The case against combating Bittorrent piracy through mass john doe copyright infringement lawsuits

Michigan Law Review

Volumn 111, Issue 2, 2012, Pages 283-310

  Karunaratne, Sean B ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 84868606295     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (204)

1. Not all individuals implicated in these lawsuits are actual BitTorrent users. There are a number of cases of mistaken identity in which the person whose account was associated with the IP address was not the person who allegedly infringed upon the copyrighted work. For an example of a situation in which a subsequently identified John Doe was in all likelihood not the one who downloaded the copyrighted work,
2. James Temple, Wrongfully Targeted? Lawsuit Says Grandma Illegally Downloaded Porn, S.F. Chron., July 15, 2011, at D1 (settlement letter sent to a seventy-year-old grandmother).
3. Cindy Cohn, Mass Copyright Litigation: New Challenge for the Federal Courts, Electronic Frontier Found. (Apr. 19, 2011), https://www.eff.org/deeplinks/2011/04/masscopyright-litigation-new-chall enge-federal;
4. John L. Steele, Attorney, Steele Hansmeier, PLLC, to John Doe Defendant (May 16, 2011) [hereinafter Steele Letter], available at http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/z_Personal/AJohnson/1107 19_Steele_Hansmeier_Settlement_Letter.pdf (example of a letter sent to a John Doe defendant).
5. Memorandum of Amicus Curiae Electronic Frontier Foundation in Support of Third Party Time Warner Cable's Motion to Quash or Modify Subpoena at 1, Third World Media LLC v. Does 1-1243, No. 3:10-cv-0090, (N.D. W. Va. Nov. 23, 2010) [hereinafter Memorandum of Amicus Curiae], available at https://www.eff.org/files/filenode/wvcopyrighttroll/thirdworldmediavdoes amicus.PDF.
6. Jason Koebler, Porn Companies File Mass Piracy Lawsuits: Are You at Risk?, U.S. News & World Report (Feb. 2, 2012), available at http://www.usnews.com/news/articles/2012/02/02/porn-companies-file-mass- piracy-lawsuits-are-you-at-risk.
7. Technically, John Does do not officially become defendants until they are identified and named to the case. This Note will sometimes use the term "defendants" when referring to John Does as shorthand for "putative defendants."
8. The IP address is a numerical key that identifies an individual computer in a network.
9. Chad Perrin, Is the IP Address the New SSN?, TechRepublic (May 23, 2011, 12:00 PM), http://www.techrepublic.com/blog/security/is-the-ip-address-the-new-ssn/ 5486.
10. See Memorandum of Amicus Curiae, supra note 3, at 1.
11. See infra Part III.
12. See infra Part III.
13. See Memorandum of Amicus Curiae, supra note 3, at 1.
14. Embedded within the personal jurisdiction issue is the question of proper venue. This Note discusses only personal jurisdiction. These lawsuits also raise a First Amendment issue, although that issue is not discussed in this
15. Compare Donkeyball Movie, LLC v. Does 1-171, 810 F. Supp. 2d 20 (D.D.C. 2011) (denying motion to quash subpoena and dismiss action), with Boy Racer, Inc. v. Does 1-60, No. C 11-01738 SI, 2011 WL 3652521 (N.D. Cal. Aug. 19, 2011) (granting the motion to quash and dismissing the case without prejudice).
16. Christopher M. Swartout, Comment, Toward a Regulatory Model of Internet Intermediary Liability: File-Sharing and Copyright Enforcement, 31 Nw. J. Int'l L. & Bus. 499, 505 (2011).
17. Id.
18. David Kravets, Copyright Lawsuits Plummet in Aftermath of RIAA Campaign, WIRED (May 18, 2010, 1:24 PM), http://www.wired.com/threatlevel/2010/05/riaa-bump/
19. John Borland, RIAA Sues 261 File Swappers, CNET News (Sept. 8, 2003, 10:57 AM), http://news.cnet.com/2100-1023_3-5072564.html
20. Id.
21. Lisa M. Bowman, Labels Aim Big Guns at Small File Swappers, CNET News (June 25, 2003, 11:04 AM), http://news.cnet.com/Labels-aim-big-guns-at-small-file-swappers/2100-102 7_3-1020876.html;
22. RIAA v. People 5 Years Later, Electronic Frontier Found. 2 (Sept. 2008), https://www.eff.org/files/eff-riaa-whitepaper.pdf [hereinafter RIAA v. People].
23. Recording Indus. Ass'n of Am. v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003). The DMCA subpoena provisions would have compelled ISPs to disclose the names of subscribers who the RIAA suspected of infringing without need for a court order. 17 U.S.C. § 512(h) (2006).
24. John Schwartz, Recording Industry Is Accusing 532 People of Music Piracy, N.Y. Times, Jan. 21, 2004, http://www.nytimes.com/2004/01/21/business/21WIRE-MUSIC.html.
