Case 4:13-cv-00037-WTM-GRS Document 7 Filed 04/01/13 Page 1 of 13
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF GEORGIA
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`SAVANNAH DIVISION
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`VOLTAGE PICTURES, LLC,
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`Plaintiff,
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`v.
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`DOES 1-31
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`Defendants.
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`Case No. CV413-037
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`O R D E R
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`This copyright infringement case is “one of hundreds if not
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`thousands of lawsuits involving the use of BitTorrent technology which
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`have been filed throughout the nation.” Malibu Media, LLC v. Doe ,
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`F. Supp. 2d ___, 2013 WL 525352 at * 1 (M.D. Fla. Feb. 13, 2013).
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`Voltage Pictures, LLC, successor to Maxcon Productions, Inc., docs. 1 &
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`6,1 seeks injunctive relief plus damages against the defendants,
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`unidentified infringers of Voltage’s film, Maximum Conviction . Doc. 1 at
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`16. Sued as “Does,” Voltage alleges that they are using a process known
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`as “BitTorrent downloading” to violate its copyright.
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`Id. It moves for
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`1 The Court granted Voltage’s motion to substitute itself as the plaintiff, doc. 6, so
`the caption has been amended accordingly. All subsequent filings shall conform.
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`

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`Case 4:13-cv-00037-WTM-GRS Document 7 Filed 04/01/13 Page 2 of 13
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`expedited discovery to learn the Does’ names while keeping them joined
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`in this lawsuit.2 Doc. 4.
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`I. BACKGROUND
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`BitTorrent is a modern file sharing method used for distributing
`data via the Internet. Unlike traditional file transfer protocols
`which involve a central server and the transfer of whole files
`between users, the BitTorrent protocol is a decentralized method of
`distributing data. The BitTorrent protocol breaks an individual file
`into small pieces that individual users then distribute among
`themselves. This allows for faster file transfers than traditional
`file-sharing programs that require users to transfer whole files
`from a central server among themselves.
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`Bubble Gum Productions, LLC v. Does 1-80 , 2012 WL 2953309 at * 1
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`(S.D.Fla. Jul. 19, 2012); see also Columbia Pictures Industries, Inc. v.
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`Fung, ___ F.3d ___, 2013 WL 117415 at * 1-6 (9th Cir. Mar. 21, 2013
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`(extended technical explanation of BitTorrent); Patrick Collins, Inc. v.
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`Does 1-30, 2013 WL 1157840 at * 1 (E.D. Pa. Mar. 21, 2013). As is
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`2 Under Fed. R. Civ. P. 20, a plaintiff may join claims against defendants if the
`claims arise out of the same transaction, occurrence, or series of transactions or
`occurrences, and if any question of law or fact common to all these persons will arise
`in the action. Fed. R. Civ. P. 20(a)(1)(A)-(B). Fed. R. Civ. P. 21, in turn, permits a
`court -- on motion or on its own -- to “add or drop a party” and “also sever any claim
`against a party.” Fed. R. Civ. P. 21.
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`“[C]ourts maintain broad discretion concerning whether to permit joinder and may
`sever defendants based on an evaluation of whether joinder would comport with the
`principles of fundamental fairness, prejudice either side, or confuse and complicate
`the issues for the parties involved.” John Wiley & Sons, Inc. v. John Doe Nos. 1-22 ,
`2013 WL 1091315 at * 1 (S.D.N.Y. Mar. 15, 2013) (quotes and cite omitted).
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`2
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`Case 4:13-cv-00037-WTM-GRS Document 7 Filed 04/01/13 Page 3 of 13
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`alleged here, doc. 1, the Bubble Gum Doe defendants were members of a
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`BitTorrent “swarm”:
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`The BitTorrent protocol operates as follows. The process begins
`with one user, the “seed” who makes the file available. Liberty
`Media Holdings v. Bittorrent Swarm et al ., 277 F.R.D. 672, 674
`(S.D.Fla. 2011). The seed then creates a “torrent” file using the
`BitTorrent protocol that contains a roadmap to the IP addresses of
`other users who are sharing the file. Id. Other users, or “peers,”
`then download the torrent file, which allows them to download
`from other peers who possess pieces of the file. Id. All of these
`peers are part of the same “swarm” because they are downloading
`pieces of the same file. Liberty Media Holdings v. Swarm Sharing
`Hash File, 821 F.Supp.2d 444, 448 (D.Mass. 2011). After
`downloading a piece of the file, each user automatically becomes a
`source for this piece. The various members of the swarm continue
`to exchange pieces with one another. Id. A swarm can exist for well
`over a year depending on the popularity of the file being exchanged.
