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Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 1 of 10
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge William J. Martínez
`
`Civil Action No. 12-cv-3342-WJM-KLM
`
`PHE, INC.,
`
`Plaintiff,
`
`v.
`
`DOES 1-105,
`
`Defendants.
`
`
`
`ORDER FINDING JOINDER IMPROPER AND DISMISSING ALL
`DEFENDANTS OTHER THAN JOHN DOE 1
`
`On December 27, 2012 Plaintiff PHE, Inc. initiated this action against John Does
`
`1-105 alleging that Defendants unlawfully downloaded a portion of Plaintiff’s
`1
`
`copyrighted work. (Compl. (ECF No. 1) ¶ 59.) Having reviewed the Complaint, the
`
`Court sua sponte finds that joinder of all the named Defendants was not proper and
`
`dismisses the claims against John Doe Defendants 2-105 without prejudice to refiling
`
`separate cases against each Defendant accompanied by payment of a separate filing
`
`fee as to each case.
`
`I. LEGAL STANDARD
`
`Permissive joinder of claims is governed by Federal Rule of Civil Procedure 20,
`
`which provides that persons may be joined as defendants if:
`
`(A)
`
`any right to relief is asserted against them jointly,
`severally, or in the alternative with respect to or
`
`1
`
` At this time, Defendants are known to Plaintiff only by their IP address. (Compl. ¶ 25.)
`
`

`
`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 2 of 10
`
`arising out of the same transaction, occurrence, or
`series of transactions or occurrences; and
`any question of law or fact common to all defendants
`will arise in the action.
`
`(B)
`
`The remedy for improper joinder of parties is not dismissal of the action. Fed. R. Civ. P.
`
`21. Rather, the court may “at any time, on just terms, add or drop a party. The court
`
`may also sever any claim against a party.” Id.
`
`II. FACTUAL BACKGROUND
`
`Plaintiff PHE, Inc. holds the copyright to “Buffy the Vampire Slayer XXX: A
`
`Parody” (the “Work”). At some point, Plaintiff learned that the Work was being
`
`unlawfully downloaded using a computer protocol called BitTorrent and retained a
`2
`
`company to investigate. During the course of this investigation, the company identified
`
`105 IP addresses in the District of Colorado that had downloaded a file with the hash
`
`number BD9418995FBB78D888D7208003B7A00DC6B6980D (“Hash Number”), which
`3
`
`has been associated with the Work. These 105 IP addresses were allegedly assigned
`
`to the 105 John Doe Defendants at the time this file was downloaded.
`
`III. ANALYSIS
`
`This case is part of an “outbreak of similar litigation . . . around the country in
`
`which copyright holders have attempted to assert claims against multiple unknown
`
`defendants by joining them, in often large numbers, into a single action.” Raw Films,
`
` BitTorrent is a computer protocol that works with computer software to break large
`2
`files, such as movies, into smaller files for the purpose of speeding up and easing download.
`(Compl. ¶ 34.)
`
` BitTorrent assigns each smaller piece of copyrighted work a unique identifier which is
`3
`commonly referred to as a “hash”. (Compl. ¶ 38.)
`
`2
`
`

`
`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 3 of 10
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`Inc. v. Does 1-32, 2011 WL 6840590, *1 (N.D. Ga. Dec. 29, 2011). Like the plaintiffs in
`
`the other cases, PHE, Inc. claims that the Defendants here participated in the same
`
`BitTorrent “swarm” for the purpose of unlawfully downloading Plaintiff’s copyrighted
`
`Work. (Compl. ¶ 6.) The BitTorrent swarm process has been described as follows:
`
`In the BitTorrent vernacular, individual downloaders/
`distributors of a particular file are called “peers.” The group
`of peers involved in downloading/distributing a particular file
`is called a “swarm.” A server which stores a list of peers in a
`swarm is called a “tracker.” A computer program that
`implements the BitTorrent protocol is called a BitTorrent
`“client.”
`
`The BitTorrent protocol operates as follows. First, a user
`locates a small “torrent” file. This file contains information
`about the files to be shared and about the tracker, the
`computer that coordinates the file distribution. Second, the
`user loads the torrent file into a BitTorrent client, which
`automatically attempts to connect to the tracker listed in the
`torrent file. Third, the tracker responds with a list of peers
`and the BitTorrent client connects to those peers to begin
`downloading data from and distributing data to the other
`peers in the swarm. When the download is complete, the
`BitTorrent client continues distributing data to the peers in
`the swarm until the user manually disconnects form the
`swarm or the BitTorrent client otherwise does the same.
`
`Diabolic Video Prods., Inc. v. Does 1-2099, 2011 WL 3100404, *2 (N.D. Cal. May 31,
`
`2011). The theory behind this “swarm joinder” is that “when each defendant is one of
`
`many users simultaneously uploading and downloading a protected work, the defendant
`
`acts as part of a ‘swarm’ in a ‘series of transactions’ involving ‘common questions of law
`
`and fact.’” Raw Films, 2011 WL 6840590, at *1.
`
`Courts across the country are split on whether this theory of swarm joinder is
`
`appropriate. A number of courts, including one judge in this District, have held that
`
`joinder is appropriate. See Patrick Collins, Inc. v. John Does 1-15, 2012 WL 415436
`
`3
`
`