25. RIAA v. People, supra note 18, at 4.
26. Joshua M. Dickman, Anonymity and the Demands of Civil Procedure in Music Downloading Lawsuits, 82 Tul. L. Rev. 1049, 1053 (2008).
27. id. at 1059-60.
28. Id. at 1059.25. See, e.g., LaFace Records, LLC v. Does 1-38, No. 5:07-CV-298-BR, 2008 WL 544992, at *1 (E.D.N.C. Feb. 27, 2008); BMG Music v. Does 1-203, No. Civ.A. 04-650, 2004 WL 953888, at *1 (E.D. Pa. Apr. 2, 2004); Interscope Records v. Does 1-25, No. 6:04-cv-197- Orl-22DAB, 2004 U.S. Dist. LEXIS 27782, at *19-20 (M.D. Fla. Apr. 1, 2004). But see, e.g., Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 11-12 (D.D.C. 2008); London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 180-81 (D. Mass. 2008).
29. Fed. R. Civ. P. 20(a)(2).
30. LaFace Records, 2008 WL 544992, at *3; see also Fonovisa, Inc. v. Does 1-9, No. 07-1515, 2008 WL 919701, at *5 (W.D. Pa. Apr. 3, 2008) (holding that the plaintiff failed to allege any facts sufficient to link all of the joined defendants).
31. BMG Music, 2004 WL 953888, at *1; see also Interscope Records, 2004 U.S. Dist. LEXIS 27782, at *11.
32. Fed. R. Civ. P. 21
33. Dickman, supra note 22, at 1095.
34. Annemarie Bridy, Is Online Copyright Enforcement Scalable?, 13 Vand. J. Ent. & Tech. L. 695, 700 (2011).
35. Id. at 700-701.
36. Raymond Lei Xia & Jogesh K. Muppala, A Survey of BitTorrent Performance, 12 IEEE Comms. Surveys & Tutorials 140, 140 (2010).
37. Austin Carr, BitTorrent Has More Users than Netflix and Hulu Combined-and Doubled, FastCompany (Jan. 4, 2011, 9:19 AM), http://www.fastcompany.com/1714001/bittorrent-swells-to-100-million-user s.
38. Diabolic Video Prods., Inc. v. Does 1-2099, No. 10-CV-5865-PSG, 2011 WL 3100404, at *1 (N.D. Cal. May 31, 2011).
39. Bridy, supra note 31, at 701.
40. Diabolic, 2011 WL 3100404, at*1.
41. Bridy, supra note 31, at 701 (footnotes omitted).
42. Id.
43. Michael Brown, White Paper: How BitTorrent Works, Maximum PC (July 10, 2009, 8:00 AM), http://www.maximumpc.com/article/features/white_paper_bittorrent.
44. Carmen Carmack, How BitTorrent Works, HowStuffWorks, http://computer.howstuffworks.com/bittorrent2.htm (last visited Mar. 9, 2012). Torrent files are easily available on the internet.
45. id.
46. Bridy, supra note 31, at 701.
47. Id.
48. Xia & Muppala, supra note 33, at 142.
49. Carmack, supra note 41
50. Bridy, supra note 31, at 702
51. See Carmack, supra note 41 (noting that users who stay plugged into a swarm after their download is complete, and who thus continue to be a source for the particular file, will enjoy faster download rates in the future)
52. Xia & Muppala, supra note 33, at 140
53. Id.
54. See First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 244-45 (N.D. Ill. 2011).
55. Id. at 244.
56. Diabolic Video Prods., Inc. v. Does 1-2099, No. 10-CV-5865-PSG, 2011 WL 3100404, at *2 (N.D. Cal. May 31, 2011).
57. Complaint at ¶ 5, Pac. Century Int'l, Ltd. v. Does 1-101, No. C-11-02533 (DMR) (N.D. Cal. July 8, 2011), 2011 WL 2461149.
58. id.
59. Fed. R. Civ. P. 20(a)(2).
60. Fed. R. Civ. P. 26(d)(1).
61. Id.; see also AF Holdings, LLC v. Does 1-97, No. C-11-03067-CW (DMR), 2011 WL 2912909, at*1 (N.D. Cal. July 20, 2011). Rule 26 does not specify a standard that courts should employ when assessing a motion for expedited discovery, and case law has revealed two common standards employed by judges. Under the more stringent test, expedited discovery is granted only upon a showing of some irreparable injury. However, under the more liberal "reasonableness" test, the court decides whether to grant expedited discovery "based on the 'reasonableness of the request in light of all the surrounding circumstances.' " In re Fannie Mae Derivative Litig., 227 F.R.D. 142, 142 (D.D.C. 2005) (quoting Entm't Tech. Corp. v. Walt Disney Imagineering, No. 03-3546, 2003 WL 22519440, at*3 (E.D. Pa. Oct. 2, 2003)). However, in many courts, discovery as to facts that would establish jurisdiction is granted liberally. See Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 39-40 (D.D.C. 2011).
