Judge Bars Suits Against John Does Over BitTorrent Downloads of Films
Mary Pat Gallagher
New Jersey Law Journal
A federal judge in Trenton is the latest to ban porn producers' copyright suits against multiple John Doe defendants over allegedly illegal downloads using BitTorrent, a peer-to-peer protocol for anonymous file sharing.
U.S. Magistrate Judge Douglas Arpert, who allowed such a suit to go forward last year, said on March 28 in a separate case that he had been persuaded by other rulings in the district in the past six months that joinder was improper.
Arpert's new ruling, in Malibu Media v. John Does 1-19, 12-cv-6945, severed claims against all defendants but John Doe 1 and dismissed the other defendants without prejudice to suing them individually.
He also quashed subpoenas served on the Internet service providers for those 18 other defendants, while leaving in place the subpoena served on Comcast Cable seeking information about the identity of Doe 1.
Arpert acknowledged that the parties' arguments and defenses were substantially the same as in the prior case, Malibu Media v. John Does 1-30, 12-cv-3896. There, he refused to quash any subpoenas and let claims against all 30 Doe defendants proceed, calling it "more sensible" to challenge the appropriateness of joinder later.
In the prior ruling, Arpert noted courts were split on joining multiple anonymous defendants in BitTorrent cases, citing cases from other districts.
But he changed his mind on "further reflection and analysis of recent authority," he said in his March 28 opinion.
In particular, he cited holdings by by U.S. District Judges Faith Hochberg and Katharine Sweeney Hayden, both in Newark, whose reasoning he adopted.
On Oct. 10, 2012, in Amselfilm Productions GMBH v. SWARM 6A6DC, 12-cv-3865, Hochberg severed a suit with 187 defendants, finding joinder was improper and the case would strain judicial resources.
Hochberg was not convinced there was a sufficient connection among the "swarm" of users to be sued jointly.
"Although there may be multiple individuals who distribute pieces of the same work and are thereby described as being in the same swarm, it is probable that different people within the swarm never distribute a piece of the work to the same person, or at the same moment in time," she wrote.
Hochberg said joinder requires showing a more definite connection — for example, that "on a certain date and time, a particular subset of the swarm distributed pieces of the work to a common downloader."
In Patrick Collins v. John Does 1-41, 12-cv-3908, Hayden severed and dismissed 40 Doe defendants on Feb. 15.
Arpert also mentioned Third Degree Films v. John Does 1-110, 12-cv-5817, where U.S. Magistrate Judge Mark Falk in Newark denied a motion for expedited discovery into the identities of the 110 defendants. Falk noted that the infringer might not be the IP subscriber but someone else in the household, a visitor or even someone accessing the network from outside.
Not mentioned by Arpert were five decisions by U.S. Magistrate Judge Joseph Dickson in January and February in which he allowed expedited discovery only of the name and address of a single Doe defendant.
Dickson also ordered the plaintiffs to show cause by April 1 why he should not dismiss each case without prejudice to filing individual actions. All five cases have since been voluntarily dismissed.
Montclair solo Leslie Farber, a lawyer for Does 16 and 17 in the case just decided by Arpert, says judges in the district seem to have adopted a uniform, hostile stance to joinder in BitTorrent suits.
She is waiting for a decision in a case assigned to U.S. District Judge Peter Sheridan in Trenton and just filed a new motion to sever in one before U.S. District Judge Kevin McNulty in Newark.
Matthew Blaine of Lomurro Davison Eastman & Munoz in Freehold, who represents Doe 8, says he is not aware of any judge in the district who is still allowing the cases, which is in line with the "growing trend" around the country.
The plaintiffs will need to change their strategy, he adds.
Flemington solo Patrick Cerillo, who represents Malibu Media, did not return a call.
Since February, he has been filing complaints against one Doe at a time, including six suits since April 1.
Jeffrey Antonelli of Chicago, co-counsel with Farber for Doe 16, says the problem remains that innocent people whose IP addresses were used by others or faked are being sued and are paying to settle rather than hire a lawyer to defend or risk the maximum statutory penalty of $150,000 per film.
BitTorrent litigation has grown in recent years to make up the majority of copyright cases in New Jersey and elsewhere.
Most movies involved are adult films, and critics of the suits, including some judges, have described them as shakedowns that are rarely if ever litigated but meant to extract settlements from defendants who do not want to be named in suits involving adult films
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