Unappreciated Joinder Is Playing a Decisive Role in BitTorrent Cases

Last time, I said that the real action in these BitTorrent cases (including the one we’re discussing, In Re BitTorrent Adult Film) is “joinder,” where multiple parties are placed on the same side of the “V” in a court case—in the BitTorrent cases, sometimes hundreds, thousands or even tens of thousands of parties are placed on the defendants’ side of the “V.” A plaintiff can try to “join” as many defendants as it wants, but courts have the power to split the defendants off into their own cases, a process known as “severance.”

It’s a relatively dull topic*, but it’s proving pivotal in the BitTorrent cases. Cases in which the defendants are severed are almost never re-filed.** At first, this might seem strange. The cases are not dismissed permanently. The plaintiffs just need to re-file against the defendants as separate, individual cases. And pay the $350 filing fee for each case.

* Which is fine with me because I’m a HUGE civil procedure nerd.

** Based on my own observations and anecdotal evidence. I’m not sure if anyone has been tracking all of these cases.

All for 10,000, 10,000 for All!

Other than the $350 filing fee, the difference between one case against ten defendants and ten cases against one defendant each might sound technical and trivial. And, normally, that’d be a fair assessment. But the BitTorrent cases are unusual in a number of ways, most notably the sheer number of defendants. Where you have 1000’s of defendants, those $350 fees—normally trivial compared to attorney’s fees—start to add up.

More important, there is something about the economics of the BitTorrent cases that makes severance an insurmountable obstacle. As we’ll discuss, the big advantage of joinder is efficiency. Everyone in the case must move together at the same pace. Deadlines are the same, experts are treated the same way, the judge is the same, and so forth. When the cases are severed, you will have different timetables, different ways of handling things like experts, and different judges with different predilections and practices. Even just ten parallel cases would require a certain amount of logistical muscle to keep everything straight.* This is where a large firm will show its advantages because large firms have the personnel necessary to do that.

* Technology can help with that, of course, but even it has limits.

But most of the firms representing the plaintiffs in the BitTorrent cases are (like my firm) small shops. It is presumed that the firms are working on a contingency basis (i.e., they get a cut of proceeds in lieu of legal fees). They could, of course, recruit temporary workers to help with the logistics, but presumably the margins on each settlement are too thin for that to work.

The filing fees shouldn’t pose a barrier to the firms, because under a contingency arrangement, the client, not the lawyer, must pay things like filing fees.* So, the filing fees shouldn’t be coming out of the lawyers’ pockets. But even this might upset the economics. The clients had not budgeted this kind of upfront expense, and they may need to reconsider.

* The reason for this is a bit obscure. Ethically, lawyers may risk their own labor—i.e., their own legal fees—but out-of-pocket “costs,” like filing fees, are not a result of the lawyer’s labor. If the lawyer pays it for the client (and is not promptly reimbursed), it becomes an “advance” or a loan, and lawyers are not permitted to loan their clients money, on theory that sophisticated lawyers will be unable to resist the temptation to take advantage of their unsophisticated clients. No, seriously, that’s the reason.

This is not to say (as many have) that the BitTorrent cases are going away in districts that have been severing the cases. The lawyers and their clients might simply be recalibrating their contingency agreements. The clients might need to increase the cut they’re giving the lawyers, or lay out some upfront money to cover the additional costs of severed cases (plus the filing fees). For their part, the lawyers will need to spend some time thinking how to manage these cases.

Snug the Join(d)er, Getting to the Bottom of Severance

Given the consequences of severance, on what basis may courts sever a case? The bottom line is that courts have tremendous discretion to keep a BitTorrent case joined together, or to sever them.

Under most jurisdictions’ rules of civil procedure, you can usually sue multiple defendants at the same time. For example, if three people conspired to defraud you, you could sue all three defendants together. Or, if a defective axel shaft caused your car to crash, you could sue the seller of the car, the manufacturer of the car and the manufacturer of the axel shaft all at once, if you so choose. You don’t have to. This is called “permissive joinder.”*

* Joinder is not a substitute for jurisdiction. If you want to sue two defendants in Tennessee, but Tennessee doesn’t have jurisdiction over one of them, then you can’t join that party—not because of any problem with joinder, per se, but because that defendant has no business being in that court in the first place.

The idea behind permissive joinder is efficiency.* It’s just more efficient to have all the defendants in the same case, assuming the defendants are sufficiently connected to the case and to each other. And that’s the rub: when are the defendants sufficiently connected? The rules of civil procedure aren’t really that much help:

* Another reason is to avoid inconsistent judgments.

Persons … may be joined in one action as defendants if: (A) any right to relief is asserted against them … with respect to or arising out of the same transaction, occurrence, or series of transaction or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.

Well, that certainly cleared that up! Generally speaking, though, courts tend to interpret these requirements broadly, so as to encourage joinder. Most famously, in Mosely v. General Motors, ten employees sued for employment discrimination. All they had in common was (1) their race, and (2) their employer. Yet, the court of appeals held that they could join together as plaintiffs. Further, even if joinder is not appropriate, courts have the discretion to consolidate similar cases for pre-trial procedures, then hold separate trials for the different defendants (again, with an eye toward efficiency).

Having said all that, courts have tremendous power to control their dockets, and the rules of civil procedure gives them broad rights to “add or drop a party” from a case, so long as the terms are “just.” Ordinarily, this power is supposed to mirror the rules for permissive joinder, but courts have additional powers to manage their dockets—especially where the defendants’ legal strategies are so different from each other that courts, and especially juries, will become confused, and the efficiencies will be lost.

