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The “One Satisfaction” Rule: A New Approach to Curbing Copyright Trolls

Dan Booth

©2015. Published in Landslide, Vol. 7, No. 3, January/February 2015, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Mass lawsuits against alleged movie file-sharers are the new face of copyright litigation. Between January 2010 and June 2014, a handful of law firms and film companies brought suits against more than 150,000 individuals.1 In 2013, multi-defendant John Doe (MDJD) copyright lawsuits, almost nonexistent 10 years ago, were the majority of copyright filings in the Third, Fourth, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuits, and in 19 of the 92 federal districts.2 One plaintiff alone, Malibu Media, brought 27 percent of all copyright cases filed in federal court in 2013, and more than 40 percent of those filed in the first six months of 2014.3

As a rule, these plaintiffs do not proceed to trial or judgment on the merits. They treat the courts not as an arbiter of disputes but as a gateway for potentially coercive settlement payments. As one court put it:

[T]he 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.4

This article outlines the procedural issues that have dominated the case law as courts wrestle with this flood of potentially abusive mass copyright lawsuits—so-called “copyright troll” litigation—wand proposes the one-satisfaction rule as a limiting principle, grounded in the provisions of the Copyright Act, that can help staunch the tide.

Copyright Infringement Suits against File-Sharing Service Users

Direct copyright infringement suits against individual online file-sharers have a checkered history. In the Napster era, the record industry’s trade group RIAA sued not only file-sharing services but also, starting in 2003, thousands of individual users, not just to collect damages but also to deter infringement and educate the public.5 To overcome a procedural hurdle—infringers were known only by their Internet router’s IP addresses—the RIAA used early discovery to subpoena Internet service providers (ISPs) for the identities of John Doe defendants. With that information in hand, they sued more than 18,000 downloaders between 2003 and 2008, resolving almost every case with out-of-court settlements, collecting a few hundred or a few thousand dollars apiece.6 But their early deterrent effect waned, and the litigation expenses incurred left the industry with a net loss.7 “[C]ampaigns like this have been expensive, do not yield significant financial returns, and can cause a public relations problem for the plaintiff in addressing its consuming public.”8 In 2009, as the record industry wound down its litigation campaign against music downloaders, only a few dozen MDJD copyright lawsuits were filed, and the total number of federal copyright suits dropped to only 1,924, from an all-time high of 5,336 cases in 2005.9

The record industry brought down several file-sharing services. Napster and Grokster served as hubs where individual users could seek out and download files from individual uploaders (in other words, peer-to-peer), and were found secondarily liable for their role in facilitating or inducing infringements.10 Online file-sharing itself was then transformed, as software developers created file-sharing applications such as BitTorrent that do not rely on a central server that could be enjoined.11 Instead, users of the BitTorrent protocol enter a decentralized “swarm” of peers sending data directly to and from multiple peers at once.12

A New Model for Copyright Infringement Suits against BitTorrent Users

Starting in late 2009, a handful of plaintiffs and law firms began applying the RIAA’s litigation model to BitTorrent users on a drastically larger scale. Malibu Media’s more than 2,500 lawsuits filed since the start of 2013 represent more than all copyright plaintiffs combined filed in federal district courts in 2009.13

The new wave of lawsuits relies on civil procedure shortcuts that the RIAA generally avoided. Rule 20 lets a plaintiff join multiple defendants who infringe the same work through a series of infringing acts or occurrences.14 This gives plaintiffs an incentive to save the costs of multiple filing fees by bundling hundreds or thousands of defendants from a swarm into the same lawsuit. “[T]hese mass copyright infringement cases have emerged as a strong tool for leveraging settlements—a tool whose efficiency is largely derived from the plaintiffs’ success in avoiding the filing fees for multiple suits and gaining early access en masse to the identities of alleged infringers.”15 “These lawsuits were filed using boilerplate complaints based on a modicum of evidence, calculated to maximize settlement profits by minimizing costs and effort.”16 Those shortcuts create a systematic litigation cost asymmetry. Plaintiffs can take advantage of economies of scale, repeating virtually identical demand letters and filings in case after case, while individual defendants must each bear any costs of defending the claims.17 To maximize savings, these cases often pull in Doe defendants from across the country, and across many weeks or months of alleged joint infringement, leading many courts to find personal jurisdiction and joinder of those Does inappropriate.18

