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LHF Productions, Inc. v. Smith

United States District Court, D. Nevada

October 23, 2017

LHF Productions, Inc., Plaintiff
Gene Smith, et al., Defendants



         This is one of several essentially identical cases filed by plaintiff LHF Productions, Inc., in which LHF sues many unidentified Doe defendants-under a single filing fee-for separately infringing its copyright in the film “London Has Fallen” by using BitTorrent software. LHF's practice in these cases is to move for expedited discovery to identify the defendants, and then systematically dismiss the defendants after failing to serve them or settling with them.[1] Magistrate Judge Nancy Koppe recommends that I sever and dismiss all claims against all defendants other than defendant Gene Smith for improper joinder and in the interests of judicial economy and case management.[2] LHF objects to the recommendation, arguing that the defendants were properly joined under Federal Rule of Civil Procedure 20(a)(2), and that mass joinder-“swarm joinder” as it is called in the BitTorrent-defendant context-better serves the economic and efficiency interests of the parties and the court.[3] After a full review of the report and recommendation, and LHF's objection and exhibits, and an exhaustive review of the case law, I agree with the magistrate judge's recommendation and overrule LHF's objection.[4]

         LHF also moves for default judgment against the remaining defendants, requesting $15, 000 in statutory damages, $6, 570 in attorney's fees and costs, and a permanent injunction against each defendant. I deny the motion as moot in part because I sever and dismiss all but one of the defendants from this case, but I grant the motion against un-severed defendant Smith.


         These copyright-infringement swarm-joinder cases against users of BitTorrent software have significantly increased in popularity nationwide in the past five years with some plaintiffs filing against thousands of defendants in a single action, [5] other plaintiffs filing against defendants in groups of roughly 10-100[6], and at least one plaintiff filing over one thousand cases against individual defendants.[7] The defendants are discovered and targeted by their internet provider (IP) addresses, which register on the BitTorrent tracker when they download the plaintiff's film. Safety Point Products, LLC v. Does describes the BitTorrent protocol well:

BitTorrent is a program that enables users to share files via the internet. Unlike other “peer-to-peer” (P2P) file sharing networks that transfer files between users or between a user and a central computer server, BitTorrent allows for decentralized file sharing between individual users who exchange small segments of a file between one another until the entire file has been downloaded by each user. Each user that either uploads or downloads a file segment is known as a “peer.” Peers that have the entire file are known as “seeds.” Other peers, known as “leeches” can simultaneously download and upload the pieces of the shared file until they have downloaded the entire file to become seeds.
Groups of peers that download and upload the same file during a given period are known as a “swarm, ” with each peer being identified by a unique series of alphanumeric characters known as “hashtag” that is attached to each piece of the file. The swarm's members are relatively anonymous, as each participant is identifiable only by her Internet Provider (IP) address. Overseeing and coordinating the entire process is a computer or server known as a “tracker” that maintains a record of which peers in a swarm have which files at a given time. In order to increase the likelihood of a successful download, any portion of the file downloaded by a peer is available to subsequent peers in the swarm so long as the peer remains online.
But BitTorrent is not one large monolith. BitTorrent is a computer protocol, used by various software programs known as “clients” to engage in electronic file-sharing. Clients are software programs that connect peers to one another and distributes data among the peers. But a peer's involvement in a swarm does not end with a successful download. Instead, the BitTorrent client distributes data until the peer manually disconnects from the swarm. It is only then that a given peer no longer participates in a given BitTorrent swarm.[8]

LHF alleges that its film has been pirated by BitTorrent users 79, 404, 331 times worldwide, 16, 799, 795 times in the United States, and 113, 962 times in Nevada.[9] Of those 113, 962 alleged infringers, LHF identified the 1-2% most egregious offenders and filed suit against them in sets of 10-30 Does per case.[10]Once those 10-30 Does in each case are identified, LHF somehow narrows them down even further to 10 or fewer, and then, allegedly, to the extent that any defendant raises a distinct defense or cause of action, that defendant would be severed into a separate cause of action.[11] LHF claims that this process “is designed to impose the least expense on all parties involved-including the Court.”[12] LHF brought this particular case against 21 initially unidentified defendants. After learning their identities, LHF amended its complaint against 17 named defendants, and then LHF proceeded to dismiss them from the case.[13] Only four defendants now remain: Gene Smith, Bike Monsters (a business), Reyna Castro, and Nicholas Foster.


