June 5, 2013
Dead Season LLC, a Delaware Limited Liability Company, Plaintiff,
John or Jane Doe 1 or Black and White Company 1 with IP address: aka Computer, IP Address No. 184.108.40.206, et al., Defendants.
G. MURRAY SNOW, District Judge.
Pending before the Court is Plaintiff Dead Season, LLC's Motion for Leave to Take Discovery Prior to Rule 26(f) Conference. (Doc. 7.)
The issue of the election of damages raises serious questions about the appropriateness of permissive joinder. At the hearing held on May 31, 2013, Plaintiff's counsel indicated that Plaintiff may seek separate damage awards against each Defendant individually. Plaintiff may not pursue actual damages against some Defendants and statutory damages against other Defendants while maintaining all Defendants as parties to the same suit. 17 U.S.C. § 504's provision allowing the copyright owner to choose between actual and statutory damages applies the owner's choice to "all infringements involved in the action." If Plaintiff wishes to make separate elections, then it must bring separate lawsuits, or at the least, separate claims in which it does not pursue its current theory of joint and several liability. Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284, 294 (9th Cir. 1997) rev'd on other grounds sub nom. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) (holding that when statutory damages are assessed against a group of defendants held to be jointly and severally liable, "each work infringed may form the basis of only one award, regardless of the number of separate infringements of that work"). If Plaintiff does not wish to proceed on a theory of joint and several liability, then the rationale for allowing permissive joinder in this case is seriously undermined.
Therefore, before allowing expedited discovery and this case to proceed on the numerous Doe Defendants named in the Complaint, the Court desires to understand Plaintiff's position with respect to whether it claims the right to pursue statutory damages against some of the named Defendants and actual damages as to others, and if so, on what bases.
Further, the Court has drafted a Notice, attached to this Order, that Plaintiff shall provide to the ISPs to serve upon the listed subscribers, along with the Complaint and the Court's Order to issue after the hearing. If Plaintiff objects to the issuance of the Notice to subscribers or any language therein, it may bring such objections at the hearing to the Court's attention.
IT IS THEREFORE ORDERED that Plaintiff's counsel shall appear at a hearing, with these issues in mind, on Friday, June 14, 2013 at 1:30 p.m. in Courtroom 602 at the Sandra Day O'Connor U.S. Courthouse in Phoenix, Arizona, to resolve the issue of expedited discovery in this matter.