Joinder — Do Defendants Who Participate in BitTorrent File-Sharing — As a Swarm — Engage in a Single Transaction or in a Series of Closely Related Transactions within Rule 20? Caselaw Split

TCYK, LLC v. Does 1-9, 2013 U.S. Dist. LEXIS 125379 (S.D. Ohio Sept. 3, 2013):

This is a copyright action in which plaintiff alleges that defendants copied and distributed plaintiff's copyrighted work, the motion picture "The Company You Keep." Complaint, Doc. No. 1, ¶ 5. Defendants are identified only by internet protocol ("IP") addresses. Exhibit B, attached to Complaint. This matter is now before the Court on defendant Doe No. 4's Motion to Quash or Modify Subpoena ("Defendant's Motion"), Doc. No. 5. For the reasons that follow, Defendant's Motion is DENIED. ***

Plaintiff TCYK, LLC, is a developer, producer, and/or distributor of motion pictures that has exclusive ownership rights over a motion picture entitled "The Company You Keep." Complaint, ¶¶ 5, 8, 9. Plaintiff alleges that defendants Doe 1-9 (collectively, "Doe defendants" or "unidentified defendants") copied and distributed plaintiff's copyrighted work, The Company You Keep.... According to plaintiff, Doe defendants used a peer-to-peer ("P2P") network known as "BitTorrent protocol" or "torrent." Id. Plaintiff alleges that individuals, such as the unidentified defendants, joined together as a "swarm" in order to use the BitTorrent protocol to illegally download copyrighted material:

The BitTorrent protocol makes even small computers with low bandwidth capable of participating in large data transfers across a P2P network. The initial file-provider intentionally elects to share a file with a torrent network. This initial file is called a seed. Other users ("peers") connect to the network and connect to the seed file to download. As yet additional peers request the same file each additional user becomes a part of the network from where the file can be downloaded. However, unlike a traditional peer-to-peer network, each new file downloader is receiving a different piece of the data from users who have already downloaded the file that together comprises the whole. This piecemeal system with multiple pieces of data coming from peer members is usually referred to as a "swarm." The effect of this technology makes every downloader also an uploader of the illegally transferred file(s).

This means that every "node" or peer user who has a copy of the infringing copyrighted material on a torrent network can also be a source of download, and thus distributor for that infringing file.

***

Plaintiff goes on to allege that the possibility of successfully downloading increases when more peers join the swarm:

This distributed nature of BitTorrent leads to a rapid viral spreading of a file throughout peer users. As more peers join the swarm, the likelihood of a successful download increases. Because of the nature of a BitTorrent protocol, any seed peer that has downloaded a file prior to the time a subsequent peer downloads the same file can automatically be a source for the subsequent peer so long as that first seed peer's computer is online at the time the subsequent peer downloads a file. Essentially, because of the nature of the swarm downloads as described above, every infringer is stealing copyrighted material from other potential infringers in numerous jurisdictions around the world, and each is also distributing infringing material.

***

III. REQUESTS TO SEVER THE DOE DEFENDANTS

Defendant also asks the Court to sever the Doe defendants, contending that joinder is improper under Fed. R. Civ. P. 20. Defendant's Motion, pp. 3-9. Rule 20 permits persons to be joined as defendants in one action if (1) "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" and (2) the claims against the various defendants share a common question of law or fact. Fed. R. Civ. P. 20(a)(2). "Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). See also Brown v. Worthington Steel, Inc., 211 F.R.D. 320, 324 (S.D. Ohio 2002) ("Courts liberally permit joinder under Rule 20(a).") (citations omitted). To that end, courts in this circuit give the terms "transaction" and "occurrence" a broad and liberal interpretation. Lasa Per L'Industria Del Marmo Societa Per Azioni v. Alexander, 414 F.2d 143, 147 (6th Cir. 1969). ".The purpose of Rule 20(a) is to promote judicial economy and trial convenience.'" Evans v. Midland Funding LLC, 574 F. Supp. 2d 808, 811 (S.D. Ohio 2008) (quoting Lee v. Dell Prods., L.P., No. 3:06cv0001, 2006 U.S. Dist. LEXIS 75573, 2006 WL 2981301, at *7 (M.D. Tenn. Oct. 16, 2006)).

However, even if the requirements of Rule 20 are met, a district court nevertheless retains considerable discretion to sever defendants if it finds that the objectives of the rule are not fostered, or that joinder would result in prejudice, expense, or delay.

Voltage Pictures, LLC v. Does 1-43, No. 1:13cv465, 2013 U.S. Dist. LEXIS 63764, at *5 (N.D. Ohio May 3, 2013). The Court shall address each of the requirements under Rule 20(a)(2) in turn.

