The case against combating BitTorrent piracy through mass John Doe copyright infringement lawsuits.

• Author: Karunaratne, Sean B.

Today, the most popular peer-to-peer file-sharing medium is the BitTorrent protocol. While BitTorrent itself is not illegal, many of its users unlawfully distribute copyrighted works. Some copyright holders enforce their rights by suing numerous infringing BitTorrent users in a single mass lawsuit. Because the copyright holder initially knows the putative defendants only by their IP addresses, it identifies the defendants anonymously in the complaint as John Does. The copyright holder then seeks a federal court's permission to engage in early discovery for the purpose of learning the identities behind the IP addresses. Once the plaintiff knows the identities of the John Does, it contacts them with a settlement demand. But often before such discovery is granted, the anonymous defendants have been improperly joined, and the lawsuit has been filed in a court that lacks personal jurisdiction over the defendants. This presents no problem to the plaintiff because the plaintiff does not intend for the lawsuit to go to trial. However, the defendants effectively have no choice but to succumb to the plaintiff's settlement demand because settling will be less costly than fighting the action. This Note argues that courts should not grant expedited discovery in such procedurally deficient lawsuits. To rein in these mass lawsuits, this Note argues that mass copyright infringement suits should meet certain minimum joinder and personal jurisdiction requirements before courts grant expedited discovery.

TABLE OF CONTENTS INTRODUCTION I. FROM NAPSTER TO BITTORRENT: THE EVOLUTION OF ONLINE INFRINGEMENT A. Misjoinder and the RIAA Campaign Against File Sharing B. BitTorrent File Sharing II. REINING IN MASS LAWSUITS WITH MINIMUM PROCEDURAL REQUIREMENTS A. Moving for Expedited Discovery B. Proper Joinder: The Contemporaneous Swarm Requirement C. Personal Jurisdiction: Resident-of-the-Forum-State Requirement III. WHY THE JOHN DOES NEED PROTECTION CONCLUSION INTRODUCTION

This year, thousands of alleged users (1) of the BitTorrent peer-to-peer file -sharing protocol will open their mailboxes to an unwelcome surprise: a letter from a copyright holder threatening to sue the user for copyright infringement unless he pays a specified settlement amount. (2) The recipient will receive the letter because he is one of the several anonymous John Doe defendants joined in a single mass copyright infringement lawsuit that identifies the defendants only by the IP addresses associated with their internet accounts. (3) In their continuing assault against online piracy, copyright holders are using this mass litigation tactic to prosecute alleged infringers. Since mid-2010, over 220,000 BitTorrent users have been targeted in this manner. (4)

The litigation strategy is simple. The plaintiff-copyright holder issues a complaint alleging that all the listed John Does have used BitTorrent to infringe its copyright. (5) Then the plaintiff moves for expedited discovery on the basis of that complaint. Expedited discovery allows the plaintiff to serve subpoenas on each Doe's Internet Service Provider ("ISP") in order to uncover the identity behind each Doe's Internet Protocol ("IP") (6) address. Obtaining the Does' identities is the copyright holders' ultimate goal because they never intend to litigate these mass lawsuits. (7) Instead, settlement is their endgame.

After obtaining the identities of the previously anonymous John Does, the copyright holder sends settlement letters to the defendants notifying them that they will be named in the suit if they do not pay a specified amount. The settlement offer is carefully designed to leave the defendant with no choice but to settle, even when he has a strong defense to the action. (8) The pressure to settle is especially acute when the copyrighted work in question is a pornographic video, as is often the case. (9)

The John Does' inability to defend themselves is particularly troubling because many do have strong defenses, given the major procedural defects that typically plague these lawsuits. (10) In particular, these mass lawsuits suffer from improper joinder and the forum court's lack of personal jurisdiction over many (if not most) of the defendants. (11) When those issues are raised, district courts split on whether to allow discovery of the anonymous defendants' identities. (12)

