants have infringed the ‘290 patent….The
UOL Defendants urge the Court to adopt the rule that infringement by different
defendants does not satisfy Rule 20’s same transaction requirement, but the Court
finds that this interpretation of Rule 20 is a hypertechnical one that perhaps fails
to recognize the realities of complex, and particularly patent, litigation. In
essence, the UOL Defendants advocate a rule that requires separate proceedings
simply because unrelated defendants are alleged to have infringed the same
patent. The Court disagrees with such a per se rule that elevates form over
substance. Such an interpretation does not further the goals of Rule 20, especially
for discovery and motion purposes.
Id. at 456-457 (internal citations omitted); see Sprint Commc’ns Co., L.P. v. Theglobe.com, Inc.,
233 F.R.D. 615 (D. Kan. 2006) (“The first requirement is met because Sprint’s claims against all
the defendants arise out of the same transaction or occurrence. Most notably, Sprint alleges that
each of the defendants has infringed the same seven patents.”).
Also, in DIRECTV, Inc. v. Barrett, 220 F.R.D. 630 (D. Kan. 2004), the court held that
the satellite broadcaster’s action against alleged owners of pirate access devices arose out of
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same “transaction” for purposes of the joinder rule. There, the broadcaster alleged that each
defendant purchased one or more devices, identical or nearly identical, designed to illegally
intercept satellite signals or facilitate illegal interception, and records and other information that
served as the basis of broadcaster’s claims arose from the same investigations and raids. Id. at
632.
Similarly, in this case, Plaintiff alleges that all Doe Defendants utilized an identical or
nearly identical torrent P2P protocol to illegally infringe Plaintiff’s one copyrighted work.
Additionally, the evidence that will serve as the basis of Plaintiff’s claims against all Doe
Defendants arose from the same investigation by the third-party technology company utilized by
Plaintiff. Therefore, Plaintiff has shown that the liability for all Doe Defendants arises out of the
same transaction or series of transactions, meeting the first requirement of Rule 20(a).
2. A question of law or fact common to all Doe Defendants will arise in the
action.
Plaintiff has alleged identical claims against all Doe Defendants for each and every Doe
Defendant’s alleged use of an online media distribution system to distribute Plaintiff’s Movie.
[See Doc. No. 1 (Complaint) at ¶ 12] Therein, Plaintiff has alleged similar questions of fact,
including without limitation whether each and every Doe Defendant did use a torrent protocol to
download and/or distribute Plaintiff’s Movie. Further, Plaintiff has alleged the exact same legal
claim against each and every Doe Defendant – “Infringement of Registered Copyright.” [See
Doc. No. 1 (Complaint) at p. 4]
Therefore, Plaintiff has satisfied the second prong of Rule 20(a)(2), as Plaintiff’s
common cause of action will raise similar questions of law, including without limitation the
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application of the Copyright Act of 1976 (17 U.S.C. § 101 et seq.), particularly in the context of
file-sharing across the BitTorrent protocol. See DIRECTV, Inc. v. Barrett, 220 F.R.D. at 632
(“The court also concludes that the claims against the defendants involve at least one common
question of law or fact. DIRECTV seeks redress under identical legal theories against each of the
defendants in each case. The claims in each complaint and the law under which they are brought
are the same. Based on DIRECTV’s allegations, the claims in each case involve at least one
common question of law.”).
C. SIMILAR CASES HAVE FOUND THAT ALLEGATIONS SIMILAR TO
PLAINTIFF’S DO NOT VIOLATE RULE 20.
Other courts dealing with cases for copyright infringement against unknown doe
defendants have specifically found that joinder of the defendants was proper under Rule 20,
especially at the early outset of these types of cases. Most notably, the District Court of Maine
issued a well reasoned and analyzed opinion in Arista Records, LLC v. Does 1-27, 584 F. Supp.
2d 240 (D. Me. 2008), noting the legal requirements and the practical aspects of joinder in such
cases.8
There, a group of copyright owners and licensees brought a copyright infringement action
against 27 unidentified students of the University of Maine. See 584 F. Supp. 2d at 241. In
relation to a number of motions to dismiss filed by various doe defendants, the magistrate judge
suggested that the court enter an order to show cause why the plaintiffs should not be sanctioned
pursuant to Rule 11, recommending that the plaintiffs demonstrate that they have adequate

