Court leaves thousands of BitTorrent copyright infringement defendants joined in single action

Call of the Wild Movie v. Does 1 – 1,062 — F.Supp.2d —, 2011 WL 996786 (D.D.C. March 22, 2011)

One of the craziest things about the copyright infringement lawsuits that have been brought against BitTorrent users accused of trading movies over the internet is the vast number of John Doe defendants that are usually lumped into one case. After the plaintiff copyright owners file a complaint for infringement — sometimes against thousands of anonymous defendants — they ask the court for leave to take expedited discovery. Then the movie companies serve subpoenas on the John Does’ internet service providers, asking the ISPs to disclose the identities of their customers associated with particular IP addresses.

Prosecuting a case against thousands of copyright infringement defendants is an enormous task, both for the plaintiffs’ attorneys as well as the ISPs who must respond to the subpoenas. Having so many defendants risks making the case unmanageable. So one may question whether it is appropriate under the Federal Rules of Civil Procedure to have so many unknown defendants all in the same case. In the nomenclature of civil litigation, the question is whether the joinder of all the defendants in one action is appropriate.

In three of the BitTorrent copyright cases pending in federal court in Washington DC brought by the US Copyright Group on behalf of a handful of independent film makers, groups like the Electronic Frontier Foundation, the ACLU and others argued improper joinder. These organizations filed amicus briefs in the cases of Call of the Wild Movie v. Does 1 – 1,062, Maverick Entertainment v. Does 1 – 4,350, and Donkeyball Movie v. Does 1 – 171, arguing that joining all the defendants in one action violated Rule 20 of the Federal Rules of Civil Procedure. The court rejected these arguments, finding that joinder was proper, at least in such early stages of the litigation where the defendants had not yet been identified.

The court considered three factors when answering the question of proper joinder: (1) whether the claims arose from the same transaction or occurrence or series of transactions or occurrences, (2) whether the legal and factual questions are common to all defendants, (3) and whether joinder would cause prejudice to any party or needless delay.

Same transaction or occurrence

The court observed that claims against joined parties must be “logically related,” and that this is a flexible test, with courts seeking the broadest possible scope of action. The court held that the claims against the BitTorrent users were logically related, based on plaintiffs’ allegations that the BitTorrent protocol makes every downloader of a file also an uploader, and accordingly, every user who has a copy of the infringing file on the network must necessarily be a source of download for that infringing file. This is an interesting finding, in that the strength of plaintiffs’ allegations were based on how BitTorrent works.

Common legal and factual questions

As for this second factor, the court found that the legal and factual questions were common because the parties would be litigating the same copyright claims, and all of the claims related to the use of BitTorrent.

Prejudice or needless delay

The court said some intriguing things about the interests of the parties in making its findings on this factor. For one, it said that leaving all the defendants joined in the same action would benefit them all, in that they would be able to see the defenses that other defendants were making. The court also expressed concern in favor of the efficiencies afforded the plaintiffs in filing these mass lawsuits. The plaintiff movie studios have been criticized for filing suit against large numbers of defendants in one action rather than separate suits against each defendant (and thereby having to pay only one filing fee to start the action versus several thousand filing fees). The court saw this question squarely in favor of plaintiff. It found that forcing plaintiffs to administer multiple actions, and having to pay the filing fees in all those actions “would certainly not be in the ‘interests of convenience and judicial economy,’ or ‘secure the just, speedy and inexpensive determination of the action.'”

Facebook user had standing to challenge subpoena seeking his profile information

Mancuso v. Florida Metropolitan University, Inc., 2011 WL 310726 (S.D. Fla. January 28, 2011 )

Plaintiff sued his former employer seeking back overtime wages. In preparing its defense of the case, the employer sent supboenas to Facebook and Myspace seeking information about plaintiff’s use of those platforms. (The employer probably wanted to subtract the amount of time plaintiff spent messing around online from his claim of back pay.) Plaintiff moved to quash the subpoenas, claiming that his accounts contained confidential and privileged information. The court denied the motion as to these social networking accounts, but did so kind of on a technicality. The subpoenas were issued out of federal district courts in California, and since this court (in Florida) did not have jurisdiction over the issuance of those subpoenas, it had to deny the motion to quash.

But there was some interesting discussion that took place in getting to this analysis that is worth noting. Generally, a party does not have standing to challenge a subpoena served on a non-party, unless that party has a personal right or privilege with respect to the subject matter of the materials subpoenaed. The employer argued that plaintiff did not have standing to challenge the subpoenas in the first place.

The court disagreed, looking to the case of Crispin v. Christian Audiger, Inc. 717 F.Supp.2d 965 (C.D. Cal. 2010), in which that court explained:

[A]n individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and banking records. As with bank and employment records, this personal right is sufficient to confer standing to move to quash a subpoena seeking such information.

This almost sounds like an individual has a privacy right in his or her social media information. But the p-word is absent from this analysis. So from this case we know there is a right to challenge subpoenas directed at intermediaries with information. We’re just not given much to go on as to why such a subpoena should be quashed.

