The Brief Writer

In Arista Records, L.L.C., et al v. Does 1-27, 9 of the 27 anonymous John Does (a collection of students at the University of Maine) moved to dismiss the Record Industry's complaint on the basis that the Record Industry failed to allege that their usage of Gnutella P2P system was unlawful.  After addressing the issue of notice pleadings, the court recommended that the defendants' motion be denied, but also recommended that the Record Industry be sanctioned for improper joinder and lack of individualized allegations regarding the 27 anonymous defendants.  Footnote 5 of the opinion states:

I share the Doe Defendants' concern over the absence of individualized allegations, but for a different reason.  My concern has to do with the rules of joinder, see Rule 20(a), and whether it is appropriate for the Plaintiffs to join claims against disparate defendants concerning disparate (albeit similar) conduct, even if only for the purpose of gaining authority to serve subpoenas to obtain the defendants' names and contact information.  I assume they have done so in order to limit their filing fees and make their discovery work more manageable, but I am not convinced that it is proper.  See, e.g., DirecTV v. Adrian, 2004 U.S. Dist. LEXIS 8922, 2004 WL 1146122 (N.D. Ill. May 17, 2004) (involving claims that defendants separately pirated satellite TV services, without any allegation of concerted action, concluding that joinder was improper, and severing all but the first named defendant from the action).  In particular, paragraph 20 of the complaint alleges that the claims against all defendants arise from the "same series of transactions or occurrences" because the Doe Defendants have the same ISP (the University of Maine) and all engaged in file-sharing over the Internet using that ISP.  The complaint wants, however, any allegation of concerted conduct.  The allegation that all of the claims arise from the same series of transactions or occurrences because all of the defendants used the same ISP sounds good, but makes little sense when one appreciates that having a common ISP says nothing about whether the use of that service by two or more people amounts to the same transaction or occurrence.  Rule 11(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees.  In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder.  Separately, the Court may sever defendants sua sponte, pursuant to Rule 21, although dismissal of the action is not authorized.  I appreciate that increased costs may redound to the defendants' detriment eventually, but it is difficult to ignore the kind of gamesmanship that is going on here with respect to joinder.

Suppose, instead of university students, the record companies chose to target all individuals within the District of Maine who had used these P2P services and had TimeWarner Cable for their ISP?  Would all those individuals be properly joined in a single complaint?  I think the Plaintiffs know the answer to that question because on May 5, 2007, many of these same plaintiffs filed a very similar lawsuit, Atlantic Recording Corp., et al v. Does 1-22, 1:07-cv-057-JAW.  A procedure similar to the one used in this case was adopted in that case, but no motions to dismiss or motions to quash were filed and presumably the plaintiffs obtained the discovery sought.  The case was voluntarily dismissed on July 16, 2007.  Following that dismissal the same counsel filed at least three separate cases in this court: Atlantic Recording Corporation, et al v. Anna Lenentine, 1:07-cv-133-JAW, on September 4, 2007 (still pending); Capitol Records, Inc. v. Cara Laude, 2:07-cv-154-GZS, on September 4, 2007 (settled and dismissed on January 22, 2008); and Atlantic Recording Corp. v. Christopher Leavitt, 2:07-cv-156-DBH, on September 4, 2007 (voluntarily dismissed with prejudice on October 16, 2007).  The relevant allegations in the respective complaints simply state that the defendants were "identified as the individual[s] responsible for that IP address at that date and hour" without reference to how the identification was made.  However, there is certainly a "plausible inference" that the identifications were made as a result of the May lawsuit.  It is curious that no attempt was made to join these cases as arising from the same transaction or occurrence if my plausible inference is accurate.  I think no such attempt was made because it is apparent that the cases would not be properly joined.  These plaintiffs have devised a clever scheme to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined.

For a willful infringement, the Copyright Act provides for the following damages:

In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.  In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

In the case of Cynthia Hunt Productions, Ltd. v. Evolution of Fitness Houston, Inc., 2007 U.S. Dist. LEXIS 60098 (August 16, 2007), the court found the Evolution had willfully infringed CHP's copyrights by using a video and photographs on its website without license.  In settling on the amount of statutory damages, the court looked at other caselaw and said:

In cases involving willful infringement after a defendant has refused a licensing offer, courts frequently award statutory damages in amounts that are between two and three times the license fee refused by the defendant.

In Cynthia Hunt Productions, the court found that the invoiced and unpaid amounts of $1,000 for the photography and $1,082.15 for video production were consistent with the parties' agreement.  The court then awarded $6,246.45 as statutory damages for the defendant's willful infringement.  The court also allowed for attorneys' fees, but required the plaintiff to resubmit its fee evidence.  The plaintiff claimed $52,712.50 in attorneys' fees.

One lesson of this case is that attorneys' fees can constitute the largest part of a copyright award.  Consequently, it is extremely important that works be registered prior to the chance of any infringement.