District Court Finds Joinder of Thousands of BitTorrent Users for Purposes of Discovery to be Proper

Published On March 31, 2011 | By ZwillGen | Litigation, Privacy
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As an update to our previous post regarding the United States Copyright Group (USCG) mass copyright infringement suits, Judge Beryl A. Howell of the United States District Court for the District of Columbia, ruled in three additional USCG cases (Call of the Wild Movie LLC v. Does 1-1,062, Maverick Entertainment Group, Inc. v. Does 1 – 4,350, and Donkeyball Movie LLC v. Does 1-171), that joinder of thousands of BitTorrent users for the purpose of conducting expedited discovery regarding the identity of the putative defendants was proper.

After receiving subpoenas in these cases requesting information related to over a thousand Time Warner subscribers, Time Warner moved to quash the subpoenas on the grounds that producing the information would impose an undue burden and expense.  In support of Time Warner’s motions, the EFF, Public Citizen, and the ACLU (the Amici) submitted a filing urging the Court to quash the subpoenas based upon improper joinder, lack of personal jurisdiction and the putative defendants’ First Amendment Right to anonymity.  The District Court rejected each of these arguments in turn.

The Court found that permissible joinder was proper because the plaintiffs’ claims were logically related and potentially stemmed from the same transaction or occurrence, based on the allegation that “each putative defendant is a possible source for the plaintiffs’ motion pictures, and may be responsible for distributing the motion pictures to the other putative defendants, who are also using the same file-sharing protocol to copy the identical copyrighted material.”  Further, the Court noted that there were questions or law and fact common to all of the Defendants.  Specifically, the plaintiffs will have to establish the same legal claims concerning the validity of the copyrights in the movies at issue, the infringement of those rates, and the factual questions regarding the functioning of BitTorrent should be essentially identical for each defendant.  Additionally, the Court reasoned that it was in the interest of judicial economy to maintain a single suit as forcing the plaintiffs to file thousands of individual suits would place an enormous administrative burden on the plaintiffs and the court system and prevent the plaintiffs from enforcing their copyrights.

Second, the Court rejected the Amici’s contention that the Court does not have personal jurisdiction over the putative defendants as premature, finding that in cases where a party’s contacts with the jurisdiction are unclear and the record before the Court is “plainly inadequate” courts have allowed for a discovery period within which to gather evidence to support jurisdiction.  The Court noted that publicly available IP lookups did not provide for sufficient evidence of the putative defendants’ location as they are inherently unreliable.  The Court also found that “the nature of the BitTorrent technology enables every user of the file-sharing protocol to access copyrighted material from their peers, who may be located in multiple jurisdictions around the country,” including the District of Columbia.  Thus, under the District Court’s reasoning, any user who employs a specific file sharing protocol that may be used in multiple jurisdictions to download infringing content may potentially be hailed into court in the District of Columbia.

The Court also weighed the defendants’ First Amendment right to use BitTorrent anonymously and the plaintiffs’ need for the identifying information, and held that the plaintiffs’ need for the information outweighed any potential First Amendment rights.

A new suit filed in Southern District of California by Liberty Media Holdings, LLC appears to be trying to circumvent the jurisdiction and joinder issues raised in the USCG cases by suing a single swarm associated with a unique hash on a single day, and arguing that all defendants shared bits and pieces of the copyrighted material in the Southern district of California.  A copy of this complaint can be found here.

Other Items in the News:

Happy World Back Up Day 2011!  Find additional information regarding World Back Up Day here.

Microsoft announced today that it intends to file a complaint with the European Commission alleging anticompetitive behavior in Europe’s search market.  A copy of the blog post written by Microsoft’s General Counsel Brad Smith is available here.

Additionally,  Marc Zwillinger weighed in on what privacy experts are thinking are the most important or interesting aspects of the Google Buzz/FTC settlement in response to a question on Quora.  See his answer here.