Improper Joinder of Doe Cases

From the Bloomberg IP Report, Vol.2, No. 2, p. 8-9 (Jan. 12, 2009)

District of Connecticut Finds Record Companies Improperly Joined Doe Defendants in Two Closely Related Peer-to-Peer File Sharing Cases

Synopsis: In two closely related actions, the U.S. District Court for the District of Connecticut determined that plaintiff record companies improperly joined doe defendants in copyright
infringement suits involving peer-to-peer file sharing. The court also held, however, that the record labels could immediately serve subpoenas on the Internet Service Providers (ISPs) to
determine the doe defendants’ identities.

Analysis of: Arista Records, LLC v. Does 1-4, No. 08-CV-01280, 2008 BL 273554 (D. Conn. Dec. 9, 2008); and Interscope Records v. Does 1-6, No. 08-CV-01284, 2008 BL 273554 (D. Conn. Dec. 9, 2008).

Improper Joinder of Does in RIAA/P2P Litigation

Arista Records, LLC v. Does 1-11, No. 07-CV-02828, 2008 BL 253292 (N.D. Ohio Nov. 3, 2008).

Summary: Northern District of Ohio Finds Record Companies Improperly Joined Doe Defendants in Peer-to-Peer File Sharing Case

Diverging in opinion from its Southern District counterpart, the U.S. District Court for the Northern District of Ohio held that the Doe defendants in a music industry file sharing case
were improperly joined. The court reasoned that despite arguments and holdings to the contrary, addressing the issue of joinder was both legally and practically appropriate prior to
the identification of the Doe defendants, and that efficiency concerns should not supersede the requirements of the Federal Rules of Civil Procedure. Thus, the court converted defendant Doe 9’s motion to dismiss for improper joinder into a motion for severance and severed all of
Doe defendants, save Doe #1, from the current action.

Bloomberg law report.

Doe No Mo'

A big day at the races for the RIAA, who have veered from their practice of filing copyright infringement suits against John Doe defendants by filing complaints against...wait for it... ACTUAL NAMED PLAINTIFFS!

A look inside the RIAA's allegations:

A third-party investigator retained by Plaintiffs, MediaSentry, Inc., identified an individual, later determined to be Defendant, using LimeWire on the P2P network Gnutella at IP address [] on [date] at [time] EDT distributing [number] audio files over the Internet. The Defendant was identified as the individual responsible for that IP address at that date and time.

After learning [Named Defendant]'s identity, Plaintiffs’ national counsel sent [Named Defendant] a letter advising her that copyright infringement had been detected and providing a telephone number and e-mail address that could be used to contact Plaintiffs’ representatives to try to resolve the matter before the commencement of litigation.

The parties were unable to resolve the matter, and Plaintiffs are therefore filing their Complaint against Defendant for copyright infringement.

What a breath of fresh air!

[See, e.g., Zomba Recording, LLC v. Cancino, No. 2:08-cv-00074 (S.D.Tex. complaint filed Mar. 12, 2008). As of this posting, OTCS counted no-less than 33 complaints filed in various federal courts by the RIAA against named defendants on March 11-12, 2008].

RIAA Responds to California Joinder Ruling

In response to a California federal judge rejecting joinder of John Does 2-5 in a P2P suit filed by the RIAA, the RIAA has simply increased the number ofcases it files in California.

In the California Central District, for example, there were 19 cases filed on February 21, 2008 by the RIAA against individual Does, each numbered "1" through "19" in the caption.

Judicial economy?

[In no particular order...

John Doe # 16Case Number: 2:2008cv01181
John Doe # 4Case Number: 2:2008cv01157
John Doe # 14Case Number: 2:2008cv01172
John Doe # 18Case Number: 2:2008cv01190
John Doe # 7Case Number: 2:2008cv01160
John Doe # 2Case Number: 2:2008cv01155
John Doe # 17Case Number: 2:2008cv01182
John Doe # 11Case Number: 2:2008cv01166
John Doe # 19Case Number: 2:2008cv01192
John Doe # 13Case Number: 2:2008cv01170
John Doe # 8Case Number: 2:2008cv01163
John Doe # 9Case Number: 2:2008cv01164
John Doe # 1Case Number: 2:2008cv01154
John Doe # 10Case Number: 2:2008cv01165
John Doe # 5Case Number: 2:2008cv01158
Doe # 6Case Number: 2:2008cv01159
John Doe # 15Case Number: 2:2008cv01180
John DoeCase Number: 2:2008cv01156
John Doe # 12Case Number: 2:2008cv01168]

9 More DOE(s) Suits Filed by RIAA

OTCS woke up this morning with the Barenaked Ladies song "It's All Be Done" stuck in its head. Must have been a sign...

