No Expedited Discovery of Torrent Peers in Internet Copyright Infringement Cases

Third Degree Films filed a complaint against 110 John Doe defendants, alleging copyright infringement arising out the unauthorized distribution of its copyrighted pornographic movie through BitTorrent.  BitTorrent is a peer-to-peer file sharing protocol in which each peer acts as a server, storing and distributing small pieces of the work. 

Third Degree filed a motion to conduct expedited discovery to obtain names, addresses, telephone numbers and other information on the defendants from their Internet Service Providers (ISPs) using the Internet Protocol (IP) addresses collected by Third Degree’s investigator.  The district court denied the motion without prejudice, ruling that Third Degree’s need for expedited discovery did not outweigh the prejudice to the John Doe defendants. 

Fed.R.Civ.P. 26(d)(1) requires the parties to confer before any party seeks discovery.  However, a party may make a motion for expedited discovery.  In Internet copyright infringement cases, courts often apply a “good cause” test to decide whether to grant expedited discovery.  

Good cause exists where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.

(Opinion pdf page 2).

The district court identified two problems with Third Degree’s motion for expedited discovery: 1) expedited discovery is inappropriate under Fed.R.Civ.P. 20(a), and 2) the discovery sought by Third Degree has the potential to subject innocent individuals to unjustified burdens.

Expedited discovery is inappropriate under Fed.R.Civ.P. 20(a).

The court adopted the reasoning of the district court in quashing subpoenas to ISPs in Amselfilm Productions GMBH & Co. KG v. SWARM 6A6DC and John Does 1-187.  In that case, plaintiff Amselfilm alleged that each defendant unlawfully distributed pieces of the same copyrighted work by participating in a “torrent” or “swarm.” 

The Amselfilm court pointed out that swarms can last for many months, different people in the swarm probably don’t distribute to the same person or at the same time and that earlier participants probably don’t overlap with later participants.  As a result, the defendants’ alleged instances of distribution comprise separate transactions.  Permissive joinder under Fed.R.Civ.P. 20(a) is therefore not appropriate.  Under the relevant parts of Rule 20(a), defendants may be joined in an action only if the asserted right to relief arises out of the same transaction, occurrence or series of transactions or occurrences and there are questions of law or fact common to all defendants. 

The Amselfilm court also ruled that permissive joinder of 187 defendants creates a severe strain on judicial resources and that “for permissive joinder in this matter to be appropriate and to not strain judicial resources, there must be a connection between defendants beyond the copyrighted work and method of distribution, namely that defendants were involved in the same transaction with the same downloader at the same time.”  (Amselfilm opinion pdf page 3).

The discovery sought by Third Degree has the potential to subject innocent individuals to unjustified burdens.

Third Degree identifies each defendant only by an IP address.  The IP subscriber and the alleged infringer could be different individuals.  The infringer could be someone in the subscriber’s household, a guest in the subscriber’s home or some unknown person who accesses the subscriber’s network. 

As a result, Plaintiff’s sought after discovery has the potential to ensnare numerous innocent internet users into the litigation placing a burden on them that outweighs Plaintiff’s need for discovery as framed.

(Opinion pdf page 3).

The court permitted Third Degree to file a new motion for expedited discovery for just John Doe 1, detailing a plan regarding potentially innocent individuals and addressing the concerns raised in In re Bittorrent.  Making the discovery requests specific enough so that there is a reasonable likelihood of identifying individuals who could be sued in federal court, the absence of alternative means of obtaining identifying information, the need for the subpoenaed information to advance the claim, the privacy expectations of the putative defendants, abusive litigation tactics employed by the plaintiffs, the inappropriateness of joinder, and the plaintiff’s improper avoidance of paying filing fees are the major concerns addressed in In re Bittorrent.

This case is Third Degree Films, Inc. v. John Does 1-110, No. 12-5817 (WJM), U.S. District Court, District of New Jersey.

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