62. E.g., Pac. Century Int'l, Inc. v. Does 1-101, No. C-11-02533 (DMR), 2011 WL 2690142, at *1 (N.D. Cal. July 8, 2011).
63. E.g., Nu Image, 799 F. Supp. 2d 34; New Sensations, Inc. v. Does 1-1474, No. C 11-2770 MEJ, 2011 WL 4407222 (N.D. Cal. Sept. 22, 2011).
64. E.g., Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150 (N.D. Cal. 2011). The analysis of the procedural issues in these cases is the same whether considered at the expedited discovery stage or on a motion to quash.
65. Millennium TGA, Inc. v. Does 1-21, No. 11-2258 SC, 2011 WL 1812786, at *3 (N.D. Cal. May 12, 2011).
66. IO Grp., Inc. v. Does 1-435, No. C10-04382 SI, 2011 WL 445043, at *6 (N.D. Cal. Feb. 3, 2011).
67. Keegan Hamilton, Porn, Piracy, & BitTorrent, Seattle Wkly. (Aug. 10, 2011), http://www.seattleweekly.com/2011-08-10/news/porn-piracy-bittorrent/.
68. See On the Cheap, LLC v. Does 1-5011, No. C10-4472 BZ, 2011 WL 4018258, at *5 n.6 (N.D. Cal. Sept. 6, 2011).
69. For more on the low-cost, high-volume litigation strategy, see infra Part III.
70. Fed. R. Civ. P. 21.
71. Third Degree Films v. Does 1-3577, No. C 11-02768 LB, 2011 WL 5374569, at*3 (N.D. Cal. Nov. 4, 2011) (finding that joinder was inappropriate because the 3,000 Doedefendant downloads occurred over a period of nearly seven months).
72. Cf. Berlin Media Art e.k. v. Does 1-44, No. 11-03770 (JSC), 2012 WL 215814, at*3 (N.D. Cal. Jan. 24, 2012) (denying motion for expedited discovery based on the plaintiff's failure to plead the date and time of infringement).
73. Although, if the plaintiff could show that all the Doe defendants remained a part of the swarm for the entire period, then joinder might be appropriate. The key is that every individual Doe's presence in the swarm must be coextensive with every other Doe that has been joined.
74. Call of the Wild Movie, LLC v. Does 1-1062, 770 F. Supp. 2d 332, 343 (D.D.C. 2011) (internal quotation marks omitted). Cases discussing joinder generally focus on the "same transaction or occurrence" prong of Rule 20. The second prong of the joinder test-whether "any question of law or fact common to all defendants will arise in the action," Fed. R. Civ. P. 20(a)(2)(B)-is discussed in some cases approving discovery, see, e.g., Call of the Wild, 770 F. Supp. 2d at 343-44, but it is just an ancillary issue that the court must address since both prongs of the test must be satisfied for joinder to be appropriate. On the other hand, courts denying expedited discovery do not need to address this second prong because failure to meet the "same transaction or occurrence" prong is sufficient to render joinder improper. See Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997) (noting that Rule 20 imposes two requirements and that both must be met for joinder to be sustained).
75. MCGIP, LLC v. Does 1-149, No. C 11-02331 LB, 2011 WL 4352110, at *3 (N.D. Cal. Sept. 16, 2011) (rejecting joinder of defendants because plaintiff "failed to show that any of the 149 Doe defendants actually exchanged any piece of the seed file with one another").
76. Hard Drive Prods. v. Does 1-53, No. C-11-2330 EDL, 2011 WL 2837399, at*1 (N.D. Cal. July 14, 2011); Pac. Century Int'l Ltd. v. Does 1-101, No. C-11-02533 (DMR), 2011 WL 2690142, at*3 (N.D. Cal. July 8, 2011) (noting that a swarm develops around a specific file).
77. Pac. Century Int'l Ltd., 2011 WL 2690142, at*3.
78. See Raw Films, Inc. v. Does 1-32, No. 1:11-CV-2939-TWT, 2011 WL 6840590, at*1 (N.D. Ga. Dec. 29, 2011) (noting that plaintiff relied on a "swarm joinder" theory in arguing that joinder is proper); Eriq Gardner, Massive 'Expendables' Piracy Lawsuit Dropped but Will Be Refiled Soon, The Hollywood Rep. (Aug. 26, 2011, 11:23 AM), http://www.hollywoodreporter.com/thr-esq/massive-expendables-piracy-laws uit-dropped-228300 (noting that a studio whose lawsuit was dismissed for joining users from multiple swarms planned to continue to pursue mass lawsuits in the future but only by joining defendants who came from a single swarm).