Plaintiffs exploit the shortcomings of their discovery methods to limit the defendants’ ability to prevent prejudicial discovery. While the ISPs can respond to plaintiff subpoenas by producing their subscribers’ names, those are not per se the people who used the subscribers’ Internet connections to infringe. One plaintiff estimates that “30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material.”19 As such, “it is no more likely that the subscriber to an IP address carried out a particular computer function . . . than to say an individual who pays the telephone bill made a specific telephone call.”20 Yet plaintiffs may try to have it both ways, arguing that the Does are potential parties who must be identified and, at the same time, are nonparties for whom personal jurisdiction, venue, and joinder are irrelevant.21

In the “common arc” of these cases:

(1) a plaintiff sues anywhere from a few to thousands of Doe defendants for copyright infringement in one action; (2) the plaintiff seeks leave to take early discovery; (3) once the plaintiff obtains the identities of the IP subscribers through early discovery, it serves the subscribers with a settlement demand; (4) the subscribers, often embarrassed about the prospect of being named in a suit involving pornographic movies, settle.22

Perhaps the word “pornographic” leaped out at you in that last sentence. The earliest film studio MDJD lawsuits in 2009 and 2010, largely over straight-to-video B-movies, established a beachhead of precedent since employed almost exclusively by adult film studio plaintiffs.23 More than 41 percent of the copyright filings in federal courts in the first six months of 2014 concerned online pornography file-sharing.24

The courts’ wariness of the high risk of false positives25 is heightened by the illicit nature of the copyrighted works at issue. “[T]he risk of inappropriate settlement leverage is enhanced in a case like this involving salacious and graphic sexual content where a defendant may be urged to resolve a matter at an inflated value to avoid disclosure of the content the defendant was accessing.”26 “The court shares the concern that these cases potentially open the door to abusive settlement tactics.”27 Specifically:

[T]he potential for embarrassment in being publicly named as allegedly infringing such salacious works as “Big Butt Oil Orgy 2” or “Illegal Ass 2,” may be playing a markedly influential role in encouraging a myriad of Doe defendants to settle once subpoenas are issued—a bargaining chip the adult film companies appear to well understand.

Against this backdrop of mass lawsuits and potentially abusive litigation tactics, courts nationwide have become skeptical of allowing the adult film companies unfettered access to the judicial processes of subpoenas and early discovery.28

The plaintiffs and their attorneys have discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of downloading a single pornographic video. . . . [M]ost reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry.29

Courts’ misgivings over such cases grew as plaintiffs who demanded expedited discovery in order to promptly name defendants never did. Indeed, an attorney for Prenda Law conceded filing 118 separate MDJD lawsuits against more than 15,000 defendants over 18 months without ever naming a single defendant in any of them.30 In just one district, a plaintiff obtained early discovery of more than 18,000 IP addresses without serving any defendant.31 “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.”32 “[I]t is easy to extract nuisance-level settlements from demand-lettered defendants without ever naming them . . . .”33

The Copyright Act itself helps to stack the deck toward settlements for copyright troll plaintiffs early in litigation. Copyright infringement is a strict liability tort: innocent intent may limit damages, but not liability.34 Registration is prima facie evidence of validity, shifting the evidentiary burden to the defendants.35 Plaintiffs don’t need to prove actual damages if they timely registered the infringed work’s copyright.36 They can instead elect the remedy of statutory damages: up to $30,000, or up to $150,000 if the infringement is proven willful, plus attorneys’ fees in the court’s discretion.37 “Statutory damages are available even for ‘uninjurious and unprofitable invasions of copyright.’”38

