Update on Copyright Infringement Suits Against “John Does” for Internet Viewing of Adult Entertainment (January 2013)
A new cottage industry has emerged where certain plaintiffs (owners of copyrights to adult film productions) are filing suits in Federal District Court against numerous “John Does” alleging that the Johns have committed copyright infringement by downloading certain pornographic content on IP addresses. The plaintiffs name the defendants in the capacity of “John Doe” because they are unable to identify the John until they subpoena the Internet Service Providers to ascertain the parties that the IP addresses are registered to. Once the plaintiff discovers the Johns’ identities, they typically offer settlements in exchange for a release and, perhaps more valuable, not going public with the Johns’ names. There is significant concern that these suits are being brought not to legitimately litigate copyright claims, but rather, to extract a settlement from the Johns upon the threat of embarrassment. E.g., Disc. Video Ctr., Inc. v. Doe, 285 F.R.D. 161, 166 (D. Mass. 2012).
This new area of litigation was dealt a significant blow recently by District Court Judge F. Dennis Saylor IV on November 5, 2012. See New Sensations v. Doe, 2012 U.S. Dist. LEXIS 159595 (D. Mass. Nov. 5, 2012). In New Sensations, the plaintiff attempted to join 175 John Does as Defendants in that single case. Judge Saylor issued a Notice to Show Cause as to why all the Johns should not be severed into separate actions given that each act of infringement did not “arise out of the same transaction or occurrence.” Judge Saylor disagreed with the plaintiff’s arguments and dismissed all claims except the one as to John Doe #1 and ordered that all other Johns would have to be sued separately. Judge Young reached the same ruling in a lengthy opinion authored in Third Degree Films v. Doe, 2012 U.S. Dist. LEXIS 142079 (D. Mass. Oct. 2, 2012).
While the New Sensations and Third Degree Films holdings may only be procedural, they had a significant financial impact on these types of cases as the plaintiffs can no longer pay one filing fee of $350 to sue potentially hundreds of Johns within one case. Third Degree Films v. Doe, 2012 U.S. Dist. LEXIS 142079 (D. Mass. Oct. 2, 2012) (“Third Degree and like companies file a single cookie-cutter complaint alleging copyright infringement against tens, hundreds or thousands of individuals based on their IP addresses, paying only a single $350.00 filing fee, and likely employing a contingency fee structure.”). While these decisions render future litigation far more expensive for these plaintiffs, it is too early to forecast how much of a deterrent the requirement that the plaintiffs pay multiple filing fees will have on the future filings of these cases.