Copyright owners who wish to file mass copyright suits based on a “BitTorrent Swarm” joinder theory—cases in which dozens (sometime hundreds) of anonymous defendants are joined in a single suit and then identified by serving subpoenas on their ISPs—are not welcome in Massachusetts.
I’ve written about the phenomenon of BitTorrent swarm mass copyright suits before, but it looks like the door has been all but closed to these cases in the District of Massachusetts. As a reminder, here’s how these cases work.
Assume you are the CFO of an adult movie publisher. Sales aren’t doing very well (given all the free porn on the Internet), and you’re under pressure to increase revenues. You hear about a gambit used by some other adult movie companies, and you decide to give it a try.
You know your movies are being downloaded from the Internet, infringing your copyrights. You sue a group of downloaders, all of whom are part of the same “Bit Torrent Swarm,” as “Does”—that is, anonymous defendants whose names will be substituted into the suit at a later date. You contend that the fact they are part of the same “swarm” justifies joining them all in a single case.*
*This argument relies on Rule 20(a)(1)) of the Federal Rules of Civil Procedure, which allows multiple defendants to be joined in a single case where the claims arise “out of the same transaction, occurrence, or series of transactions or occurrences.” The plaintiffs in this line of cases argue that the members of the same BitTorrent swarm fall under this rule, and therefore are properly joined.
This is is very efficient for you, since if you filed a separate suit against each defendant you’d have to pay a $350 filing fee in each case, while one suit against multiple defendants requires a one-time filing fee of $350. Not only do you save the cost of multiple filing fees, but you achieve economies of scale in the litigation itself by minimizing court appearances, consolidating discovery, and possibly conducting a single trial.
After filing suit* you request a subpoena from the court ordering the downloaders’ ISPs to disclose the downloaders’ names and addresses to you. Then, before you substitute each downloader’s real name into the lawsuit (thereby, presumably, causing the downloader no end of public scorn and humiliation), you let him or her know the suit is coming and settle each claim for five thousand dollars. Five grand here, five grand there, pretty soon you’re talking real money.
*Here is an example of a complaint showing how the anonymous defendants are identified by IP address.
Sounds too good to be true, and in Massachusetts it may be. Apart from the fact that a lot of defendants don’t roll over as easily as you might hope (“either I pay you five grand or you’re gonna tell my old lady and my employer? That’s an easy choice, dude. Can I give you their numbers?”), the Massachusetts federal judges just don’t cotton to this use of the courts. Last Fall I posted on an October 12, 2012 decision by U.S. District Court Judge William Young, who ruled that Third Degree Films could not sue 47 “Does” in one case and then use the court’s subpoena power to discover their identities. He held that Third Degree Films would have to file a separate lawsuit against each defendant. Third Degree could not use Rule 20 joinder to create a “low-cost, low-risk revenue model for the adult film companies.”*
*An earlier decision by Judge Young in this case is here.
At almost the time, on October 10, 2012, Massachusetts U.S. District Court Judge Richard Stearns dismissed a mass copyright infringement case (New Sensations, Inc. v. Does 1-201, Sept. 21. 2012), ordering that the cases be defended and litigated in separate causes of action. The same month Massachusetts U.S. District Court Judge F. Dennis Saylor issued a similar order in Third Degree Films v. Does 1-72 and Massachusetts Chief Magistrate Sorkin issued an order to show cause in a mass copyright case against 29 anonymous defendants. (Discount Video Center v. Does 1-29). In something of an understatement, Magistrate Sorkin noted that the “landscape has changed in several material respects” when it comes to the issue of joinder in mass copyright cases.
More recently, Massachusetts U.S. District Court Judge Mark Wolf signaled solidarity with these judges, questioning the right of adult film companies to use “mass copyright infringement lawsuits” to identify anonymous Doe defendants “intending to send demand letters and achieve prompt settlements for limited amounts rather than intending to actually litigate the claims asserted.”
In one case (Exquisite Media v. Does 1-35), Judge Wolf ordered the film company to address, by January 31, 2013, the legal issues implicated by Exquisite’s joinder of 35 anonymous defendants in one lawsuit (an “order to show cause”). Exquisite failed to respond, and on April 12th,Judge Wolf dismissed the case as to all 35 Does. In a second case assigned to Judge Wolf, Kick Ass Pictures v. Does 1-25, the movie publisher filed Doe suits against 25 anonymous defendants. Again, Judge Wolf issued an order to show cause. Kick Ass, like Exquisite Media, failed to respond, and on April 12th Judge Wolf dismissed this case as well.
The message is clear: the District of Massachusetts is not a receptive venue for adult film companies seeking to file mass copyright cases joining multiple defendants based on the BitTorrent swarm theory.*
*This post has not attempted to collect every mass copyright BitTorrent case in Massachusetts.