A recent decision by Magistrate Judge Ryu of the Northern District of California prompts me to write about what should be a basic requirement of any lawsuit against users alleged to have participated in the exchange of copyright protected works using the BitTorrent peer to peer technology: that the defendants have participated in the same “swarm” (having downloaded the same file using the same tracker at the same time). A bit of backtracking is probably necessary here.
BitTorrent users download by connecting their BitTorrent client with a tracker that allows the client software to locate the IP addresses of both seeds (those users who have downloaded an entire file) and peers (those who are still downloading). Once a user has one “piece” of a file, they continue downloading the rest while also uploading (where needed) the piece that they have to other peers. Those uploading and downloading at the same time are called a “swarm.”
Why does this matter? Because how users interact with software is important, as Judge Ryu notes, and it could be important enough to sever cases and declare joinder inappropriate even at the “Doe” stage of litigation. In the California case, Pacific Century International, Ltd. v. Does 1-101, Judge Ryu does exactly that, severing and dismissing Does 2-101 for the plaintiff’s failure to link them to the same Torrent swarm (even though they were alleged to have exchanged the same copyright protected work).
More after the jump
According to the Court:
. . . BitTorrent users may upload different initial files of a given work, which results in the creation of distinct swarms. [A] second initial “seeder†may not enjoy television shows in low definition and instead decide to upload a high definition file of the same episode for distribution. Notably, because of the differences between the first, low definition file and the second, high definition file, the participants in the first swarm would not interact with those in the second swarm. (See Hansmeier Decl. ¶ 9 (noting that swarms develop around originally seeded file, as opposed to a particular work).) That BitTorrent users have downloaded the same copyrighted work does not, therefore, evidence that they have acted together to obtain it. [emphasis in original]
This is a suitably accurate description of how BitTorrent works, and it is necessary to paint the required picture of cooperativeness for federal joinder of defendants purposes. The Court continues:
Because of this fundamental constraint on the collaboration between copyright infringers using the BitTorrent protocol, the court finds that Plaintiff cannot meet the permissive joinder requirement of Rule 20(a)(2)(A). Although Plaintiff explains the protocol and how it differs from its predecessor P2P programs, and specifically claims that Defendants have engaged in a civil conspiracy (Compl. ¶¶ 32-39), Plaintiff still has failed to demonstrate that it has “any right to relief against [Defendants] . . . . arising out of the same transaction, occurrence, or series of transactions or occurrences.†Fed. R. Civ. P. 20(a)(2)(A). This deficiency proves fatal to Plaintiff’s attempt to join Defendants because the only commonality between copyright infringers of the same work is that each “commit[ted] the exact same violation of the law in exactly the same way.†LaFace Records, LLC v. Does 138, No. 07-CV-298, 2008 WL 544992, at *2 (E.D.N.C. Feb. 27, 2008) (not reported in F. Supp.) (citation & quotation marks omitted); accord Diabolic Video Prods., Inc., No. 10-CV-5865, at *6 (“[T]he mere allegation that defendants have used the same peer-to-peer network to infringe a copyrighted work is insufficient to meet the standards for joinder set forth in Rule 20.â€).
The easiest way to make this requirement clear would be to insist that plaintiffs plead that all “Doe” defendants listed in a particular file sharing suit be alleged to have participated in the same swarm at the same time.
While not stating such a requirement explicitly, it seems to me that Judge Ryu got this right, while other federal judges are getting it wrong. Judge Howell in her combined order in the Call of the Wild, Maverick, and Donkeyball Video decision seems to have gotten it entirely wrong (The Hollywood Reporter has more). Diabolic seems wrong to me, too, given how things actually work and the requirements of the Federal Rules. That is, Rule 20 of the Federal Rules of Civil Procedure allows defendants to be joined together in one lawsuit when “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences.”
What is missing in the Call of the Wild grouping or the Diabolic case is the actual actions of the accused users in cooperating with each other. Failing to require concerted action, but instead allowing plaintiffs to lump together defendants who are alleged to somehow have downloaded the same (or perhaps even different) copyright work (regardless of the source file or source location) simply misses the requirements of the Federal Rules in light of the BitTorrent technology.
Perhaps an example would help here: consider the situation where CD bootlegger A makes 1,000 bootleg audio CDs and sends them out one-by-one by special delivery service to buyers. At the same time bootlegger B also makes 1,000 bootleg CDs and sends them out one-by-one to buyers by special delivery service. Assuming A and B have no interaction with each other (and in fact have no commonalities other than copying the same CD and using the same delivery service), no Federal Court would consider allowing them to be joined in a federal lawsuit. The requirements of the rules simply aren’t met. The same situation exists if Bootlegger A sends to distributors K, L, M & N, and Bootlegger B separately sends to distributors O, P, Q & R. Plaintiff cannot bring A, K, L, M & N into the same lawsuit with (for example) R. They have not engaged in the same transaction. And what cannot be done in the real world does not, to paraphrase Judge Kozinski in Roommates.com [pdf], “magically become [allowable] when [done] electronically online.”
To be fair, Judge Howell in the Call of the Wild line of cases seemed much more concerned with saving the plaintiffs some money, so was not looking for compliance with the rules. Compliance would come after disclosure of Doe identities (though of course this is rebutted by the notion that you can simply join Doe defendants willy nilly and still somehow comply with the rule; you can’t).
Magistrate Judge Ryu, however, recognizes the folly of this: the Federal Rules require some coordinated action in pursuit of a common goal before defendants can be joined, and while BitTorrent users downloading the same copyright work in different swarms may have a common goal, there is no coordinated action between swarms. Given the Supreme Court’s recent insistence [pdf] on form over substance in applying Federal Law (specifically relating to the Federal Arbitration Act’s preemption of state law), Judge Howell and those judges (and plaintiff’s lawyers) similarly minded should perhaps reconsider whether strict adherence to technical requirements that defendants have engaged in the same “transaction, occurrence or series of transactions” regardless of the financial implications for plaintiffs can be so easily excused even at the “Doe” stage of BitTorrent litigation.