Digital Sins, Inc. v. John Does 1–245, 2012 WL 1744838 (S.D.N.Y. May 15, 2012)
Plaintiff Digital Sins filed a copyright lawsuit against 245 anonymous BitTorrent users. The court dismissed the case against all but one of the unknown John Does, finding that the defendants had been improperly joined in one lawsuit. The judge observed that “there is a right way and a wrong way to litigate [copyright infringement claims], and so far this way strikes me as the wrong way.”
Federal Rule of Civil Procedure 20(a)(2) provides that defendants can be joined into one case if, for example, the plaintiff’s right to relief arises out of the same transaction, occurrence, or series of transactions or occurrences, or if there is any question of law or fact common to all defendants.
In this case, the court found that those requirements had not been met. Plaintiff’s allegations that the defendants merely commited the same type of violation in the same way, did not satisfy the test for permissive joinder under Rule 20. There was no basis, according to the court, to conclude that any of the defendants was acting other than independently when he or she chose to access the BitTorrent protocol.
The court went on to find that having all the defendants joined in one action would not give rise to any valid judicial economy. Any such economy from litigating all the cases in a single action would only benefit plaintiff, by not having to pay separate filing fees to sue each defendant. Moreover, trying 245 separate cases in which each of 245 different defendants would assert his own separate defenses under a single umbrella would be unmanageable.
Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 12-00240 (N.D. Cal. January 25, 2012)
(Hat tip to Venkat for posting a link to this decision.)
Ron Paul’s campaign — Ron Paul 2012 Presidential Campaign Committee, Inc. — sued some John Doe defendants in federal court over an offensive video attacking former (but then current) opponent Jon Huntsman. The video demonstrated a gross insensitivity toward Chinese culture, and was posted to YouTube and promoted on Twitter by a user calling himself NHLiberty4Paul.
Since the campaign did not know the true identity of the John Doe defendants, it asked the court for leave to take “expedited discovery” so that it could serve subpoenas on YouTube and Twitter. (The Federal Rules of Civil Procedure do not allow early discovery like this unless the court specifically permits it.)
The court denied the campaign’s motion seeking early discovery. It held that the campaign failed to show the required “good cause” for expedited discovery set forth in the case of Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999).
Under the Seescandy.com standard, in determining whether there is good cause to allow expedited discovery to identify anonymous internet users named as Doe defendants, courts consider whether:
(1) the plaintiff can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court;
(2) the plaintiff has identified all previous steps taken to locate the elusive defendant;
(3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and
(4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.
The court found that the campaign failed to address these required issues. One is left to wonder whether there is enough of Paul’s campaign left to make it worthwhile to try again.
Hard Drive Productions, Inc. v. Doe, 2012 WL 90412 (E.D. Cal. July 11, 2012)
In a mass copyright infringement suit, plaintiff served a subpoena on an internet service provider and got the identifying information for the account holder suspected of trading a copy of a movie via BitTorrent. The account holder was uncooperative with plaintiff’s offers to settle, and denied downloading the file.
Instead of simply naming the identified account holder as a defendant in the case and proceeding with ordinary discovery, plaintiff asked the court for leave to take “expedited discovery,” namely, to depose the account holder to learn about:
the account holder’s involvement with the alleged distribution
his computers and network setup
his technical savvy
other users who may have had access to the computers or network
The court denied plaintiff’s request for leave to engage in the expedited discovery. It found that unlike other copyright cases in which anonymous infringers were identified, the efforts in this case “went far beyond seeking to identify a Doe defendant.” Instead, the court observed, it would be “a full-on deposition during which [the account holder] who plaintiff admits is likely not represented by counsel, may unwarily incriminate himself on the record before he has even been named as a defendant and served with process.”
Last night I appeared in a piece that aired on the 9 o’clock news here in Chicago, talking about the legal issues surrounding isanyoneup.com. (That site is definitely NSFW and I’m not linking to it because it doesn’t deserve the page rank help.) The site presents some interesting legal questions, like whether and to what extent it is shielded by Section 230 of the Communications Decency Act for the harm that arises from the content it publishes (I don’t think it is shielded completely). The site also engages in some pretty blatant copyright infringement, and does not enjoy safe harbor protection under the Digital Millennium Copyright Act.