Overview
In an opinion last week, Judge Marrero took a new approach to the vexing question of the appropriateness of joinder of multiple John Doe defendants accused of copyright violations in their use of the BitTorrent file sharing network. As we have reported before, judges in the Southern District have come to different and conflicting conclusions as to whether joinder of such defendants is in fact appropriate. Judge Marrero, recognizing the split of authority in this district and others, decided it was not necessary to reconcile these conflicting decisions or to take a side in the dispute. Instead, "pracitcal considerations" counseled against joinder.
As is apparent from the discussion above, there is a divide among district courts regarding whether joinder is proper in cases involving multiple John Doe defendants who allegedly traded the same copyrighted file while participating in the same swarm on BitTorrent. The fact that multiple courts, in well-reasoned opinions, have arrived at opposing conclusions suggests that there is no clearly correct answer to this question. Upon careful consideration of Next Phase's submission and the many opinions in similar cases, the Court need not reach a conclusion about whether permissive joinder is proper under Rule 20 (a) in this case. Instead, three practical considerations compel the Court to exercise its discretion to sever John Does 2-27.The three reasons cited by Judge Marerro that supported discretionary severance were: (1) it is likely that each John Doe defendant would have unique defenses, rendering joinder no more efficient than separate trials; (2) it is conceivably that several John Doe defendants did not download the movie identified; and (3) if the movie at issue is deemed "obscene," it may not be afforded copyright protection under the Copyright Act. In addition, recognizing, as Judge Baer did in a prior opinion, the risk of coercive settlement faced by a defendant named in a suit involving the distribution of an adult film, Judge Marrero limited the plaintiff's right to seek discovery from Internet Service Providers in identifying the John Does. Specifically, the Court ordered that the ISPs were to produce identifying information (though not phone number or email address) of the John Does under seal to the Court, not the plaintiff, for in camera review. In a separate opinion last week, Judge Engelmayer followed the standard articulated by Judge Crotty and Judge Nathan in prior John Doe joinder cases, and held that the defendants were properly joined because the complaint alleged that they had all downloaded the same file over a three-month period.