Judge may dismiss 4,576 of 4,577 P2P defendants from lawsuit

By Nate Anderson

Federal judge Rosemary Collyer sits on the DC District Court, where several of the recent US Copyright Group lawsuits against alleged P2P users have been filed. A few of those lawsuits ended up on Judge Collyer's calendar, one of them filed against over 4,000 anonymous "John Does" at once.

This week, Judge Collyer issued a terse demand to the lawyers behind these cases: convince me within two weeks that jamming 4,577 people into a single lawsuit is a proper use of the court system.

Judge Rosemary Collyer

A brief entry in the official court docket lays out the order. "MINUTE ORDER requiring Plaintiff to show cause in writing no later than June 21, 2010 why Doe Defendants 2 through 2000 should not be dismissed for misjoinder under Federal Rule of Civil Procedure 20," wrote the judge in The Steam Experiment case. The same order was repeated in a separate case targeting 4,577 users alleged to have shared the film Far Cry.

The judge's order came only days after the ACLU and EFF joined forces to file a friend of the court brief in these cases. In that brief, the civil rights groups complained about the improper "joinder" of so many defendants from across the country in a single case in a far-off DC courthouse.

According to Rule 20, which Judge Collyer referenced in her order, plaintiffs may only join defendants in a lawsuit if:

• They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
• Any question of law or fact common to all plaintiffs will arise in the action.

But were the alleged distributions all part of the same "transaction or occurrence"? According to the ACLU and EFF, they were not, and these P2P lawsuits should be "severed" and each defendant sued individually.

"Plaintiff's joinder of more than 4,500 defendants in a single action is improper and runs the tremendous risk of creating unfairness and denying individual justice to the suit," they wrote. "Mass joinder of individuals has been disapproved by federal courts in both the RIAA cases and elsewhere."

The judge appears interested in at least debating this argument. I checked in with EFF staff attorney Corynne McSherry, who worked on the brief, and she was pleased by the order.

"Of course, we don't know yet how the judge is going to rule, but this order suggests that she is taking the issue seriously," she said. "That is a very good thing; parties in any litigation should be required to follow the rules, but given the number of lawsuits (with more promised) and the thousands of individuals under threat, it's particularly crucial here."

Should the judge sever the lawsuits, each would have to be filed separately, with a separate filing fee and separate paperwork, making mass lawsuits much more difficult and expensive.