`
`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 4 of 10
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`(D. Colo. Feb. 8, 2012) (finding joinder appropriate); Digital Sin, Inc. v. Does 1-176, 279
`
`F.R.D. 239 (S.D.N.Y. 2012) (“it is difficult to see how the sharing and downloading
`
`activity [of individuals using the BitTorrent protocol in the same swarm] could not
`
`constitute a ‘series of transactions or occurrences' for purposes of Rule 20(a).”); MGCIP
`
`v. Does 1-316, 2011 WL 2292958, at *2 (N.D. Ill. June 9, 2011) (“[G]iven the
`
`decentralized nature of BitTorrent’s file-sharing protocol—where individual users
`
`distribute the same work’s data directly to one another without going through a central
`
`server—the Court finds that sufficient facts have been plead to support the joinder of
`
`the putative defendants at this time.”).
`
`However, a growing number of district courts have recently held that swarm
`
`joinder is not appropriate. See, e.g., Malibu Media, LLC v. John Does 1-23, 2012 WL
`
`1999640, *4 (E.D. Va. May 30, 2012) (finding that, in a file sharing case, “a plaintiff
`
`must allege facts that permit the court at least to infer some actual, concerted exchange
`
`of data between those defendants.”); Digital Sins, Inc. v. John Does 1-245, 2012 WL
`
`1744838, *2 (S.D.N.Y. May 15, 2012) (finding no concerted action between defendants
`
`that only utilized the same computer protocol to download a file); SBO Pictures, Inc. v.
`
`Does 1–3036, 2011 WL 6002620, *3 (N.D. Cal. Nov. 30, 2011) (“The Court cannot
`
`conclude that a Doe Defendant who allegedly downloaded or uploaded a portion of the
`
`Motion Picture on May 11, 2011 [and] a Doe Defendant who allegedly did the same on
`
`August 10, 2011 . . . were engaged in the single transaction or series of closely-related
`
`transactions recognized under Rule 20.”); Lightspeed v. Does 1-1000, 2011 U.S. Dist.
`
`LEXIS 35392, *4-7 (N.D. Ill. Mar. 31, 2011) (finding that Doe defendants using
`
`4
`
`

`
`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 5 of 10
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`BitTorrent technology were misjoined on the basis that the putative defendants were
`
`not involved in the “same transaction, occurrence, or series of transactions or
`
`occurrence” under Fed. R. Civ. P. 20(a)(2)(A)).
`
`Given the amount of discourse already produced by courts around the country
`
`on this issue, the Court finds it unnecessary to write a lengthy opinion about whether
`
`joinder is appropriate. Rather, the Court explicitly adopts the reasoning set forth by
`
`Judge Claude Hilton in Malibu Media, LLC v. John Does 1-23, __ F. Supp. 2d __, 2012
`
`WL 1999640 (E.D. Va. May 30, 2012), Judge J. Frederick Motz in Patrick Collins, Inc. v.
`
`Does 1-23, 2012 WL 1144198 (D. Md. April 4, 2012), and Judge Joseph C. Spero in
`
`Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150 (N.D. Cal. 2011). As
`
`Judge Spero wrote:
`
`Under the BitTorrent Protocol, it is not necessary that each
`of the Does 1-188 participated in or contributed to the
`downloading of each other’s copies of the work at issue—or
`even participated in or contributed to the downloading by
`any of the Does 1-188. Any “pieces” of the work copied or
`uploaded by any individual Doe may have gone to any other
`Doe or to any of the potentially thousands who participated
`in a given swarm. 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.
`
`Hard Drive Prods., 809 F.Supp.2d at 1163. For the reasons set forth in these opinions,
`
`the Court finds that the Defendants in this action are not properly joined and that
`
`dismissal of Does 2-105 is appropriate.
`
`Moreover, even if the Court had found joinder to be proper, it would sever the
`
`remaining Defendants pursuant to the Court’s discretionary authority set forth in Federal
`
`5
`
`

