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Permissive Joinder Was Improper In Bit Torrent Case

SBO Pictures, Inc. v. Does-157
United States District Court for the District of Maryland, Civ. No. RWT-12-cv-22 (D. Md.) (April 19, 2012)

by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (

On January 3, 2012, Plaintiff, SBO Pictures, Inc. (“SBO”) filed suit against unidentified “John Does” 1 through 57, seeking monetary and injunctive relief for copyright infringement under 17 U.S.C. § 101 et seq. SBO alleged that Defendants illegally downloaded the copyrighted adult motion picture, “Friends With Benefits,” through a “Peer to Peer” network known as a “Bit Torrent” network. Defendants allegedly shared the exact same digital copy of Plaintiff’s work, and Defendants participated in the same Bit Torrent “swarm.”

Bit Torrent enables faster, more efficient sharing of large files by distributing the work of downloading and uploading files among several computers. First, a user installs a Bit Torrent client on his or her computer and uses the client to create a torrent descriptor file for the target file. The client breaks the target file into pieces, each of which is assigned an alphanumeric identifier unique to the target file, known as a “hash.” The file is known as a “seed,” and the user sharing it is known as a “seeder.” Next, pieces of the target file are downloaded by other Bit Torrent users. After a user downloads a piece of the target file, that piece is immediately available to other users. The workload of sharing is distributed among a “swarm” of users. After a user has downloaded all of the file pieces, the client compares the hash values of each piece against that recorded in the original torrent file to ensure that the reconstituted file is error-free. If the reconstituted file is error free, the user becomes a new “seeder” and the reconstituted file is now a new “seed.” It is not necessary for a user to download a particular piece from the original seeder.

Under FED. R. CIV. P. 20(a)(2), which describes the requirements for permissive joinder, “[p]ersons. . . may be joined in one action as Defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence or series of transactions were occurrences; and (B) any question of law or fact common to all Defendants will arise in the action.”

The principal question before the Court was whether uploading or downloading pieces of the exact same digital copy of work through the Bit Torrent program meant that Defendants’ actions were transactionally-related for the purposes of RULE 20(a)(2). Courts in the United States District Court for the District of Maryland, as well as across the country, are split on whether joinder of Defendants who have shared files via Bit Torrent, and have participated in the same “swarm,” is proper. According to this Court, joinder is improper.

Plaintiff’s fundamental problem was that the transactions of each Defendant Doe were not related to each other. Specifically, Plaintiff only alleged that “[A]ll alleged infringers downloaded the exact same copyrighted work while trading in the same torrent.” According to the Court, the better-reasoned decisions have held that where a plaintiff has not plead that any defendant shared file pieces directly with one another, the first prong of the permissive joinder is not satisfied. Moreover, the time period of the alleged infringing transactions reinforced the notion that the Defendant Does in the instant action were not necessarily sharing files with one another such that they engaged in the same transaction, occurrence, or series of transactions or occurrences as required by RULE 20(a)(2). Therefore, because Plaintiff could not satisfy the first prong of the permissive joinder test—i.e., that the infringement arises out of the same transaction, occurrence, or series of transactions or occurrences”—the Court did not address the second prong of the permissive joinder test to evaluate whether any question of law or fact was common to all of the Defendants. Accordingly, the Court ordered that all Doe Defendants were severed from the action, except one; that Plaintiff’s claims against all of the severed Doe Defendants were dismissed without prejudice; and that all subpoenas seeking the severed Does’ personal identifying information were quashed.