         A. Standard of review

When a party objects to a magistrate judge's findings and recommendations, a district court judge must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”[14] The district court judge “may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate.”[15]

         B. The swarm-joinder split of authority

Joining multiple John/Jane Doe participants in a BitTorrent swarm into a single action is commonly referred to as “swarm joinder.”[16] Because the defendants are initially unidentified, the plaintiff files an ex parte motion for expedited discovery to subpoena internet service providers (ISPs) for the names and addresses of defendants associated with specified IP addresses. The motion raises two issues: (1) whether the defendants are properly joined; and (2) whether the court should permit the expedited discovery.[17] “Courts have dealt with the issue in several ways: denying the discovery requests, severing all but the first Doe defendants, delaying the severance decision until after the Does have been identified, or approving both joinder and pre-service discovery.”[18]

         The procedural posture of this case tracks the delay-severance-decision option. Magistrate Judge Foley granted LHF's expedited discovery requests, [19] Magistrate Judge Koppe[20] then ordered LHF to show cause why the identified defendants shouldn't be severed from the first defendant and dismissed in each of its cases.[21] Judge Koppe, after conducting her own extensive research on swarm joinder, ultimately recommended that I sever and dismiss from this case the claims against all defendants except defendant Smith.[22] LHF objected to that recommendation, so I now determine whether the defendants were properly joined and whether severance is appropriate.

         There is a major split of authority on this issue. Only one circuit court-the D.C. Circuit-has ruled on the issue, finding that swarm joinder does not satisfy FRCP 20(a)(2) because the defendants' use of the same BitTorrent protocol to download the same file does not arise out of the same transaction or occurrence.[23]The district courts in every other circuit and even the judges within some districts widely disagree on whether to permit swarm joinder. Some courts hold that swarm joinder is appropriate under FRCP 20(a)(2).[24] Other courts hold as the D.C. Circuit does.[25] And still others exercise their discretion to manage their dockets and sever the defendants even if swarm joinder would technically be permissible under the FRCP because other factors outweigh the benefits conferred by joinder: judicial economy, the high burden on the defendants, the risk of inappropriate settlement leverage, and filing-fee evasion.[26] The Ninth Circuit has not yet decided the issue, so I am not bound by any authority.

         My exhaustive research on the issue uncovered no clear majority rule. The D.C. Circuit is the only circuit court to have addressed the issue (it doesn't allow swarm joinder), [27] 5 districts permit swarm joinder under Rule 20(a)(2), [28] 12 districts do not, [29] 18 districts have judges on both sides of the debate, [30] and the remaining 58 districts have not addressed the issue. Within the Ninth Circuit alone, the District of Arizona, [31] the Central District of California, and the District of Oregon do not allow swarm joinder. The Eastern and Western Districts of Washington both permit swarm joinder under Rule 20. The Eastern, Northern, and Southern Districts of California have judges on both sides of the fence. And the Districts of Alaska, Hawaii, [32] Idaho, Montana, and Nevada have not yet addressed the issue. The only thing that is firmly established about this issue is that there is no uniform protocol.

         I do not decide today whether the defendants' actions were part of the same transaction or occurrence to satisfy Rule 20(a)(2). Even if Rule 20(a)(2) were satisfied, I would still exercise my discretion under Rule 21[33] and sever all defendants except the first one, Gene Smith, because joining them causes more harm than good.[34]

         I find most persuasive Magistrate Judge Sorokin's analysis on the issue and his conclusion that swarm joinder is not likely to promote judicial efficiency.[35] As Judge Sorokin opined, “the claims against each defendant are likely to turn on individual defenses (e.g., ‘my wireless internet service is not password protected, ' ‘I didn't watch it, my adolescent child did, ' or ‘that is not my IP address'), and each will require a separate ‘mini-trial.'”[36] “Joinder would transform an otherwise straightforward case into a logistical nightmare. For example, each defendant would be required to serve any motion or other submission on the . . . other defendants, and all . . . defendants would have a right to be present at any deposition or court proceeding.”[37] “If consolidation of certain pretrial proceedings were deemed appropriate, it could be accomplished via Rule 42(a), after the institution of individual actions against each defendant.”[38] Finally, severance prevents inappropriate settlement leverage and filing-fee evasion.[39]

         LHF argues that the defendants would benefit from swarm joinder because they could pool their resources and share in one another's defenses, representation, and other strategies, and if any defendant had a unique defense then LHF would move to sever that defendant into a separate case. I find that those benefits to the defendants do not outweigh the potential burdens imposed on them considering the varied and extensive motion practice that is typical of contemporary litigation, the scheduling conflicts that would inevitably arise when deposing each party, and the likelihood of confusing the issues and parties should the action proceed to trial.

