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."
He writes:
"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.)
Judge Gwin isn't the only judge to reach this conclusion. There have been others. See here and here, for instance.
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.
E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner
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