An Uncomfortable Threesome: Permissive Party Joinder, Bittorrent, and Pornography

• Publication year: 2014

An Uncomfortable Threesome: Permissive Party Joinder, BitTorrent, and Pornography

Evan Hoole

AN UNCOMFORTABLE THREESOME: PERMISSIVE PARTY JOINDER, BITTORRENT, AND PORNOGRAPHY

Abstract

In recent years, media companies have struggled to combat the rampant growth of Internet piracy and the sharing of their copyrighted works. Lately, some copyright holders have taken to suing hundreds of file-sharers in a single suit. These suits were initially unsuccessful, as courts denied joinder of the file-sharers. The rise of a unique file-sharing program called BitTorrent, however, has caused some courts to give copyright holders a new opportunity to successfully file and settle these mass infringement lawsuits. A central issue in many of these suits is whether joinder of the many file-sharing users is appropriate. Disagreement among courts over this issue has centered around whether a copyright holder's claims against a group of BitTorrent users "aris[e] out of the same transaction, occurrence, or series of transactions or occurrences," as is required for joinder by Rule 20(a)(2) of the Federal Rules of Civil Procedure. This Comment examines the split that has occurred among courts in analyzing this joinder issue and argues that joinder is not appropriate in these suits.

Media companies bring these suits on the pretext of deterring copyright infringement, but, in reality, the companies are using these suits as massive collection schemes to coerce defendants to settle, without ever intending to litigate the suits. This Comment proposes that courts should sever all but one defendant from these mass copyright infringement suits against BitTorrent users for three reasons. First, recently there has been a shift toward heightened pleading requirements based on the plausibility of the pleadings. In analyzing the joinder issue in these file-sharing suits, courts have already implicitly considered the plausibility that the defendants participated in the same transaction or occurrence. This consideration has allowed courts permitting joinder in BitTorrent suits to distinguish BitTorrent cases from earlier cases involving other file-sharing programs. These courts have greatly overestimated this plausibility in suits involving BitTorrent. Second, in allowing joinder, courts have not properly applied the purposes and policies behind permissive party joinder and the Federal Rules of Civil Procedure. Finally, these courts have also effectively allowed copyright holders to

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circumvent class action requirements by allowing them to bring class actionlike suits using permissive party joinder under Rule 20.

Introduction............................................................................................1213

I. An Introduction to the BitTorrent File-Sharing Protocol........................................................................................1216

A. P2P Technology....................................................................... 1216
B. How BitTorrent Works ............................................................. 1217

II. The Approaches of District Courts to Permissive Party Joinder in Suits Against BitTorrent Users.............................1220

A. A Brief History of P2P Copyright Infringement Suits Before BitTorrent ................................................................................. 1220
B. The Federal Rules of Civil Procedure and Permissive Party Joinder...................................................................................... 1221
C. Courts Permitting Joinder........................................................ 1226
D. Courts Not Permitting Joinder................................................. 1232

III. Why Courts Should Sever Defendants in Suits Against BitTorrent Users.........................................................................1236

A. The Rise of Plausible Pleading ................................................. 1237
B. The Implausibility of BitTorrent Users Satisfying the Transactional Requirement of Rule 20..................................... 1238
C. The Personal Jurisdiction Wrinkle........................................... 1242
D. Severance and the Purposes and Policies of the Federal Rules of Civil Procedure .................................................................... 1244
E. An Attempt by Plaintiffs to Circumvent Rule 23....................... 1248

Conclusion................................................................................................1252

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Introduction

District courts across the country have experienced an influx of copyright infringement lawsuits aimed at mass groups of peer-to-peer (P2P) file-sharing users. In 2010 alone, plaintiffs filed 80 copyright infringement lawsuits involving nearly 100,000 P2P users.¹ These suits have continued unabated, with more than 220,000 P2P users sued as anonymous defendants from mid-2010 to early 2012.² A single suit can have as many as 5,000 file-sharing users.³ The plaintiff initially names the users as John Doe defendants because the plaintiff can only identify the alleged infringers by their internet Protocol (iP) addresses.⁴ soon after filing suit, the plaintiff moves for expedited discovery to obtain the names and addresses of the alleged infringers from the Internet service providers (ISPs) servicing the IP addresses.⁵ The plaintiff then notifies the users of the suit and names them as defendants.⁶