`Finally, “once a peer has accumulated enough individual pieces of
`the file, the software allows the peer to reassemble the aggregate
`file.” Liberty Media Holdings, 277 F.R.D. at 674. It is this
`exchanging of pieces of the file that are subsequently aggregated
`into the whole file that facilitates faster file sharing than if each
`user was required to share the entire file with other users.
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`Id. (cite omitted).
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`Copyright holders can, through geolocation software, discover each
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`swarmer’s Internet Protocol (IP) address (the numerical label assigned
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`to a computer to enable it to connect to the internet) but not the “alleged
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`infringers' identifying information such as their names, street addresses,
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`telephone numbers or email addresses.” Id. The software used “only
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`3
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`Case 4:13-cv-00037-WTM-GRS Document 7 Filed 04/01/13 Page 4 of 13
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`identifie[s] the alleged infringers by their IP addresses.”
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`Id. Hence, the
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`copyright holder sues the swarmers 3 as “John Does” and seeks early
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`discovery from the court 4 (i.e., prior to an Answer and Fed. R. Civ. P.
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`26(f) conference) so it can subpoena their identifying information from
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`Internet Service Providers (ISP’s). 5 Id. Alleging a prima facie case, doc.
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`1; see also doc. 1-2 (copy of its copyright registration), contending that a
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`swarm as described above operated here, doc. 4-1 at 9-13, and invoking
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`Fed. R. Civ. P. 45, that is what Voltage seeks here. Doc. 4; see also doc.
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`4-1 at 6-7.
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`II. ANALYSIS
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`Lawsuits like this involve “technology [that] has outpaced the
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`ability of the courts to deal with it.” Bait Productions Pty Ltd. v. Does 1-
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`73, 2013 WL 450638 at * 1 (M.D. Fla. Feb. 6, 2013). In many similar
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`3 The Bubble Gum plaintiff alleged that the defendants, without the plaintiff’s
`authorization, intentionally downloaded a torrent file particular to the plaintiff’s
`film, then “purposefully loaded the torrent file into the BitTorrent Protocol, entered
`a BitTorrent swarm particular to [p]laintiff's [film], and reproduced and distributed
`the [film] to numerous other peers in the swarm.” Bubble Gum , 2012 WL 2953309 at
`* 2. That, in essence, is what is alleged here. Doc. 1.
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`4 See Vision Films, Inc. v. John Does 1-24 , 2013 WL 1163988 at * 2-3 (D. Del. Mar.
`20, 2013) (analyzing early discovery, “good cause” and “reasonableness” standards,
`then granting early discovery in nearly identical lawsuit).
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`5 An ISP provides access to the internet to its subscribers -- the person who has an
`agreement with the ISP to use Internet service.
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`4
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`Case 4:13-cv-00037-WTM-GRS Document 7 Filed 04/01/13 Page 5 of 13
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`cases litigation immediately arises over the Rule 20 joinder. That seems
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`quite likely to occur here, where Voltage seeks to identify and hale before
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`this Court 31 defendants. The risk that some of them will be improperly
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`joined and be abused6 is substantial enough to portend a case that can
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`(from improper joinder) quickly disintegrate:
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`Because it is common today for people to use routers to share one
`internet connection between multiple computers, the subscriber
`associated with the IP address may not necessarily be the alleged
`infringer and instead could be the subscriber, a member of his or
`her family, an employee, invitee, neighbor or interloper. Therefore,
`the assumption that the person who pays for Internet access at a
`given location is the same individual who allegedly downloaded a
`single sexually explicit film is tenuous, and one that has grown
`more so over time. Further, in the Complaint, Plaintiff concedes
`that IP addresses can change frequently due to their dynamic
`nature. As a result, the risk of “false positives” is high and can
`result in defendants maintaining a variety of “it wasn't me
`defenses.” Thus, joinder would lead to cumbersome motion practice
`and, ultimately, mini-trials involving different testimony and
`evidence.