`
`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 6 of 10
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`Rules of Civil Procedure 20(b) and 21. Lenon v. St. Paul Mercury Ins. Co., 136 F.3d
`
`1365, 1371 (10th Cir. 1998) (Rule 21 permits the district court “considerable discretion”
`
`to dismiss parties “on such terms as are just”); Coleman v. Quaker Oats Co., 232 F.3d
`
`1271, 1296 (9th Cir. 2000) (court may sever claims under Rule 20 if joinder would
`
`violate “fundamental fairness” or result in prejudice to either side). Even when the
`
`specific requirements of Rule 20 are satisfied, the Court must consider whether
`
`permissive joinder “will comport with the principles of fundamental fairness” or cause
`
`undue prejudice to any party. Desert Empire Bank v. Ins. Co. of N.A., 623 F.2d 1371,
`
`1375 (9th Cir. 1980); see also Intercon Research Assoc., Ltd. v. Dresser Indus., 696
`
`F.2d 53, 58 (7th Cir. 1982) (permissive joinder should be denied where it would create
`
`undue prejudice, expense, or delay). The Court finds that allowing this action to
`
`proceed against all the John Doe Defendants in one case would result in difficult case
`
`management, cause significant prejudice to Defendants, and would be fundamentally
`
`unfair.
`
` First, as this and many other courts have previously recognized, though the
`
`nature of the alleged actions of each Defendant is similar in that they are accused of
`
`having utilized BitTorrent to unlawfully download Plaintiff’s copyrighted Work, the
`
`Defendants are likely to present very different defenses to these claims based on their
`
`individual circumstances. For example, “subscriber John Doe 1 could be an innocent
`
`parent whose internet access was abused by her minor child, while John Doe 2 might
`
`share a computer with a roommate who infringed Plaintiffs’ Works. John Does 3
`
`through 203 could be thieves, just as Plaintiffs believe.” Third Degree Films v. Does 1-
`
`6
`
`

`
`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 7 of 10
`
`3577, 2011 WL 5374569, *4 (N.D. Cal. Nov. 4, 2011). The Court has already observed
`
`this to be true in the cases filed in this District. The Magistrate Judge assigned to all
`
`BitTorrent cases has noted that defendants are coming forward with a multitude of
`
`different defenses. Some are businesses alleging that a patron was the unlawful
`
`downloader. Others are elderly grandparents that do not even know what BitTorrent is
`
`or how to download a file from the internet; they may have owned the computer
`
`associated with the unique IP address, but have no knowledge of whether someone in
`
`their household may have used the BitTorrent protocol for the purposes alleged in the
`
`complaint.
`
`The fact-intensive nature of these individualized defenses would require that the
`
`Court give individualized attention to each claim against each Defendant. Therefore,
`
`the Court sees little, if any, judicial economy in allowing the claims to proceed together.
`
`Digital Sins, 2012 WL 1744838, *3 (“There are no litigation economies to be gained
`
`from trying what are in essence 245 different cases together, because each of the John
`
`Does is likely to have some individual defense to assert. Each defendant’s situation,
`
`which is unique to him or her, will have to be proved separately and independently.”).
`
`The Court also finds that Defendants are likely to be significantly prejudiced by
`
`having to proceed in one action. The location of the ISPs—and therefore presumably
`
`the John Doe Defendants themselves—are scattered throughout the state of Colorado.
`
`As one court has noted:
`
`even though they may be separated by many miles and
`have nothing in common other than the use of BitTorrent,
`each defendant must serve each other with all pleadings—a
`significant burden when, as here, many of the defendants
`will be appearing pro se and may not be e-filers. Each
`
`7
`
`