Defendants facing those odds are under unusual pressure to settle immediately instead of requiring the plaintiff to prove its case. The first act by the court in these cases, granting presuit discovery, is also typically the last. A John Doe’s motion to quash, to avoid the ISP’s disclosure of the subscriber’s identity, may be the last chance for a court to ensure the defendant’s just treatment. Even where defendants are named, there have been no trials on the merits; just settlements, default judgments, or voluntary Rule 41 dismissals. The primary exception to this rule, a “bellwether trial”39 often touted by Malibu Media to distinguish itself from other copyright trolls, has been described as little more than a show trial.40 There, and in the only other swarm infringement case litigated to a merits judgment,41 the defendants did not deny their role in the swarm. On the other hand, several falsely identified Doe defendants have won judgments and sanctions against copyright troll plaintiffs or their lawyers.42

Defenses against MDJD Actions: Personal Jurisdiction, Venue, and Joinder

In these cases, courts often find they have “a duty to protect the innocent citizens of this district from this sort of a legal shakedown, even though a copyright holder’s rights may be infringed by a few deviants.”43 Copyright defenses that would ordinarily be raised at trial never have a chance to arise, so these juggernauts can only be dissuaded upfront. “[F]ront-loading a plaintiff’s litigation costs decreases the incentives to file [frivolous] lawsuits . . . .”44

Many courts have limited MDJD discovery lawsuits on grounds of improper personal jurisdiction and venue. A MDJD lawsuit against all participants in a BitTorrent swarm does not offer good cause to proceed against Doe defendants not subject to personal jurisdiction.45 Similarly, under the limited copyright venue statute, suit is proper “in the district in which the defendant or his agent resides or may be found.”46 Thus, if personal jurisdiction is improper, venue is improper.47

Courts have also questioned the mass joinder methods underlying the MDJDs. “A suit for infringement may be analogized to other tort actions; all infringers are jointly and severally liable. Thus, plaintiff may choose whom to sue and is not required to join all infringers in a single action.”48 Yet plaintiffs in BitTorrent litigation typically prefer to join as many defendants as possible to reduce transaction costs and maximize proceeds.49 Plaintiffs may join multiple defendants in the same action when seeking relief jointly or severally, or “with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences.”50 But such permissive joinder under Rule 20(a) may not be appropriate even for two defendants operating in the same BitTorrent swarm at the same time, because they may not have interacted with each other at all. “The bare fact that a Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world.”51 “An individual device cannot . . . connect to all peers in each swarm subset at the same time. Each peer is allowed to share with only a fixed number (usually four) of other peers at a given time.”52 Many courts have found joinder improper and severed defendants where it was unlikely that they had acted in concert because they had been in a BitTorrent swarm weeks or months apart from each other.53 Moreover, joinder is not mandatory; even if permissive joinder is found proper under Rule 20(a), protective measures may be imposed “to protect a party against embarrassment, delay, expense, or other prejudice.”54

In AF Holdings v. Does 1–1,058, the first federal appellate opinion to address these issues, the U.S. Court of Appeals for the District of Columbia Circuit found personal jurisdiction and venue improper where the plaintiff “could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district.”55 The plaintiff’s attempt to join disparate Does from across the country in order to obtain jurisdictional discovery, aimed at settlements, “clearly abused the discovery process.”56 The court quoted the Supreme Court: “In deciding whether a request comes within the discovery rules, a court is not required to blind itself to the purpose for which a party seeks information.”57 Thus, “when the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied.”58

The court also “agree[d] with those district courts that have concluded that the mere fact that two defendants accessed the same file through BitTorrent provides an insufficient basis for joinder.”59 Similarly, the judge in the vaunted “bellwether trial” recommends against finding joinder mandatory under Rule 19 or allowing permissive joinder under Rule 20(a), declaring that:

joinder of multiple defendants in a single complaint alleging copyright infringement through the use of BitTorrent technology is neither necessary nor appropriate. . . . [M]embers of BitTorrent “swarms” are not essential parties for copyright infringement suits involving BitTorrent technology because the “swarm” is formed automatically by the software, and not by any actual association of these defendants.60