79. Digital Sin, Inc. v. Does 1-176, No. 12-CV-00126 (AJN), 2012 WL 263491, at *5 (S.D.N.Y. Jan. 30, 2012).
80. Boy Racer v. Does 2-52, No. C 11-02834 LHK (PSG), 2011 U.S. Dist. LEXIS 86746, at*8-9 (N.D. Cal. Aug. 5, 2011) ("[T]he nearly six-week span covering the activity associated with each of the addresses calls into question whether there was ever common activity linking the 51 addresses in this case.").
81. See Hard Drive Prods. v. Does 1-188, 809 F. Supp. 2d 1150, 1163 (N.D. Cal. 2011) ("The bare fact that a Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world.").
82. See SBO Pictures, Inc. v. Does 1-3036, No. 11-4220 SC, 2011 WL 6002620, at*3 (N.D. Cal. Nov. 30, 2011) ("Here, the Doe Defendants' alleged participation in the same swarm spanned approximately a four-month period from May 2011 through August 2011.").
83. Id.; see also Third Degree Films, Inc. v. Does 1-131, No. 12-108-PHX-JAT, 2012 WL 692993, at*5 (D. Ariz. Mar. 1, 2012) (finding that joinder is not appropriate for a swarm that lasts many months because some participants may never overlap one another); Hard Drive Prods., 809 F. Supp. 2d at 1163 ("[T]he nearly six-week span covering the activity associated with each of the addresses calls into question whether there was ever a common activity linking [them]....").
84. Raw Films, Inc. v. Does 1-32, No. 1:11-CV-2939-TWT, 2011 WL 6840590, at *2 (N.D. Ga. Dec. 29, 2011).
85. Boy Racer, 2011 U.S. Dist. LEXIS 86746, at*9.
86. Call of the Wild Movie, LLC v. Does 1-1062, 770 F. Supp. 2d 332, 343 (D.D.C. 2011).
87. See Berlin Media Art e.k. v. Does 1-44, No. 11-03770, 2012 WL 215814, at *3 (N.D. Cal. Jan. 24, 2012) ("[T]he Court cannot see how joinder is proper where, as here, 'Plaintiff [did] not plead facts showing that any particular defendant illegally shared plaintiff's work with any other particular defendant.' " (second alteration in original) (quoting Boy Racer, Inc. v. Does 1-60, No. 11-01738, 2011 WL 3652521, at *4 (N.D. Cal. Aug. 19, 2011))).
88. It is worth noting that this is a greatly simplified example. In reality, swarms will include hundreds or even thousands of users and may continue for months.
89. Fed. R. Civ. P. 20(a).
90. See Diabolic Video Prods., Inc. v. Does 1-2099, No. 10-CV-5865-PSG, 2011 WL 3100404, at*2 (N.D. Cal. May 31, 2011) (observing that a BitTorrent downloader "continues distributing data to the peers in the swarm until the user manually disconnects form [sic] the swarm"); Hamilton, supra note 63 ("People come and go from the swarm.... They pop in and share for a while, then they're done sharing and they leave.").
91. Hard Drive Prods., Inc. v. Does 1-30, No. 2:11cv345, 2011 WL 4915551, at *4 (E.D. Va. Oct. 17, 2011).
92. Diabolic, 2011 WL 3100404, at*3.
93. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966) ("Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder... is strongly encouraged."). Note that joinder must be "consistent with fairness to the parties," and see infra Part III for why joinder is unfair to the John Does. Furthermore, "permitting joinder in [these] case[s] would undermine Rule 20(a)'s purpose of promoting judicial economy and trial convenience because it would result in a logistically unmanageable case." Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1164 (N.D. Cal. 2011); see also infra Part III (explaining the case manageability issues presented by joinder).
94. See SB Designs, Inc. v. Reebok Int'l, Ltd., 305 F. Supp. 2d 888, 892 (N.D. Ill. 2004) (finding that absence of a relationship between four companies accused of trademark infringement made joinder impermissible because none of the parties "made possible," induced, or contributed to any other defendant's infringement); Paine, Webber, Jackson & Curtis, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 564 F. Supp. 1358, 1370-71 (D. Del. 1983) (finding misjoinder in an action for patent infringement because "[a]llegations of infringement against two unrelated parties based on different acts do not arise from the same transaction").
95. MCGIP, LLC v. Does 1-149, No. C 11-02331 LB, 2011 WL 4352110, at *3 (N.D. Cal. Sept. 16, 2011).
96. In the hypothetical example, had B stayed in the swarm as the seeder and A withdrawn with C and D, that would be a case in which the earlier activity of the swarm helped later participants obtain the file. These hypotheticals are just possible permutations of activity going on in a single swarm. Still, just because it is possible to come up with an example that connects swarm participants from two different times does not imply that a connection can be forged between participants at all times. Without evidence showing that all of "the Doe defendants actually acted in concert to illegally download" the copyrighted work, joinder is inappropriate, particularly when the swarm spans an extended period of time. Id.