8
As shown below, the prior similar cases cited by Amici are opinions or orders (some of which
are unpublished) that provide very little analysis and generally rely on conclusory assertions in
concluding that those cases suffered from misjoinder.
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evidentiary support for their factual contentions regarding joinder. Id. at 250-251. The court did
not act on the recommendation, and did not issue the show cause order, but did address the
joinder issue in the context of the motions to dismiss. See id. at 251.
The court stated that it was not troubled with the joinder of the multiple doe defendants in
one lawsuit. Id. The court also based its conclusion upon consideration of the plaintiffs’
allegations regarding whether they had asserted that their right to relief related to or arose out of
the same transaction or occurrence. The court noted that:
the Complaint alleges the Doe Defendants (1) engaged in copyright infringement
on the internet; (2) uploaded and downloaded copyrighted sound recordings using
peer-to-peer networks; and (3) accessed the peer-to-peer network though a
common ISP--the same University. The Plaintiffs further assert that twenty-five
of the twenty-seven Doe Defendants used the same peer-to-peer network and
many infringed the same copyrighted sound recording or different copyrighted
sound recordings from the same artist. Finally, they allege that the Doe
Defendants have been “active participants in what can only be described as an on-
line music swap meet, unlawfully copying copyrighted works from other users
and distributing such works to other users.”
Id. (internal citations omitted).
The court then state that “[a]t the very least, it seems premature to make a final
determination that joinder is not permissible under Rule 20.” Id.9 As a practical matter, the
court noted that because the court cannot dismiss a case for misjoinder pursuant to Rule 21, the
“remedy, then, would be to break up this one lawsuit into individual causes of action, an

9
In Arista Records LLC v. Does 1-16, Civ. No. 1:08-CV-765 (GTS/RFT), 2009 WL 414060
(N.D.N.Y. Feb. 18, 2009), the district court echoed the timing considerations, though with
decidedly fewer defendants (four). The court stated that “[t]o keep this finite community of
defendants within this lawsuit will not, at this juncture of the litigation, generate any prejudice or
harm to their respective defenses. Moreover, a joint defense may be more advantageous than
previously considered. And should any prejudice or conflict arise, the Court can address the
matter at that time. As the facts and circumstances become ripe and suggest or warrant
severance, all can avail themselves of such a request then. Therefore, at this stage of the
litigation, the Court finds that a request to sever the Doe Defendants as premature.” Id. at *8.
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alternative that does not exactly resonate with practicality.” Id. at 251. Further, the court went
on to state:
Regarding the magistrate judge’s concern about the possibility of abuse of the
litigation process by the Plaintiffs, the Court is again more sanguine. It is true, as
the magistrate judge observes, that the Plaintiffs have not identified and served
the Doe Defendants and that they seek their names through this lawsuit. It is also
possible that once identified and served, the Doe Defendants will determine that it
is in their best interests to resolve the case. But, the Court begins with the premise
that the Plaintiffs have a statutorily protected interest in their copyrighted material
and that the Doe Defendants, at least by allegation, have deliberately infringed
that interest without consent or payment. Under the law, the Plaintiffs are entitled
to protect their copyrighted material and it is difficult to discern how else in this
unique circumstance the Plaintiffs could act. Not to act would be to allow those
who would take what is not theirs to remain hidden behind their ISPs and to
diminish and even destroy the intrinsic value of the Plaintiffs’ legal interests.
Id. at 252.
Overall, the District Court of Maine addressed not only Rule 20 but also the same
practical arguments presented by Amici. As with this case, where there is some relationship
between unidentified defendants for infringing identical copyrights, it is too premature to
definitively state that they have been improperly joined in one lawsuit. To hold otherwise would
practically prevent copyright holder plaintiffs from being able to protect their material or would
unnecessarily burden the courts with additional cases.
Additionally, numerous other courts in similar cases, including this Court, have declined
to find misjoinder. Such other cases include, without limitation, Arista Records LLC v. Does 1-
19, 551 F. Supp. 2d 1 (D.D.C. 2008) (Kollar-Kotelly, C.), Arista Records LLC v. Does 1-16,
Civ. No. 1:08-CV-765 (GTS/RFT), 2009 WL 414060 (N.D.N.Y. Feb. 18, 2009), Sony Music
Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), and the DIRECTV, Inc. cases
cited herein, all of which held that joinder was proper. In fact, in many of the similar music
download cases, the plaintiffs submitted a list of over three hundred court orders that have
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apparently approved joinder in similar cases. See, e.g., Arista Records, LLC v. Does 1-27, 584
F. Supp. 2d at 251.10 Overall, vast prior rulings comport with Plaintiff’s position.
D. THE PRIOR CASES DEALING WITH SIMILAR ALLEGATIONS CITED BY
AMICI ARE SIGNIFICANTLY DISTINGUISHABLE.
The distinction between the technology used by the Doe Defendants in this case and the
technology used by defendants in the prior anonymous copyright infringement cases is
significant. In the prior cases, the defendants utilized an online media distribution system that
allowed them to share an entire file with one other user at a time. Accordingly, in those cases,
the defendants had downloaded and/or distributed a number of different files on separate and
distinct occasions. Here, as shown above, the torrent nature of the file sharing alleged in this
case involves a number of people acting in concert to download and/or distribute one particular
copyrighted work, Plaintiff’s Movie. Therefore, prior court orders finding misjoinder in those
cases are not persuasive, as the technology has significantly altered the way the Doe Defendants
are infringing Plaintiff’s Movie.
For example, Amici’s reliance on BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004
WL 953888 (E.D. Pa. Apr. 2, 2004) is unpersuasive. First, the analysis in that case was quite
sparse and unclear. The predominate reasoning for the court’s conclusion of improper joinder
seemed to be its finding that “[e]ach claim involves different property, facts, and
defenses.…[g]iven this panoply of facts, law, and defenses…[j]oinder is improper.” The court
seemed to conclude that the allegations did not satisfy the second prong of Rule 20(a)(2) and