A New Defense: The “One Satisfaction” Rule

A less common tool for limiting abusive MDJD litigation is the “one satisfaction” rule, which would deny plaintiffs windfall recovery based on the very devices they rely on to obtain settlements, namely the rules of joinder and the statutory damages provisions of the Copyright Act. MDJD plaintiffs typically allege joint infringement, expressly or implicitly, in anticipation of a challenge to mass joinder. To join defendants, a plaintiff must allege claims against each defendant jointly, severally, or relating to “or arising out of the same transaction, occurrence, or series of transactions or occurrences.”61 Whether there is a single infringer or multiple infringers, the Copyright Act mandates a single recovery “of statutory damages for all infringements involved in the action, with respect to any one work.”62 While the statute authorizes separate awards for the same work against unrelated infringers who are individually liable, when a plaintiff alleges that infringers acted in concert, their liability for statutory damages under 17 U.S.C. § 504(c)(1) is joint and several.63 “For any two or more jointly and severally liable infringers, a plaintiff is entitled to one statutory damage award per work.”64

Just as the Copyright Act allows only a single recovery for a single wrong, even if committed by multiple defendants, the “one satisfaction” rule prevents plaintiffs from recovering twice for a single injury.65 Pursuant to the “one satisfaction” rule, a copyright plaintiff may not be paid twice for the same alleged joint infringement.66

Thus, the Copyright Act’s maximum recovery per infringed work may be imposed as a limiting principle whenever joint infringement through the same BitTorrent swarm is alleged. As a practical matter, this would require a plaintiff to stop pursuing claims against further Doe defendants once others in the same swarm have paid settlements totaling $150,000 for infringing the same work. “It is generally agreed that when a plaintiff settles with one of several joint tortfeasors, the nonsettling defendants are entitled to a credit for that settlement.”67 The right to elect statutory damages is “not intended to provide the plaintiff with a windfall recovery.”68 Having argued—in order to obtain discovery—that all defendants jointly engaged in a continuous act of infringement, a plaintiff should be estopped from recovery beyond the $150,000 cap.

Courts have begun to consider or even encourage a “one satisfaction” limitation on BitTorrent copyright cases. In AF Holdings, LLC v. Harris, the court noted that, before suing the individual defendant, the plaintiff had sued and reached settlements with alleged infringers involved in the same swarm. As part of an order to show cause, the court asked the plaintiff to explain: “To the extent that Plaintiff has now reasserted the same claims resulting from the same swarm in a different court, would those previous settlements have caused Plaintiff to forfeit, or otherwise affect Plaintiff’s current claims in this case?”69 In a subsequent order, the court explained that it denied the plaintiff discovery identifying alleged coconspirators because of the

risk that Plaintiff will misrepresent to alleged infringers the potential range of damages based on a statutory award for copyright infringement in this case. . . .

. . . .

If Plaintiff were to succeed on the merits and elected an award of statutory damages, the Court would take into account the amount of settlements made with the Doe defendants in the [prior] action to decrease any award of statutory damages. Because of the previous settlements with joint tortfeasors involved in the same infringing swarm, Plaintiff would not be entitled to the maximum amount of statutory damages of $30,000.70

Likewise, in Malibu Media, LLC v. Zumbo, the court denied a motion to strike an affirmative defense that satisfaction barred the plaintiff’s claim for statutory damages, though “the co-infringers were named in separate cases.”71

On similar grounds, the Eastern District of Missouri declined to award $9,250 in statutory damages against one defaulted defendant among dozens of swarm infringers alleged to have engaged in concerted actions, where that would be disproportionate to “Defendant’s share of the estimated actual loss.”72 The court found it “inherently inequitable that this Defendant, whose conduct has not been alleged to be more egregious or culpable than the others originally named, should be held responsible in default for the entire award originally sought from 71 defendants on the basis of concerted action.”73


These approaches directly address the risk of multiple recoveries that troubles courts in mass joinder MDJD litigation. “The danger of swarm joinder is to enhance the proceeds from a work by extracting settlement amounts that exceed the value of the Work and the litigation.”74 Courts can heighten their scrutiny of MDJD cases at the early stages not only by continuing to examine the basis for preliminary jurisdiction and joinder for all defendants, but also by requiring plaintiffs to demonstrate that they are not seeking excessive, multiple recoveries for the same infringement from a string of Doe defendants.


