reFX Audio Software Inc. v. Does 1-39

Filing 29

MEMORANDUM Opinion and Order Signed by the Honorable Edmond E. Chang on 3/24/2014:Mailed notice(air, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
reFX AUDIO SOFTWARE INC.,
Plaintiff,
v.
DOES 1-85,
Defendants.
reFX AUDIO SOFTWARE INC.,
Plaintiff,
v.
DOES 1-80,
Defendants.
reFX AUDIO SOFTWARE INC.,
Plaintiff,
v.
DOES 1-180,
Defendants.
reFX AUDIO SOFTWARE INC.,
Plaintiff,
v.
DOES 1-39,
Defendants.

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Nos. 13 C 01790
Judge Edmond E. Chang

Nos. 13 C 01793
Judge Edmond E. Chang

Nos. 13 C 03524
Judge Edmond E. Chang

Nos. 13 C 07494
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff reFX Audio Software Inc. has filed these four copyright-infringement
lawsuits, suing in total nearly 400 John Does.1 See R. 1 (Nos. 13 C 01790, 13 C
01793, 13 C 03524, 13 C 07494), Compls. ¶¶ 1, 57 (raising claims of copyright
infringement and contributory copyright infringement under the United States
Copyright Act of 1976, 17 U.S.C. § 106, as well as claims of civil conspiracy). Early
in these lawsuits, the Court granted reFX leave to issue non-party subpoenas to the
Does’ Internet service providers (ISPs) to ascertain the Does’ identities. R. 12 (No.
13 C 01790); R. 12 (No. 13 C 01793); R. 15 (No. 13 C 03524); R. 13 (No. 13 C 07494).
Before the Court now are three related motions: (1) reFX’s motion to compel AT&T,
the ISP for a set of Does, to comply with a subpoena to identify the Does [R. 15 (No.
13 C 01793)]; (2) AT&T’s opposition to the motion to compel [R. 36 (13 C 01793)],
which the Court views as a motion to quash; and (3) three Does’ motions to quash
the subpoenas or, in the alternative, to sever because of improper joinder [R. 20, R.
24 (No. 13 C 03524); R. 23 (No. 13 C 07494)]. For the reasons explained below, the
Does’ motions are granted because joinder is improper, and reFX’s motion to compel
and AT&T’s motion to quash are therefore denied without prejudice as moot, with
the possibility of re-serving the subpoenas after proper narrowing of the Doe
Defendants.

1The

Court has subject matter jurisdiction over this case based on 28 U.S.C. §§ 1331
and 1338(a).

2

I. Background
reFX alleges that all of the Does in these lawsuits unlawfully copied and
distributed its copyrighted computer software using BitTorrent. R. 1 (No. 13 C
03524), Compl. ¶ 4.2 BitTorrent is a popular file-sharing technology. Id. ¶¶ 4, 42.
Unlike earlier file-sharing programs that required users to download a file from a
single source computer, BitTorrent speeds up the file-sharing process by allowing
users to simultaneously download different pieces of a single file from multiple
source computers. See id. ¶¶ 7, 42. This process begins with an initial BitTorrent
user, or “seeder,” who already has a complete copy of a computer file. See id. ¶ 50.
After the seeder installs the BitTorrent program on the seeder’s computer, the
seeder then uses BitTorrent to create a “torrent file” that contains a unique “hash”
identifier. See id. ¶¶ 43, 45-46. The seeder then uploads the torrent file to a torrent
site. See id. ¶ 45. These sites index the torrent files that are currently available
from other users for copying and distribution. Id. Although a torrent file does not
contain the actual content of the original computer file, the torrent file acts as a
“roadmap” to the Internet Protocol (IP) addresses of other users who are also
sharing the file with the same unique hash identifier. Id. ¶¶ 45-46. Along with the
hash identifier, a BitTorrent “tracker” helps manage file distribution by connecting
uploaders (those who are distributing the file content) with downloaders (those who
are copying the content). Id. ¶ 47. The tracker simply directs a user’s computer to

2The

complaints that reFX filed in these four lawsuits are substantively identical.
Therefore, for simplicity’s sake, the Court will cite only to the complaint filed in case
number 13 C 03524 unless otherwise noted.

3

other users’ computers that have the wanted file and then facilitates the data
exchange between the computers. See id.
As soon as a seeder creates and uploads a torrent file onto a torrent site,
other BitTorrent users, or “peers,” can download the computer file to which the
torrent file is linked. But these users cannot download the computer file unless they
also agree to simultaneously make available for upload the parts of the file that
already exist on their computers. See id. ¶ 48. In other words, according to the
complaint, every downloader is simultaneously a potential uploader. See id. ¶¶ 15,
48. As soon as a user downloads even just a piece of the original computer file,
BitTorrent simultaneously makes that particular piece available to other users who
want to download the same computer file. See id. ¶¶ 16, 48, 51. In this way, users
are simultaneously downloading and potentially uploading multiple pieces of the
file from multiple other users. See id. ¶¶ 51-52.
BitTorrent users use the word “swarm” to describe the group of users who are
downloading and uploading the same file. See id. ¶ 7. As more users join a
particular swarm, both the downloading speed and the likelihood of successfully
downloading the complete file increase. See id. ¶¶ 16, 19, 53. Once the seeder has
distributed each piece of the computer file to at least one other user, the seeder can
leave the swarm. See id. ¶ 51. The remaining swarm members can still obtain a full
copy of the file by exchanging the pieces of the file that the other users have already
downloaded. See id. In the end, a user may download a file in hundreds or even
thousands of individual pieces, and each piece may come from a different swarm