OTCS found the following nine cookie-cutter cases filed yesterday in various federal courts alleging on-line copyright infringement by unknown John Does accompanied by requests for leave to take immediate discovery.

Zomba Recording LLC et al v. Doe No 1 et al; M.D.Ala; case no. 3:2008cv00126; filed 02/21/2008.
UMG Recordings, Inc. et al v. Doe; N.D. Ala.; case no. 7:2008cv00310; filed 02/21/2008.
LaFace Records LLC et al v. Does 1-14; D.Ariz; case no. 2:2008cv00335; filed 02/21/2008.
Arista Records LLC, et al v. Doe; N.D.Cal; case no. 3:2008cv01041; filed 02/21/2008.
Artista Records LLC et al v. Doe #1 et al; M.D.Ga.; case no. 3:2008cv00018; filed 02/21/2008.
Arista Records LLC et al v. Does 1-3; N.D.Ill.; case no. 1:2008cv01066; filed 02/21/2008.
ARISTA RECORDS LLC et al v. DOES 1-18; S.D.Ind; case no. 2:2008cv00065; filed 02/21/2008.
Zomba Recording LLC et al v. DOES 1-15; E.D.Ky; case no. 0:2008cv00031; filed 02/21/2008.
Atlantic Recording Corporation et al v. Does; E.D.Mich; case no. 1:2008cv10728; filed 02/21/2008.

[Please verify accuracy of each case.]

Joinder in DOE Suits

A California federal judge rejected joinder of John Does 2-5 in a P2P suit filed by the multiple record labels. See Rules 20 and 21 of the Federal Rules of Civil Procedure. In its order denying plaintiff's motion for reconsideration, the court cited authority for its holding:
...numerous courts have held the opposite: that joinder of defendants who allegedly downloaded music using the same ISP and the same file-sharing program is improper. See, e.g., Interscope Records v. Doe, No. 04-0197 (M.D. Fla. Apr. 1, 2004) (severing defendants who used the same ISP and same file-sharing program); see also BMG Music v. Doe, No. 06-CV-1579 (N.D. Cal. July 31, 2006) (severing defendants who used the same ISP); BMG Music v. Doe, No. 04-650 (E.D.Pa. Mar. 5, 2004) (same); Twentieth Century Fox Film Corp. v. Doe, No. C-04-4862 ("[The allegation that defendants used the same ISP] amounts to no more than a claim that ten unrelated defendants engaged in distinct and unrelated conduct.").

Analysis by Recording Industry v. the People here.

[Sony BMG Music Entertainment v. Does 1-5; No. Cv-07 2434-SJO (C.D.Cal denying plaintiff's motion for reconsideration entered Sep. 4, 2007) (Docket No. 9)]

Is the Shelf-Life of the DOE-Cases About to Expire?

Another cookie-cutter complaint, application and memorandum of law identical to dozens of DOE cases filed in the past month was filed this week in the District of D.C. (...yawn...).

[Capitol Records, Inc. et al. v. Does 1-9; filed 2/06/08 in D.D.C.; case no. 1:08-cv-00210-RMU]

However, with the RIAA receiving pressure from DOES, and the Electronic Frontier Foundation being granted leave to file an amicus brief in other cases, how much future does these form pleadings & motions have?

Similarly damaging to the RIAA's DOE cases is that they appear to be using an unlicensed private investigator, MediaSentry, to investigate unauthorized file-sharing and determine P2P user's ISPs. The legality of MediaSentry's actions, and the admissibility of any evidence obtained by them, is questionable, as recently recognized by the Hon. Judge Castel in the SDNY. (See e.g., N.Y. Gen. Business Law secs. 70, 71, and 83.)

Electronic Frontier Weighs in on Ex Parte Discovery of Does

The Electronic Frontier Foundation filed an amicus brief in the Arista v. Does 1-21 case against Boston University Students, attacking the RIAA's ex parte discovery application, both on evidentiary and legal grounds. Read it here.

***UPDATE: the RIAA's opposition to the EFF's motion for leave to file an amicus is available here.

DOES Anyone Care?

More. Copyright. Infringement. Actions. Various. Federal Courts.

IP Addresses. John Does. Major Labels.

Some (but not all): Ex parte. Discovery. College ISPs.

Who is Carlos Linares, upon whose application the ex parte applications for expedited discovery are based?