A. Same Transaction or Series of Transactions

Defendant specifically argues that the alleged infringement "was committed by unrelated defendants, at different times and locations, sometimes using different services, and perhaps subject to different defenses." Defendant's Motion, p. 6. Defendant also argues that the allegations that the Doe defendants acted in concert by participating in BitTorrent technology, i.e., a "swarm," are insufficient to establish that they engaged in a single transaction or in a series of closely related transactions under Rule 20. Id. at pp. 4-8.

Federal courts within this circuit and across the country are divided on whether or not membership in the same "swarm" satisfies the joinder requirements of Rule 20.

See, e.g., Voltage Pictures, LLC, 2013 U.S. Dist. LEXIS 63764 at *5-6 (collecting cases); Patrick Collins, Inc. v. John Does 1-33, No. 4:12-cv-13309, 2013 U.S. Dist. LEXIS 50674, at *12-14 (E.D. Mich. Feb. 27, 2013) (same); Third Degree Films, Inc. v. John Does 1-72, No. 12-cv-14106, 2013 U.S. Dist. LEXIS 44131, at *17 (E.D. Mich. Mar. 18, 2013). Some courts severing claims in "swarm" cases conclude that simply participating in a "swarm" does not necessarily establish that defendants participated in the same transaction or occurrence. See, e.g., Night of the Templar, LLC v. Does 1-25, 1:13-cv-396, 2013 U.S. Dist. LEXIS 51625, at *9-10 (N.D. Ohio Apr. 10, 2013) (quoting Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1151 (N.D. Cal. 2011)); Patrick Collins, Inc. v. John Does 1-23, No. 11-cv-15231, 2012 U.S. Dist. LEXIS 40536, at *9-13 (E.D. Mich. Mar. 26, 2012) ("[T]he court concludes that simply alleging the use of BitTorrent technology, like earlier P2P file sharing protocols, does not comport with the requirements under Rule 20(a) for permissive joinder."). For example, unknown defendants may access the swarm at different times, see Night of the Templar, LLC, 2013 U.S. Dist. LEXIS 51625 at *10; Patrick Collins, Inc., 2012 U.S. Dist. LEXIS 40536 at *10, thereby suggesting that computer users were not acting simultaneously or in concert. See, e.g., Patrick Collins, Inc., 2012 U.S. Dist. LEXIS 40536 at *12; Patrick Collins, Inc. v. John Does 1-21, No. 12-12596, 2012 U.S. Dist. LEXIS 187556, at *3-4 (E.D. Mich. Aug. 28, 2012).

Footnote 3. Even district courts within the same district in this circuit are split in this regard. See, e.g., Voltage Pictures, LLC v. Does 1-43, No. 1:13cv465, 2013 U.S. Dist. LEXIS 63764, at *11-12 (N.D. Ohio May 3, 2012) (permitting joinder); Night of the Templar, LLC v. Does 1-25, No. 1:13-cv-396, 2013 U.S. Dist. LEXIS 51625, at *11 (N.D. Ohio Apr. 10, 2013) (severing claims after finding that "participation in a specific swarm is too imprecise a factor absent additional information relating to the alleged copyright infringement to support joinder under Rule 20(a)"); Patrick Collins, Inc. v. John Does 1-33, No. 4:12-cv-13309, 2013 U.S. Dist. LEXIS 50674 (E.D. Mich. Feb. 27, 2013) (denying request to sever claims); Patrick Collins, Inc. v. John Does 1-23, No. 11-cv-15231, 2012 U.S. Dist. LEXIS 40536, at *9-13 (E.D. Mich. Mar. 26, 2012) (finding that alleged participation in a swarm did not support joinder under Rule 20).

Conversely, other courts have concluded that joinder under Rule 20 does not necessarily require simultaneous or concerted action. See, e.g., Patrick Collins Inc. v. John Does 1-28, No. 12-13670, 2013 U.S. Dist. LEXIS 11349, at *21 (E.D. Mich. Jan. 29, 2013) (quoting Patrick Collins, Inc. v. John Does 1-21, 282 F.R.D. 161, 168 (E.D. Mich. 2012)); Nucorp, Inc. v. John Does 1-24, No. 2:11-cv-15222, 2012 U.S. Dist. LEXIS 187547, at *14 (E.D. Mich. Oct. 18, 2012); Patrick Collins, Inc., 282 F.R.D. at 167. Such courts "have permitted joinder, based on the theory that the claims are 'logically related,' and that the collaborative activity of the members of the swarm demonstrates that they engaged in the same transaction or series of transactions." Voltage Pictures, LLC, 2013 U.S. Dist. LEXIS 63764 at *6 (collecting cases). See also Patrick Collins Inc., 2013 U.S. Dist. LEXIS 11349 at *14-15 (quoting In re EMC Corp., 677 F.3d 1351, 1358 (Fed. Cir. 2012)). [*19] In addition, at least one district court in this circuit has concluded that allegations that defendants, inter alia, used the same digital file satisfied Rule 20(a)(2)'s "same transaction, occurrence, or series of transactions or occurrences" requirement. Third Degree Films v. John Does 1-36, No. 11-cv-15200, 2012 U.S. Dist. LEXIS 87891, at *28-32 (E.D. Mich. May 29, 2012).

