Judge guts mass P2P case because users don't "act in concert"

Steele Hansmeier, a law firm specializing in anti piracy cases is once again losing battles, this time in California. The firm has been trying to deal with multiple objections to a mass filing lawsuit in California over online porn copyright violations. The firm has reportedly gone so far as to use geolocation technology to verify IP addresses are within the state the case is being filed in. Regardless of this action, the case was still cut down to a single defendant last week.

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One of the biggest criticisms of mass peer to peer (P2P) lawsuits has been that they appear to be nothing more than fishing expeditions, with many of the defendants in the suit not even living in the state in which the case is filed. Just recently, one of the largest file-sharing suits ever was cut down and then eventually dropped by the makers of The Expendables, for this very reason. Geolocation can help to head off this criticism, providing some information that the infringing IP addresses actually belong to people within the state where the lawsuit is filed.

It seems that there are other issues with P2P lawsuits besides simple location. Judges are ruling that linking a mass number of defendants is problematic, especially when they have nothing in common except pirating the same file. Federal Magistrate Judge Joseph Spero wrote, "The court remains unpersuaded that the peer-to-peer architecture of the BitTorrent technology justifies the joinder of otherwise unrelated defendants in a single action." The judge went on to expound on the idea of acting in concert writing,

"First, the Hansmeier declaration [about BitTorrent technology] argues at length about the "concerted activity" within a given swarm. Presumably he does so in response to the concern highlighted by Judge Ryu that users in different swarms have nothing in common other than downloading the same work, which as this court and others have noted is insufficient under our precedent. But the Hansmeier declaration itself offers overwhelming evidence that the IP addresses were in fact gathered from multiple swarms.

Second, even if the IP addresses at issue in this motion all came from a single swarm, there is no evidence to suggest that each of the addresses "acted in concert" with all of the others. In fact, the nearly six-week span covering the activity associated with each of the addresses calls into question whether there was ever common activity linking the addresses in this case. In this age of instant digital gratification, it is difficult to imagine, let alone believe, that an alleged infringer of the copyrighted work would patiently wait six weeks to collect the bits of the work necessary to watch the work as a whole. At the very least, there is no proof that bits from each of these addresses were ever assembled into a single swarm. As the court previously explained, under this court's precedent regarding other file sharing protocols, merely infringing the same copyrighted work over this period is not enough.
Finally, nothing in the BitTorrent architecture changes the fact that each defendant also will likely have a different defense."

The final result of that was Spero not allowing all of these BitTorrent users to be joined in one large case.

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"The Court finds that permissive joinder of the Doe Defendants does not comport with the “notions of fundamental fairness,” and that it will likely cause prejudice to the putative defendants. The joinder would result in numerous hurdles that would prejudice the defendants. For example, even though they may be separated by many miles and have nothing in common other than the use of BitTorrent, each defendant must serve each other with all pleadings - a significant burden when, as here, many of the defendants will be appearing pro se and may not be e-filers. Each defendant would have the right to be at each other defendant’s deposition - creating a thoroughly unmanageable situation. The courtroom proceedings would be unworkable - with each of the 188 Does having the opportunity to be present and address the court at each case management conference or other event. Finally, each defendant’s defense would, in effect, require a mini-trial."

That means a case against 188 defendants became a case against one. This would mean 188 individual cases for every person who Steele Hansmeier would seek to try and that volume of individual cases seems expensive and unlikely.

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