In the latest in a long line of SDNY opinions on copyright infringement cases brought against anonymous users of the BitTorrent file-sharing service, Judge Baer dismissed without prejudice the suits against all but the first identified John Doe defendant in the case on the grounds that they were improperly joined. Judge Baer lamented that the same “swarm” technology that has allowed for joinder of these defendants in many cases has created a plague on the federal courts: “It is this swarm that Plaintiffs have relied on in grouping Doe defendants together in a common suit. Ironically, there are swarms on both sides, for copyright locusts have descended on the federal courts, exacting low-cost settlements from embarrassed John Does and then moving on to the next District.” Judge Baer lists 30 separate BitTorrent actions against anonymous defendants that have been brought in federal court, which he describes as a “but a sample,” turning the federal courts into “cogs in a plaintiff’s copyright-enforcement business model.”
Unlike many other opinions on the subject, Judge Baer — having initially permitted the plaintiff to seek discovery of all the John Doe defendants in a single action — has seen how such an action plays out. Judge Baer explained:
The defenses already asserted in my cases vary greatly and turn on different factual and legal questions, for example, unauthorized access to a wireless router, possible misidentified Doe defendants, and improper venue. I anticipate additional individualized defenses, such as minimal participation in a swarm (if it matters, a partially downloaded file is useless without all the pieces) and personal jurisdiction, as well as separate motions and discovery disputes. I am also troubled by the fact that some Doe defendants have already been voluntarily dismissed at this early stage in the litigation; it suggests as suspected that the pressure on Doe defendants to settle their case quickly and thereby avoid embarrassment and litigation costs-when they may not even have committed any infringement-is all too real.
Judge Baer furthered noted the perverse incentive that may result if these John Doe cases are allowed to proceed under the copyright laws:
The Plaintiffs’ tactic, if left unchecked, could turn copyright protection on its head. Congress intended to incentivize the creation of useful arts by providing a statutory right and a means of enforcement that would reward authors for their labors, hardly the Plaintiffs’ strategy here. See Raw Films, Inc. v. John Does 1-32, No. 1:11-CV-2939-TWT, 2011 WL 6840590, at *2 n.5 (N.D. Ga. Dec. 29, 2011) (“It is conceivable that the swarm joinder device could encourage the creation of works not for their sales or artistic value, but to generate litigation and settlements.”); On The Cheap, LLC v. Does 1-5011, 280 F.R.D. 500, 504 n.6 (N.D. Cal. 2011) (“[This litigation strategy] raises questions ofwhether this film was produced for commercial purposes or for purposes of generating litigation and settlements.”). Damages for infringement are between $750 and $30,000 per work, with damages for willful infringement that reach as high as $150,000 per work. 17 U.S.C. § 504. In the BitTorrent pornography cases, settlements are for notoriously low amounts relative to the possible statutory damages, but high relative to the low value of the work and minimal costs of mass litigation. Cases are almost never prosecuted beyond sending demand letters and threatening phone calls. Severing the Doe defendants does not destroy the incentive to prosecute infringers who use peer-to-peer protocols; it merely restores the balance that Congress intended, not to mention that it ensures that courts receive the filing fees that Plaintiffs otherwise avoid. As another court has said, if a plaintiff “desires to vindicate its copyright rights, it must do it the old-fashioned way and eam it.” Malibu Media, No. 12-cv-3623-0DW, at 6.