286 F.R.D. 188
D. Mass.2012Background
- Mass copyright infringement case involving BitTorrent swarms of a pornographic film owned by Third Degree Films.
- Forty-seven Does identified only by IP addresses alleged to have downloaded/distributed the film in a single swarm.
- Court granted expedited discovery to obtain Doe identities from ISPs; many Doe defendants moved to quash or sever.
- Court previously allowed joinder under Rule 20(a) but is concerned about prejudice and abusive settlement tactics.
- Court analyzes permissive joinder under Rule 20(a) and protective measures under Rule 20(b).
- Court severs Does 2-47 and dismisses them without prejudice, requiring separate suits against each Doe within 30 days
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is joinder of Doe defendants in a BitTorrent swarm action permissible under Rule 20(a) | Third Degree: joinder satisfies same-transaction/occurrence and common questions of law and fact | Does contend joinder is improper due to lack of a single transaction and potential prejudice | Joinder is technically permissible under Rule 20(a) |
| Should protective measures under Rule 20(b) be used to mitigate prejudice | Third Degree argues joinder promotes efficiency | Doe argues risk of prejudice and coercive settlements | Court may impose protective measures; severance ordered to protect defendants |
| Is severance appropriate to address potential coercion and filing-fee evasion | Third Degree seeks efficiency through joint action | Joinder facilitates mass settlements and unfairly shifts costs | Doe 2-47 severed and dismissed without prejudice; separate actions required |
| Does the alleged aggregation meet the “logical relationship”/aggregate facts standard under EMC | Allegations show aggregate facts and overlap in infringement via swarm | Defendants’ actions could be separate and distinct over time | Court adopts EMC standard; sufficient overlap to permit loose linkage before severance |
Key Cases Cited
- Liberty Media Holdings LLC v. BitTorrent Swarm, 821 F.Supp.2d 444 (D.Mass.2011) (permissive joinder under Rule 20(a) for BitTorrent swarms; common questions of law and fact)
- In re EMC Corp., 677 F.3d 1351 (Fed.Cir.2012) (logical relationship/aggregate facts test for Rule 20(a)(2)(B) joinder)
- Patrick Collins, Inc. v. Does 1-23, 282 F.R.D. 161 (E.D.Mich.2012) (applies logical relationship approach to swarm infringement)
- CineTel Films, Inc. v. Does 1-1052, 853 F.Supp.2d 545 (D.Md.2012) (mini-trial concerns; efficiency considerations favor severance)
- Hard Drive Prods., Inc. v. Does 1-188, 809 F.Supp.2d 1150 (N.D.Cal.2011) (joinder concerns; procedural economies vs. prejudice)