BitTorrent Hash File Alone Is Insufficient To Justify Mass Joinder Cases – SDIA Judge (4:13-cv-00271)

hash1Here is a December 2013, court order that escaped many of us.  So many things going on.  Hi John – I hear GA was cold.  The order affects 5 Southern District of Iowa cases (over 100 Does).  The cases were all non-porn movie Plaintiffs (Killer Joe Nevada, TCYK, & Sibling The Movie), represented by Troll Jay R. Hamilton.  Take a read of the order and you will see this judge took the time to understand the technology and how it relates to joinder.

SDIA Cases

  • KILLER JOE NEVADA, LLC, v. DOES 1-39, 3:13-cv-00060
  • TCYK, LLC, v. DOES 1-18, 3:13-cv-00074
  • TCYK, LLC, V. DOES 1-18, 3:13-cv-00077
  • KILLER JOE NEVADA, LLC, v. DOES 1-10, 4:13-cv-00192
  • SIBLING THE MOVIE, LLC, V. DOES 1-21, 4:13-cv-00271

All of these cases were consolidated together for purpose of discovery.  Sometime prior to the release of ISP subscriber information, Doe #18 from case 3:13-cv-00077, filed a motion to quash the ISP subpoena and sever all the Does due to misjoinder.  I was not able to find a copy of Doe #18’s Motion to Quash/Server on the docket, but I know it was prior to Doe #18 being dismissed “with prejudice” by Plaintiff on 4 Oct 13.  As this dismissal was with prejudice, I wonder if Doe #18 came to some sort of agreement with Plaintiff.  It appears that Plaintiff decided (in error) not to respond to Doe #18’s motion and figured it would go away once they dismissed him from the case.   DismissDoe18WP_00077    Archive Docket

SMR1In this order, Judge Stephanie Rose said Doe #18’s motion was never challenged by Plaintiff and she decided on her own (sua sponte) to include the other four cases in determining if the ISP subpoenas should be quashed and if a majority of the Does should be severed from the cases.  On 20 Dec 13, the court issued the order quashed all the ISP subpoenas and severed all the Does from each case, except for one.      SeverCases_Doc12_00271(IA)   Archive Docket

The order is long, well written, and worth reviewing for its analysis on joinder of BitTorrent copyright infringement defendant based only on the hash file.  The court removed all but one Doe for each cases and told Plaintiff they could refile single-Doe cases and pay the filing fee for each case.  The court also required Plaintiff file a notice of related cases on any new cases based off the old ones.

This Court agrees with the reasoning of courts that have decided that joinder is Inappropriate.  Although questions of law or fact common to all defendants would likely arise in the action, the Court is not convinced that a right to relief is asserted against defendants with respect to or arising out of the “same transaction, occurrence, or series of transactions or occurrences[.]” See Fed. R. Civ. P. 20(a)(2). The better reasoning is that Doe defendants who have allegedly participated in the same swarm to download a copyrighted work should not, without more information, be considered part of the same transaction, occurrence, or series of transactions or occurrences.

Here is what the court thought about the joinder of Does in these cases.

Thus, in the Killer Joe cases, the January defendants would have to be connected to the Internet and still actively distributing data through the BitTorrent client approximately three months later to be involved in the same transaction as the April defendants, which is implausible at best. See Kill Joe Nevada, LLC, 2013 U.S. Dist. LEXIS 74824, at *7.  In the other cases that allege a shorter span of activity, and even in all five cases where Doe defendants allegedly have “hit dates” on the same day and close in time, there is no showing that the earlier defendants were still connected to the Internet and actively distributing data through the BitTorrent client at the same time as the later defendants. Facts have not been alleged regarding what time frame would be appropriate to infer that defendants shared data. But see Malibu Media, LLC v. Reynolds, No. 12 C 6672, 2013 U.S. Dist. LEXIS 31228, at *46 (N.D. Ill. Mar. 7, 2013) (indicating that within hours of each other would be sufficient). Temporal overlap would not necessarily establish that any two defendants shared data, but it would at least be reasonable to infer that they engaged in the same series of transactions. Id.

Finally the judge said any early discovery (from the ISPs) prior to service (naming and serving a defendant) must follow the sensible protocol adopted by Magistrate Judge Brown (SDNY, 5 Jun 12), which would prohibit the release of ISP subscriber telephone number and email address.  The ISP would disclose the Doe’s subscriber data to the court and the court would release it to Plaintiff for litigation purposes only.

I think there are many attorneys and courts out there that could benefit from reading this order and getting a better understanding of the technology and how the various Plaintiffs who still file Mass-Doe cases are gaming the system.  The court did not say Mass-Doe BitTorrent cases could never be filed, only that Plaintiff is going to have to show more evidence to substantiate proper joinder.  The SHA-1 hash file alone is not going to be enough.  This is something most Plaintiffs/Trolls are not going to want to do, as it is more labor intensive to accomplish.