         LHF also argues that prohibiting swarm joinder would make copyright enforcement too costly and allow BitTorrent users to continue their infringing activities undeterred and cause “substantial damage to the entertainment industry and our economy as a whole. It would essentially serve as an abdication of judicial authority from the Court-a move that would compromise the rule of law and fly in the face of two centuries of jurisprudence.”[40] I don't share this apocalyptic prophecy, and LHF's own objection belies its position.

         LHF mentions that prohibiting swarm joinder would “likely increase the final dollar amount of judgment awards entered against individual [d]efendants.”[41]Those “likely” higher judgment awards would surely offset LHF's concern that individual cases would be too costly to file. The copyright-enforcement business model that LHF and many other plaintiffs in these swarm-joinder cases follow[42] imposes a greater burden on the courts and defendants than the burden imposed on the plaintiff by severance. Courts have held that cost effectiveness is not sufficient to justify swarm joinder.[43] To borrow the sentiment expressed by the court in On The Cheap, LLC v. Does 1-5011, I do “not condone copyright infringement and [I do] encourage[] settlement of genuine disputes. However, [LHF]'s desire to enforce its copyright in what it asserts is a cost-effective manner does not justify perverting the joinder rules to first create . . . management and logistical problems . . . and then offer to settle with Doe defendants so that they can avoid digging themselves out of the morass [that LHF] is creating.”[44] So I adopt Judge Koppe's recommendation to sever and dismiss all defendants except for Gene Smith from this case without prejudice to LHF's ability to refile separate lawsuits against them.

C. Motion for default judgment

LHF also moves for default judgment against defendants Smith, Bike Monsters, Castro, and Foster. Because I sever and dismiss the claims against Bike Monsters, Castro, and Foster from this action for improper joinder, the motion is moot against them, and I deny it. I now address the motion as it pertains to defendant Smith.

         1. Background

         After identifying Smith, LHF sent a demand letter informing Smith of this case and his potential liability.[45] Smith did not respond, so LHF sent him a second demand letter approximately three weeks later.[46] LHF filed its first-amended complaint three weeks after that and sent Smith a third demand letter.[47] Despite adequate service of process, Smith did not respond to the first-amended complaint or demand letter.[48] The Clerk of Court entered default against Smith on May 8, 2017.[49] LHF now moves for default judgment, requesting $15, 000 in statutory damages, $6, 570 in attorney's fees and costs, and a permanent injunction to prohibit Smith from further infringing its copyright directly or indirectly.[50]

         2. Default-judgment standard

Federal Rule of Civil Procedure 55(b)(2) permits a plaintiff to obtain default judgment if the clerk previously entered default based on a defendant's failure to defend. After entry of default, the complaint's factual allegations are taken as true, except those relating to damages.[51] “[N]ecessary facts not contained in the pleadings, and claims [that] are legally insufficient, are not established by default.”[52] The court has the power to require a plaintiff to provide additional proof of facts or damages in order to ensure that the requested relief is appropriate.[53] Whether to grant a motion for default judgment lies within my discretion, [54] which is guided by the seven factors outlined by the Ninth Circuit in Eitel v. McCool:

(1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.[55]

         A default judgment is generally disfavored because “[c]ases should be decided upon their merits whenever reasonably possible.”[56]

         3. Evaluating the Eitel factors

a. Possibility of prejudice to LHF

The first Eitel factor weighs in favor of granting default judgment against Smith. LHF sent Smith numerous demand letters and a summons along with the first-amended complaint, but Smith never responded. LHF claims that Smith infringed its copyright by downloading its film using BitTorrent software. Given the nature of BitTorrent software, Smith may be exacerbating LHF's injury by seeding the file to the BitTorrent swarm.

         b. Substantive merits and sufficiency of the claims

The second and third Eitel factors require LHF to demonstrate that it has stated a claim on which it may recover.[57] The first-amended complaint sufficiently pleads LHF's direct-copyright-infringement, contributory-copyright-infringement, and vicarious-liability claims.