10
Plaintiff acknowledges that the use of this list has been criticized by at least two courts. See
Arista Records, LLC v. Does 1-11, No. 1:07-CV-2828, 2008 WL 4823160, at *6 fn. 7 (N.D.
Ohio Nov. 3, 2008); Fonovisa, Inc. v. Does 1-9, Civil Action No. 07-1515, 2008 WL 919701, at
*5 fn. 10 (W.D. Pa. Apr. 3, 2008).
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lacked the requirement of “any question of law or fact common to all defendants will arise in the
action.” Rule 20(a)(2)(B) (emphasis added).11 However, the court never considered the initial
common question of law of whether all defendants infringed the plaintiffs’ copyrights or the
initial common question of fact of whether all defendants used a file sharing service over the
internet. Either of these questions was common to all defendants and would seem to satisfy the
requirement of any common question of law or fact.
Further, Amici have conveniently failed to include the part of that court’s analysis that
provides a clear factual distinction to this case. There, the court found that each claim of
copyright infringement involved separate and distinct copyrights held by multiple plaintiffs:
John Doe 104, for example, is alleged to have infringed nine works held by five
Plaintiffs. John Doe 113 is alleged to have infringed ten works owned by a
different (sometimes overlapping) group of Plaintiffs, with only one copyright
identical to John Doe 104 (“Guilty Conscience,” by the popular rap lyricist
Eminem). John Doe 199, meanwhile, is alleged to have infringed seven works,
none of them the same as John Doe 58. Plaintiffs’ Complaint, Exh. A. In other
words, in addition to the individual acts of infringement encompassing separate
transactions and occurrences, the actual property at issue is different for each
Defendant.
BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888 at *1.
Here, the allegations relate to the infringement of only one copyright held by only one
plaintiff. Accordingly, a question of law and fact is common to all Doe Defendants – whether
each Doe Defendant did unlawfully copy and/or distribute Plaintiff’s Movie. Amici summarily
dismiss the distinction that the allegations in this case involve the infringement of a single movie.
[See Doc. No. 13 (Motion to File Amici Curiae Brief) at p. 24] However, Amici’s argument
again fails to address the actual requirements under Rule 20(a)(2).

