JOINDER OF TORRENTING SWARMS
On May 27, 2014, the United States Court of Appeals for the District of Columbia Circuit Court Judge Tatel ruled on a critical issue surrounding the joinder of parties to a BitTorrent Swarm in a copyright infringement suit against 1058 anonymous defendants.
In AF Holdings, LLC v. Does 1–1058, AF Holdings was represented by Prenda Law, which is “a porno-trolling collective” that files suits to take “advantage of judicial discovery procedures in order to identify persons who might possibly have downloaded certain pornographic films.” 752 F.3d 990, 992 (D.C. Cir. 2014). Prenda law, according to the Central District of California Judge Otis Wright, is comprised of “attorneys with shattered law practices” who, “[s]eeking easy money, . . . formed . . . AF Holdings,” acquired “several copyrights to pornographic movies,” then initiated massive ‘John Doe’ copyright infringement lawsuits.” Ingenuity 13 LLC v. John Doe, No. 2:12-cv-8333, 2013 U.S. Dist. LEXIS 64564, at *3 (C.D. Cal. May 6, 2013).
Simplified, according to Judge Harold Baer, here is how BitTorrent and similar torrenting protocols operate: these protocols segment a large file, in this case a copyrighted adult work called Popular Demand, into “pieces while tagging each piece with a common identifier.” Media Products, Inc. v. Does 1–26, No. 12 Civ. 3719, 2012 U.S. Dist. LEXIS 125366, at *4 (S.D.N.Y. Sept. 3, 2012). These unique identifiers are known as hash values, which are the result of a calculation (hash algorithm) that can be performed on an electronic file like a copyrighted work. No two electronic records have the same hash value. Hash values are used to identify and filter duplicate files. For that reason, it is called the “digital fingerprint” of electronic documents. Keeping that in mind, according to Judge Baer, “[w]here in the normal course a user would download a file from a single source, and download it sequentially from beginning to end, with the BitTorrent peer-to-peer protocol, users join forces to simultaneously download and upload pieces of the file from and to each other. This reduces the bottleneck of Internet traffic that normally occurs at the server where the entire file is located and allows for faster download speeds for users. This interconnected web of information flowing between users, or peers, is called a swarm.” Id. In short, when a user downloads a copyrighted work through a torrenting protocol, the work (with the unique hash value) is disassembled and segments of that work are downloaded from various users. Subsequently, the work is reassembled on the downloader’s computer and the unique hash value assigned to the work is also reassembled. These hash values are used to track alleged infringers to their IP addresses, which multiple people can access the Wifi associated with that address.
In the case at bar, eloquently articulated by Circuit Judge Tatel:
Prenda Law’s general approach was to identify certain unknown persons whose IP addresses were used to [allegedly] download pornographic films, sue them in gigantic multi-defendant suits that minimized filing fees, discover the identities of the persons to whom these IP address were assigned by serving subpoenas on the Internet service providers to which the addresses pertained, then negotiate settlements with the underlying subscribers—a “strategy [that] was highly successful because of statutory- copyright damages, the pornographic subject matter, and the high cost of litigation.”
752 F.3d at 992. Here, AF Holdings filed copyright infringement claims against 1,058 unnamed Does, which allegedly had illegally downloaded the adult work Popular Demand using BitTorrent. Id. at 993. Subsequently, on a motion for expedited discovery, AF Holdings sought to serve subpoenas on the five Internet Service Providers linked to the 1,058 IP addresses it had identified in order to uncover the identities of the owners of the IP addresses associated with the illegal downloads. Id. (Author’s Note: just because you are the account holder for a wireless service— whether password protected or unsecured—does not mean that you are the one that performed the specific download).
However, the Internet service providers refused to disclose the identities of their customers (commence slow clap now). Invoking Federal Rule of Civil Procedure 45(d)(3)(A), which provides that a district court “must quash or modify a subpoena that . . . subjects a person to undue burden,” the providers asserted that the “administrative expense involved was necessarily an ‘undue burden’ because AF Holdings had failed to establish that the court would have personal jurisdiction over the defendants or that venue would lie in this district.” Id. at 993–94. The district court disagreed in granting the AF Holding’s discovery request and held that “considerations of personal jurisdiction and joinder are premature when discovery is sought before the plaintiff has named a defendant and the discovery is targeted to identify unknown individuals associated with the IP addresses.” Id.