97. DIRECTV v. Loussaert, 218 F.R.D. 639, 642 (S.D. Iowa 2003).
98. E.g., In re DIRECTV, Inc., No. C-02-5912-JW, 2004 U.S. Dist. LEXIS 24263 (N.D. Cal. July 26, 2004).
99. DIRECTV, Inc. v. Beecher, 296 F. Supp. 2d 937 (S.D. Ind. 2003); Loussaert, 218 F.R.D. at 639.
100. Loussaert, 218 F.R.D. at 639.
101. See In re DIRECTV, 2004 U.S. Dist. LEXIS 24263, at*9; Tele-Media Co. of W. Conn. v. Antidormi, 179 F.R.D. 75, 76 (D. Conn. 1998) (finding that joint action was required for joinder of defendants to be proper).
102. Loussaert, 218 F.R.D. at 643.
103. Cf. DIRECTV, Inc. v. Boggess, 300 F. Supp. 2d 444, 449 (S.D. W. Va. 2004) ("The only connection between the defendants is that all of the pirate access devices were allegedly purchased from the same Internet retailer and were allegedly used to intercept the same satellite signal.... [These] minimal allegations are too remote to meet the 'reasonably related' test.").
104. New Sensations, Inc. v. Does 1-1474, No. C 11-2770 MEJ, 2011 WL 4407222, at*6 (N.D. Cal. Sept. 22, 2011); Call of the Wild Movie, LLC v. Does 1-1062, 770 F. Supp. 2d 332, 343 (D.D.C. 2011); W. Coast Prods., Inc. v. Does 1-5829, 275 F.R.D. 9, 15-16 (D.D.C. 2011).
105. Call of the Wild, 770 F. Supp. 2d at 343 (emphases added).
106. Id.; see also Raw Films, Ltd. v. John Does 1-11, No. 12cv368-WQH (NLS), 2012 WL 684763, at*4 (S.D. Cal. Mar. 2, 2012) ("The Court notes... that there is a question as to whether... joinder will be proven appropriate once the necessary facts are established.").
107. See infra Part III; see also MCGIP, LLC v. Does 1-149, No. C 11-02331 LB, 2011 WL 4352110, at*4 (N.D. Cal. Sept. 16, 2011) ("MCGIP's litigation strategy also effectively precludes consideration of joinder issues at a later point in the proceedings.... Deferring a ruling on joinder, then, would 'encourage[ ][p]laintiffs to join (or misjoin) as many doe defendants as possible.' " (alterations in original) (quoting Arista Records, LLC v. Does 1-11, No. 1:07-CV-2828, 2008 U.S. Dist. LEXIS 90183, at*17 (N.D. Ohio Nov. 3, 2008))).
108. See MCGIP, 2011 WL 4352110, at*3 ("Absent evidence that the Doe defendants actually acted in concert to illegally download [the film] on those 36 separate days... joinde r is inappropriate.").
109. Complaint, Liberty Media Holdings, LLC v. Does 1-62, No. 11-CV-575-MMANLS, 2011 WL 6934460 (S.D. Cal. Dec. 30, 2011).
110. Id.
111. The BitTorrent protocol will punish users who only download without also uploading, see Xia & Muppala, supra note 33, at 140, so that once a user has completed downloading a file, he will tend to remain in the swarm for some time as a pure uploader, see Hard Drive Prods. v. Does 1-188, 809 F. Supp. 2d 1150, 1162 (N.D. Cal. 2011). Still, the user is not required to remain as an uploader and there is no guarantee that any particular user will do so after any particular download, making it hard to estimate if or how long a user will remain in the swarm after acquiring the file.
112. Leslie Horn, Report: Netflix Is Largest Source of Internet Traffic in North America, PCMag.com (May 17, 2011, 3:14 PM), http://www.pcmag.com/article2/0,2817,2385512,00.asp (discussing a study that revealed BitTorrent use accounts for 17.23 percent of Internet traffic in North America, second only to Netflix).
113. See Berlin Media Art e.k. v. Does 1-654, No. 11-03770 (JSC), 2011 U.S. Dist. LEXIS 120257, at*5-6 (N.D. Cal. Oct. 18, 2011) (taking a random sample of the John Does' IP addresses and finding only one of the thirteen addresses could be traced to the forum state); Digiprotect USA Corp. v. Does 1-266, No. 10 Civ. 8759 (TPG), 2011 WL 1466073, at*2 (S.D.N.Y. Apr. 13, 2011) (finding that out of the 166 Doe defendants that the defendant was seeking to identify, only ten had internet accounts in the forum state).
114. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003).
115. See DigiProtect USA Corp. v. Does 1-240, No. 10 Civ. 8760(PAC), 2011 WL 4444666, at*4 (S.D.N.Y. Sept. 26, 2011) (finding that the plaintiff should not be excused from showing that the defendants were connected to the forum state because of the easy availability of locating information); Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 40 (D.D.C. 2011) ("Plaintiff can establish... a good faith basis for... personal jurisdiction by utilizing geolocation services that are generally available to the public to derive the approximate location of the IP addresses identified for each putative defendant.").
116. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14 (1984).
117. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
118. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
119. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)) (internal quotation marks omitted); On the Cheap, LLC v. Does 1-5011, No. C10-4472 BZ, 2011 WL 4018258, at*4 (N.D. Cal. Sept. 6, 2011).
120. Burger King, 471 U.S. at 475 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984), and World-Wide Volkswagen, 444 U.S. at 299).
121. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).
122. Id. at 800-01. Some states' long-arm statutes are more restrictive in their limits on personal jurisdiction than is the Due Process Clause. Many BitTorrent cases addressing personal jurisdiction have been decided in such states. See, e.g., DigiProtect USA Corp. v. Does 1-240, No. 10 Civ. 8760 (PAC), 2011 WL 4444666 (S.D.N.Y. Sept. 26, 2011); Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 38 (D.D.C. 2011); Digiprotect USA Corp. v. Does 1- 266, No. 10 Civ. 8759 (TPG), 2011 WL 1466073, at*3 (S.D.N.Y. Apr. 13, 2011). Since this Section argues that personal jurisdiction over out-of-state John Does could never be consistent with the Due Process Clause, this necessarily means that it would also be inconsistent under more restrictive long-arm statutes.
123. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984); see also Liberty Media Holding, LLC v. Tabora, No. 11-cv-651-IEG (JMA), 2012 WL 28788, at*2 (S.D. Cal. Jan. 4, 2012) (finding that in this BitTorrent file-sharing case, "the only issue is whether the Court has specific jurisdiction over [the] Defendant"). The other type of personal jurisdiction is "general jurisdiction," in which a defendant has "sufficient contacts" with the forum state such that personal jurisdiction is appropriate even though the claim did not arise out of those contacts. Helicopteros, 466 U.S. at 414-15.
124. Burger King, 471 U.S. at 476; Schwarzenegger, 374 F.3d at 802.
125. See Berlin Media Art e.k. v. Does 1-654, No. 11-03770 (JSC), 2011 U.S. Dist. LEXIS 120257, at *7 (N.D. Cal. Oct. 18, 2011).
126. Solutions Research Grp., Movie File-Sharing Booming: Study, Solutions Res. Group (Jan. 24, 2006), http://www.srgnet.com/pdf/Movie%20File-Sharing%20Booming%20Release%20Jan %2024%2007%20Final.pdf.
127. th Cir. 2011) ("Our inquiry boils down to this: has [defendant] purposely exploited the [forum state's] market?").
128. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984); see also Calder v. Jones, 465 U.S. 783, 789 (1984) (holding that personal jurisdiction was appropriate when defendant "expressly aimed" their tortious activity toward the forum state and the brunt of the harm was felt therein); Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) (stating that out-of-state activity with a foreseeable effect in the forum state does not give rise to personal jurisdiction without "something more," interpreting "something more" as an express aiming of the act at the foreign jurisdiction).
129. Liberty Media Holding, LLC v. Tabora, No. 11-cv-651-IEG (JMA), 2012 WL 28788, at *3 (S.D. Cal. Jan. 4, 2012).
130. See ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002) (articulating a test for personal internet jurisdiction requiring, among other things, that the defendant "manifest[] [an] intent of engaging in business or other interactions within [a] State"); cf. Keeton, 465 U.S. at 774, 781 (finding that a publisher whose magazine had regular monthly sales in the forum jurisdiction had "continuously and deliberately exploited" the forum's market such that it was reasonable for it to be sued there).
131. See Calder, 465 U.S. at 789; ALS Scan, 293 F.3d at 714 ("[A] person who simply places information on the Internet does not subject himself to jurisdiction in each State into which the electronic signal is transmitted and received."); see also Bancroft, 223 F.3d at 1088.
132. See Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 41 (D.D.C. 2011).
133. See id. (suggesting that good-faith basis for jurisdiction is made if the geolocation search locates the IP address within the forum or within a city located within thirty miles of the forum).