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`6 See Raw Films, Ltd. v. Does 1–32 , 2011 WL 6182025 at * 3 (E.D. Va. 2011) ( sua
`sponte initiating Fed. R. Civ. P. 11 sanctions against plaintiff’s counsel: “This course
`of conduct indicates that the plaintiffs have used the offices of the Court as an
`inexpensive means to gain the Doe defendants' personal information and coerce
`payment from them. The plaintiffs seemingly have no interest in actually litigating
`the cases, but rather simply have used the Court and its subpoena powers to obtain
`sufficient information to shake down the John Does. Whenever the suggestion of a
`ruling on the merits of the claims appears on the horizon, the plaintiffs drop the John
`Doe threatening to litigate the matter in order to avoid the actual cost of litigation
`and an actual decision on the merits.”), cited in Mick Haig Prods. E.K. v. Stone , 687
`F.3d 649, 652 n. 2 (5th Cir. July 12, 2012); see also Vision Films, 2013 WL 1163988 at
`* 5 (“With respect to misuse of information, some courts have noted that plaintiffs
`appear simply to be using the federal courts as an avenue to collect money.”) (quotes
`and cite omitted).
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`5
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`Bubble Gum , 2012 WL 2953309 at * 4 (quote and cites omitted).
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`In Bubble Gum , “[t]he Court granted [the copyright plaintiff’s
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`similar discovery] request, subject to a protective order, and subpoenas
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`were served on the ISPs.” 2012 WL 2953309 at * 2 (emphasis added).
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`That court did not say what the protective order encompassed, but the
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`ISPs informed the Bubble Gum “Doe” defendants.
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`Id. Evidently
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`remaining anonymous and identifiable only by their IP addresses (that,
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`then, must have been the protective order’s reach), the Bubble Gum
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`defendants then sought to sever/dismiss the claims against them for
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`misjoinder and to quash the subpoenas served on their ISPs. 2012 WL
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`2953309 at * 1. That court granted severance to all but one defendant --
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`effectively ending 99% of that case at its starting gate. It did not quash
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`the subpoenas because they had been issued from another court and thus
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`it lacked authority to quash them. Id.
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`It did note, however, that “[c]ourts are in conflict over whether
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`downloading and sharing a file using BitTorrent protocol constitutes the
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`same transaction, occurrence, or series of transactions or occurrences.
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`Some courts have found joinder proper. Other courts, however, have
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`found misjoinder and severed all defendants except Doe One.” Bubble
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`6
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`Case 4:13-cv-00037-WTM-GRS Document 7 Filed 04/01/13 Page 7 of 13
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`Gum, 2012 WL 2953309 at * 3 (footnote omitted); see also Collins, 2013
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`WL 1157840 at * 1 (“courts are divided as to whether allegations that
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`John Doe defendants each copied a piece of the same copyrighted work
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`via BitTorrent are sufficient to bring the claims within the ambit of Rule
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`20(a) where, as here, the defendants' acts of infringement are alleged to
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`have occurred not close in time but over the course of weeks or
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`months.”). 7
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`Myriad factual distinctions exist, as noted above, but the fact that
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`misjoinder has been repeatedly found and that it enables litigation abuse
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`informs
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`this Court’s decision whether to authorize the requested
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`subpoenas. In that regard, Rule 45(c)(1) instructs plaintiffs like Voltage
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`to “avoid imposing undue burden or expense on a person subject to the
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`subpoena.” Rule 45(c)(1). And the rules further require that all parties
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`proceed in a cost-efficient manner. Fed. R. Civ. P. 1.
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`More importantly, the latest BitTorrent cases have shined
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`7 (cid:9) Other courts have cited filing fee losses to the public, plus the fees’ modest
`deterrent effect against mass-defendant clustering. See, e.g. , Zambezia Film (Pty)
`Ltd. v. Does 1-33 , 2013 WL 1181587 at * 1 (N.D. Ill. Mar. 20, 2013) (citing its
`misjoinder ruling in prior case involving the “inappropriate packaging of defendants,
`an approach that sought to proceed through payment of a single $350 filing fee, while
`separate suits against the 300 claimed infringers for their discrete infringements
`would have escalated that cost to $105,000.”); Third Degree Films, Inc. v. John Does
`1-72, 2013 WL 1164024 at * 8 (E.D. Mich. Mar. 18, 2013); John Wiley & Sons, Inc. v.
`John Doe Nos. 1-22, 2013 WL 1091315, *3 (S.D.N.Y. Mar. 15, 2013).