On immediate appeal, the providers repeated their arguments “that the subpoenas are unduly burdensome because venue is improper, personal jurisdiction over these Doe defendants is lacking, and the defendants could not properly be joined together in one action.” Id. In support, one provider revealed that only 20 of the 188 subscribers whose information was sought actually resided in the District of Columbia. Id. Another provider stated, “Only one of the 400  subscribers AF Holdings identified appeared to live in the District.” Id. Further, the remaining service providers claimed “that they had no subscribers at all in the District of Columbia” and that “they do not even offer service” in that district. Id.
The issue then arose as to what sort of information is properly discoverable at that procedural juncture where no party has been specifically named as a defendant. At the Appellate level, the Court emphasized “when a plaintiff seeks jurisdictional discovery with respect to named defendants, a plaintiff pursuing discovery of the sort AF Holdings seeks regarding unknown defendants must ‘have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant[s].’” Id. at 994 (citing Caribbean Broad. Sys., v. Cable & Wireless PLC, 148 F.3d 1080 (D.C. Cir.1998)).
Circuit Judge Tatel reasoned that the “identity of prospective defendants who cannot properly be sued in this district can be of little use in a lawsuit brought in this district. . . ‘when the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied.’” Id. (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978)). The Court further noted that “it quite obvious that AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district.” Id. at 996. This speculative possibility is “plainly insufficient to satisfy AF Holdings’s obligation to demonstrate a good faith belief that it will actually be able to successfully sue the more than a thousand non-District residents about whom it seeks discovery.” Id. at 997.
Examining the totality of the evidence, Circuit Judge Tatel emphasized that “AF Holdings’s refusal to cabin its suit and corresponding discovery requests to individuals whom it has some realistic chance of successfully suing in this district demonstrates that it has not ‘sought the information because of its relevance to the issues’ that might actually be litigated here.” Id. (citing Oppenheimer, 437 U.S. at 353).
Confronting the issue of joinder of members of torrenting swarms, AF Holdings argued that joinder of the 1,058 John Does was presumptively proper because each defendant was necessarily part of the same transaction or series of transactions in the swarm. Id. at 998. However, drawing from 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. And “[s]imply committing the same type of violation in the same way does not link defendants together for the purposes of joinder.”
Id. (citing Hard Drive Productions, Inc. v. Does 1-30, No. 2:11cv345, 2011 U.S. Dist. LEXIS 119333, at *7 (E.D. Va. 2011). The Court therefore concluded, “The mere fact that two defendants accessed the same file through BitTorrent provides an insufficient basis for joinder.” Id.
So what does this case represent? AF Holdings v. Does 1-1058 encourages the proposition that copyright holders may not abuse the legal process to obtain the identities of thousands of alleged illegal downloaders in one batch without sophisticated geolocation evidence, which acts as debilitating procedural precedent against the Machiavellian stratagem of this copyright troll’s business model. Additionally, merely allegedly downloading or sharing the same copyrighted work at different times, for the purposes of joinder, does not necessarily result in the same transaction or occurrence. Absent the opportunity to file against large amounts of anonymous defendants to get to the discovery stage (to learn the identities of the alleged downloaders to extort rapid settlements), a copyright troll faces a less lucrative variety of options. This further highlights the issue of false positives by recognizing that simply because “an IP address is registered to an individual is not sufficient in and of itself to support a claim that the individual is guilty of infringement. AF Holdings, 2013 U.S. Dist. LEXIS 11929, at *4–5 (citing In re BitTorrent Adult Film Copyright Infringement Cases, No. 11-3995(DRH)(GRB), 2012 WL 1570765, at *9 (E.D.N.Y. May 1, 2012). This is because “it is no more likely that the subscriber to an IP address carried out a particular computer function . . . than to say an individual who pays the telephone bill made a specific telephone call.” Id.
For more information regarding copyright trolls refer to Copyright Trolls, Defining the Line Between Legal Ransom Letters and Defending Digital Rights: Turning Piracy into a Business Model or Protecting Creative From Internet Lawlessness?, 13 J. Marshall Rev. Intell. Prop. L. 170 (2013) available at http://repository.jmls.edu/ripl/vol13/iss1/5/