1. See Matthew Sag, Copyright Trolling: An Empirical Study, 100 Iowa L. Rev. (forthcoming 2014) (manuscript at 38 & app. B), available at

2. Id. at 3 n.10, 12. Professor Sag coined the “MDJD” designation.

3. Id. at app. B; Gabe Friedman, The Biggest Filer of Copyright Lawsuits? This Erotica Website, New Yorker, May 14, 2014, Article no longer available.

4. Mick Haig Prods. E.K. v. Does 1–670, 687 F.3d 649, 652 n.2 (5th Cir. 2012) (quoting Raw Films, Ltd. v. Does 1–32, No. 3:11-cv-532, 2011 WL 6182025, at *3 (E.D. Va. Oct. 5, 2011)).

5. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 963 (2005) (Breyer, J., concurring).

6. See M. Christopher Riley, The Need for Software Innovation Policy, 5 J. on Telecomm. & High Tech. L. 589, 616 n.113 (2007) (noting that “settlement is usually for $3,750, non-negotiable”); Nate Anderson, Has the RIAA Sued 18,000 people . . . or 35,000?, Ars Technica (July 8, 2009),

7. David Kravets, Copyright Lawsuits Plummet in Aftermath of RIAA Campaign, Wired: Threat Level Blog (May 18, 2010),

8. Section of Intellectual Prop. Law, Am. Bar Ass’n, A Section White Paper: A Call for Action on Online Piracy and Counterfeiting Legislation 30 (2014).

9. Sag, supra note 1, at app. B. The federal judiciary’s statistics are similar: 2,013 copyright cases filed from October 1, 2009, through September 30, 2010, down from 5,796 for the same period five years earlier. Admin. Office of the U.S. Courts, 2006 Judicial Business of the United States Courts: Annual Report of the Director James C. Duff 167 (2006) (detailing 2002–2006 filing statistics); Admin. Office of the U.S. Courts, Judicial Business of the United States Courts: 2011 Annual Report of the Director 130 (2011) (detailing 2007–2011 filing statistics).

10. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

11. See Glyn Moody, Why the Supreme Court’s “Grokster” Decision Led to More, Not Less, P2P Filesharing, Techdirt (Nov. 22, 2011),

12. See Diabolic Video Prods., Inc. v. Does 1–2,099, No. 10-cv-5865-PSG, 2011 U.S. Dist. LEXIS 58351, at *3–4 (N.D. Cal. May 31, 2011).

13. See Sag, supra note 1, at app. B.

14. Fed. R. Civ. P. 20(a)(2); see Patrick Collins, Inc. v. Does 1–21, 282 F.R.D. 161, 166 (E.D. Mich. 2012).

15. MCGIP, LLC v. Does 1–149, No. C 11-02331, 2011 U.S. Dist. LEXIS 108109, at *11 n.5 (N.D. Cal. Sept. 16, 2011).

16. Ingenuity 13 LLC v. Doe, No. 2:12-cv-08333-ODW, 2013 U.S. Dist. LEXIS 64564, at *7 (C.D. Cal. May 6, 2013); cf. Malibu Media, LLC v. Schelling, No. 13-11436, 2014 U.S. Dist. LEXIS 99590, at *5 (E.D. Mich. July 8, 2014) (“The practice here is the essence of form pleading.”).

17. See Gideon Parchomovsky & Alex Stein, The Relational Contingency of Rights, 98 Va. L. Rev. 1313, 1349–50 (2012).

18. See, e.g., AF Holdings, LLC v. Does 1–1,058, 752 F.3d 990 (D.C. Cir. 2014); Nu Image, Inc. v. Does 1–23,322, 799 F. Supp. 2d 34, 44 (D.D.C. 2011) (“The Court finds it inappropriate and a waste of scarce judicial resources to allow and oversee discovery on claims or relating to defendants that cannot be prosecuted in this lawsuit.”) (vacating order granting plaintiff pre-Rule 26(f) conference discovery).

