Copyright owners face many challenges in this digital age, not the least of which is the ease with which creative works like music and movies are illegally distributed over the internet. Merely tracking down individual copyright violators can be time consuming and expensive, to say nothing of the costs and uncertainty associated with litigating against those individuals.
Over the last several years, an increasingly popular enforcement tactic has been the use of ‘mass joinder’ suits. Without going to court, copyright owners (or their attorneys) can go to Internet Service Providers (ISPs) to get the Internet Protocol (IP) addresses of computer users that have illegally downloaded or streamed a particular copyrighted work through various Peer-to-Peer file-sharing websites. Typically, the copyright owner then files a single lawsuit against hundreds or thousands of anonymous “John Doe” defendants, accusing each of copyright infringement. Once the lawsuit is initiated, the copyright owner can use the court’s subpoena power to get the names of the individuals associated with the IP addresses.
Jointly suing many John Doe defendants permits copyright owners to avoid the expense of filing numerous individual lawsuits. The tactic is arguably justified because the claims are “logically related,” particularly where the defendants have all used the same means to obtain the copyrighted work or, in the case of many file sharing systems, can be accused of downloading the work and simultaneously uploading bits to be shared with others. (See Call of the Wild Movie, LLC v. Does 1- 1,062, 770 F. Supp. 2d 332, 342-3 (D.D.C. 2011)).
Critics, however, accuse copyright holders of using the mass joinder tactic to cheaply file suit against many defendants without ever intending to pursue their claims. The copyright owners, it is argued, simply hope that some of the defendants will pay a steep settlement demand to get out of the litigation at an early stage or to avoid becoming a named defendant – but they voluntarily drop their claims against the non-settling defendants before incurring any significant litigation expenses.
Copyright owners may have to get serious about litigating these suits or come up with a new enforcement strategy; the criticism seems to be resonating in judges’ chambers:
Although Plaintiff’s business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff’s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability.
Righthaven, LLC v. Hill, 1:11-cv-00211 (D. Colo. Apr. 7, 2011). See also, Mick Haig Prods. EK v. Does 1-670, No. 11-10977 (5th Cir. 2012) (criticizing the “strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars”); CP Prods., Inc. v. Does 1-300, No. 10 C 6255 (N.D. Ill. Feb. 24, 2011); Media Prods., Inc. v. Does 1-26, No. 12 Civ. 3719, (S.D.N.Y. Sept. 4, 2012).