On May 15, 2012, the Southern District of New York released an opinion that could have a far reaching effect with regards to mass-BitTorrent copyright infringement cases. I have represented many individuals who have been named as defendants in these types of cases, and more often than not, they are targeted for purportedly downloading pornographic films without paying for the right to view those movies. I have covered some defense tactics in the past, but the new Southern District of NY opinion could be the best tool in the arsenal for future defendants.
Basically, the court determined in the case of Digital Sins, Inc. v. John Does 1–245, 2012 WL 1744838 (S.D.N.Y. May 15, 2012), that each of the 245 defendants should be named in separate cases and that the plaintiff did not satisfy the requirements of Rule 20(a)(2) – the federal civil rule that governs permissive joinder. The court dismissed the plaintiff’s claims, but said that the plaintiff could once again bring those claims in separate lawsuits against each John Doe defendant.
Not surprisingly, the case was based on the allegation that the 245 defendants downloaded and uploaded a pornographic film (name of film you can search on your own). The “commonality” alleged by plaintiff is that all John Does used BitTorrent to obtain the film as part of a “swarm.” As the Court explains, “The collection of users who simultaneously ‘share’ a particular file is known as a ‘swarm.'” The Court was not buying that argument.
What I believe is most important is that the Court sitting in New York said,
There is no need for this Court to write another lengthy opinion discussing why plaintiff’s theory is wrong. Rather, I adopt and expressly incorporate into this memorandum order the reasoning of Judge Gibney in K–Beech; Magistrate Judge Spero of the Northern District of California in Hard Drive Productions, Inc. v. Does 1–188, No. C–11–01566, 809 F. Supp, 2d 1150 (N.D.Cal. August 23, 2011); several other courts in the Northern District of California, including Diabolic Video Productions, Inc. v. Does 1–2099, 10 Civ. 5865, 2011 U.S. Dist. LEXIS 58351, at *10–11 (N.D.Cal. May 31, 2011); and most especially the comprehensive Report and Recommendation of The Hon. Gary R. Brown, U.S.M.J., that was filed just last week in our sister court, the Eastern District of New York, in In re BitTorrent Adult Film Copyright Infringement Cases, No. 11–cv–3995, 2012 U.S. Dist. LEXIS 61447 (E.D.N.Y. May 1, 2012).
The fact that the Court in New York looked to courts’ decisions across the country in California leads me to believe that courts in other jurisdictions may do the same. It is not so much of an “easy way out” as it is courts attempting to get a streamlined set of precedent across the country.
While a large number of people may have used the same method to violate the law (BitTorrent downloads and uploads), the Court said that such does not authorize them to be joined as defendants in a single lawsuit. It went on to say that there is no basis from the allegations of the complaint to believe the defendants were not acting independently when using the BitTorrent client. Why is this important? It may not be worth it if a plaintiff has to pay the filing fee to sue each of the 245 defendants separately and pay attorneys to even do the simple task of modifying the pleadings for each individual. Perhaps that will put at least a temporary halt to the mass-BitTorrent copyright infringement lawsuits.