[Atlantic Recording Corporation et al v. Does 1-2; filed 1/31/08 in Calif. Southern District; case no. 3:2008cv00190.
Arista Records LLC et al v. Does 1 - 4; filed 1/31/08 in Georgia Northern District; case no. 1:2008cv00358.
BMG Music et al v. Does 1-19; filed 1/31/08 in Kentucky Western District; case no. 3:2008cv00070.
LaFace Records L L C et al v. Does; filed 1/31/ 08 in Louis. Western District; case no. 3:2008cv00137.
Arista Records LLC et al v. Does 1 - 3; filed 2/1/08 in Missouri Eastern District; case no. 4:2008cv00160.
BMG Music et al v. Does 1-6; filed 1/31/08 in Mississippi Northern District; case no. 1:2008cv000231.
CAPITOL RECORDS, INC. et al v. DOE # 1 et al; filed 2/1/08 in North Carolina Middle District; case no. 1:2008cv0008.
ZOMBA RECORDING LLC et al v. DOES 1-26; filed 2/1/08 in New Jersey, case no. 3:2008cv00566.
Zoomba Recording LLC et al v. Does 1-8; filed 1/31/08 in Ohio Southern District; case no. 3:2008cv00030.]

I Went to College - And Got Sued by the RIAA!

Another day at the races for the major labels, who yesterday (1/30) filed no less than 7 copyright infringement cases against "John Doe" defendants in various federal district courts.

Here's a highlight from Warner Bros. Records, Inc. v. Does 1-4 (1:08-cv-00120-RLY-TAB; filed 1/30/08 in the Southern District of Indiana):

"The true names and capacities of Defendants are unknown to Plaintiffs at this time. Each Defendant is known to Plaintiffs only by the Internet Protocol ("IP") address assigned to that Defendant by his or her ISP on the date and time of that Defendant's infringing activity...Plaintiffs believe that information obtained in discovery will lead to the identification of each Defendant's true name."


"Although Plaintiffs do not know the true names of Defendants, each Defendant is alleged to have committed violations of the same law (e.g., copyright law), by committing the same acts (e.g., the downloading and distribution of copyright sound recordings owned by Plaintiffs), and by using the same means (e.g., a file-sharing network) that each Defendant accessed via the same ISP. Accordingly, Plaintiffs' right to relief arises out of the same series of transactions or occurrences, and there are questions of law or fact common to all Defendants such that joinder is warranted and appropriate here."

Several queries: first, can plaintiffs allege facts as mere "e.g."s? Their description of the infringing acts is beyond general and vague! Second, when you have 15 or more plaintiffs, how much damages does each actually get? The sheer number of plaintiffs indicates that these suits are meant as a deterrent to on-line infringement, rather than as a means to redress actual injury.

But, the fun doesn't stop. Plaintiffs in the above case also filed an ex parte motion for leave to take immediate discovery on a third party ISP to determine the true identies of the Doe defendants.

"Plaintiffs intend to serve a [Federal Rule of Civil Procedure] Rule 45 subpoena on the ISP seeking documents that identify each Defendant's true name, current (and permanent) addresses and telephone numbers, e-mail addresses, and Media Access Control ("MAC") addresses. Without this information, Plaintiffs cannot identify the Doe Defendants or pursue their lawsuit to protect their copyrighted works from repeated infringement."

A glance at the attached "proposed order" shows that the ISP is Indiana University-Purdue IU students, look out!

Also filed with the motion was a brief and affidavit, with attached exhibits of similar orders granted in other district courts. (S.D. Ind.; W.D.Wis.; N.D. Ill; N.D. Ind.; E.D. Wis; C.D. Ill.)

Faithful readers of OTCS, you guessed it. Virtually identical complaints, ex parte motions (and affidavits from the same individual, Carlos Linares) were filed in the other Doe cases: Elektra Enter. Group Inc. v. Does 1-11, (1:-08-cv-10140-NG; filed 1/30/08; D.Mass); Arista Records LLC v. Does 1-3 (1:08-cv-10139-NG; filed 1/30/08); Atlantic Recording Corp. v. Does 1-14 (1:08-cv-00028-JAW; filed 1/30/08; D.Maine); Arista Records LLC v. Does 1-36 (0:08-cv-00278-DWF-AJB; filed 1/30/08; D.Minn - 2d Div.); Arista Records LLC v. Does 1-5; 3:08-cv-00523-GEB-TJB; filed 1/30/08; order granting ex parte discovery on Princeton University 1/30/08; D.N.J); and Arista Records LLC v. Does 1-10 (5:08-cv-00108-NPM-GJD; filed 1/30/08; N.D.N.Y.; proposed order indicates discovery sought on Ithaca College).