11
Amici’s paraphrasing of Rule 20 again misleads as to the actual requirements of the rule. Rule
20(a)(2)(B) on requires “any question of law or fact common to all defendants will arise in the
action,” not that “there must be a common question of fact or law common to all the defendants.”
Compare Rule 20(a)(2)(B) with Memorandum of Amici Curiae (Doc. No. 13 at p. 22).
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The fact that this case involves only one copyrighted work tends to show that the actions
of all Doe Defendants arise from the same series of transactions or occurrences. Further, the fact
that this case involves only one copyrighted work, by definition, means that a question of fact or
law will be common as to all Doe Defendants. Again, to satisfy the requirement that a question
of law or fact common to all defendants will arise in the action, Plaintiff need to only allege that
any question of law or fact is common to all Doe Defendants. Plaintiff has done that by alleging
the same legal cause of action against each Doe Defendant and that each Doe Defendant has used
an online media distribution system to infringe the exact same work – Plaintiff’s copyrighted
Movie. [See Doc. No. 1 (Complaint) at ¶ 12]
Amici attempt to emphasize the language in BMG Music v. Does 1-203 that focused on
the different defenses possible among the doe defendants in that case. However, just because
certain Doe Defendants might present different defenses, and just because some facts related to
the Doe Defendants might be different, does not defeat Plaintiff’s initial showing under this
second prong of Rule 20(a)(2). If a plaintiff had to show that every single fact and legal
argument was the same for every defendant in a case, joinder of defendants could never exist.
There will always be some level of different facts or legal theories amongst co-defendants, even
where their liabilities arise out of the same transaction or series of transactions. That is precisely
why the second prong of Rule 20(a)(2) only requires that any question of law or fact be common
to all Doe Defendants.
Overall, Amici are attempting to mislead the Court by combining the two distinct
requirements under Rule 20(a)(2). Because the court’s basis for concluding that there was
misjoinder in BMG Music v. Does 1-203 was the “panoply” of facts that significantly differ from
this case, this Court should not be persuaded by the two paragraph analysis of that decision.
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Amici’s reliance on the other rulings and orders cited, many of which are unpublished or not
reported in the federal register, are similarly unpersuasive. Those rulings and orders do not
address the specific requirements under Rule 20(a) and do not state the factual and procedural
circumstances factoring into each court’s decision.
Lastly, while Amici have gone to great lengths to cite and include opinions and orders
favorable to their arguments, they mislead the court into thinking that this is universally “how
courts around the nation have handled issues of jurisdiction, joinder and free speech rights in
analogous cases.” [See Doc. No. 13-1 (Request for Judicial Notice) at p. 3] However, even in
some of the examples provided by Amici, various courts have declined to sever similar cases or
find misjoinder. For example, even within Amici’s own offered order, in the In the Matter of
DIRECTV, INC. cases, the court recognized that other districts around the country actually came
to the exact opposite conclusion in nearly identical cases – declining to order severance. [See
Doc. No. 13-1 (Request for Judicial Notice) at Ex. B]
That court cited DIRECTV, Inc. v. Russomanno, No. 03-2475, 2003 U.S. Dist. LEXIS
23403, at *14 (D.N.J. Nov. 12, 2003) (finding it difficult at an early stage in the litigation to
conduct an analysis to determine whether the claims against defendants involve the same factual
issues or arise out of the same transactions or series of transactions: “without some discovery
and the development of a substantive factual record, defendants cannot yet demonstrate the
propriety of severing the claims and instituting separate actions against each of them.”);
DIRECTV, Inc. v. Hosey, 289 F. Supp. 2d 1259, 1262 (D. Kan. 2003) (declining to sever the
claims because it was “not prepared to hold that the claims in this case did not arise out of the
same transaction, occurrence, or series of transactions or occurrences.”); DIRECTV. Inc. v.
Essex, No. C02-5503RJB, 2002 U.S. Dist. LEXIS 26923, at *4 (W.D. Wash. Nov. 13, 2002)
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(declining to sever claims because defendants “purchased and used Pirate Access Devices ...
from the same distribution center in Santa Ana, California” and the alleged purchases fell
“within a twelve-month time frame, from June 2000 through May 2001.”). Further, as relied on
by Plaintiff above, DIRECTV, Inc. v. Barrett, 220 F.R.D. 630 (D. Kan. 2004) specifically cited
the various other decisions in the DIRECTV cases, both ordering and declining severance, and
ultimately decided against severance.12
Overall, the opinions and orders in prior, similar cases provided by Amici are by no
means controlling and simply are not even persuasive, as most of them provided no analysis or
reasoning for the various courts’ decisions.13 At best, the various rulings are in conflict and
highlight the fact that a determination must be made with each court’s discretion on a case-by-
case basis. Accordingly, because of the conflicting prior opinions and orders, and given the
significantly different nature of the alleged infringement in this case, the court should decline
such a drastic measure of severing or dropping any Doe Defendants at this stage of the case.

