Mass Porn BitTorrent Case Shot Down, 5,010 Does Severed

Sep 8, 2011 1:45 PM PST

SAN FRANCISCO — A federal judge this week severed 5,010 John Doe defendants from a single porn BitTorrent case, leaving only one defendant to fight infringement charges leveled over allegedly sharing On the Cheap's "Danielle Staub Raw."

U.S. Judge Bernard Zimmerman, in his order severing the Does, said that mass copyright litigation against defendants scattered all over the country is a “logistical nightmare” for the courts and violates the "principles of fundamental fairness" to defendants.

"[P]laintiff’s desire to enforce its copyright in what it asserts is a cost-effective manner does not justify perverting the joinder rules to create the management and logistical problems discussed above and then offer to settle with Doe defendants so that they can avoid digging themselves out of the morass plaintiff is creating," Zimmerman ruled.

The federal judge noted that the Does are mostly out-of-state and out-of-district defendants and that they "are left with a decision to defend themselves in San Francisco or hire an attorney to do so. This does not comport with the “principles of fundamental fairness.”

Zimmerman also noted that other courts have taken his posture and discretion on a number of BitTorrent suits brought on by porn companies Titan Media Group, Diabolic Video Productions, MCGIP, Hard Drive Productions and Burning Angel, which all have alleged in cases that Doe defendants act in concert.

"Most recent decisions on this issue have concluded that the use of the BitTorrent protocol does not distinguish these cases from earlier rulings in P2P cases in which courts found that joining multiple Doe defendants was improper since downloading the same file did not mean that each of the defendants were engagaed in the same transaction or occurrence," Zimmerman wrote. "I agree with the views expressed by these courts and find that the plaintiff has not established that joinder ... ."

Zimmerman, in a footnote, said that a previous Burning Angel decision also was "particularly helpful" in reaching his decision.

In that case, "the court was not persuaded by the copyright holder's argument ... that all of the defendants were involved in the same transaction because each one of them joined the same 'swarm' to download or distribute the copyrighted movie and were therefore acting in concert."

"[The Burning Angel case] found that the large gap of time — six weeks — between the alleged infringement act of the first Doe and the last Doe showed that the defendants may not have beeen cooperating with each other," Zimmerman wrote, "The same is true for this case since Doe No. 1's infringing act allegedly happened on June 19, 2010, while Doe No. 5011's infringing act took place almost seven weeks later on Aug. 6, 2010."

Zimmerman said in his ruling that On the Cheap, as well as Beverly Hills, Calif., counsel Ira Siegel, earlier received the court's green light for expedited discovery so it could identify and serve the Does, but that it did so in nefarious fashion.

"Plantiff appears to have used the information from the subpoena for a different purpose: to extract settlements from out-of-state defendants by notifying them that they have been used in California, knowing that it is highly unlikely that many of them will be amenable to suit in California," Zimmerman wrote.

Zimmerman ordered On the Cheap to notify by Sept. 22 every Doe defendant, with the exception of one, that their case has been severed and dismissed.

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