`7
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`Case 4:13-cv-00037-WTM-GRS Document 7 Filed 04/01/13 Page 8 of 13
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`additional light on the potential for “shake-down” abuse of innocent
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`“John Does” who cannot realistically be expected to meet the temporality
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`requirement. They remind that a subscriber who merely receives notice
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`of a subpoena from his ISP can be intimidated into paying a “nuisance-
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`avoidance” settlements. That reality obligates this Court to tread
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`cautiously here. 8
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`Voltage, evidently aware of this, assures the Court that when it
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`subpoenas the ISPs they “will be able to notify their subscribers that this
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`information is being sought, and, if so notified, each [d]efendant will
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`have the opportunity to raise any objections before this Court. Thus, to
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`the extent that any [d]efendant wishes to object, he or she will be able to
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`do so.” Doc. 4-1 at 7. Of course, that does not prevent Voltage from
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`naming those parties in this case. And it costs money to hire counsel, so
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`it is easy to extract nuisance-level settlements from demand-lettered
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`8 As the Collins court said, in granting severance relief to “Doe” defendants there:
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`Finally, the Court shares the concern expressed by numerous other courts
`confronting similar BitTorrent lawsuits that permitting joinder increases the
`potential for coercive settlements with innocent defendants seeking to avoid
`the embarrassment of having their names publicly associated with allegations
`of illegally downloading pornography. See, e.g., Next Phase Distribution, Inc.
`v. Does 1–27, 284 F.R.D. 165, 170 (S.D.N.Y.2012) (declining to “facilitate such
`coercive settlements by casting such an unnecessarily wide net”).
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`Collins, 2013 WL 1157840 at * 3; accord Vision Films, 2013 WL 1163988 at * 5.
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`8
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`Case 4:13-cv-00037-WTM-GRS Document 7 Filed 04/01/13 Page 9 of 13
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`defendants without ever naming them, and without any of them ever
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`appearing here to defend against unjust joinder or worse.
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`Moreover, the temporality factor here falls within the same general
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`range of cases where judges have granted severance relief. Quoting from
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`“The Case Against Combating BitTorrent Piracy Through Mass John
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`Doe Copyright Infringement Lawsuits ,” 111 Mich. L. Rev. 283, 292-93
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`(Nov 2012), the Zambezia Film court warned that
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`When considering whether John Does have been properly joined,
`judges should require plaintiffs to plead facts sufficient to show
`that the defendants were not only part of the same swarm, but that
`they were part of the same swarm at the same time as one another.
`If plaintiffs fail to satisfy this standard, expedited discovery should
`be denied and the improperly joined defendants should be severed
`from the action. Generally, this means that a plaintiff would be
`unable to join every member of a swarm that exists for a protracted
`period of time. Rather, the plaintiff would have to show that all the
`defendants downloaded the copyrighted work over a short enough
`period of time to support a probable inference that all the
`defendants were present in the swarm at the same time. Such a
`time period would usually span hours rather than days or months.
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`Zambezia Film , 2013 WL 1181587 at * 2. In that case the court directed
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`plaintiff’s counsel “to identify those Doe defendants who could properly
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`be joined under Rule 20(a)(2) in the terms specified in the above-quoted
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`excerpt. This Court will then proceed to dismiss without prejudice all
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`Doe defendants who are not properly subject to such joinder, and the
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`9
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`Case 4:13-cv-00037-WTM-GRS Document 7 Filed 04/01/13 Page 10 of 13
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`actions will proceed solely against the nondismissed Does.”
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`Id. ; see also
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`John Wiley & Sons , 2013 WL 1091315 at * 4 (“In the cases at bar, Wiley
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`alleges that each of the various defendants engaged in infringing conduct
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`on only one of several days at issue. The differing dates and times of each
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`Defendant's alleged sharing do not allow for an inference that the
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`Defendants were acting in concert because they did not all share the
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`infringed works with one another.”) (quotes and cite omitted).
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`Here the attachment to Voltage’s complaint shows that the 31 Does
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`are alleged to have “swarmed” from October 22, 2012 through January
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`10, 2013. Doc. 1-1. Using a tracking agent, Crystal Bay Corporation
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`(CBC), doc. 4-1 at 10, Voltage says it tracked down each Doe at the time
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`and date the film’s file was distributed by the user, plus the IP address
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`assigned to each user at the time of the infringement, the video files
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`metadata (in some cases) showing its title and file size).
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`Id. at 14. CBC
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`then created evidence logs for each “Doe” user. CBC determined that
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`each Doe used the ISP’s listed in doc. 1-1, together with other ISPs, to
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`gain access to the internet and swarm-distribute Voltage’s film.
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`Id. at
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`15. It cites various assurance measures that it followed to assure
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`accuracy. Id. at 14-16.