12
While Amici do “recognize the judicial analysis [in their favor] was not universal,” they only
cite three instances, none of which are the adverse rulings cited in the DIRECTV, Inc. cases.
[See Doc. No. 13 (Motion to File Amici Curiae Brief) at p. 23]

13
Plaintiff notes that in one similar case, the Northern District Court of Ohio stated that “it
appears that the majority of district courts who have addressed the issue of joinder and were
faced with the same allegations to connect doe defendants in other music downloading lawsuits
have concluded that those allegations were insufficient to satisfy the transactional requirement of
Fed.R.Civ.P. 20(a)(2) and that joinder was therefore improper.” Arista Records LLC v. Does 1-
11, No. 1:07-CV-2828, 2008 WL 4823160, *6 (N.D. Ohio Nov. 3, 2008). However, it is
interesting to note that the court then cites to the magistrate judge’s recommendation in the
Arista Records LLC v. Does 1-27 District Court of Maine case [No. 07-162-B-W, 2008 WL
222283, at *6 n.5 (D. Me. Jan. 25, 2008)], even though District Court Judge John A. Woodcock,
Jr.’s opinion declining to adopt that recommendation was issued the week prior (October 29,
2008). See generally Arista Records, LLC v. Does 1-27, 584 F. Supp. 2d 240 (D. Me. 2008).
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E. ANY ACTION TAKEN PURSUANT TO RULES 20 OR 21 WOULD BE
PREMATURE.
Here, the Court has already determined that Plaintiff has met its threshold burden to
obtain further information about the Doe Defendants by identifying the Doe Defendants with
sufficient specificity and showing that Plaintiff’s suit can withstand a motion to dismiss. [See
generally Doc. Nos. 3 (Plaintiff’s motion for expedited discovery), 4 (this Court’s order granting
discovery)] As more fully set out in Plaintiff’s Motion for Leave to Take Discovery Prior to the
Rule 26(f) Conference [Doc. No. 3], Plaintiff identified the unique IP address for each
Defendant, along with the date and time of alleged infringement and ISP that provided Internet
access to each Defendant and assigned the unique IP address to the Defendant, from information
provided to it by Plaintiff’s on-line piracy technology consultant, Guardaley, Limited
(“Guardaley”). This information was obtained by Guardaley’s proprietary tracing software
program to trace the IP address for each Defendant, as detailed in the declarations of Benjamin
Perino and Patrick Achache. However, Plaintiff is unable to obtain the true identity of the Doe
Defendants without issuing subpoenas to the non-party ISPs, and the Defendants must be
identified before this suit can progress further. Therefore, Plaintiff has already demonstrated
good cause for the requested information.
Further, Plaintiff has made a prima facie evidentiary showing that the IP addresses it has
identified and subpoenaed to various ISPs did make an unlawful download of Plaintiff’s Movie
on a specific date and time. Again, Plaintiff utilized proprietary technology developed and
instituted by Guardaley that detects the unauthorized distribution of movies and other
audiovisual content and files over online media distribution systems. See Achache Declaration
(filed as Exhibit B to Plaintiff’s Motion for Leave to Take Discovery [Doc. No. 3]) ¶ 4.
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Accordingly, Defendants’ IP addresses at the time of the alleged infringement were included in
this case because they were copying and offering files containing Plaintiff’s Movie for unlawful
transfer or distribution. See id. at ¶ 8. In fact, Guardaley actually downloaded Plaintiff’s Movie
from the IP address assigned to these Defendants, just as it does with all Doe Defendants. See id.
at ¶ 9. Lastly, Guardaley confirmed that the files that Defendants distributed were actually
Plaintiff’s Movie by watching both and comparing them. Id. at ¶¶ 16-17.
Therefore, Plaintiff has already demonstrated good cause for the subpoenas and has
established a prima facie case against each and every Doe Defendant. Therein, the court should
not have any reservations that Plaintiff’s claims lack merit and should allow Plaintiff at least the
opportunity to conduct discovery.
While Plaintiff has served subpoenas on the non-party ISPs, Plaintiff has not yet received
information from all of the ISPs. Further, Plaintiff has sent correspondence to the Doe
Defendants already identified by some of the ISPs in an attempt to either settle with those Doe
Defendants before naming and serving them or further ascertaining the merits of Plaintiff’s case
against those certain Doe Defendants, as required by such rules as Fed. R. Civ. P. 11.
Accordingly, justice requires that Plaintiff be permitted to finish the discovery already
started. First, Plaintiff has not yet received all of the identifying information for all Doe
Defendants. Second, Plaintiff has not yet been able to ascertain the merits of its claims against
all Doe Defendants so as to ensure Plaintiff does not prosecute frivolous claims. Therefore, it is
premature for the court to determine whether joinder of the Doe Defendants is proper at this
stage of the case. See Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1 (D.D.C. 2008)
(Kollar-Kotelly, C.) (“While the Court notes that the remedy for improper joinder is severance
and not dismissal, … the Court also finds that this inquiry is premature without first knowing
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Defendants’ identities and the actual facts and circumstances associated with Defendants’
conduct.”).
At the very least, the court should not “drop” any defendant, as that would not be just.14
As stated in Plaintiff’s motion for expedited discovery, because of the relatively short timeframe
in which the ISPs retain the information sought by Plaintiff—i.e., the IP addresses and
corresponding customer identifying information of the Doe Defendants—Plaintiff’s claims will
be severely prejudiced if all but one of the Doe Defendants are dropped from the case. Even
though Plaintiff may be able to re-file against those Doe Defendants, Plaintiff may lose its
opportunity to pursue its claims because the information may not be properly preserved by the
ISPs.
Further, contrary to the claims of Amici, the Doe Defendants have not been prejudiced by
being joined in one lawsuit. Amici generally argue that instituting this suit against all Doe
Defendants somehow creates unfairness and denies each individual Doe Defendant justice.15
Amici seem to argue that instituting this case against all Doe Defendants in this jurisdiction
creates additional burden and expense on the Doe Defendants not located in this jurisdiction.
However, Amici fail to show how, at this point of the litigation, defending the case here differs at

