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Joinder Issues in BitTorrent Copyright Litigation
Over the past several years, there has been a national flurry of civil actions brought primarily by pornographic filmmakers alleging copyright infringement by individual file-sharers using the BitTorrent' computer protocol. As one federal court noted, hundreds of thousands of John Does have been sued across the county since mid-2010, with copyright holders attempting to assert claims against unknown defendants identified by their IP addresses by joining them, in large numbers, into single actions. Typically, the copyright holders allege that users illegally downloaded, reproduced and distributed at least a portion of the film at issue using BitTorrent, a peer-to-peer protocol that allows users to transfer large files on the Internet.
Some commentators have characterized such cases as “copyright trolling” ' where a copyright holder files a mass infringement suit and subpoenas identifying information for anonymous Doe defendants, intending to send demand letters and achieve prompt, small settlements rather than actually litigating the claims. At least one court has echoed this view, even imposing sanctions against the copyright holders and their attorneys for certain bad faith conduct. See Ingenuity 13 LLC v. Doe, No. 12-8333 (C.D. Cal. May 6, 2013). However, not all suits against anonymous BitTorrent users necessarily involve an improper intent or even adult film companies. See, e.g., John Wiley & Sons, Inc. v. Doe 1-22, 2013 WL 1091315 (S.D.N.Y. Mar. 15, 2013) (related suits over unauthorized copying and distributing of several books using BitTorrent); ReFx Audio Software, Inc. v. Does 1-82, 2013 WL 500478 (D. Colo. Feb. 13, 2013) (unauthorized distribution of software using BitTorrent).
This article discusses BitTorrent generally, as well as joinder issues that have arisen with the filing of mass copyright suits based upon the theory that each of the accused infringers participated in the same BitTorrent “swarm.”
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