• John Doe Copyright Infringement Lawsuits
  • June 14, 2012 | Author: Angela E. Currie
  • Law Firm: Business & Technology Law Group - Columbia Office
  • Have you received a notice from your Internet Service Provider (“ISP”) that your personal identifying information has been requested via subpoena in a ‘John Doe’ copyright infringement case?   Do you want to know if you can protect yourself from having your name, address and telephone number released to a plaintiff so that the plaintiff can serve you with a lawsuit?  Depending on the federal court from which the subpoena was issued, you may be able to file a motion to sever yourself and to quash the subpoena without having to provide your name or address to the plaintiff.

    Since the emergence  of peer-to-peer file sharing protocols, which allow users to share access to files and data over the Internet, copyright infringement has appeared to multiply.  Napster, which was first released in 1999, was the first well known peer-to-peer file sharing protocol.  Subsequent to Napster’s popularity a number of additional peer-to-peer sharing protocols have been developed.  Peer-to-peer sharing protocols have created a channel for substantial copyright infringement violations via the Internet.  Extensive infringement, particularly of songs and movies, occurring on a daily basis, has prompting copyright owners to file infringement suits against thousands of individuals to protect their intellectual property rights, sometimes in the same lawsuit.

    Since the only identifying information initially available to a copyright owner when they discover infringement through peer-to-peer file sharing may be the infringer’s IP address, copyright owners have taken the approach of filing  lawsuits in the federal courts against thousands of ‘John Doe’ defendants.   Courts allow a plaintiff to use the Doe names as place holders until they gather enough information to properly identify the defendants.  After filing suit, the plaintiff uses the subpoena power of the federal courts to demand personal identifying information from each Doe defendant’s ISP.  Upon receipt of this information the plaintiff can name and serve the proper parties to the lawsuit.  Usually when an ISP receives a subpoena it will send a copy to each defendant and advise the defendant if he or she does not file a motion with the court within a specified time frame the defendant’s personally identifiable information will be released to the plaintiff.  Once a plaintiff has an alleged infringers name and address the plaintiff can amend its complaint and serve the individuals with an infringement lawsuit and demand for payment to settle the litigation.

    Defendants are questioning how their information can be released to a third party for the purpose of suing them for a copyright infringement action in which the defendant may have never been involved.  Individuals who are listed as the ISP subscribers are not necessarily the individuals who have committed the alleged copyright violations.  Other family members or guests may be downloading the infringing material or, possibly, a third party has hijacked the defendant’s IP address.  These Doe defendant lawsuits are forcing thousands of individuals to either settle a claim or defend themselves at substantial expense. Frequently these lawsuits are being brought in federal courts outside the state where  the individual defendant resides.  The potential defense of such an action, thereby increases exponentially.

    There are numerous cases in which a defendant receives a settlement demand from a plaintiff for a large sum of money to settle.  A defendant who has little or no knowledge of the court system, faced with the daunting costs of litigation, feels pressured to accept the settlement to make the problem go away.  Plaintiffs are quickly and inexpensively coercing settlements while paying a single filing fee.   As more and more of these lawsuits are filed, the federal courts are issuing opinions as to the fairness and justice of such actions.

    The federal courts are divided on whether bringing thousands of defendants into a mass copyright case is appropriate. Federal Rule of Civil Procedure 20 permits a plaintiff to join parties in a single action if (1) a right to relief is asserted against the defendants with respect to the same transaction, occurrence, or series of transactions or occurrences; and (2) a common question of law or fact will arise in the action.  Fed.R.Civ.P. 20(a)(2).

    There needs to be some nexus between the activities of the defendants in the same lawsuit in order to allow joinder.  The actions of the Doe defendants in copyright infringement cases almost always involve a separate set of facts and defenses.  Most of the acts set forth in these cases did not arise out of a single transaction or occurrence, but arose out of distinctly separate transactions.  While a complaint may allege the defendants all infringed on the same copyright materials, using the same website, there is no information regarding whether the defendants were acting in concert and sharing the infringing material with the other defendants listed in the complaint.  The mere fact that a number of individuals were downloading the same material from the same website is not enough to form the necessary nexus for joinder. 

    There have been a number of recent conflicting federal cases which have addressed the issue of severance and quashing ISP subpoenas. Even the district courts within the State of Maryland have been divided on the issue of joiner of multiple plaintiffs.  More recent opinions out of the United States District Court for the District of Maryland are weighing in favor of severing defendants in these actions. 

    The District Court for the District of Maryland issued an opinion on April 4, 2012, in a case involving a Cintel Films, Inc. production which was shared through a peer-to-peer protocol called BitTorrent.  BitTorrent is used to distributing large quantities of data over the Internet.   It is one of the most common protocols for transferring large files over the Internet and has become a widely used way to illegally transfer and share copyrighted music, movies, video games, books and software.   Cintel Films filed suit against 1,052 John Doe defendants and served subpoenas on various ISP to gather identifying information of the Doe defendants.   Judge Motz held that not only was joinder improper in this case, but that the court could rule on the joinder issue prior to the Doe defendants being identified.  The court reasoned that based solely upon the facts of the complaint it could determine that the defendants ‘separate and distinct actions did not constitute the same transaction, occurrence or series of transactions or occurrences’ necessary for joinder of the defendants.   Judge Motz further discussed the adverse consequences which would occur in waiting to rule on whether joinder was proper until after an ISP provided identifying information related to the Doe defendants.   Judge Motz stated, “Otherwise, plaintiff receives a windfall, misjoining defendants and securing all the necessary personal information for settlement without paying more than a one-time filing fee.” Judge Motz went on to cite various other federal court holdings related to the potential prejudice that may arise against defendants in a courtroom full of hundreds of individuals being sued for downloading the same copyrighted work with unique defenses.

    On April 27, 2012, the District Court for the District of Maryland issued another opinion in an infringement case that Third Degree Films, Inc. filed against 108 Doe defendants.   Initially the court had denied the motions to sever filed by certain Doe defendants, holding that joinder was proper for the purposes of serving subpoenas on the ISP.   After the filing of a number of additional motions to sever by Doe defendants alleging very separate and distinct defenses the court reconsidered its initial ruling and determined that the circumstances required that the court grant the motions to sever.  This court indicated that Judge Motz’s opinion in the Cintel Films case related to the substantial prejudice and lack of fairness was persuasive to the court’s reconsideration and grant of the motions to sever.

    On April 30, 2012, the District Court for the District of Maryland issued an order in a case where Nu Image, Inc. filed suit against 4,165 John Doe defendants, holding that for the reasons set forth in the April 27, 2012 Third Degree Films opinion,  all defendants, except for John Doe 1, be severed from the case.

    While Maryland courts have held that a Doe defendant has standing to file a motion to quash a subpoena which was issued upon the defendant’s ISP due to the fact that the Doe defendants have a personal right and privilege in protecting their information, the courts have ultimately found that there is no right to protection of the personally identifying information.  An individual’s right to privacy of the information already provided to the ISP does not exist, as the defendants have already shared that information with a third party.   The Maryland courts have quashed the ISP subpoenas after determining that the Doe defendants have been improperly joined, and therefore have been dismissed from the action.  Therefore, Doe defendants must not only file a motion to quash a subpoena issued on their ISP, but they must first file a motion to sever themselves from a case.