19. See Patrick Collins, Inc. v. Does 1–30, No. 12-3148, 2013 U.S. Dist. LEXIS 39187, at *8 (E.D. Pa. Mar. 21, 2013).

20. In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 84 (E.D.N.Y. 2012).

21. See Discount Video Ctr., Inc. v. Does 1–29, 285 F.R.D. 161, 166 n.7 (D. Mass. 2012) (noting that Does “become defendants on the basis of their allegedly infringing activity, not due to their status as subscribers of the IP address utilized”).

22. MCGIP, LLC v. Does 1–149, No. C 11-02331, 2011 U.S. Dist. LEXIS 108109, at *11 n.5 (N.D. Cal. Sept. 16, 2011).

23. See Sag, supra note 1, at 23–30 (exploring “the copyright trolling-pornography nexus”).

24. Id. at app. B.

25. See Digital Sin, Inc. v. Does 1–176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012). See generally Ben Depoorter & Robert Kirk Walker, Copyright False Positives, 89 Notre Dame L. Rev. 319 (2013); Klinger v. Conan Doyle Estate, Ltd., 761 F.3d 789, 791 (7th Cir. 2014)..

26. Raw Films, Inc. v. Does 1–32, No. 1:11-CV-2939, 2011 U.S. Dist. LEXIS 149215, at *3 n.5 (N.D. Ga. Dec. 29, 2011).

27. Hard Drive Prods., Inc. v. Does 1–130, No. C-11-3826, 2011 U.S. Dist. LEXIS 132449, at *9 (N.D. Cal. Nov. 16, 2011).

28. Third Degree Films v. Does 1–47, 286 F.R.D. 188, 190–91 (D. Mass. 2012).

29. Ingenuity 13 LLC v. Doe, No. 2:12-cv-08333-ODW, 2013 U.S. Dist. LEXIS 64564, at *1–2 (C.D. Cal. May 6, 2013).

30. See Pac. Century Int’l, Ltd. v. Does 1–37, 282 F.R.D. 189, 193 (N.D. Ill. 2012); Declaration of Charles E. Piehl in Response to Minute Order, exhibit A at 4, AF Holdings LLC v. Does 1–135, No. 5:11-cv-03336 (N.D. Cal. Feb. 24, 2012), ECF No. 43.

31. Hard Drive Prods., Inc. v. Does 1–90, No. C 11-03825 HRL, 2012 U.S. Dist. LEXIS 45509, at *12 n.4 (N.D. Cal. Mar. 30, 2012); see also id. at *22 (“[T]he fact that no defendant has ever been served in one of these mass copyright cases belies any effort by plaintiff to allege that the discovery will lead to identification of and service on the Doe defendants.”).

32. Mick Haig Prods. E.K. v. Does 1–670, 687 F.3d 649, 652 n.2 (5th Cir. 2012) (quoting Raw Films, Ltd. v. Does 1–32, No. 3:11-cv-532, 2011 WL 6182025, at *3 (E.D. Va. Oct. 5, 2011)).

33. Voltage Pictures, LLC v. Does 1–31, No. CV413-037, 2013 U.S. Dist. LEXIS 47520, at *11 (S.D. Ga. Apr. 1, 2013).

34. Shapiro, Bernstein & Co. v. HL Green Co., 316 F.2d 304, 308 (2d Cir. 1963); King Records, Inc. v. Bennett, 438 F. Supp. 2d 812, 852 (M.D. Tenn. 2006); Ford Motor Co. v. B&H Supply, Inc., 646 F. Supp. 975, 989 (D. Minn. 1986).

35. 17 U.S.C. § 410.

36. Id. § 412.

37. Id. §§ 504(c), 505.

38. Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 507 (1st Cir. 2011) (quoting F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233 (1952)); see also Sony BMG Music Entm’t v. Tenenbaum, 719 F.3d 67, 71–72 (1st Cir. 2013) (affirming $675,000 award against downloader of 30 songs).

