In a series of opinions issued on Tuesday and Wednesday this week, judges in four cases dealt with issues arising from complaints filed against unidentified “John Doe” defendants who allegedly used peer-to-peer file sharing programs to unlawfully share adult films over the Internet. The complaint in each case was accompanied by an ex parte motion for leave to subpoena the Internet Service Provider (ISP) linked to each John Doe defendant, known only by their own Internet Protocol (IP) number. The orders revealed a split among judges in the Southern District on how to deal with a wave of similar recent litigation. Two prior opinions, one by Judge McMahon and one by Judge Nathan, each involving the same plaintiff, a company called Digital Sin, reached two different conclusions on whether the joinder of multiple defendants in file-sharing copyright cases was appropriate and whether expedited discovery should be granted.

In two separate orders involving two separate plaintiffs and a total of 65 John Doe defendants, Judge Scheindlin sua sponte severed the claims against each defendant and dismissed the claims without prejudice against all but “John Doe #1” in each case.  Judge Scheindlin cited Judge McMahon’s Digital Sin opinion, which was critical of the strategy of pooling defendants and seeking early discovery from ISPs.  In both cases, Judge Scheindlin reasoned that the “allegation that defendants have merely committed the same violation in the same way does not satisfy the standard for permissive joinder because there are no litigation economies to be gained from trying what are in essence [forty-five/twenty] different cases together.”  Judge Scheindlin also noted that “early discovery has been used repeatedly in cases such as this one to harass and demand of defendants quick settlement payments, regardless of their liability.”  In another case, Judge Furman analyzed the identical joinder issue and came to the opposite conclusion.  Recognizing a split among judges in the district, Judge Furman looked to the technology that allowed the John Doe defendants to share the copyrighted material over the BitTorrent peer-to-peer network. 

With respect to joinder, Rule 20 allows defendants to be joined in a single suit if “any right to relief is asserted against them . . . arising out of the same transaction, occurrence, or series of transactions or occurrences.” Applying this Rule, many courts have concluded that where a plaintiff alleges a claim against members of the same BitTorrent “swarm,” the defendants are properly joined due to the interconnected nature of the BitTorrent protocol. See, e.g., Digital Sin, 2012 WL 263491, at *5 [(Nathan, J.)]. Other courts have disagreed, concluding that defendants in BitTorrent cases “merely commit[ed] the same type of violation in the same way,” which would not make joinder proper. E.g., Digital Sins, Inc. v. John Does 1-245, No. 11 Civ. 8170 (CM), 2012 WL 1744838, at *2 (S.D.N.Y. May 15, 2012) (McMahon, J.). After careful review, this Court agrees with those courts that have concluded that where, as here, defendants are alleged to have copied a single work as part of the same “swarm” over a limited period of time, joinder is proper under Rule 20 — at least for this stage of the proceedings. As Judge Nathan explained in her own Digital Sin case, “it is difficult to see how the sharing and downloading activity alleged in the Complaint — a series of individuals connecting either directly with each other or as part of a chain or ‘swarm’ of connectivity designed to illegally copy and share the exact same copyrighted file — could not constitute a ‘series of transactions or occurrences’ for the purposes of Rule 20(a).” Digital Sin, 2012 WL 263491, at *5 (emphasis in original).

Judge Furman also permitted the plaintiff to conduct expedited discovery of the ISPs in order to determine the identity of the John Doe defendants based on their IP numbers. Finally, in a short order, Judge Sweet adopted the reasoning of Judge Nathan in her Digital Sin opinion, and granted the plaintiff’s motion to conduct expedited discovery of the defendants’ ISPs.