         To present a prima facie case of direct infringement, LHF must show that: (1) it owns the allegedly infringed material, and (2) the alleged infringers violate at least one exclusive right granted to copyright holders under 17 U.S.C. § 106.[58] LHF alleges that it is the owner of the copyright registration for the film “London Has Fallen.”[59] LHF also alleges that Smith willfully violated several exclusive rights granted by 17 U.S.C. § 106, and that those violations caused it to suffer damages.[60]

         The contributory-copyright-infringement claim requires LHF to allege that Smith “had knowledge of the infringing activity” and “induce[d], cause[d, ] or materially contribute[d] to the infringing conduct of another.”[61] “Put differently, liability exists if the defendant engages in personal conduct that encourages or assists the infringement.”[62] Given the nature of BitTorrent technology, BitTorrent-swarm participants who download files compulsorily upload those same files so that other participants may download them at a faster rate. Accordingly, LHF's allegation that each defendant is a contributory copyright infringer because they participated in a BitTorrent swarm[63] is sufficient to satisfy the induced-caused-or-contributed requirement. LHF satisfies the remaining requirements by alleging that each defendant knew or should have known that other BitTorrent-swarm participants were directly infringing on LHF's copyright by downloading the files that they each uploaded.[64]

         LHF also claims that each defendant, as the account holder for the Internet service, is vicariously liable for any infringing activity conducted by other users on its Internet connection.[65] “Vicarious infringement is a concept related to, but distinct from, contributory infringement.”[66] “To state a claim for vicarious copyright infringement, [LHF] must allege that [Smith] had (1) the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity.”[67]

         LHF's allegations satisfy the first prong of the vicarious-infringement test. As the court discussed in Dallas Buyers Club, LLC v. Doughty, “the Internet service account holder, appea[rs] to have had exclusive control over use of the Internet service” and the account holder “could have simply secured access to the Internet by creating a password or by changing an already existing password.”[68] “Thus, . . . [the account holder] had the capacity to terminate use of his Internet service by any infringing third party if he believed it was being used to violate applicable law.”[69]

         LHF also satisfies the direct-financial-interest prong. “The essential aspect of the direct financial benefit inquiry is whether there is a causal relationship between the infringing activity and any financial benefit a defendant reaps, regardless of how substantial the benefit is in proportion to a defendant's overall profits.”[70] “Financial benefit exists where the availability of infringing material acts as a ‘draw' for customers.”[71] “The size of the ‘draw' relative to a defendant's overall business is immaterial. A defendant receives a ‘direct financial benefit' from a third-party infringement so long as the infringement of third parties acts as a ‘draw' for customers ‘regardless of how substantial the benefit is in proportion to a defendant's overall profits.'”[72] LHF alleges that Smith benefitted from third-party infringement by viewing “London Has Fallen” without paying for it.[73] The law is clear that it doesn't matter how large the financial benefit is: by watching the BitTorrent-downloaded film, Smith saved the cost of a movie ticket, and that is a direct financial benefit.

         I therefore find that LHF sufficiently pled each of its claims in the first-amended complaint. I also find that LHF's claims have substantive merit, subject to any defenses that Smith could raise.

         c. Sum of money at stake

The sum-of-money factor requires me to consider “the amount of money at stake in relation to the seriousness of [Smith]'s conduct.”[74] “If the sum of money at stake is completely disproportionate or inappropriate, default judgment is disfavored.”[75] LHF asks for statutory damages and attorney's fees and costs.

         For statutory damages, LHF requests $15, 000 under 17 U.S.C. § 504(c).[76]The statute sets a $750 minimum and a $30, 000 maximum award of damages for copyright infringement, [77] and that maximum can be increased up to $150, 000 where the infringement was willful.[78] I have “wide discretion in determining the amount of statutory damages to be awarded, constrained only by the specified maxima and minima.”[79]

         Given Smith's numerous opportunities to respond to LHF's demand letters, first-amended complaint, and this motion, coupled with LHF's unopposed allegations that I take as true, the factual showing before me indicates that Smith is a willful copyright infringer. But, I do not find that $15, 000 is necessary to compensate LHF for its injury and to deter Smith and other BitTorrent users. Although I acknowledge that other courts-even in LHF's other cases in another district-awarded $15, 000 for the same offense, I am not persuaded by their actions. After considering the lost-profits movie ticket sales, the cost of identifying infringers and pursuing litigation, and the boundaries provided by § 504(c), I determine that $1, 500 is the appropriate damage award. This amount-187.5 times as much as the average $8.00 per movie ticket ...

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