By Eriq Gardner
On Thursday, a federal judge in Ohio expressed displeasure of the “unseemly practice” of joining hundreds — and sometimes thousands — of anonymous copyright pirates together in a lawsuit.
The litigation was brought last November by Safety Point Productions, Picture Perfect Corporation and Voltage Pictures. Together, the three companies filed four lawsuits against 197 unnamed defendants accused of violating the copyright on the 2011 film Puncture, starring Chris Evans.
U.S. District Judge James Gwin won’t allow that. He’s ordered the joined defendants to be severed, saying that while it might have saved $67,000 in court costs, the business model employed by the production companies to use the subpoena powers of the court in an economical fashion “violates a sense of fairness.”
It has been almost exactly three years since The Hollywood Reporter was the first news outlet to expose a new litigation campaign that attempted to make the business of suing pirates economically viable through what’s known in legal circles as mass-joinder. The strategy was to stuff together many John Does, then subpoena ISPs to identify those who were allegedly using torrent software to traffic copyrighted films, and finally, send those individuals threatening letters with demands to settle or face further legal action.
Since that story was published, the strategy has been oft-imitated with thousands of lawsuits filed around the country and hundreds of thousands of people targeted. It has been used primarily by indie film companies and adult film companies — but also by others –and judges have had to contend with a tidal wave of litigation upon the court system.
The lawsuits over Puncture, described somewhat ironically as a “David and Goliath law drama about a drug-addicted lawyer who takes on a health supply corporation while battling his own personal demons,” is the latest example.
Similar to other cases, the plaintiffs alleged that joinder was proper because the defendants in question were part of the same torrent swarm. “Every John Doe infringer, in concert with its John Doe swarm members, is allowing others to steal,” says the lawsuit, adding that “each John Doe acts in an interactive manner with other John Does.”
Judge Gwin responds that it is not clear from this that all the defendants were part of the same transaction. “Furthermore,” he says, “A defendant’s participation in a swarm does not mean that the defendant is always present and active in the swarm.”
Even if the plaintiffs could demonstrate the defendants were working together in sufficient concert, the judge adds that “courts can exercise discretion in weighing the effect of joinder on fundamental fairness.”
“Courts have been troubled by what amounts to be a new business model employed by production companies ‘misusing the subpoena powers of the court, seeking the identities of the Doe defendants solely to facilitate demand letters and coerce settlement, rather than ultimately serve process and litigate the claims.’ This unseemly practice is made worse by the frequent practice of joining hundreds or thousands of defendants in a suit, saving plaintiffs tens of thousands of dollars in filing fees. It is in this environment where courts must take every caution to ensure that the keys to the doors of discovery are not blithely given to parties with other intentions.”
That said, he does allow that the plaintiffs might have “legitimate claims which deserve litigation”; just that the claims have to be brought independently, which, in this instance, he calculates will cost $67,500 more in filing fees. (More expense would obviously come later.)
And the opinion is hardly unanimous. If, in theory, all the lawsuits did proceed independently, the court system might be in for an epic shock of work.
For instance, there’s U.S. District Court judge Naomi Buchwald in New York. Last August, analyzing the issue, she wrote, “While the period at issue may therefore appear protracted by ordinary standards, the doctrine of joinder must be able to adapt to the technologies of our time. Here, the nature of the technology compels the conclusion that defendants’ alleged transactions were part of the same ‘series of transactions or occurrences.'”
For now, unless Congress or the U.S. Supreme Court steps in, whether or not to allow mass copyright lawsuits to proceed is entirely up to the judge’s discretion. As a result, litigation is peppered throughout the country as plaintiffs test out which jurisdictions are most favorable. The Northern District of Ohio just became a little less so.