Courts Affirm And Return to BitTorrent Joinder

Cobbler Nevada v. Does, 1:15-cv-05283 (N.D. Ill., Oct. 23, 2015)

In Bit Torrent litigation courts are affirming and returning to joinder, or the combining of many defendants into a single case as the proper and most efficient means to permit both plaintiffs and defendants to participate in the judicial process.

Joined cases generally allow the more efficient and economical management of claims. Individual cases may cost $5,000 or more each to prepare and file. When a case is against a single party, all those costs may then be borne by a single defendant. When multiple defendants are joined, the costs are spread out among the several defendants and no one party bears the full costs of a single case.

Many jurisdictions began to deny joinder or place restrictions on joinder when courts were faced with allegations of abuse. But investigations are finding such claims of abuse are often unsupported or overblown. In one case after the court ordered severance, defendants then complained that individual Doe cases were even “more nefarious.” Voltage Pictures, LLC v. Revitch, 6:14-cv-00301-AA, (Jan. 23, 2015.) Faced with defendants that first complained that joinder was improper and then argued that single party cases were unfair, and even demanding joinder, courts realized the real complaint of most defendants has nothing to do with joinder, but simply that defendants do not want to be caught.

As has been realized, arguments against joinder by defendants were a short-sighted effort to drive up costs for plaintiffs. Defendants forgot that when found liable they must then pay those costs. As a result, many defendants, and the courts, are returning to joined cases.

As per the opinion of Judge Coleman:

Looking to both the plain language of Rule 20 and the substantial body of persuasive authority in this district, this Court finds that Rule 20(a)(1) does not require a single transaction, direct transactions, or temporal overlap. Accordingly, multiple defendants need not participate in the swarm at the same time in order to be properly joined.

Here, Cobbler alleges that each defendant used BitTorrent to participate in a BitTorrent swarm and to download and upload identical pieces of the same copyrighted work within the span of less than one month. These allegations are adequate to establish that the defendants acted as part of the same series of transactions or occurrences. Furthermore, the purpose of judicial efficiency is best served by the continued joinder of the parties at this stage of the litigation.

Other jurisdictions following this trend include Washington (Dallas Buyers Club, LLC v. Does, 14-cv-1684 (W.D. WA., October 31, 2014)) and Oregon (Survivor Productions, Inc. v. Popcorn Time Users, 3:15-cv-01587-AA, (D. Or. Sept. 15, 2015))

The full text of the Judge Coleman opinion:
Cobbler Nevada v. Does, 1:15-cv-05283 (N.D. Ill., Oct. 23, 2015)

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