14
This court’s minute order to show cause required Plaintiff to show cause why all the Doe
Defendants except for Doe 1 should not be “dismissed for misjoinder.” [June 7, 2010 Minute
Order.] Plaintiff understands this to mean that the court would sua sponte “drop” all Doe
Defendants except Doe 1 if it finds misjoinder. However, even when it appears parties have
been misjoined, the more appropriate remedy is severance, as opposed to “dropping” a party.
See, e.g., Androphy v. Smith & Nephew, Inc., 31 F. Supp. 2d 620, 623 (N.D. Ill. 1998) (stating
that severance is appropriate, not dismissal, where multiple defendants were alleged to have
infringed the same patents, creating a common question of law or fact).

15
Again, Amici also claim that the court lacks personal jurisdiction over the Doe Defendants
and that the Doe Defendants’ First Amendment and due process rights have been violated.
However, the court should not give any credence to these arguments, as they have already been
firmly rejected by other courts. See, e.g., Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d
at 562-568.
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all from defending the case in the Doe Defendants’ home jurisdiction. Further, Amici fail to
show how, at this point of the litigation, an individual Doe Defendant is being treated unfairly or
is being deprived of his or her individual rights just because that Doe Defendant is grouped with
other Doe Defendants.
On the other hand, Amici fail to acknowledge the benefits of giving all Doe Defendants
the ability to defend the case in one jurisdiction, e.g. the ability to combine or join other Doe
Defendants’ filings and the ability to receive uniform decisions by the Court. Overall, as stated
in DIRECTV, Inc. v. Barrett, “[a]t this stage of the litigation, the court cannot conclude that any
prejudice to the defendants will outweigh the judicial economy of joinder of claims. To the
contrary, the defendants may ultimately benefit from leaving the claims joined; the fewer cases
DIRECTV is managing, the better DIRECTV can control its costs--costs which potentially could
be borne by the defendants.” 220 F.R.D. at 632.16
V. CONCLUSION
As shown throughout this case, including Plaintiff’s pleadings, motion for expedited
discovery, and this statement, the nature of the “torrent” file sharing alleged by Plaintiff in this
case permits Plaintiff to join all Doe Defendants in the case at this time. As alleged, all Doe
Defendants have engaged in the same series of transactions to infringe on Plaintiff’s copyright,
and common questions of law and fact will arise in this case. Additionally, because Plaintiff has
not yet learned the identities of all Doe Defendants in this case, any severance under Rule 20 is

16
Plaintiff cannot imagine that the court truly wants Plaintiff to file over 2,000 separate cases
related to Plaintiff’s one work. As stated in Arista Records, LLC v. Does 1-27, that would result
in an “alternative that does not exactly resonate with practicality.” 584 F. Supp. 2d at 251.
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premature at this time. Overall, justice requires that Plaintiff be permitted to proceed with its
case as styled.
WEST BAY ONE, INC.
DATED: June 21, 2010
By: /s/ Thomas Dunlap

Telephone: 202-316-8558
Facsimile: 202-318-0242
tdunlap@dglegal.com
nkurtz@dglegal.com
Attorneys for the Plaintiff
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WEST BAY ONE, INC., )

)
Plaintiff, )
)
v. ) CA. 1:10-cv-00481-RMC
)
DOES 1 – 2,000 )
)
Defendants. )
_______________________________________)
DECLARATION OF PATRICK ACHACHE IN SUPPORT OF PLAINTIFF’S

