USDC E.D. Virginia, October 5, 2011
- District court, on its own motion, severs all but one Doe defendant accused of committing copyright infringement by uploading and downloading pornographic film using peer-to-peer file sharing system BitTorrent, and orders plaintiff to show cause why certain of its conduct did not merit sanctions.
In this copyright infringement case, one of three nearly identical cases filed by plaintiff’s counsel in the Virginia district court, plaintiff sued 32 Doe defendants for their alleged actions in securing and sharing a copy of the adult film Raw Rescue using the BitTorrent peer-to-peer file sharing protocol. To establish personal jurisdiction, the plaintiff had used geolocation technology and traced the Internet Protocol (IP) addresses of each defendant to acquire the general location and time of the alleged infringement. The court previously granted plaintiff's request for expedited discovery and authorized plaintiff to serve subpoenas on specific internet service providers (ISPs) to discover the identities of the Doe defendants. The district court determined that, in light of the fact that defendants in all three cases had filed a number of motions to sever, quash or dismiss the cases, none of which were ripe but which presented similar issues, the interest of justice required that the court on its own motion sever Doe defendants 2-32 from the case, finding that they were improperly joined.
Under Federal Rule of Civil Procedure 20(a)(2), permissive joinder of defendants is proper if: "(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. Following rulings from number of other BitTorrent file-sharing cases, the court concluded that plaintiff failed to demonstrate any right to relief against the defendants arising out of the same transaction, occurrence, or series of transactions or occurrences.
The court explained the BitTorrent protocol, which allows a user to visit the website and download a file containing the desired digital media onto a program installed on the user's computer. Once the file is loaded, the BitTorrent program connects to hundreds or thousands of different users that possess and share copies of the particular media contained in the file, and it coordinates the copying of the media using the digital copies of those other users. As the original user – or peer – downloads a copy, the copy is immediately made available to other users looking to obtain the file. The collection of users who simultaneously "share" a particular file is known as a "swarm."
The court rejected plaintiff’s reliance on the "swarm" theory to claim that the defendants acted in concert, through a series of transactions, to commit infringement. Simply committing the same type of violation in the same way does not link defendants together for purposes of joinder, and plaintiff’s allegation that defendants used the same peer-to-peer network to copy and reproduce the film, on different days and times over a span of three months, was therefore insufficient to meet the standards of joinder under the Federal Rules.
The court also ordered plaintiff to show cause why its conduct did not merit sanctions under Rule 11. Specifically, the court suggested that the actions of this plaintiff and those in the related cases indicated that plaintiffs has no interest in actually litigating the cases, but rather simply used the court and its subpoena powers through court-approved expedited discovery to obtain sufficient information to “shake down” the John Does for payment of $2,900 to end the litigation. Whenever the defendants filed a motion that would lead to a ruling on the merits of the claims, plaintiffs dropped the John Doe threatening to litigate the matter in order to avoid the actual cost of litigation and an actual decision on the merits. The court suggested that this conduct indicated an improper purpose for the suits and, further, that the joinder of unrelated defendants did not seem to be warranted by either existing law or a non-frivolous extension of the law.