134. DigiProtect USA Corp. v. Does 1-240, No. 10 Civ. 8760 (PAC), 2011 WL 4444666, at *4 (S.D.N.Y. Sept. 26, 2011).
135. See Call of the Wild Movie, LLC v. Does 1-1062, 770 F. Supp. 2d 332, 347-348 (D.D.C. 2011).
136. Nu Image, 799 F. Supp. 2d at 41.
137. See, e.g., id.; DigiProtect, 2011 WL 4444666, at *4.
138. See On the Cheap, LLC v. Does 1-5011, No. C10-4472 BZ, 2011 WL 4018258, at *4 (N.D. Cal. Sept. 6, 2011).
139. See id.
140. Id.; see also Millenium TGA v. Doe, No. 10 C 5603, 2011 U.S. Dist. LEXIS 110135, at*7 (N.D. Ill. Sept. 26, 2011) (agreeing that participation in a swarm is not enough to confer personal jurisdiction).
141. Call of the Wild Movie, LLC v. Does 1-1062, 770 F. Supp. 2d 332, 347 (D.D.C. 2011).
142. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 470 (1985)
143. W. Coast Prods., Inc. v. Does 1-5829, 275 F.R.D. 9, 14-15 (D.D.C. 2011)
144. See Fed. R. Civ. P. 12(b)(2) ("[A] party may assert the following defenses by motion... lack of personal jurisdiction...." (emphasis added))
145. First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 250-51 (N.D. Ill. 2011)
146. Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 36 (D.D.C. 2011)
147. Fed. R. Civ. P. 26(b)(2)(C)(iii)
148. See Nu Image, 799 F. Supp. 2d at 36-37
149. Id. at 37
150. See, e.g., Call of the Wild Movie, LLC v. Does 1-1062, 770 F. Supp. 2d 332, 341, 345 (D.D.C. 2011)
151. Id.
152. See MCGIP, LLC v. Does 1-149, No. C 11-02331 LB, 2011 WL 4352110, at *4 (N.D. Cal. Sept. 16, 2011)
153. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 n.17 (1978)
154. M. Alex Johnson, Porn Piracy Wars Get Personal, msnbc.com (July 20, 2011, 8:06 AM), http://www.technolog.msnbc.msn.com/technology/technolog/porn-piracy-wars -getpersonal-121928.
155. Art Neill, Does a New Wave of Filesharing Lawsuits Represent a New Business Model for Copyright Owners?, J. Internet L., June 2011, at 1, 8-9.
156. For example, a single action allows the plaintiff to avoid paying multiple filing fees.
157. Allan Gregory, The Economics of (Killing) Mass-BitTorrent Lawsuits, TorrentFreak (Sept. 18, 2011), http://torrentfreak.com/the-economics-of-killing-mass-bittorrent-lawsuit s-110918/.
158. David Kravets, How Mass BitTorrent Lawsuits Turn Low-Budget Movies Into Big Bucks, WIRED (March 31, 2011, 2:36 PM), http://www.wired.com/threatlevel/2011/03/bittorrent/.
159. Id.
160. See Hamilton, supra note 63.
161. Id.
162. Id.
163. See Cohn, supra note 2.
164. E.g., Steele Letter, supra note 2.
165. Cohn, supra note 2.
166. MCGIP, LLC v. Does 1-149, No. C 11-02331 LB, 2011 WL 4352110, at *4 n.5 (N.D. Cal. Sept. 16, 2011).
167. Hamilton, supra note 63.
168. Id.
169. Id.
170. William Dotinga, Is Pornography Copyrightable?, Courthouse News Service (Feb. 3, 2012, 12:30 PM), http://www.courthousenews.com/2012/02/03/43613.htm;
171. Steele Letter, supra note 2 (identifying potential defendant solely by IP address, implicitly suggesting that anyone with access to the network or router could have downloaded the work in question).
172. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) ("One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it." (citations omitted)).
173. Fed. R. Civ. P. 11; see, e.g., Mick Haig Prods., e.K. v. Does 1-670, No. 3:10-CV-1900-N, 2011 WL 5104095, at*1, *5 n.9 (N.D. Tex. Sept. 9, 2011) (sanctioning plaintiff's attorney for serving unauthorized subpoenas on ISPs under Rules 26 and 45, but finding that Rule 11 factors "also militate[d] in favor of the sanctions");
174. K-Beech, Inc. v. Does 1-85, No. 3:11cv469-JAG (E.D. Va. Oct. 5, 2011), available at https://www.eff.org/files/K-Beech.pdf (plaintiff ordered to show cause for why its conduct did not violate Rule 11).
175. Mick Haig, 2011 WL 5104095, at*1.
176. Id. at *2,*5.
177. Id. at *5.
178. While many of the copyrighted works at the center of these lawsuits are generally either pornography or low-budget, little-seen B-movies, there are some notable exceptions. For example, the Academy Award-winning film (although not a box office blockbuster) The Hurt Locker was at the center of the case Voltage Pictures, LLC v. Does 1-5000, 818 F. Supp. 2d 28 (D.D.C. 2011), and the Sylvester Stallone action hit The Expendables was at issue in Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34 (D.D.C. 2011).