STATEMENT OF GOOD CAUSE AS TO WHY DEFENDANTS 2 THROUGH 2,000
SHOULD NOT BE DISMISSED FOR MISJOINDER UNDER RULE 20 OF THE
FEDERAL RULES OF CIVIL PROCEDURE
I, Patrick Achache, declare:
1. I am Director of Data Services for Guardaley, Limited (“Guardaley”), a company
incorporated in England and Wales under company number 06576149. Guardaley is a provider
of online anti-piracy services for the motion picture industry. Before my employment with
Guardaley, I held various software developer and consultant positions at companies that
developed software technologies.
2. The manner of the illegal transfer of Plaintiff’s movie by Doe Defendants in this case
has been through a “BitTorrent protocol” (or “torrent”), which is significantly different in its
architecture than the older peer-to-peer (P2P) network protocols used by such networks as
Napster, Grokster, Kazaa, Limewire, and Gnutella.
3. One difference in the services is how they locate and trade bits of the files. Napster,
Grokster, Kazaa, Limewire, Gnutella, etc. are file sharing networks. Through a series of nodes,
infringers are interconnected to a variety of people sharing a variety of files. Most of the time
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they send out a search request along the network and people who have files that meet the search
criteria answer back that they have it. Then an individual will pick one of the search results and
start getting bits of the file from that particular person who has some available bandwidth for
transferring of the file.
4. BitTorrent, on the other hand is file-focused. Someone who has a copy of the file
creates a tracker and makes it available. Rather than finding that tracker by sending out search
requests along a file sharing network, infringers find it on web sites, via recommendations in
chat rooms, in links posted to mailing lists, etc. Then everyone interested in sharing that specific
file (either providing a copy they already downloaded or getting a copy) can use the tracker to
essentially create a network dedicated to sharing just that specific file.
5. The primary characteristic of BitTorrent is the notion of torrent, which defines a
session of transferring a single file to a set of peers. Peers involved in a torrent cooperate to
replicate the file among each other using swarming techniques. A user joins an existing torrent
by downloading a “.torrent” file and adding it to its client. This file contains meta-information
on the file to be downloaded, e.g., the number of pieces, the SHA-1 hash values of each piece,
and the IP address of the so-called tracker of the torrent. The tracker is the only centralized
component of BitTorrent, but it is not involved in the actual distribution of the file. It only keeps
track of the peers currently involved in the torrent and collects statistics on the torrent. When
joining a torrent, a new peer asks the tracker for a list of IP addresses of peers to connect to and
cooperate with, typically 50 peers chosen at random in the list of peers currently involved in the
torrent. This set of peers forms the peer set of the new peer. The group of peers will share the
file among each other. Each peer knows what pieces each other peer in its peer set has, and each
peer helps the other to fulfill the completion of the file.
2
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6. If a file is observed directly after its release, the network size increases from a few
users to the maximum amount in which all users are potential uploaders for the respective file.
Within a small network, and depending on the upload bandwith of each user and the size of the
file shared, the plausibility that each user downloaded a part from each other is very high. For
example, on the August 5, 2009 Guardaley found the following IP addresses sharing the same
file with the same hash, same name, same file size, and operating over the same ISP (Comcast
Cable) with not more than ten hours between them:
67.183.31.xx 8.5.09 12:33:04 AM BEVLPMMW2KVV4MJGHYHTBGOLNDSGN7EO

76.122.65.xx 8.5.09 02:06:40 PM BEVLPMMW2KVV4MJGHYHTBGOLNDSGN7EO
All those infringers only had one specific file in connection:
The Chaos Experiment (2009)DVDRip(Xvid)AC3 5.1(Eng)-RoCK&BlueLadyRG.avi file
size 1220.93 in MB.
On August, 18, 2009 Guardaley found additional collaborating IP addresses:

Seeing the whole structure of the infringers from other ISPs sharing the same file with the same
hash value, it indicates that all of those individuals must have searched for this file on a website
like isohunt, mininova, the pirate bay, etc., and they all chose the same file:
The Chaos Experiment (2009)DVDRip(Xvid)AC3 5.1(Eng)-RoCK&BlueLadyRG.avi. , file
size 1220.93 in MB.
3
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7. Overall, there are a limited number of files of Plaintiff’s movie available on
BitTorrent protocols. The data already obtained by Guardaley could be completely analyzed by
an external expert, but such analysis would take at least 10 to 14 business days.
I declare under penalty of perjury under the laws of the United States that the foregoing is true
and correct.
Executed on June 21, 2010 at the United States of America.
Patrick Achache

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Case 1:10-cv-00455-BAH Document 19 Filed 01/13/11 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE

CALL OF THE WILD MOVIE, LLC )

PLAINTIFF’S OPPOSITION TO MEMORANDUM OF AMICI CURIAE [DOC. NO. 18]

regular course of business.