39. Malibu Media, LLC v. Does 1, 6, 13, 14, 950 F. Supp. 2d 779 (E.D. Pa. 2013).

40. See John Whitaker, Bellwether Trial: Why It Was a Bust, Copyright Infringement Advisor (June 13, 2013), Article no longer available (noting case was a bench trial where defendants admitted to liability, agreed on damages, and did not contest any relevant facts).

41. Order, Malibu Media, LLC v. Bui, No. 1:13-cv-00162-RJJ (W.D. Mich. July 21, 2014), ECF No. 40 (granting summary judgment to plaintiff where defendant used BitTorrent technology to obtain 57 copies of plaintiff’s works but claimed to not understand how the technology worked).

42. See, e.g., Lightspeed Media Corp. v. Smith, 761 F.3d 699 (7th Cir. 2014) (affirming $287,127.89 in sanctions and fines); AF Holdings LLC v. Navasca, No. C-12-2396 EMC, 2013 U.S. Dist. LEXIS 102249 (N.D. Cal. July 22, 2103) ($22,531.93 award to defendant under 17 U.S.C. § 505); Ingenuity 13 LLC v. Doe, No. 2:12-cv-08333-ODW, 2013 U.S. Dist. LEXIS 64564 (C.D. Cal. May 6, 2013) ($81,319.72 in sanctions).

43. Order Vacating Prior Early Discovery Orders and Order to Show Cause at 2, Ingenuity 13, No. 2:12-cv-08333-ODW-JC (C.D. Cal. Dec. 20, 2012), ECF No. 28.

44. Peter H. Huang, Lawsuit Abandonment Options in Possibly Frivolous Litigation Games, 23 Rev. Litig. 47, 62, 112 (2004) (“Frivolous litigation is not rational for plaintiffs to file . . . if the litigation costs are incurred all-at-once up front . . . .”).

45. Nu Image, Inc. v. Does 1–23,322, 799 F. Supp. 2d 34, 40–41 (D.D.C. 2011).

46. 28 U.S.C. § 1400(a). Compare 28 U.S.C. § 1391(b), the general venue provision for federal lawsuits, which may be brought in a district where a substantial part of the events giving rise to the claim occurred. See Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176 (1923) (“The venue of suits for infringement of copyright is not determined by the general provision governing suits in the federal district courts.”).

47. AF Holdings, LLC v. Does 1–1,058, 752 F.3d 990, 996-97 (D.C. Cir. 2014); Nu Image, 799 F. Supp. 2d at 37–38.

48. 7 Charles Wright, Arthur Miller & Mary Kay Kane, Federal Practice and Procedure § 1614 (3d ed. 2001).

49. See Nu Image, 799 F. Supp. 2d at 41 (“The Court understands why, for the sake of convenience and expense, the Plaintiff would desire to use this single lawsuit as a vehicle to identify all of the 23,322 alleged infringers. . . . However, it is not appropriate, and there is not good cause, to take third-party discovery in this case solely to obtain information that will be used in another lawsuit in a different venue.”).

50. Fed. R. Civ. P. 20(a)(2).

51. Hard Drive Prods., Inc. v. Does 1–188, 809 F. Supp. 2d 1150, 1163 (N.D. Cal. 2011).

52. Jason R. LaFond, Personal Jurisdiction and Joinder in Mass Copyright Troll Litigation, 71 Md. L. Rev. Endnotes 51, 55 (2012).

53. See AF Holdings, LLC v. Does 1–1,058, 752 F.3d 990, 996 (D.C. Cir. 2014) (citing cases); Next Phase Distribution, Inc. v. Does 1–27, 284 F.R.D. 165 (S.D.N.Y. 2012).

54. Fed. R. Civ. P. 20(b); see Third Degree Films v. Does 1–47, 286 F.R.D. 188, 196–99 (D. Mass. 2012) (severing Does 2–47 from case).

55. AF Holdings v. Does 1–1,058, 752 F.3d at 996.

56. Id. at 997.

57. Id. at 996 (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 n. 17 (1978)).

58. Id. at 995 (quoting Oppenheimer, 437 U.S. at 352 n.17); see also Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 546 (1987) (warning of “the danger that discovery may be sought for the improper purpose of motivating settlement, rather than finding relevant and probative evidence”).