I wonder how the clerks of each of the above courts would feel knowing plaintiffs are filing form-complaints and motions with the court? Are the district courts a processing center for the RIAA?

A Flurry of John Doe Suits

The past two days saw a "flurry" of law suits filed by major labels in Federal District Court: no less than 17 copyright infringement cases were filed against John Doe defendants and IP-addresses by, collectively -- Zomba, Atlantic, Capitol, Sony BMG, MoTown, Warner Bros. Records, Elektra, UMG, Maverick, and Arista.

Additionally, several suits were filed against actual named defendants - whom were identified by 3rd party investigators for using P2P networks at the defendant's IP-address. (e.g. case no
Notably, many of the cases were filed in the Eastern District of Pennsylvania, with the labels (for the most part...) represented by the SAME attorney: Jennifer K. Welsh. Talk about a pay-day! Other courts include New Hampshire, Nebraska, North Carolina, Massachusetts, and Tennessee.
Is there some sort of quota the labels fill before the end of the year?

[UNVERIFIED Case nos.: 1:2007cv00972; 4:2007cv03278; 1:2007cv00416; 5:2007cv03883; 2:2007cv05463; 2:2007cv05464; 2:2007cv05457; 2:2007cv05461; 2:2007cv05467; 2:2007cv05458; 2:2007cv05459; 2:2007cv05456; 2:2007cv05460; 2:2007cv05462; 2:2007cv05465; 2:2007cv05466; 1:2007cv00479; 3:2007cv00481; 6:2007cv00569; 4:2007cv04525; 4:2007cv04527; 4:2007cv04528. ***OTCS did not verify all case numbers; Check case files and citations before citing***]

My My, Hey Hey

My my, hey hey...what OTCS can miss in ONE DAY!

Arista Records filed 12 - yes, TWELVE - copyright infringement suits in various federal district courts, each against John Doe defendants, between Nov. 27 and Nov. 29, 2007. Presumably, all relate to on-line infringement and the defendants must be identified by their IP addresses.

Additionally, UMG Recordings, Zomba, Sony BMG, and LaFace Records filed John Doe complaints over the same period of time.

OTCS has a full-time job and can't read all the complaints - so who knows what is going on? Anyone? Bueller?

8 "Does" A Week

Be wary, John Does. The Recording Industry is coming after you (at least in western Missouri) for copyright infringement on the web (e.g., "online media distribution system") and hoping to discover your true identity based on your IP address alone. Wasn't it just so much easier to identify people when we had Naptster?

[Elektra Entertainment Group, Inc. et al v. Does 1-8, 4:07-cv-00825-JTM, filed 10/30/2007, W.Missouri]

R(ather) I(nteresting) A(rticle) A(ttached)

The New York Law Journal has an interesting article today about the RIAA chasing student infringers on college campuses. The article examines the University/Student relationship (in terms of privacy), and outlines policy concerns over both (i) the RIAA's actions, and (ii)the willingness of academic institutions to comply with discovery requests issued by the RIAA in John Doe infringement suits.

Also, the author draws a parallel between the RIAA's accusations against students for infringement (in their demand letters) and the Debtor/Creditor relationship. The article examines New York, California, and Federal law governing creditor practices.

[Donald N. David, "Privacy Needs Key Despite Music Piracy on Campuses"]

I'm Talking to the Man in the Mirror...

A bad day for 30 John Does, alleged to have “continuously used…an online media distribution system to download and/or distribute to the public certain of the Copyrighted Recordings.”

Plaintiff’s have attached a list of ISP addresses to help identify defendants, but still, could this be any more vague?

Loud Records LLC; Arista Records LLC; Atlantic Recording Corp.; BMG Music; Capitol Records Inc.; Elektra Entertainment Group Inc.; Fonovisa Inc.; Interscope Records; Laface Records LLC; Maverick Recording Co.; Motown Record Co. LP; Priority Records LLC; Sony BMG Music Entertainment; UMG Recordings Inc.; Virgin Records America Inc.; Warner Bros. Records Inc.; Zomba Recording LLC v. Does 1-30 [10/17/2007 07 CV-9291 ]

Not entirely clear why same attorney and same parties filed a VIRTUALLY IDENTICAL complaint against a single John Doe in Capitol Records Inc.; Arista Records LLC; Warner Bros. Records Inc. v. John Doe [10/17/2007 07 CV-9292]?