Over the past several years, content providers, particularly in the adult film industry, have filed numerous suits against users who have copied their works via the BitTorrent file-sharing protocol. Put briefly, the use of BitTorrent creates a network of computers and internet connections that permits users to participate in transferring large amounts of data across the file-sharing network, with each downloading user receiving pieces of a file from various other users. This piecemeal downloading system is called a "swarm," which leads to the viral spreading of the file by a continuous series of downloads and uploads between particular users, or members of the swarm.
Litigation of this nature invariably involves an ex parte application for expedited discovery to subpoena various ISPs to obtain account information linked to IP address data. Often, the suits claim mass infringement by hundreds of John Does who were allegedly participants in the same BitTorrent swarm that resulted in the unauthorized distribution of the plaintiff's work. There is a split among federal courts as to whether the numerous defendants in copyright infringement cases of this type have been properly joined. Some courts have expressed serious doubts over joinder and have denied applications for expedited discovery or otherwise severed the claims against all defendants except John Doe 1. See e.g., Amselfilm Prod. GMBH & Co. KG v. Swarm 6A6DC and John Does 1-187, No. 12-3865 (D.N.J. Oct. 10, 2012). Other courts, however, have issued orders allowing the limited expedited discovery to proceed against unnamed defendants who may ultimately possess valid affirmative defenses. See e.g., Malibu Media, LLC v. John Does 1-5, 2012 WL 3641291 (S.D.N.Y. Aug. 24, 2012) (joinder of five defendants in copyright infringement action was proper).
A recent New Jersey decision determined that joinder of numerous John Doe defendants identified as members of the same BitTorrent swarm was inappropriate. In Modern Woman, LLC v. Does 1-X, 2013 WL 707908 (D.N.J. Feb. 26, 2013) (unpublished), the court severed all defendants except John Doe 1 and allowed the plaintiff to serve a subpoena on the ISP to discover John Doe 1's name and address only. The court expressed doubts that those who participated in the same swarm were part of the same "transaction" as required under the joinder rules, particularly because users span across various dates and times and different people within the swarm might never distribute a piece of the plaintiff's movie to the same person, or at the same moment in time.