`
`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 8 of 10
`
`defendant would have the right to be at each other
`defendant’s deposition—creating a thoroughly
`unmanageable situation. The courtroom proceedings would
`be unworkable—with each of the 188 Does having the
`opportunity to be present and address the court at each
`case management conference or other event. Finally, each
`defendant’s defense would, in effect, require a mini-trial.
`These burdens completely defeat any supposed benefit
`from the joinder of all Does in this case, and would
`substantially prejudice defendants and the administration of
`justice.
`
`Hard Drive Prods., 809 F. Supp. 2d at 1164. Aside from these general difficulties, this
`
`Court’s local rules also require conferral between opposing parties before filing any
`
`motion, which would be difficult with multiple pro se parties. D.C.Colo.LCivR 7.1A.
`
`Thus, the Court finds that Defendants would suffer significant prejudice if forced to
`
`litigate this action as a group.
`
`On the other hand, the Court finds that Plaintiff will suffer no undue prejudice by
`
`severing the Defendants into separate cases. Nothing in this Order prevents Plaintiff
`
`from filing separate actions against each John Doe Defendant. The statute of
`
`limitations for a copyright infringement action is three years, which allows Plaintiff ample
`
`time to refile the individual cases before the limitations period expires. See 17 U.S.C. §
`
`507. The only possible prejudice to Plaintiff is the cost of litigating each of these cases
`
`individually. However, requiring Plaintiff to pay a separate filing fee for each action is
`
`not undue prejudice. As previously stated, because many of these Defendants are
`
`likely to assert fact-intensive defenses that are particular to his or her individual
`
`circumstances, each multi-defendant case is likely to devolve into its own mini-litigation.
`
`Therefore, payment of a separate filing fee for its claim against each Defendant
`
`properly balances the Plaintiff’s right to protect its copyright with the Court’s interest in
`
`8
`
`

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`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 9 of 10
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`cost-efficient adjudication of cases.
`
`Finally, the Court is troubled by many aspects of this “swarm joinder” model for
`
`copyright litigation. Courts across the country have observed that the companies
`
`involved in this type of litigation do not seem interested in actually litigating their
`
`copyright claims. Rather, they appear to be using the federal courts only to obtain
`
`identifying information for the ISP owners and then attempting to negotiate a quick
`
`settlement. See, e.g., Raw Films, 2011 WL 6180205, at *2 (“This course of conduct
`
`indicates that plaintiffs have used the offices of the Court as an inexpensive means to
`
`gain the Doe defendants’ personal information and coerce payment from them. The
`
`plaintiffs seemingly have no interest in actually litigating the cases, but rather simply
`
`have used the Court and its subpoena powers to obtain sufficient information to shake
`
`down the John Does.”). In finding joinder improper in a similar action, one court
`
`observed:
`
`The federal courts are not cogs in plaintiff’s copyright-
`enforcement business model. The Court will not idly watch
`what is essentially an extortion scheme, for a case that
`plaintiff has no intention of bringing to trial. By requiring
`Malibu to file separate lawsuits for each of the Doe
`Defendants, Malibu will have to expend additional resources
`to obtain a nuisance-value settlement—making this type of
`litigation less profitable. If Malibu desires to vindicate its
`copyright rights, it must do it the old-fashioned way and earn
`it.
`
`Malibu Media, LLC v. John Does 1-10, No. 2:12-cv-3623-ODW(PJWx), 2012 WL
`
`5382304, *4 (C.D. Cal. June 27, 2012). “Our federal court system provides litigants
`
`with some of the finest tools available to assist in resolving disputes; the courts should
`
`not, however, permit those tools to be used as a bludgeon.” In re BitTorrent Adult Film
`
`9
`
`

`
`Case 1:12-cv-03342-WJM-KLM Document 6 Filed 01/04/13 USDC Colorado Page 10 of 10
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`Copyright Litigation, 2012 WL 1570765, *10 (E.D.N.Y. May 1, 2012). The Court fully
`
`agrees with the concerns expressed by these other judges and finds that this is yet
`
`another basis for requiring that Plaintiff litigate its copyright claim against each John
`
`Doe Defendant individually.
`
`IV. CONCLUSION
`
`For the reasons set forth above, the Court ORDERS as follows:
`
`Plaintiff’s claims against John Doe Defendants 2-105 are DISMISSED
`
`WITHOUT PREJUDICE;
`
`The parties and the Clerk shall omit any reference to John Doe Defendants 2-
`
`1.
`
`2.
`
`105 from any future filing in this action.
`
`Dated this 4 day of January, 2013.
`th
`
`BY THE COURT:
`
`
`William J. Martínez
`United States District Judge
`
`10

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