179. Mick Haig, 2011 WL 5104095, at *1 n.7.
180. Alison Frankel, How Porno Piracy Cases Are Breaking Copyright Ground, Thomson Reuters (Sept. 8, 2011), http://blogs.reuters.com/alison-frankel/2011/09/09/howporno-piracy-cases -are-breaking-copyright-ground/.
181. On The Cheap, LLC v. Does 1-5011, No. C10-4472 BZ, 2011 WL 4018258, at*2 (N.D. Cal. Sept. 6, 2011); Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1164 (N.D. Cal. 2011) (noting the administrative difficulties caused by mass joinder, where each defendant might file different motions, and any defendant could be "present and address the court" at any proceeding or other event involving any other defendant, creating "a thoroughly unmanageable situation").
182. Boy Racer v. Does 1-52, No. C 11-02834 LHK (PSG), 2011 U.S. Dist. LEXIS 86746, at*9-10 (N.D. Cal. Aug. 5, 2011) (quoting BMG Music v. Does 1-203, No. 04-650, 2004 U.S. Dist. LEXIS 8457, at*4 (E.D. Pa. Apr. 2, 2004)).
183. Hard Drive, 809 F. Supp. 2d at 1164; On the Cheap, 2011 WL 4018258, at *2 (quoting Hard Drive, 809 F. Supp. 2d at 1164).
184. On the Cheap, 2011 WL 4018258, at *3.
185. 542 F. Supp. 2d 153, 161 (D. Mass. 2008).
186. London-Sire, 542 F. Supp. 2d at 157-58; Complaint for Copyright Infringement, London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153 (D. Mass. 2008) (No. 04cv12434-NG).
187. On the Cheap, 2011 WL 4018258, at *2
188. Temple, supra note 1
189. See Hamilton, supra note 63
190. See id. (citing one attorney for copyright holders who asserts that when mass lawsuits are "done right" they can be effective in combating piracy)
191. See id. (noting that a number of copyright attorneys representing adult studios voluntarily opt to sue only individuals or small groups in the jurisdiction where they reside)
192. David McGuire, Report: Kids Pirate Music Freely, Wash. Post, May 18, 2004, http://www.washingtonpost.com/wp-dyn/articles/A37231-2004May18.html (noting that the number of people downloading music dropped significantly after the RIAA first started warning people that they could be sued for illegally sharing music).
193. Johnson, supra note 149.
194. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 161 (D. Mass. 2008) (noting that joinder benefits defendants because it allows them to see the defenses raised by the other defendants in the lawsuit).
195. See, e.g., On the Cheap, LLC v. Does 1-5011, No. C10-4472 BZ, 2011 WL 4018258, at*2 (N.D. Cal. Sept. 6, 2011) (citing the "logistical" nightmare that would be created by hundreds of defendants filing many different motions).
196. London-Sire, 542 F. Supp. 2d at 161.
197. See id. (noting that consolidating multiple defendants into one case would allow the defendants to see the defenses other defendants have raised).
198. IO Grp. v. Does 1-435, No. C 10-04382 SI, 2011 WL 445043, at *6 (N.D. Cal. Feb. 3, 2011).
199. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)).
200. K-Beech, Inc. v. John Does 1-41, No. V-11-46, 2012 WL 773683, at *5 (S.D. Tex. Mar. 8, 2012).
201. Call of the Wild Movie, LLC v. Does 1-1062, 770 F. Supp. 2d 332, 345 (D.D.C. 2011).
202. See IO Grp., 2011 WL 445043, at*6 (noting a judicial reluctance to accept a plaintiff's motive of reducing litigation costs as sufficient to permit joinder in light of other procedural difficulties); Arista Records, LLC v. Does 1-11, No. 1:07-CV-2828, 2008 U.S. Dist. LEXIS 90183, at*17-18 (N.D. Ohio Nov. 3, 2008) ("While Plaintiffs are certainly entitled to vindicate their rights, they must play by the Federal Rules in doing so." (quoting Sony BMG Music Entm't v. Does 1-5, No. CV 07-2434 SJO (JCx) (C.D. Cal. Aug. 29, 2007)) (internal quotation marks omitted)); Tele-Media Co. of W. Conn. v. Antidormi, 179 F.R.D. 75, 76 (D. Conn. 1998) ("Though the balance of pragmatic considerations may arguably point toward permitting [joinder of defendants]... the same transaction test of Rule 20 stands in the way.").
203. K-Beech, 2012 WL 773683, at *5.
204. See Bridy, supra note 31, at 724 ("Considering the significant procedural due process and administration of justice issues associated with mass John Doe litigation, it is hard to imagine a compelling argument in favor of adjudicating online copyright disputes this way.").