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

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