Each plaintiff bears the burden of pleading facts sufficient to show that the requirements of Rule 20(a)(2) are met, see Third Degree Films, Inc., 2013 U.S. Dist. LEXIS 44131, at *18 n.6 (citation omitted), and it is also not evident that defendants participated in the same series of transactions or occurrences. “Even under the broad interpretation of Rule 20(a) and the liberal construction of the word ‘transaction’ adopted by the Eighth Circuit, defendants may not be joined in the absence of a transactional link between them.” Private Lenders Group, Inc., 2013 U.S. Dist. LEXIS 121643, at *7 (internal quotation omitted). “A transactional link is missing when the defendants’ acts, though identical, were separate and independent.” Id. (internal quotation omitted). Although each plaintiff has alleged that the defendants in each case were in the same swarm based on the same hash value, participation in a specific swarm is too imprecise a factor absent additional information relating to the alleged copyright infringement to support joinder. See Killer Joe Nevada, LLC, 2013 U.S. Dist. LEXIS 95416, at *11. Any “pieces” of the work copied or uploaded by any individual Doe may have gone to any other Doe, but may instead have gone to any of the potentially thousands of others who participated in a given swarm and are not in this case. See Hard Drive Prods., Inc., 809 F. Supp. 2d at 1163. A peer can avoid participating in future uploads to other peers by disconnecting from the swarm once he or she has downloaded the entire file. X-Pays, Inc., 2013 U.S. Dist. LEXIS 96241, at *5 (citation omitted). “While it is possible that some defendants obtained pieces of the data file from a preceding defendant, it is equally likely that earlier defendants had no involvement in later exchanges of data because they, and anyone who downloaded the file from them, left the swarm and were no longer available sources of data.” Private Lenders Group, Inc., 2013 U.S. Dist. LEXIS 121643, at *8 (citation omitted). “Because any connection between the defendants’ otherwise separate and independent acts is entirely speculative, joinder of defendants is not appropriate under Rule 20(a).” Id. (citation omitted).

Now hopefully this will be picked up by the Doe defenders and used to kill some of these mass Doe cases.  Take a read of the order and tell me what you think.

DieTrollDie 🙂    “You probably heard we ain’t in the prisoner-takin’ business, we in the killin’ Nazi business. And cousin, business is a-boomin’.” – Lt. Aldo Raine {Inglourious Basterds}


About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link -
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11 Responses to BitTorrent Hash File Alone Is Insufficient To Justify Mass Joinder Cases – SDIA Judge (4:13-cv-00271)

  1. Dr Rumplestein says:

    Years ago, I was a casual user of a bit-torrent client called utorrent. I have used it for legal purposes such as downloading freeware or software I have damaged CDs but own valid license for. My observation is that the download will use most of available bandwidth, throttle back the upload until download is complete, and it is also possible to download and block any uploading. With a default setting it is possible to download a file while less than 10% is uploaded. Therefore if one exits the programs shortly after downloading a complete uploading of same has not occurred. Also if you move the downloaded file(s), they will no longer be available for uploading. Some utilities seem to clean and reset the client. So in theory if you don’t allow uploads, the client would eventually throttle the download speed but I think some cleaner utilities resets this allowing for full download speeds without allowing uploading.

    A 10% upload of a video is likely meaningless and un-viewable garbage.

    • DieTrollDie says:

      But, the Troll/Plaintiff will get a full download from others and then only get small bits from others. As the SHA-1 hash will match, they will claim you are sharing.

      DTD 🙂

      • Dr Rumplestein says:

        Troll/Plaintiff claim all kinds of things however what do they actually have? Without finding a video on a computer, can they prove anything? Judge Wright didn’t think so. I have also read that there really isn’t one swarm. There could be numerous swarms at any particular time and more so over longer periods of time which should be an argument against Joiner.

      • DieTrollDie says:

        Because a complaint only requires a brief statement of facts that tie the Does to the activity, they have an advantage. Also remember that in a civil case, it is only a “preponderance” of evidence that is required to make a finding. So the side that gets 51% or better will prevail.

        Finding the actual movie(s) on a system would be great evidence, but failure to find it does not kill a case. They will also look for the BT client (Type and version they recorded), torrent files (even non-Plaintiff movies), copies of the “other” files that were being shared via BT (AKA: Malibu Media “Exhibit C”), wiping/deletion software, Internet search for torrents and Plaintiff movies, and any indication that the system was reloaded after the Doe was notified by the ISP of the case. I’m probably missing other items, but you get the picture.

        Who knows what a judge/jury will think. Does finding this equal 51%+ for a Plaintiff??? – No movie found, found the same BT client that Plaintiff recorded, found other torrent files and associated media, many of the found files were noted as being shared via BT (Exhibit C), and many of the files appear to be infringing copies.

        As far as a “Swarm” and what it means, the “jury” is still out on this question. I agree with Judge Rose’s assessment.
        DTD 🙂

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