One more factor to take into consideration: a trial court’s decision to sever a case is almost impossible to appeal.* Why? First, you don’t have a right to appeal until there is a final judgment. Anything short of that, and you’ve got an “interlocutory appeal,” which appellate courts hear only if they want to. And they usually don’t.** Second, in theory, a plaintiff whose case has been severed isn’t really prejudiced all that much. The plaintiff doesn’t lose any rights, just some efficiency. Without any real threat to justice, the chances of an appellate court taking an interlocutory appeal on the issue is virtually nil.*** This means that, practically speaking, trial courts have almost unfettered discretion.

* A decision not to sever a case has a slightly better chance, with some appellate courts cracking down on abuse of misjoinder, especially in patent cases.

** If appellate courts heard appeals of every interlocutory order that a party was unhappy with, it’d never have time for anything else.

*** When I was a junior associate, I wrote a brief seeking to sever my client from a multi-defendant patent case. I thought for sure I was going to win because, while I saw several appellate decisions finding misjoinder of defendants in patent cases, I found none finding appropriate joinder. The judge ended up severing the case, then sua sponte consolidating them for pre-trial procedure right back. In retrospect, I shouldn’t have been so surprised. The reason I didn’t find any contrary appellate-level decisions is that appealing an order severing a case almost never happens.

This is all to say that courts have a wide range of options when confronted with BitTorrent cases:

• They can simply accept the plaintiff’s joinder of the defendants, on grounds that participation in the same BitTorrent “swarm” constitutes a single “transaction or occurrence.”
• They can sever the defendants, but then bundle the various cases for pre-trial procedures, which has the same practical effect as joinder, except at the trial stage.
• They can sever the defendants, on grounds that (1) there are too many defendants, (2) the defendant’s situations are too different, and (3) the plaintiffs are avoiding paying filing fees.

By and large, in BitTorrent cases, courts have chosen the one of the first two options, often without specifying which one (because the practical effects are the same). As several commentators have observed, however, more and more courts, including the In re Adult Film case, are severing their BitTorrent cases.

The Case for and Against Severance

The first question we have to ask is whether the various defendants were involved in the “same transaction or occurrence” or series thereof. They certainly have certain thing allegedly in common: they’re all accused of downloading the same film. But that’s not enough. If you were involved in two entirely separate automobile accidents, you couldn’t join the cases just because it involved the same car.

But the plaintiffs allege on other point of commonality. They allege that the defendants participated in the same BitTorrent “swarm.” The way BitTorrent works, members of a BitTorrent network who have a copy of the requested work each contribute a small piece of the whole work, so as to spread the burden evenly across the network.* Thus, the argument runs, each participant in a swarm is contributing to copyright infringement, and each is participating in a single occurrence of copyright infringement.

* The BitTorrent system has to keep track of which member is contributing which bit of the overall work. This is why it’s so easy to find out the IP addresses of the participants in a swarm. It will come as absolutely no surprise to you if I tell you that there are new protocols that do a better job of hiding this information.

The Magistrate rejected this argument—though many other courts have bought it—because the uploading process is automated. To the court, joinder is appropriate only if the participants consciously participated in the uploading process.*

* I’m not sure I buy the Magistrate’s reasoning here. If you’re part of a BitTorrent network, and you leave the BitTorrent software “on,” you can hardly say you were surprised that your computer was part of a swarm with respect to files you marked for participation. I don’t see how automation changes that.

Perhaps more important, the Magistrate noticed that the dates of the various defendants’ alleged participation in the “swarm” can be pretty far apart—apparently too far apart to have participated in the same swarm. This raises a more fundamental question: how do we know when a given upload is part of a given swarm? The hash values are the same, but that just identifies the target file, and it will be the same regardless of the swarm. The fact that one computer’s participation with respect to a given hash value happens to be close in time to another computer’s participation with respect to the same hash value doesn’t necessarily mean they’re participating in the same swarm. If the file is popular, there could be multiple swarms going on at the same time. I should think that disentangling the various swarms would be a messy business.*

* Perhaps the plaintiffs mean to argue that, not only are members of a given swarm participating in the same “transaction or occurrence,” but anyone who has participated with respect to the same hash value is participating in the same “transaction or occurrence” on the theory that a file with a given hash value could be traced to a single parent file, and that swarms tend to build on one another with respect to the same hash value. That might be taking things a bit too far.

The argument that really seems to persuade the Magistrate is that the defendants are too diverse for efficient joinder. Here, the Magistrate may use his broad discretion under Rule 21. The Magistrate noted that each of the anonymous defendants had emphasized a different legal defense. Some would rely on a lack of venue or personal jurisdiction, others will simply deny that they did it, but for a variety of reasons: religious convictions, lack of technological savvy, differences in WiFi equipment, the nature of other household members and guests, and so forth.  The Magistrate concluded that whatever judicial efficiencies there were in joining the defendants were outweighed by the judicial inefficiencies of accounting for the defendants’ diversity.*

* The Magistrate also simply doubted that a case with so many defendants could be practically carried out. But I’ve seen courts manage large cases successfully before.

Finally, the Magistrate didn’t like the ratio of the number of defendants to the number of filing fees (though he didn’t quite put it that way). It costs $350 to file a case in federal court. It doesn’t matter how big or complex the cases are; the fee’s the same. The amount is meant to defray (only a tiny bit!) the costs of running the judicial system (a kind of use fee), and also to make sure that plaintiffs are serious about the cases they file.

The filing fee, thus, touches on the two things about BitTorrent cases that courts dislike: the judicial bother, and the gnawing suspicion that the plaintiffs aren’t serious about litigating their claims. It should not come a surprise, then, that filing fees play a predominant, if not decisive, role in those decisions severing BitTorrent cases.

I think that’s enough about joinder and severance. Dull legal doctrine makes a big splash! I might have some bonus coverage later, since I’ve followed some of the progeny of the West Coast cases I blogged about previously, and I thought I’d report on what I found out.

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.