Plaintiff Third Degree Films, Inc. (TDF) filed suit against 72 John Doe defendants, alleging that they used the BitTorrent file-sharing protocol to download infringing copies of the adult film “Teens in Tight Jeans.” Two defendants moved to sever their cases. U.S. Magistrate Judge David R. Grand recommended that the motions be allowed, on the grounds that joinder of all the John Doe defendants in one action under Fed. R. Civ. P. 20 did not advance the interests of justice, because individual defenses were likely to predominate, especially since the plaintiff’s basis for identifying the defendants was subject to substantial uncertainty.The court noted that permissive joinder under Fed. R. Civ. P. 20 is available, in the discretion of the court, to promote trial convenience and expedite the final determination of disputes. The court should consider “whether permissive joinder would comport with the principles of fundamental fairness or would result in prejudice to either side,” and also consider factors including “the motives of the party seeking joinder and whether joinder would confuse and complicate the issues for the parties involved.” Slip op. at *5, quoting In re BitTorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765, at *11 (E.D.N.Y. May 1, 2012).
Noting that district courts were divided on whether an action against multiple John Doe defendants in an alleged BitTorrent “swarm” was appropriate for permissive joinder, Judge Grand recommended that joinder be rejected in this case. First, alleged participation in a swarm was not sufficient to establish that the alleged infringement arose from the same transaction, occurrence or series of transactions or occurrences. The crux of the case, the court noted, would be the individual factual claims of the defendants, including very fact-specific “it wasn’t me” defenses. The Court noted the conclusion of other courts, faced with defenses from innocent parents and grandparents, roommates and other named defendants raising a “panoply of individual defenses,” including “age, religious convictions, and technological saavy, misidentification of ISP accounts, the kinds of WiFi equipment and security software utilized, and the location of the defendant’s router.” BitTorrent Adult Film Copyright Infringement Cases, at * 12. Moreover, the Court noted that due to the imprecise method used by TDF to identify the John Does, the possibility of misidentification defenses rose above the level of mere speculation.
The Court observed that the John Doe defendants had already asserted fact-specific defenses, including blaming the alleged copying on unspecified household members, hackers, and unsecured wireless connections. Thus, the Court concluded,
The prospect of individualized defenses is but one of many logistical and administrative complications that joinder of plaintiff’s claims would create, transforming what “appears to be a relatively straightforward case … into a cumbersome procedural albatross.” In re BitTorrent Copyright Infringement Cases, Nos. 12–1188 et al., 2013 WL 501443, at *5 (C.D.Ill. Feb.11, 2013)(quotation marks omitted).
Slip op. at *6. The court noted that while pursuing individual defendants would be more costly for TDF, the Copyright Act included remedies to address those additional cost through attorneys fee awards. 17 U.S.C. § 505.