Note – The Fate of BitTorrent John Does: A Civil Procedure Analysis of Copyright Litigation
Volume 64, Issue 4, 1343-1380
Copyright owners can trace online violations to an infringer’s Internet protocol address but cannot identify her unless they obtain court approval to serve a subpoena on an Internet service provider. As the most popular peer-to-peer file-sharing protocol today, BitTorrent requires users to share files with each other in a conspiracy-like fashion. By arguing that this feature imparts a “same transaction” character to BitTorrent infringement activities, a copyright owner can seek to join multitudes of Internet protocol addresses as John Doe defendants in an application for early discovery. Courts are divided as to whether early discovery should be granted where tens, hundreds, or sometimes thousands of Internet protocol addresses are joined together in one case. Many in the Internet user community fault copyright owners for using the courts as a mere instrument to seek identification information en masse as part of a coercive practice to induce monetary settlements. This Note examines how case law relating to early discovery and civil procedure joinder rules applies to multiple defendants allegedly participating in a “same transaction” that occurs solely within the inner workings of a file-sharing protocol. Even if BitTorrent usage legally supports joinder, this Note highlights the difficult balance between the right to enforce a copyright and the rights of Internet users to be free from litigation threats. Without a legislative response that is resilient in the face of an ever-changing technology, copyright infringement problems will continue to inundate our courts.