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July 20, 2011
P2P Swarm Defendants Can't Be Joined in the Same Lawsuit -- Pac. Century Int'l Ltd. v. Does
[Post by Venkat Balasubramani]
Pacific Century International Ltd. v. Does, C-11-02533 (DMR) (N.D. Cal. July 8, 2011)
There have been a slew of recent procedural rulings in mass copyright cases, with plaintiffs mostly getting smacked down by courts. Plaintiffs have tried to sue defendants en masse in a single lawsuit and courts have been unreceptive to this idea. One open question was whether P2P "swarm" defendants can be sued in the same lawsuit because of defendants' interactions with one another in downloading or distributing the same copyrighted work. In this case, the court says no, and sua sponte, severs a bunch of Doe defendants from the lawsuit.
Pacific Century International sued a hundred and one Doe defendants in the Northern District of California, alleging that defendants reproduced and distributed plaintiff's copyrighted work titled "Amateur Cream Pies -- Erin Stone." Plaintiff requested leave to take early discovery. The court approved the request for early discovery, but had questions about the propriety of joining Does 2 through 101 in the same lawsuit. Plaintiff offered the following explanation, and argued that all defendants should be joined together because they were all part of the same BitTorrent "swarm":
the [BitTorrent] protocol breaks a single large file into a series of smaller distributable pieces. Then, an initial file-provider (the "seeder") intentionally elects to distribute the pieces to third parties. . . . Other users ("peers") on the network download a small "torrent" file that contains directions on where to find the seeder as well as an index of the pieces. The torrent file is loaded into BitTorrent software, and the software follows the directions in the torrent file to connect to the seeder. When peers connect to the seeder, they download random pieces of the file being seeded. When a piece of download is complete, the peers automatically become seeders with respect to the downloaded pieces. In other words, each peer in a swarm transforms from a pure downloader . . . to a peer that is simultaneously downloading and distributing pieces of a file.
Plaintiff essentially argued that since all of the defendants worked together to download and distribute a copyrighted work, Plaintiff's claims arose out of the "same transaction." The court disagreed, noting that just because the Doe defendants happened to download or distribute the same copyrighted work does not mean that they were involved in the same swarm. For example, one defendant may distribute a low definition version of a video while another may distribute a high definition version. The court says:
[t]hat BitTorrent users have downloaded the same copyrighted work does not, therefore, evidence that they have acted together to obtain it.
Although plaintiff alleged that the Doe defendants were all involved in a civil conspiracy, the court concludes that plaintiff "failed to demonstrate that it has any right to relief against [Defendants] . . . . arising out of the same transaction, occurrence, or series of transactions of occurrences."
Ouch! As a bonus, although the court authorizes early discovery, it directs the ISP in question to provide the affected subscriber (Doe 1) with notice of the subpoena, and gives Doe 1 an opportunity to object.
This is just one more decision of many recent decisions where courts push back using procedural rules on copyright plaintiffs who are trying to sue multiple defendants in the same lawsuit. (See, e.g., "Judge Tells John Steele To Stop Mass Suing Anonymous People For File Sharing.") In addition to the problem highlighted by the court, there is one other obvious problem with suing a bunch of unidentified defendants in a single forum. You have no idea where the defendant is based and whether they're subject to jurisdiction in the forum. Most people view the mass lawsuits as an efficiency play by plaintiffs, at the expense of procedural rules and defendants' rights. I haven't been keeping a close tally, but it's clear that at least some judges are starting to push back on this tactic.
Strangely, some recent copyright plaintiffs don't seem to pick up on the subtle messages that courts send in their rulings. As a litigant, you don't want to blindly accept a judge's procedural rulings and directives, but you also want to pick your battles. One or two decisions out of ten is probably worth fighting over, and if the ruling is one that involves some exercise of the judge's discretion, you probably want to consider following the path laid out by the judge. Copyright plaintiffs don't seem to view things this way, and resist every single adverse decision issued by judges. Righthaven is probably the most prominent example of this, as extensively catalogued by Eric and others. We'll see what happens in this case.
(h/t Ray Dowd)