59. AF Holdings v. Does 1–1,058, 752 F.3d at 998.

60. Malibu Media, LLC v. Does 1, 6, 13, 14, 950 F. Supp. 2d 779, 784 (E.D. Pa. 2013).

61. Fed. R. Civ. P. 20(a); see, e.g., Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974).

62. 17 U.S.C. § 504(c)(1).

63. Fitzgerald Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1116 (2d Cir. 1986); Comment, Joint and Several Liability for Copyright Infringement, 32 U. Chi. L. Rev. 98, 98 (1964) (noting that “it is generally agreed that all who ‘unite’ in an ‘act of infringement’ are jointly and severally liable for the ‘damages’ resulting therefrom”); see also McClatchey v. Associated Press, No. 3:05-cv-145, 2007 U.S. Dist. LEXIS 40416, at *10 (W.D. Pa. June 4, 2007) (concluding that “the most plausible interpretation of [17 U.S.C. § 504(c)] authorizes a single [statutory damages] award when there is any joint and several liability, even if there is not complete joint and several liability amongst all potential infringers” (emphasis added)); accord Agence France Presse v. Morel, 934 F. Supp. 2d 547, 579–81, aff’d in pertinent part, 934 F. Supp. 2d 584, 590 (S.D.N.Y. 2013).

64. Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d 313, 316 (S.D.N.Y. 2011).

65. Screen Gems-Columbia Music, Inc. v. Metlis & Lebow Corp., 453 F.2d 552, 553–54 (2d Cir. 1972); see also Kleier Advertising, Inc. v. John Deery Motors, Inc., 834 F. Supp. 311, 314 (N.D. Iowa 1993) (“The copyright owner can only recover once for each infringement.”).

66. See BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271, 1275 (11th Cir. 2008).

67. McDermott, Inc. v. AmClyde, 511 U.S. 202, 208 (1994); see also Restatement (Second) of Torts § 885(3) (“A payment by any person made in compensation of a claim for a harm for which others are liable diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment.”).

68. Warner Bros. v. Dae Rim Trading, Inc., 677 F. Supp. 740, 769 (S.D.N.Y. 1988).

69. AF Holdings, LLC v. Harris, No. CV-12-02144-PHX-GMS, 2013 U.S. Dist. LEXIS 81862, at *3 (D. Ariz. June 11, 2013); see also id. at *5 (requiring plaintiff to identify all its prior suits based on same BitTorrent swarm, and the number, nature, and amounts of settlements in each).

70. AF Holdings, LLC v. Harris, No. CV-12-02144-PHX-GMS, 2013 U.S. Dist. LEXIS 117852, at *6–7 (D. Ariz. Aug. 20, 2013).

71. No. 2:13-cv-729-JES, 2014 U.S. Dist. LEXIS 82272, at *3–5 (M.D. Fla. June 17, 2014). But see Malibu Media, LLC v. Batz, No. 12-cv-01953-WYD-MEH, 2013 U.S. Dist. LEXIS 69052, at *6–7 (D. Colo. Apr. 5, 2013) (striking defense that prior settlements with swarm members foreclosed further recovery, where plaintiff had received no damages awards).

72. W. Coast Prods., Inc. v. Garrett, No. 4:12-cv-01551 AGF, 2014 U.S. Dist. LEXIS 23236, at *9 (E.D. Mo. Feb. 25, 2014).

73. Id. at *8 (awarding $3,250 in statutory damages).

74. Raw Films, Inc. v. Does 1–32, No. 1:11-CV-2939, 2011 U.S. Dist. LEXIS 149215, at *3 n.5 (N.D. Ga. Dec. 29, 2011).

Dan Booth

Dan Booth is a partner at Booth Sweet LLP in Cambridge, Massachusetts. He specializes in copyright, trademark, and defamation law. He has represented dozens of clients against copyright trolls, including in Lightspeed Media Corp. v. Smith, 761 F.3d 699 (7th Cir. 2014).