Osiris Entertainment, LLC v. Does 1-38, No. 13 C 4901, Slip Op. (N.D. Ill. Aug. 20, 2013) (Tharp, J.).

Judge Tharp granted plaintiff Osiris Entertainment’s Fed. R. Civ. P 26(d) motion to take expedited discovery prior to a Rule 26 conference in order to discover the potential identities of the thirty eight Doe defendants otherwise only identified by their respective IP addresses in this copyright case involving the alleged infringement of the movie Awaken via BitTorrent.

As an initial matter, the Court sua sponte considered whether the thirty-eight Does were properly joined. Recognizing a district split, that mirrors a national split among district courts, the Court held that members of the same swarm may be joined in a single suit even if their direct participation in the swarm did not overlap in time, explaining:

As noted above, BitTorrent requires a cooperative endeavor among those who use the protocol. Every member of a swarm joins that cooperative endeavor knowing that, in addition to downloading the file, they will also facilitate the distribution of that identical file to all other members of the swarm, without regard to whether those other members were in the swarm contemporaneously or whether they joined it later. In that light, permitting joinder among non-contemporaneous swarm participants does not seem novel or extreme; the law governing joint ventures and conspiracies, for example, clearly permits plaintiffs to proceed against groups of defendants who engaged in a cooperative endeavor to facilitate an unlawful object whether or not all of the members of the group took part in all of the actions of the group and without regard to when the members joined the group.

Citations omitted. The Court did, however, note that there would be some requirement of temporal proximity because at some amount of separation the analogy would break down. But in this instance, the alleged Does were involved over a “relatively brief” period.

Having determined that joinder was proper at least at the initial stages of the case, the Court granted Osiris Entertainment’s motion to issue subpoenas aimed at identifying the Does based upon their alleged IP addresses. The Court, however, prohibited Osiris Entertainment from publishing the Doe’s alleged identities without leave of Court, noting that there was a “substantial possibility[y]” that the individuals associated with a particular IP address were not the individuals that downloaded the allegedly copyrighted material.