Troll Defense has just learned, courtesy of Ray Beckerman, that the Court of Appeals for the District of Columbia Circuit has ruled that the joinder of many different “John Doe” parties into a single action, for purposes of obtaining early discovery of the Does’ identities, is improper when the only basis for joinder is their common participation in a BitTorrent swarm.
As readers familiar with the typical modus operandi of BitTorrent-related copyright lawsuits know, this is a very significant decision. As the Court of Appeals opinion notes, the financial attractiveness of mass BitTorrent copyright cases to many rights-holders hinges on the economies of scale associated with suing as many Does as possible in a single case. By paying only a single court filing fee to allow the discovery of the identity of tens, hundreds, or even thousands of Does, copyright owners gain a huge financial advantage in later settlement discussions. Once the Does’ identities are disclosed by their ISPs, they can be then contacted and a settlement payment demanded from each of them. If copyright plaintiffs are required to pay a separate filing fee (and other legal costs) in the case of every single Doe, the financial stakes for the plaintiffs shift dramatically.
The D.C. Court of Appeals opinion is the first appellate-level federal court decision which directly addressed the problems associated with “swarm joinder.” The plaintiff in the case, AF Holdings (part of the notorious Prenda Law stable), had argued that because BitTorrent users who download the same file are part of the same swarm, they have all participated in the same series of transactions, which allows for their common joinder under the court rules. The Court of Appeals was “unconvinced” by the argument, explaining as follows:
AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time. Instead, it has simply set forth snapshots of a precise moment in which each of these 1,058 Does allegedly shared the copyrighted work—snapshots that span a period of nearly five months. Two individuals who downloaded the same file five months apart are exceedingly unlikely to have had any interaction with one another whatsoever. Their only relationship is that they used the same protocol to access the same work. To paraphrase an analogy offered by amicus counsel at oral argument, two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times. They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions.
Although the D.C. Circuit Court of Appeals decision is binding only on the lower court within its jurisdiction, the U.S. District Court of the District of Columbia, its reputation for sound jurisprudence (and a history of producing future Supreme Court justices) will give its opinions significant weight in other Circuits.
So what is the next step for Bittorrent copyright trolls? Malibu Media has already resorted to the filing of hundreds of single-Doe copyright cases in numerous courts, apparently in response to earlier objections and court concerns about swarm joinder. Pursuing a large number of singleton Doe cases obviously involves a more significant commitment of legal resources, and some may simply be unable to afford it. But so long as the Copyright Act allows for the threat of statutory damages, the incentive remains for copyright plaintiffs to make a moderate adjustment to their strategies and continue in pursuit of singleton BitTorrent litigation.