United States District Court, D. Nevada
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.
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.
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).
following provides a general description of the process of
BitTorrent swarming as offered by plaintiff's
complaint. See (ECF No. 1).
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.
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.
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.
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
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
Plaintiff's movie and defendants' conduct
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).
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. (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).
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 ...