BitTorrent Swarm ≠ “Transaction or Occurrence”

I used to blog about BitTorrent lawsuits quite a bit, but dropped that in favor of folks who blogged about them much more comprehensively. But there was one BitTorrent lawsuit that I’ve been following pretty carefully because it’s in Tennessee: Dragon Quest Productions, LLC v. Does 1-100, Case No. 3:12-cv-597. The judge* in that case has just severed the case from one case with 100 defendants, to 100 cases with one defendant each. And that’s pretty significant.

* I’m linking to the magistrate’s “Report and Recommendation,” but the judge accepted it in full.

A quick primer about BitTorrent lawsuits. Usually, the plaintiff is the owner of the copyright in either (a) a pornographic film, or (b) a non-pornographic film that didn’t do so well at the box office.* Dragon Quest LLC is definitely in the latter category, its movie, Age of Dragons, having bombed at the box office, despite somehow starring Danny Glover. In either case, the idea is to settle with as many defendants as possible for what lawyers call “nuisance value,” the amount the defendant is willing to pay to avoid the expense and hassle of a lawsuit**. Since the defendants are ordinary people with ordinary incomes, that value is rather low—they can afford only so much. Since each settlement is rather low (reports are  they average about $3000), the plaintiff needs to settle with many defendants for the strategy to be financially worthwhile.

* There are exceptions, such as The Expendables and The Hurt Locker.

** In the case of pornography, also the embarrassment.

But one can only “join” many defendants into a single lawsuit if they were all involved in the same “transaction or occurrence.” The plaintiffs in these cases have taken the position that the “transaction or occurrence” in question is a BitTorrent “swarm,” and that the defendants all participated in the “swarm.” You see, when you download a computer file (say, a movie) via a BitTorrent protocol (legally or illegally), you actually download from many participating BitTorrent users who happen to have that very file on their computers. You take a little bit from one participant, a little bit from another, etc., and pretty soon you have a complete file, with a minimum of inconvenience for the participants.

But that’s not really what a swarm is, because BitTorrent is a lot more fluid than that. Once you’ve downloaded the file, your copy of the file then becomes available to be access by another participant, and so forth. So it’s hard to tell when a swarm begins or ends, as participants drop on and drop out.

The way BitTorrent lawsuits work is to take advantage of a kind of economy of scale. It’s much more efficient to sue a bunch of people in one lawsuit than a bunch of people in a bunch of lawsuits. The most obvious advantage is the filing fee. It cost $350 (now $400) to file a lawsuit in federal court. So, with 100 defendants, you save $34,650 right off the bat. In fact, many plaintiffs might not sue at all if they thought it’d cost $35,000 just to get the lawsuit started.

There are additional efficiencies. Since the BitTorrent users are anonymous, all the plaintiff knows is the IP address of the various members of the swarm. Ordinary consumers who get their internet from ordinary ISPs (like their cable or telephone company) don’t have fixed IP addresses, so to find out who was using that IP address at that time, the plaintiff needs to ask the ISP. To do that, the plaintiff needs a subpoena, but to get a subpoena, the plaintiff needs a lawsuit. That done, it’s much more efficient to ask an ISP about 100 IP addresses in one subpoena than about one IP address in 100 subpoena.

So that’s why joinder and severance are so important in these cases.

Dragon Swarm

In Dragon Quest, the magistrate found that the dates on which the defendants participated in the “swarm” were too scattered to constitute a single “transaction or occurrence.” The court found there was a three-month span of participant activity. Even if they were downloading the same movie (Age of Dragons), to the court, that sound like a lot of different transactions. Worse, there was no principled way to group them meaningfully into a single “transaction or occurrence.” Therefore, joinder was improper.

The magistrate went on to find additional reasons for severance. First, whereas joinder is supposed to increase judicial efficiency by bringing together defendants with common ties, here, joinder would have the opposite effect. Second, although the defendants appear to reside in the Eastern District of Tennessee, they don’t all reside in the same division of the Eastern District of Tennessee. Generally, each “division” within a district has its own courthouse, and the magistrate was concerned about having the defendants travel to a courthouse that wasn’t the closest one to them. Finally, the magistrate was annoyed that the plaintiff was asking a lot of the court’s resources but was paying only $350* in filing fees.

* The court says $400, but I think the fee was only $350 at the time.

What’s interesting about this decision is that the defendants’ motions that led to this decision were all “pro se,” i.e., written and filed by the defendants themselves. They had clearly cribbed off of other such motions filed in other BitTorrent cases. The magistrate went the extra mile to understand the real legal issues and do some legal research to reach this result.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.