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Inc. v. Bayu

United States District Court, D. Nevada

November 3, 2017

ME2 PRODUCTIONS, INC., Plaintiffs,
MIKIYAS BAYU, et al., Defendants.


         Presently before the court is Magistrate Judge Koppe's report and recommendation (“R&R”). (ECF No. 17). Plaintiff ME2 Productions, Inc. filed an objection to the R&R on June 27, 2017. (ECF No. 23). No defendant has filed a response, and the time to do so has passed.

         Also before the court is defendant Carolyn Wilber's motion to dismiss. (ECF No. 29). Plaintiff has not filed a response, and the time to do so has since passed.

         Also before the court is plaintiff's motion for entry of clerk's default as to defendants Carolyn Wilber, Miguel Palomares, Jermaine Wooten, Neng Chuang Tan, and Maria Guzman. (ECF No. 33).

         I. Background

         i. BitTorrent swarming

         The following provides a general description of the process of BitTorrent swarming as offered by plaintiff's complaint.[1] See (ECF No. 1).

         BitTorrent is a peer-to-peer file sharing protocol (i.e. a set of computer rules) designed to share data and electronic files over the internet. The protocol was designed to distribute large amounts of data without unduly burdening a source computer or network. Instead of connecting one computer directly to another and sharing a file by direct upload and download, BitTorrent protocols let users join “swarms.” The swarm is a cluster of connected computers whereby users can simultaneously upload to and download from multiple other users.

         In order to connect to a BitTorrent swarm, an individual user must download a BitTorrent client. The client is a software program downloaded from the internet. The client functions as an interface for the user while he or she uses the BitTorrent protocol to upload and download data.

         Once a user has an operative interface, he or she may upload new files onto the network. New files are called “initial seeds, ” and the uploader is the “initial seeder.” The first action in the uploading process occurs when the initial seeder creates a torrent descriptor file. The initial seeder then divides the data into identically sized groups of bits, commonly referred to as “pieces.” The client software program will then give each of the pieces a “hash, ” which is a random and unique alphanumeric combination. The hash is recorded in the torrent file, and serves as an identifier of the piece of data.

         In addition to containing the hash identifiers, the torrent files have other bits of identifying information to verify the integrity of downloaded content and to streamline the seeding process. The announce section of a torrent file contains uniform resource locators (URLs) for “trackers.” A tracker is a computer or group of computers that tells a peer user's computer which other computers have particular pieces of the file. The tracker computer also facilitates the data exchange between the computers.

         After the initial seeder creates the torrent file and uploads it onto a torrent site, peer users begin to download and upload the computer file linked to the torrent. Per the protocol, the initial seed's computer will send different pieces of the file to peers attempting to download the file. After a peer has downloaded a particular piece of the file, it begins to upload that piece to other users to download. As mentioned, this process creates a BitTorrent “swarm.” Once a peer has downloaded the entire file by downloading each of its pieces, the client reassembles the pieces and the peer is able to view the file as a whole. Additionally, the peer is considered an “additional seed, ” as it has the complete reconstituted file and can continue to redistribute all of its pieces.

         ii. Plaintiff's movie and defendants' conduct

         Plaintiff is the owner of United States Copyright Registration Number PA 1-998-057, 2016-08-02 for the motion picture entitled Mechanic 2: Resurrection (“Mechanic 2”). (ECF No. 1 at 3). Plaintiff released the film to movie theaters both in the United States and abroad. (ECF No. 1 at 3). Plaintiff alleges that, since the movie's release, it has been the subject of millions of BitTorrent uploads and downloads that constitute unauthorized reproduction and distribution of plaintiff's copyrighted work. (ECF No. 23).

         Plaintiff hired the services of Maverickeye UG, a forensic investigation service (hereinafter, “the investigator”), to help plaintiff identify persons who have used the internet and BitTorrent protocol to “reproduce, distribute, display or perform” Mechanic 2. (ECF No. 1 at 7). Using a process detailed more fully in plaintiff's complaint and objection, the investigator isolated transactions that contained a unique hash number which plaintiff states is a piece of Mechanic 2. (ECF Nos. 1, 23). The investigator's analysis, which is contained in an exhibit attached to plaintiff's complaint, states that defendants would connect to the investigative server and transmit at least a portion of a digital media file containing the unique hash number.[2] (ECF No. 1 at 8). When the investigator “analyzed each BitTorrent ‘piece' distributed by each IP address listed on Exhibit ‘1' [he] verified that re-assemblage of the pieces using a BitTorrent Client results in a fully playable digital motion picture of [Mechanic 2].” (ECF No. 1 at 8).

         As of June 2017, the investigator had identified 113, 962 instances of copying and distribution of Mechanic 2 within the state of Nevada. (ECF No. 23 at 11). Plaintiff filed lawsuits against what it deemed “the one to two percent (1-2%) of the most egregious infringers within each swarm.” (ECF No. 23 at 12). Plaintiff joined multiple defendants in each lawsuit, with its criteria for joinder being that defendants “were caught sharing the same digital file, containing the same copy of [Mechanic 2], over the same peer-to-peer file sharing network, as part of the same so-called ‘swarm, ' within the same jurisdiction, within the same finite period of time (usually a period of ...

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