Thereafter, Plaintiff served subpoenas on the non-party ISPs.

justify quashing any subpoena or any other action by the Court.

were at the same juncture this case is now.

front of Judge Collyer. Attached as Exhibit 1 hereto is Plaintiff’s previously submitted

holding that such a determination was premature).4

of privacy in downloading and distributing copyrighted songs without permission”); Arista

infringement and irreparable harm in this case.

CALL OF THE WILD MOVIE, LLC

UNITED STATES DISTRICT COURT FOR THE

CALL OF THE WILD MOVIE, LLC )

PLAINTIFF’S OPPOSITION TO MOTIONS TO QUASH/MOTIONS TO DISMISS

II. ARGUMENT ..............................................................................................................................2

A. STANDARDS ON MOTIONS TO QUASH..................................................................2

B. PLAINTIFF HAS ALREADY SHOWN GOOD CAUSE TO OBTAIN DISCOVERY

AND HAS MADE A PRIMA FACIE SHOWING THAT DEFENDANTS DID

INFRINGE PLAINTIFF’S COPYRIGHTS ........................................................................4

C. DOE DEFENDANTS’ ARGUMENTS ARE MISPLACED..........................................6

1. Quashing the subpoena or dismissing a particular Doe Defendant based on personal

jurisdiction grounds would be premature ......................................................................6

inappropriate on a motion to quash..............................................................................14

of the proceedings ........................................................................................................15

D. DOE DEFENDANTS HAVE NOT SHOWN THAT THE INFORMATION

REQUESTED IS PRIVILEGED OR CONFIDENTIAL ..................................................16

Covad Commun’ns Co. v. Revonet, Inc., No. 09-MC-102, 2009 WL 3739278

(D.S.D. Nov. 4, 2009) ..........................................................................................................3

Fonovisa, Inc. v. Does 1-9, 2008 WL 919701 (W.D.Pa.)................................................................4

Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) ..................................................................................17

Jazini v. Nissan Motor Co., 148 F.3d 181 (2d Cir.1998)...............................................................12

Johnson v. Gmeinder, 191 F.R.D. 638 (D.Kan.2000) .....................................................................3

Thomas v. Marina Assocs., 202 F.R.D. 433 (E.D.Pa.2001) ............................................................3

U.S. v. Hambrick, 55 F.Supp.2d 504 (W.D. Va. 1999) .................................................................17

U.S. v. Int’l Bus. Mach. Corp., 83 F.R.D. 97 (S.D.N.Y. 1979).......................................................4

Washington v. Thurgood Marshall Academy, 230 F.R.D. 18 (D.D.C. 2005) .................................3

Windsor v. Martindale, 175 F.R.D. 665 (D.Colo.1997) ..................................................................3

Fed. R. Civ. P., Rule 4 ................................................................................................................. 8-9

Fed. R. Civ. P., Rule 5 .....................................................................................................................9

Fed. R. Civ. P., Rule 12 ...................................................................................................................9

Fed. R. Civ. P., Rule 17 ...................................................................................................................9

Fed. R. Civ. P., Rule 26 ...................................................................................................................2

Fed. R. Civ. P., Rule 41 .................................................................................................................11

Fed. R. Civ. P., Rule 45 ...................................................................................................................2

MEMORANDUM OF POINTS AND AUTHORITIES

regular course of business.

Thereafter, Plaintiff served subpoenas on the non-party ISPs.

motions be denied in their entirety.

improper at this stage of the proceedings.

A. STANDARDS ON MOTIONS TO QUASH

from annoyance, embarrassment, oppression, or undue burden or expense.” Rule 45(c)(3)

or other protected matter, if no exception or waiver applies, or if it subjects a person to undue

grounds that it requires disclosure of information “privileged at common law or by statute or

Additionally, on a motion to quash a subpoena, the merits of a defendant’s defenses are

B. PLAINTIFF HAS ALREADY SHOWN GOOD CAUSE TO OBTAIN DISCOVERY

AND HAS MADE A PRIMA FACIE SHOWING THAT DEFENDANTS DID

INFRINGE PLAINTIFF’S COPYRIGHTS.

Plaintiff’s Movie by watching both and comparing them. Id. at ¶¶ 16-17.

C. DOE DEFENDANTS’ ARGUMENTS ARE MISPLACED.

1. Quashing the subpoena or dismissing a particular Doe Defendant based on