This Note argues that, because these mass John Doe copyright infringement lawsuits frequently suffer from major procedural deficiencies, federal district court judges should not grant expedited discovery without carefully investigating whether the John Doe defendants have been properly joined and without first ensuring that the court has personal jurisdiction over them. Part I traces the history of mass copyright infringement actions against online file sharers and explains how the unique nature of BitTorrent differentiates it from the peer-to-peer networks involved in previous mass lawsuits. Part II advocates for the imposition of minimum joinder and personal jurisdiction requirements that courts should enforce prior to granting expedited discovery. Part III contends that mass lawsuits impermissibly take procedural shortcuts as part of a low-cost, high-volume litigation strategy designed to obtain the defendants' identities and coerce settlements and thus, the minimum procedural requirements proposed in Part II could help protect defendants by reining in these mass lawsuits.

1. FROM NAPSTER TO BITTORRENT: THE EVOLUTION OF ONLINE INFRINGEMENT

   Copyright holders' war against peer-to-peer file sharing began with the rise of computer programs like Napster, which allowed individuals to download music online for free. Beginning in 2003, the Recording Industry Association of America ("RIAA") launched a large-scale litigation campaign against individuals who allegedly infringed music labels' copyrights using peer-to-peer file-sharing programs from their personal computers. (13) The end of the RIAA campaign in 2008 (14) brought about a relative lull in lawsuits against online file sharers. (15) However, the void left by the RIAA has recently been filled by an explosion of mass copyright infringement lawsuits against BitTorrent file sharers. This Part gives a short history of the RIAA campaign and discusses the new issues raised by the BitTorrent lawsuits. Section I.A discusses how several courts rebuffed the RIAA's attempts to join many anonymous defendants in a single lawsuit. Section I.B explains how the mechanics of the BitTorrent file-sharing protocol differentiate it from other file-sharing services, and how this allows plaintiffs in BitTorrent lawsuits to make joinder arguments that the RIAA could not.

   1. Misjoinder and the RIAA Campaign Against File Sharing

      After focusing its efforts on shutting down peer-to-peer file-sharing services such as Napster and Kazaa, in 2003 the RIAA began to direct its legal efforts toward prosecuting the individuals sharing the files. (16) These lawsuits marked the first time "copyright laws [had] been used on a mass scale against individual Internet users." (17) First, the RIAA would obtain the IP addresses of alleged infringers by using the peer-to-peer program to search for a particular copyrighted recording and then collect the IP addresses of anyone uploading that recording. (18) The RIAA turned to this tactic after the D.C. Circuit Court of Appeals rebuffed its initial strategy of using the special subpoena provision of the Digital Millennium Copyright Act ("DMCA") to compel ISPs to disclose the names and contact information of the subscriber connected with each IP address. (19)

      The RIAA began filing mass lawsuits that joined together many alleged infringers, with each IP address representing a different putative defendant identified as "John Doe." (20) After filing the lawsuit, the RIAA would "ask the court to authorize subpoenas against the ISPs." (21) These lawsuits presaged the current BitTorrent lawsuits, as the RIAA joined numerous John Does in one action and filed the actions in forums unlikely to have personal jurisdiction over many of the anonymous defendants. (22) Moreover, it soon became abundantly clear that the ultimate goal of these lawsuits was settlement: after obtaining the identities of the John Does, the record companies almost always settled with the defendants. (23)

      Many courts authorized these initial subpoenas as a matter of course. (24) Yet, when these subpoenas were challenged on procedural grounds, courts almost always sided with the defendants. (25) The courts spoke with particular force on the joinder issue. Under Rule 20 of the Federal Rules of Civil Procedure, defendants may be joined together in one action under the following conditions:

      (A) Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

      (B) Any question of law or fact common to all defendants will arise in the action. (26)

      When confronted with file-sharing cases, a number of courts ruled that "defendants' use of the same ISP and [peer-to-peer] networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20." (27) Other courts found that joinder was improper because most of the complaints included "factually distinct actions" involving "different property, facts, and defenses" that were brought in one lawsuit. (28)

      Having found misjoinder in those cases, the courts severed the John Does pursuant to Rule 21, which states that "[m]isjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party." (29) The courts, however, were less willing to confront questions of personal jurisdiction so long as the defendants remained anonymous, often ruling that such questions were...