Fleeing The Swarm
In copyright litigation, “swarm joinder” refers to the act of joining multiple John/Jane Doe defendants from a BitTorrent “swarm” in a single legal action utilizing a single filing fee. The so-called “swarm” is a group of users in a peer-to-peer file-sharing network that anonymously download and upload the same copyrighted file during a given period. Because the defendants are initially unidentified, the plaintiff typically files an ex parte motion for expedited third-party discovery from Internet service providers (ISPs) for the names and addresses of persons associated with specified IP addresses. Once the plaintiff has that information, the plaintiff typically amends the complaint to substantially narrow the list of defendants down to the people positively identified during discovery. While such swarm joinder cases have significantly increased in popularity nationwide—with some plaintiffs filing against thousands of defendants in a single action on a single filing fee—there is no consensus on their propriety under the Federal Rules. Currently, the D.C. Circuit is the only Court of Appeals to have explicitly ruled on the issue, and in AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 998 (D.C. Cir. 2014) it concluded that swarm joinder does not satisfy FRCP 20(a)(2). At least twelve District Courts have agreed with the position of the D.C. Circuit, at least five District Courts outside the D.C. Circuit have disagreed (permitting swarm joinder), and eighteen others have taken a “middle ground” in which the District Court may exercise discretion to manage its docket and sever defendants even if swarm joinder might technically be permissible.
In LHF Productions, Inc. v. Kabala, the plaintiff LHF attempted swarm joinder, alleging that its film, “London Has Fallen,” was pirated by over a hundred thousand BitTorrent users in Nevada. LHF identified what it characterized to be “the 1-2% most egregious offenders” and initially filed suit against them in sets of 10 to 30 “Doe” defendants per case. Ultimately, LHF winnowed that group down by voluntary dismissals and amendment of the complaint to two named defendants and the counterclaimant Kabala. Those actions prompted Magistrate Judge Nancy Koppe, who was supervising the underlying discovery in the case, to issue a recommendation that the District Court sever and dismiss all defendants but Kabala. Wading into the split of authority on the legality of swarm joinder, Judge Jennifer Dorsey, partially adopting the Magistrate Judge’s recommendation, made it clear that she believed that swarm joinder is not likely to promote judicial efficiency. She exercised her discretion under FRCP 21 to sever and dismiss all defendants in the case before her other than Kabala, without prejudice to LHF to refile separate lawsuits against them.
While acknowledging the large differences of opinion as to whether swarm joinder is legally permissible under FRCP 20(a)(2), Judge Dorsey elected not to rule one way or another on that issue. Instead, she ruled that even if swarm joinder was contemplated by the Federal joinder rules, she nonetheless would use her discretion under FRCP 21 to sever the defendants based on the balance of burdens in the case before her. She explained that, because the claims against each defendant would likely turn on individual defenses, each would require a separate mini-trial, which would transform an otherwise straightforward case into a logistical nightmare. This, along with the sheer number of parties and their individual schedules, could make it even more burdensome for them to work together rather than separately, and give the plaintiff inappropriate settlement leverage. She also rejected the argument that prohibiting swarm joinder would make copyright enforcement too costly.
LHF Productions underscores that copyright owners hoping to use swarm joinder to assert suits are likely to find their pool of friendly jurisdictions to be shrinking and may need to employ better pretrial investigation into identifying which peer-to-peer IP addresses are associated with what the copyright holder deems to be substantial abuses of copyright protection. By narrowing the class of defendants before filing suit, copyright holders may be able, following additional discovery, to join additional defendants via FRCP 42(a) even in jurisdictions that otherwise may be hostile to swarm joinder. Swarm joinder defendants, meanwhile, should consider moving the court to exercise its discretion to sever themselves from other defendants. Copyright owners, swarm joinder defendants, and even third parties like the ISPs that the subject of discovery requests seeking the identities of their users all may also want to consider asking the District Courts in their cases to certify interlocutory appeals to their respective controlling Circuit Courts of Appeal, based on the growing conflict in the lower courts over the legality of this controversial procedural device and the likelihood that the District Courts themselves may welcome guidance as to what is permissible.