If you have ever engaged in any p2p sharing using torrents, this post may pique your interest. Or, if you are interested in the nuances of F.R.C.P. Rule 20 Joinder, this post may pique your interest. If you are interested in both, you are in for a treat.

Judge Chasanow of the US District Court for the District of Maryland has just weighed in on a joinder issue that has split numerous district courts, but has yet to be heard by an appellate court. Simply framed, the issue just decided in Third Degree Films v. Does 1-108 is whether or not a plaintiff alleging copyright infringement based on torrent sharing should be permitted to join unknown defendants (“Does”) associated only with an IP address. The answer will impact the costs of private p2p-infringement enforcement in the future.

A bit about torrents

In its simplest form, torrent sharing occurs when a user uploads a file to the Internet in numerous pieces (“bits”), and other users (“peers”) download and then share (“seed”) the individual bits of the file. The process by which the bits are shared is called “swarming,” as the bits are available to a swarm of users to download and share. Millions use torrents, also known as bittorrents, to download bits of files that ultimately combine to create a whole file, such as a film or album.

Private enforcement issues

Copyright holders oppose torrents because they are a means of easily pirating  protected works. Indeed, it is difficult to sue for infringement because the only information the copyright holders have about the users is the IP address and ISP (Internet service provider)—not the name or address of the user. Undeterred, various copyright holders have pressed forward with infringement suits solely on the basis of the IP addresses that have allegedly been used to seed the protected works, and to alleviate the costs of individual lawsuits, they have sought to join the unknown defendants as “Does.” The rights holders then subpoena the ISPs for user information connected to the IP addresses. (In Third Degree Films, the plaintiff claims to have narrowed the “Does” by geo-location technology to ensure all of the IP addresses are connected to users in the district.)

On the other side of the enforcement equation, such lawsuits stoke concerns about “copyright trolling,” which is a term that describes copyright holders who purchase rights only for purposes of suing for infringement—not to protect their own creative works—and then seek settlements from infringers upon threat of suit. This is especially poignant in cases involving infringement of adult films, such as in Third Degree Films, as the threat of a lawsuit could expose defendants to reputation harm if their identities are obtained. Moreover, a defendant might be wrongly accused if, for instance, the defendant’s IP address is not password protected and other users have seeded from the IP address unbeknownst to the defendant.  See here for a reply brief in a similar case raising this concern. The pressures of reputation harm and civil liability may cause the innocent defendant to settle.

The Joinder Issue

Whether the plaintiff is a troller, or a good faith rights-holder seeking to enforce its copyright, the success of private enforcement largely depends on the costs of pursuing possible infringers, which in turn largely depends on the ability to obtain Rule 20 joinder. The court in Third Degree Films outlined the issue, citing eleven district courts that have found joinder of “Doe” defendants appropriate and nine district courts that have found it inappropriate. Under Rule 20, a plaintiff can join defendants if the right to relief against the defendants regards the same transaction, occurrence, or series of transactions or occurrences. The court has great discretion in granting such joinders, and will consider factors such as prejudice, expense, and delay. In Third Degree Films, the court severed the defendants after initially enjoining them, finding that there could be prejudice to the “Does” because of the unique facts and defenses that each might present, such as misidentification of the seeder using the defendant’s IP address (e.g., with a router that is not password protected). The court also noted the possibility of obtaining extortionate settlements in the case at bar, where defendants were accused of infringing adult works and could be tempted to settle, despite being innocent, to avoid reputation harm.

How trial courts, and perhaps appellate courts, settle this issue could have a material impact on private enforcement against p2p infringers going forward and on those who may be innocently victimized through third-party abuse of their IP address. If courts allow joinder of unknown defendants in the p2p context, despite the possibility that a defendant is not the infringer and only owns the IP address, the lawsuits could become extremely complicated in fact-finding, and defendants will more likely settle because of the risk of reputation harm and of paying the statutory maximum of $150,000. But, if courts such as the one in Third Degree Films find that the defendants should be severed from the suit, or not joined in the first place, copyright holders’ threats against potential infringers will carry less weight, as private enforcement against an individual may not be cost effective. This will stymy good faith infringement suits. Stay tuned, as these decisions may impact millions of torrent users and copyright holders in the future.

 

Mike Dearington

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