September 12, 2013 | Category: Blog | Tags: anonymity, BitTorrent cases, civil procedure, copyright, joinder and severance | Comments: 1
Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
BitTorrent Swarm ≠ “Transaction or Occurrence”
I used to blog about BitTorrent lawsuits quite a bit, but dropped that in favor of folks who blogged about them much more comprehensively. But there was one BitTorrent lawsuit that I’ve been following pretty carefully because it’s in Tennessee: Dragon Quest Productions, LLC v. Does 1-100, Case No. 3:12-cv-597. The judge* in that case has just severed the case from one case with 100 defendants, to 100 cases with one defendant each. And that’s pretty significant.
* I’m linking to the magistrate’s “Report and Recommendation,” but the judge accepted it in full.
A quick primer about BitTorrent lawsuits. Usually, the plaintiff is the owner of the copyright in either (a) a pornographic film, or (b) a non-pornographic film that didn’t do so well at the box office.* Dragon Quest LLC is definitely in the latter category, its movie, Age of Dragons, having bombed at the box office, despite somehow starring Danny Glover. In either case, the idea is to settle with as many defendants as possible for what lawyers call “nuisance value,” the amount the defendant is willing to pay to avoid the expense and hassle of a lawsuit**. Since the defendants are ordinary…
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…