Federal court applies test to unmask anonymous defendants in copyright and privacy case

Liberty Media Holdings, LLC. v. Does 1-59, 2011 WL 292128 (S.D. Cal., January 25, 2011)

Plaintiff porn company sued 59 anonymous defendants it knew only by IP address for violation of the Stored Communications Act (SCA), the Computer Fraud and Abuse Act (CFAA) and for copyright infringement. Since plaintiff did not know who the defendants were, it had to jump through a few hoops to find out their names.

The court rewarded such hoop-jumping by ordering that the defendants’ identities be turned over.

Hoop #1 – The Cable Communications Policy Act of 1984

A subpoena to the defendants’ internet service providers would reveal the needed information. But these ISPs, being governed by the Cable Communications Policy Act of 1984, could not turn over their subscribers’ information without a court order. (See 47 USC 515(c)(2)(B))

Hoop #2 – Discovery prior to the Rule 26(f) conference

What’s more, a plaintiff cannot start conducting discovery (and a subpoena is a discovery tool) until after it has had the initial conference with the defendant (the Rule 26(f) conference). But how can a plaintiff confer with a defendant it does not know? There is a bootstrapping problem here. The court has to step in and issue an order allowing the discovery be had.

Hoop #3 – Balancing injury versus right to anonymous speech

And getting that court order is a bit problematic and nuanced when one is dealing with anonymous defendants. The courts recognize the conflict between a need to provide injured plaintiffs with a forum in which they may seek redress for grievances, and the right of John Doe defendants to use the internet anonymously or pseudonymously when appropriate.

So judges apply a balancing test to weigh these interests. Different courts apply different tests. Some apply a very demanding standard, requiring plaintiffs to present enough facts to withstand a hypothetical motion for summary judgment. Other cases require a lesser burden be carried, looking merely to whether the complaint would survive a motion to dismiss. That’s the standard the court applied in this case.

The standard

It looked to the 1999 case of Columbia Ins. Co. v., 185 F.R.D. 573, 577 (N.D.Cal.1999) which articulated the following test:

  • First, the plaintiff should identify the missing party with sufficient specificity such that the Court can determine that (the) defendant is a real person or entity that could be sued in federal court …
  • Second, the (plaintiff) should identify all previous steps taken to locate the elusive defendant …
  • Third, Plaintiff should establish to the Court’s satisfaction that plaintiff’s suit against (the) defendant could withstand a motion to dismiss … Plaintiff must make some showing that an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing specific identifying features of the person or entity who committed the act.

In this case, the court found that each of these criteria had been met across the board.

It found that plaintiff had identified the defendants as best it could. Plaintiff provided the court with the unique IP addresses assigned to each defendant and the ISP that provided each defendant with internet access. Further, the requested discovery was necessary for plaintiff to determine the names and addresses of each defendant who performed the allegedly illegal and infringing acts.

The only information plaintiff had regarding the defendants was their IP addresses and their ISPs. Therefore, there were no other measures plaintiff could have taken to identify the defendants other than to obtain their identifying information from their ISPs.

And the court found the allegations supporting each of the claims were sufficient to survive a motion to dismiss.

As to the SCA, the complaint alleged that defendants intentionally accessed plaintiff’s web servers, which are facilities where electronic communication services are provided, defendants had no right to access the copyrighted materials on plaintiff’s website, and defendants obtained access to these electronic communications while these communications were in electronic storage.

On the CFAA claim, the complaint alleged that defendants unlawfully and without authorization entered into plaintiff’s computer server, which was used in interstate commerce, where plaintiff’s copyrighted materials were contained, stole plaintiff’s copyrighted materials, valued in excess of $15,000, and as a result of such conduct, caused plaintiff to suffer damage. Based on these facts, 18 USC 1030(g) authorized plaintiff’s civil action.

And as for copyright infringement, plaintiff alleged that it is the owner of the copyrights for certain motion pictures, which were accessed, reproduced, distributed and publicly displayed by defendants. Also, plaintiff alleged that defendants, without authorization, intentionally accessed, reproduced and distributed plaintiff’s copyrighted works onto their local hard drives or other storage devices.

Another massive porn Bittorrent copyright lawsuit in the Northern District of Illinois

MCGIP, LLC v. Does 1-1,164, No. 10-7675 (N.D.Ill., filed December 2, 2010) [Download Complaint]

Filing of copyright infringement complaint will be precursor to more subpoenas seeking to identify unknown file-sharing defendants.

Another porn company has filed a copyright lawsuit against hundreds of anonymous John Doe defendants who allegedly used the Bittorrent protocol to trade plaintiffs’ copyrighted movies. So ISPs around the country should expect another wave of subpoenas sent to unmask these unknown file sharers. The works allegedly infringed in this case include provocative titles such as “Girlfriend Lost a Bet” and “Iraq Care Package.”

Interestingly, this complaint — unlike the complaints in similar Bittorrent porn copyright cases — contains a paragraph that tries to explain why over a thousand defendants should be joined in one lawsuit:

Joinder is appropriate because, on information and belief, each Defendant was contemporaneously engaged in a coordinated effort with the other Defendants to reproduce and distribute Plaintiff’s copyrighted works to each other and hundreds of third parties via the BitTorrent protocol.

This language appears to be an attempt to head-off arguments like those made by EFF and others in some of the other massive copyright infringement actions against scores of anonymous defendants.

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