BitTorrent Copyright Update: Joined Cases Go Forward in Illinois

Judge Tharp, sua sponte, rules to allow joined cases to proceed and rejects a strict reading of D.C. Federal Court joinder analysis.

Without any motion before the court, Judge Tharp has addressed the issue of BitTorrent swarm joinder and the ruling of AF Holdings, LLC v. Does, 1-1058, 752 F.3d 990 (D.C. Cir. 2014), and has found that though in extreme cases joiner may not be proper, in the matters of the pending cases relevant to his ruling joinder is indeed proper for BitTorrent copyright claims, at least for initial discovery.  The D.C. Federal Circuit is the only appellate court to address this issue and in the case of 1000+ defendants, spread out over five months, the court found that joinder was not proper.  Judge Tharp, on his own (sua sponte) rejected the strict D. C. Federal Circuit analysis and the common argument that would require all parties be in a swarm a the same time, and found that such a requirement:

…appears to overlook the fact that the pieces of the file that Doe 1 distributed directly to other Does who were in the swarm contemporaneously with Doe 1 were in turn subsequently distributed by them to the Does who joined the swarm after Doe 1 left it; in the context of a swarm, there is only a single digital file that is distributed among the members. Thus, it cannot be said that subsequent transfers of that file are even entirely “independent” of the earlier transfers; all of the transfers involve the same file and the earlier transfers of the pieces of that file facilitate the later transfers. Moreover, nothing in Rule 20 suggests that joinder requires a direct transaction between every defendant.

…permitting joinder among noncontemporaneous swarm participants does not seem novel or extreme; the law governing joint ventures and conspiracies, for example, permits plaintiffs to proceed against groups of defendants who engaged in a cooperative endeavor to facilitate an unlawful object whether or not all of the members of the group took part in all of the actions of the group and without regard to when the members joined the group.

The judge acknowledged:

Though there are strong arguments on both sides of this issue, entering a sue sponte finding of misjoinder of the Doe defendants would, in the Court’s judgment, be inappropriate at this early stage.

Though the plaintiff may issue subpoenas to determine the Doe defendants’ true identities, the plaintiff is prohibited from publishing the defendants’ identities in any way without leave.

… the Court finds that allowing the defendants to proceed by pseudonym is appropriate at this preliminary stage of the litigation, when no defendant has been put on notice of this suit. Once defendants have received such notice, the Court will revisit the issue of whether the names of the defendants in this matter may be publicly disclosed.

While the proponents of BitTorrent piracy may have expected the D.C. Circuit to end all joined lawsuits nationwide, this is clearly not the case as several districts including those in Texas, Colorado, Illinois and Washington have subsequently made clear that joined cases are going forward.

Full Text of Opinion: Dallas Buyers Club v. Does 1-25, 1:14-cv-05643 (N.D. Il. Aug. 28, 2014).

Leave a Reply

Post Navigation