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`10
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`Case 4:13-cv-00037-WTM-GRS Document 7 Filed 04/01/13 Page 11 of 13
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`Voltage’s own exhibit shows that it would join the instant
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`defendants together because they swarmed over some four months. The
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`Court finds persuasive the Zambezia Film court’s tighter
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`“Contemporaneous Swarm Requirement,” as explained in the above-
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`cited law review Note, 111 Mich. L. Rev. at 293. The Note beckons one
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`to
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`imagine a swarm developed around a file seeded by A. On Day 1, B,
`C, and D enter that swarm with A and help each other acquire the
`file by exchanging pieces of the file with one another. Their
`exchange can fairly be called the same “series of transactions” for
`purposes of Rule 20. Now, after the exchange, assume all four stay
`plugged into the swarm through Day 2, uploading pieces of the file
`to any other users who enter into the swarm. On Day 3, B, C, and D
`disconnect. The next day E, F, and G enter the swarm with A.
`Since the swarm develops around the file, E, F, and G are part of
`the same swarm that A, B, and C were in. However, now the file
`exchange is occurring between A, E, F, and G. By contrast, B, C,
`and D have no involvement with the second exchange because they
`left the swarm. Given that B, C, and D were not and could not be
`sources for E, F, and G, the former group's acquisition of the file
`was a wholly separate series of transactions from the latter's.
`Instead, the only link between the parties is that they “used the
`same peer-to-peer network to copy and reproduce [[a plaintiff's]
`video[],” which has time and again been ruled insufficient to meet
`the requirements for joinder. So long as the plaintiffs cannot allege
`more, they fail to prove that the defendants engaged in closely
`related transactions.
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`Id. at 295 (footnotes omitted); see also John Wiley & Sons , 2013 WL
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`1091315 at * 4 (collecting temporality cases).
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`11
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`Within 14 days of the date this Order is served, Voltage shall
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`further brief the Court on whether the joinder (hence, early discovery
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`based on it) should not be denied based on that temporality standard:
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`It is thus fair to require the plaintiff to bear the burden of
`demonstrating not just a possibility but a high probability that the
`defendants were engaged in the same transaction or occurrence.
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`This requirement is not manifestly unreasonable and some
`complaints already allege such detailed facts. For example, the
`complaint in Liberty Media Holdings, LLC v. Does 1-62 [2012 WL
`628309 (S.D. Cal. Feb. 24, 2012)] listed, for each of the sixty-two
`defendants, the time and date that the alleged infringing activity
`occurred. According to that complaint, all of the alleged infringing
`activity occurred over a period of seven hours. Since members of a
`BitTorrent swarm will usually remain in a swarm for some time
`after they have completely downloaded the file, this persuasively
`demonstrates that all sixty-two John Does were physically present
`in that swarm at the same time, and thus that Doe 1 was a
`potential source for Does 2 through 62.
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`Id. at 297-98 (footnotes omitted).
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`The Court is mindful of Voltage’s contention that ISP data is
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`routinely purged by ISP’s. Doc. 4-1 at 18. But it cannot overlook the
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`sheer number of lawsuits, and the potential for abuse that they pack,
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`flooding the federal courts. 9 And “a defendant who nevertheless decides
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`9 See 111 MICH. L. REV. at 304 (“[S]ince an innocent John Doe is just as likely to pay
`up as a guilty one, the lawyers do not need to take much care in ensuring that the
`John Doe actually was engaged in infringing activity.”) (quotes and cite omitted); see
`also id. (“strategy has been described as shoot first, and identify . . . targets later”)
`(quotes and cite omitted).
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`to forge ahead in court will encounter additional hurdles, namely the
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`‘significant case manageability’ and logistical issues that mass joinder
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`creates.” 111 M ICH. L. REV. at 305; see also id. at 306 (“John Doe 1 could
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`be an innocent parent whose internet access was abused by her minor
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`child, while John Doe 2 might share a computer with a roommate who
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`infringed Plaintiffs' works. John Does 3 through 203 could be thieves,
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`just as Plaintiffs believe, inexcusably pilfering Plaintiffs' property and
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`depriving them, and their artists, of the royalties they are rightly
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`owed.”). It is difficult to imagine scores of defendants attending each
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`deposition in this case, for example. Additional briefing is thus
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`warranted here. 10
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`SO ORDERED, this 1st day of April, 2013.
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`UNITED STATES MAGISTRATE JUDGE
`SOUTHERN DISTRICT OF GEORGIA
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`10 Of course, nothing prevents Voltage from suing infringing defendants individually.
`13