In Third Degree Films, the district court noted that, by virtue of uploading in a "swarm," the unidentified defendants helped pass on pieces of the copyrighted work:

[E]ach defendant allegedly participated in the same swarm for the same digital encoding of the Work and thereby jointly contributed to the illegal distribution of the Work to others. By undoubtedly uploading to other peers in the swarm, which enabled those peers to upload to still other peers, all 36 Doe Defendants jointly contributed to either growing the swarm or maintaining its existence.

Id. at *27-28. See also Voltage Pictures, LLC, 2013 U.S. Dist. LEXIS 63764 at *11 n.2 ("[E]ach [defendant] participated in the BitTorrent swarm as an uploader (distributor) and downloader (copier) of the illegally transferred file."); Patrick Collins Inc., 2013 U.S. Dist. LEXIS 11349 at *18-19 (quoting Digital Sin, Inc. v. John Does 1-176, 279 F.R.D. 239, 244 (S.D.N.Y.2012)). Although the court in Third Degree Films acknowledged that future discovery might reveal that the plaintiff could not satisfy the requirements for joinder under Rule 20(a)(2) or that severance would be appropriate, that court nevertheless concluded that joinder was proper at the initial stages of the litigation. Third Degree Films, 2012 U.S. Dist. LEXIS 87891 at *29-33.

Here, the Complaint alleges that the Doe defendants used the BitTorrent protocol to join together in a "swarm" in order to illegally download copyrighted material. Complaint, ¶ 5. More specifically, the Complaint alleges that the unidentified defendants all violated the same law, i.e., 17 U.S.C. § 101, et seq., in the same series of transactions, i.e., downloading and distributing the same file, The Company You Keep, by using the same means, i.e., the BitTorrent protocol. Id. at ¶ 11. According to plaintiff, "[t]he infringed work was included in one file related to the torrent file; in other words, all of the infringements alleged in this lawsuit arise from the exact same unique copy of Plaintiff's movie as evidenced by the cryptographic hash value." Id. The Doe defendants' alleged wrongful acts occurred in the same series of transactions or occurrences because each defendant downloaded and/or distributed, or offered to distribute, The Company You Keep to other infringers on the network who in turn downloaded and/or further distributed this movie. Id. Plaintiff therefore believes that the unidentified defendants "each conspired with other infringers on the BitTorrent network to copy and/or distribute the Motion Picture, either in the same transaction or occurrence or in a series of transactions or occurrences." Id.

Construing the terms "transaction" and "occurrence" broadly, see Lasa Per L'Industria Del Marmo Societa Per Azioni, 414 F.2d at 147, and keeping in mind that joinder is strongly encouraged, see United Mine Workers of Am., 383 U.S. at 724, this Court concludes that plaintiff has alleged facts sufficient to satisfy Rule 20's "same transaction, occurrence, or series of transactions or occurrences" requirement at this preliminary stage of the proceedings. See, e.g., Third Degree Films, 2012 U.S. Dist. LEXIS 87891 at *29-33; Patrick Collins, Inc. v. John Does 1-21, 286 F.R.D. 319, 321-22 (E.D. Mich. 2012).

B. Common Question of Law or Fact

Rule 20 also requires that a plaintiff establish that claims against all defendants share a common question of fact or law. Fed. R. Civ. P. 20(a)(2)(B). Here, as discussed supra, plaintiff has alleged that the Doe defendants (1) violated the same law, i.e., 17 U.S.C. § 101, et seq., (2) infringed plaintiff's rights in The Company You Keep by using the same digital file, and (3) used the same BitTorrent protocol. The Court concludes that these allegations, at this preliminary stage, satisfy Rule 20(a)(2)(B). See, e.g., Third Degree Films, 2012 U.S. Dist. LEXIS 87891 at *13-14 (finding that the plaintiff had adequately pled facts satisfying Rule 20(a)(2)(B) where plaintiff alleged the same causes of action involving the same digital file and the same investigation led to discovery of defendants' IP addresses); Patrick Collins, Inc., 2013 U.S. Dist. LEXIS 50674 at *11; Patrick Collins, Inc., 286 F.R.D. at 322.

This Court therefore concludes that its discretion is better exercised in permitting joinder at this stage of the proceedings. Cf. Sojo Prod. Inc., 2013 U.S. Dist. LEXIS 58602 at *8 (denying a motion to sever without prejudice to renewal at a later stage of the litigation). Defendant's Motion, Doc. No. 5, is therefore DENIED.

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