The Case against Combating BitTorrent Piracy through Mass John Doe Copyright Infringement Lawsuits

Today, the most popular peer-to-peer file-sharing medium is the BitTorrent protocol. While BitTorrent itself is not illegal, many of its users unlawfully distribute copyrighted works. Some copyright holders enforce their rights by suing numerous infringing BitTorrent users in a single mass lawsuit. Because the copyright holder initially knows the putative defendants only by their IP addresses, it identifies the defendants anonymously in the complaint as John Does. The copyright holder then seeks a federal court's permission to engage in early discovery for the purpose of learning the identities behind the IP addresses. Once the plaintiffknows the identities of the John Does, it contacts them with a settlement demand. But often before such discovery is granted, the anonymous defendants have been improperly joined, and the lawsuit has been filed in a court that lacks personal jurisdiction over the defendants. This presents no problem to the plaintiffbecause the plaintiffdoes not intend for the lawsuit to go to trial. However, the defendants effectively have no choice but to succumb to the plaintiff's settlement demand because settling will be less costly than fighting the action. This Note argues that courts should not grant expedited discovery in such procedurally deficient lawsuits. To rein in these mass lawsuits, this Note argues that mass copyright infringement suits should meet certain minimum joinder and personal jurisdiction requirements before courts grant expedited discovery.INTRODUCTIONThis year, thousands of alleged users1 of the BitTorrent peer-to-peer file-sharing protocol will open their mailboxes to an unwelcome surprise: a letter from a copyright holder threatening to sue the user for copyright infringement unless he pays a specified settlement amount.2 The recipient will receive the letter because he is one of the several anonymous John Doe defendants joined in a single mass copyright infringement lawsuit that identifies the defendants only by the IP addresses associated with their internet accounts.3 In their continuing assault against online piracy, copyright holders are using this mass litigation tactic to prosecute alleged infringers. Since mid-2010, over 220,000 BitTorrent users have been targeted in this manner.4The litigation strategy is simple. The plaintiff-copyright holder issues a complaint alleging that all the listed John Does have used BitTorrent to infringe its copyright.5 Then the plaintiffmoves for expedited discovery on the basis of that complaint. Expedited discovery allows the plaintiffto serve subpoenas on each Doe's Internet Service Provider ("ISP") in order to uncover the identity behind each Doe's Internet Protocol ("IP")6 address. Obtaining the Does' identities is the copyright holders' ultimate goal because they never intend to litigate these mass lawsuits.7 Instead, settlement is their endgame.After obtaining the identities of the previously anonymous John Does, the copyright holder sends settlement letters to the defendants notifying them that they will be named in the suit if they do not pay a specified amount. The settlement offer is carefully designed to leave the defendant with no choice but to settle, even when he has a strong defense to the action. 8 The pressure to settle is especially acute when the copyrighted work in question is a pornographic video, as is often the case.9The John Does' inability to defend themselves is particularly troubling because many do have strong defenses, given the major procedural defects that typically plague these lawsuits.10 In particular, these mass lawsuits suffer from improper joinder and the forum court's lack of personal jurisdiction over many (if not most) of the defendants.11 When those issues are raised, district courts split on whether to allow discovery of the anonymous defendants' identities.12This Note argues that, because these mass John Doe copyright infringement lawsuits frequently suffer from major procedural deficiencies, federal district court judges should not grant expedited discovery without carefully investigating whether the John Doe defendants have been properly joined and without first ensuring that the court has personal jurisdiction over them. …