United States District Court, W.D. Washington, Seattle
following Minute Order is made by direction of the Court, the
Honorable Thomas S. Zilly, United States District Judge:
Plaintiff's motion for reconsideration, docket no. 71, is
DENIED. By Minute Order entered October 5, 2017, docket no.
70, the Court ruled that any liability on the part of the six
remaining defendants in this matter would be joint and
several with the six defendants who have settled with
plaintiff, and the Court directed plaintiff to file, by
October 19, 2017, a declaration listing the amounts each
settling defendant has paid to plaintiff. Rather than
submitting the required declaration, plaintiff filed a motion
for reconsideration, citing to a decision of the Ninth
Circuit. See Pla.'s Motion at 2 (docket no. 71);
see also Columbia Pictures Television v. Krypton Broad.
of Birmingham, Inc., 106 F.3d 284 (9th Cir. 1997),
rev'd on other grounds sub nom. Feltner v. Columbia
Pictures Television, Inc., 523 U.S. 340 (1998).
Columbia is distinguishable. In Columbia,
two different television stations, WNFT and WTVX, broadcast
episodes of the program “Who's the Boss”
after the related licensing agreements were terminated for
failure to timely pay royalties. See 106 F.3d at
288. Despite the copyright owner's allegation in its
complaint that WNFT and WTVX, which were owned by the same
entity, were joint tortfeasors, the district court implicitly
found that the stations independently infringed the works and
were subject to separate awards of statutory damages.
Id. at 294; see also Columbia Pictures
Television, Inc. v. Krypton Broad. of Birmingham,
Inc., 259 F.3d 1186, 1994 (9th Cir. 2001). The Court has
not drawn any similar conclusion contrary to the
plaintiff's allegations in this case. In this matter,
plaintiff elected to join the twelve individuals at issue,
describing them as members of the same BitTorrent
“swarm” who shared a particular file with the
hash value 52365D3E8F333050CF3779E978504FE0880FD38B, which
contains a copy of the motion picture “Mr.
Church.” See Am. Comp. at ¶ 34 & Ex.
B (docket no. 21). As indicated in plaintiff's operative
pleading, the BitTorrent protocol facilitates multisource
downloading, whereby various pieces of a file are obtained,
in a non-sequential fashion, from different members of the
peer-to-peer network and are then reassembled into a usable
format. See id. at ¶ 28. The crux of
plaintiff's copyright infringement claim is that
defendants acted in concert to share a copy of “Mr.
Church” and thus, pursuant to 17 U.S.C. §
504(c)(1), any defendants found to have engaged in
infringement would be jointly and severally liable for
statutory damages. See Louis Vuitton Malletier, S.A. v.
Akanoc Solutions, Inc., 658 F.3d 936, 947 (9th Cir.
2011) (“Statutory damages reach a maximum based on the
number of protected works, not the number of
defendants.”). Friedman v. Live Nation Merch.,
Inc., 833 F.3d 1180 (9th Cir. 2016), on which plaintiff
also relies, does not support a different view. In
Friedman, the copyright owner sued only one
defendant, Live Nation Merchandise (“Live
Nation”), for infringing use of certain photographs on
T-shirts and a calendar. Id. at 1182. The copyright
owner did not join as defendants the 104 retailers who bought
infringing merchandise from Live Nation, but sought 104
awards of statutory damages against Live Nation on the theory
that it was jointly and severally liable with each retailer
for an act of infringement. Id. at 1182 &
1190-91. The Ninth Circuit rejected the copyright owner's
argument, concluding that a plaintiff “seeking separate
damages awards on the basis of downstream infringement must
join the alleged downstream infringers in the action and
prove their liability for infringement.” Id.
at 1192. Because the copyright owner failed to join any of
the 104 retailers, Live Nation was subject to only one award
of statutory damages for each work infringed. See Id.
Friedman does not address whether multiple persons
actually sued for infringement can be treated as jointly and
severally liable, and it is completely silent with respect to
whether amounts paid by settling defendants can be considered
in calculating statutory damages owed, if any, by
non-settling defendants. The Court is likewise unpersuaded by
plaintiff's citation to QOTD Film Inv., Ltd. v.
Wilson, 2017 WL 841669 (W.D. Wash. Mar. 3, 2017). In
relying on Friedman for the proposition that
settlements reached with other defendants in the same action
cannot be taken into account, QOTD extends the Ninth
Circuit's opinion beyond its appropriate or intended
Plaintiff shall file the declaration required by the Minute
Order entered October 5, 2017, docket no. 70, by November 17,
2017. See AF Holdings, LLC v. Harris, 2013 WL
2561120 (D. Ariz. June 11, 2013); see also AF Holdings,
L.L.C. v. Harris, No. 2:12-cv-02144-GMS, Order (docket
no. 92) (D. Ariz. Aug. 20, 2013). If no declaration is timely
filed, the Court will presume that plaintiff has opted not to
proceed, and this action will be dismissed with prejudice.
Clerk is directed to send a copy of this Minute Order to all
counsel of record and to all pro se defendants who have
appeared in this action.
 To the extent that plaintiff asserts
each defendant independently infringed and would be only
severally liable, plaintiff's joinder of the various
defendants in this action and all related cases is improper.
See In re BitTorrent Adult Film Copyright Infringement
Cases, 296 F.R.D. 80, 90-92 (E.D.N.Y. 2012) (refusing to
allow BitTorrent plaintiffs to use the “swarm
joinder” theory to avoid paying court filing fees);
see also LHF Prods., Inc. v. Kabala, 2017 WL 2587597
(D. Nev. June 13, 2017) (severing and dismissing without
prejudice the BitTorrent plaintiff's claims against all
but the first-named defendant). By representing to the Court,
in connection with the pending cases involving the film
“Mr. Church, ” Nos. C16-1884 ...