The suits often "offer" up to a $3,000 settlement for each user.⁷ This settlement offer is notably less than the likely cost for each user to defend against the suit.⁸ This trend has raised concerns among judges that these lawsuits are serving as vehicles for companies to make a quick buck rather

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than furthering the purposes of copyright law.⁹ Others have suggested that the mass suits are a way to avoid the standard per-case $350 filing fee for federal courts.¹⁰ Yet those on the plaintiffs' side insist that the suits are nothing more than "effective enforcement and litigation of intellectual property law."¹¹

The large number of defendants in each suit and the nature of the file-sharing systems have created several procedural issues, including those of personal jurisdiction and the proper application of the Federal Rules of Civil Procedure. One of the more common issues courts have grappled with is the application of Rule 20: Permissive Joinder of Parties to the numerous anonymous defendants joined in each suit. In cases that involved standard P2P networks, courts emphatically rejected joinder of large numbers of defendants under Rule 20.¹² However, the unique characteristics of BitTorrent, the world's most popular P2P network,¹³ have led some courts to break away from the traditional practice of severing all but one defendant in mass copyright lawsuits against BitTorrent users. Courts are divided over whether Rule 20 allows plaintiffs to sue BitTorrent users collectively in one suit.¹⁴ Courts have either

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severed all but one defendant,¹⁵ or have allowed the case to proceed against all defendants listed in a plaintiff's complaint.¹⁶ Some courts have allowed joinder pending developments in the next phase of the litigation process.¹⁷

This Comment argues that joinder of numerous anonymous defendants is not appropriate in copyright infringement suits brought against BitTorrent users. Part I of this Comment explains how BitTorrent operates to provide an understanding of why applying the principles of permissive party joinder to BitTorrent has caused such consternation among judges. Part II begins with a brief history of media groups' lawsuits against P2P networks and users and an overview of the requirements of Rule 20. This Part then examines how, although courts rejected joinder in suits involving users of pre-BitTorrent P2P networks, some courts have distinguished BitTorrent from these networks to permit joinder in suits against BitTorrent users. Specifically, Part II explains the courts' differing interpretations of a "series of transactions or occurrences"¹⁸ and their weighing of the purposes and policies behind the Federal Rules of Civil Procedure.

Part III argues that courts should sever all but one of the anonymous defendants in mass copyright infringement suits against BitTorrent users. This Part first examines the recent rise of heightened pleading requirements, with an emphasis on plausible pleadings, in Bell AtlanticCorp. v. Twombly¹⁹ and Ashcroft v. Iqbal.²⁰ Next, this Part explains how courts have implicitly considered plausibility to justify permitting joinder in suits involving BitTorrent, despite denying joinder in suits involving other P2P networks. Courts have overestimated this plausibility: suits against BitTorrent users should not be so distinguished from suits against users of other P2P networks. The plausibility does not rise to the level established in Twombly and Iqbal. Furthermore, the purposes and policies behind the Federal Rules of Civil

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Procedure and Rule 20 counsel against permitting joinder in suits against BitTorrent users. Part III concludes by exploring the concern that, by attempting to join large numbers of BitTorrent users in a single suit, copyright holders are trying to get around the requirements for bringing class actions, which they would be unable to satisfy.

I. An Introduction to the BitTorrent File-Sharing Protocol

To fully understand why courts have struggled applying Rule 20 to copyright infringement suits against large numbers of BitTorrent users, it is important to understand exactly how a P2P file-sharing system, such as BitTorrent, works. This Part first explains how P2P technology works generally, and then how BitTorrent works.

A. P2P Technology

P2P technology is a "software architecture" that allows for the "decentralized" sharing of data files.²¹ Instead of individual computers connecting to a centralized server to download files stored on the server, the individual computers...