4

member. Id. ¶ 52. Once a user has downloaded the entire computer file, BitTorrent
reassembles the pieces of the file and then the user can use the file on his or her
computer. See id. ¶ 51.
reFX alleges that all of the Does in these lawsuits were BitTorrent users. See
id. ¶¶ 4-5, 12, 24. According to reFX, each of the Does participated in the same
BitTorrent swarm to copy and distribute reFX’s Nexus 2, Nexus 2.2.0, and Nexus
2.2.1 software, identified by the hash identifier 68EA. See id. ¶¶ 5-6, 13, 34, 58, 60,
74. This copyrighted software is a synthesizer-plugin program that is used in
combination with professional music software to generate over 1,000 preset sounds
and music. Id. ¶¶ 4, 33, 35-39. According to the complaint, different versions of the
software range in price from $299 to $2,589. Id. ¶ 40. In these lawsuits, reFX has
chosen to limit the Does to members of the same swarm who downloaded the
software in the Northern District of Illinois during a one-month period. See id. ¶ 8.
At this point in the litigation, reFX has identified the Does only by their IP
addresses, which are listed in reFX’s Exhibit A. Id. ¶¶ 28-29; R. 1-1 (No. 13 C
03524), Pl.’s Exh. A.
Shortly after filing complaints in these four lawsuits, reFX filed ex parte
motions for early discovery, seeking leave to serve non-party subpoenas upon the
unidentified Does’ ISPs so that it could learn the Does’ true identities. R. 9 (No. 13
C 01790); R. 9 (No. 13 C 01793); R. 6 (No. 13 C 03524); R. 9 (No. 13 C 07494). The
Court granted these motions. R. 12 (No. 13 C 01790); R. 12 (No. 13 C 01793); R. 15
(No. 13 C 03524); R. 13 (No. 13 C 07494). Subpoenas were then issued to the Does’

5

ISPs, including AT&T and Comcast, requiring them to provide reFX with the Does’
names, addresses, email addresses, and Media Access Control numbers. See R. 27
(No. 13 C 03524), Pl.’s Resp. Br. Opp’n Does’ Mot. Sever at 3; see also, e.g., R. 16-1
(No. 13 C 01793), Pl.’s Exh. A, AT&T Subpoena. After AT&T received the subpoena,
it refused to comply with the request. See R. 16-3 (No. 13 C 01793), Pl.’s Exh. C.
This prompted reFX to file a motion to compel, and AT&T retorted with a motion to
quash. R. 15 (13 C 01793), Pl.’s Mot. Compel; R. 36 (No. 13 C 01793), AT&T’s Mot.
Quash. Comcast also refused to comply and sent letters to its customers informing
them about the subpoena. Pl.’s Resp. Br. Opp’n Does’ Mot. Sever at 3. In response to
these subpoenas, three Does have filed motions to quash and also to sever the
claims against them because of improper joinder. R. 20 (No. 13 C 03524), Doe 51’s
Mot. Sever & Quash; R. 24 (No. 13 C 03524), Doe 42’s Mot. Sever & Quash; R. 23
(No. 13 C 07494), Doe 5’s Mot. Quash. The Court turns to those joinder issues
below.
II. Legal Standard
Federal Rule of Civil Procedure 20(a)(2) dictates when a complaint may join
two or more defendants in one case. Specifically, a plaintiff can join two or more
defendants in a single lawsuit if two requirements are met: (1) “any right to relief is
asserted against [the defendants] . . . with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences,” and (2) “any
question of law or fact common to all defendants will arise in the action.” Fed. R.
Civ. P. 20(a)(2). Joinder promotes judicial efficiency, Elmore v. Henderson, 227 F.3d

6

1009, 1012 (7th Cir. 2012), and is strongly encouraged, United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 724 (1966). Although the Rules do not define “transaction or
occurrence,” courts have generally adopted a “logical relationship” test. See, e.g., In
re EMC Corp., 677 F.3d 1351, 1358 (Fed. Cir. 2012) (“[I]ndependent defendants
satisfy the transaction-or-occurrence test of Rule 20 when there is a logical
relationship between the separate causes of action. The logical relationship test is
satisfied if there is substantial evidentiary overlap in the facts giving rise to the
cause of action against each defendant.”); Mosley v. Gen. Motors Corp., 497 F.2d
1330, 1333 (8th Cir. 1974) (“[A]ll ‘logically related’ events entitling a person to
institute a legal action against another generally are regarded as comprising a
transaction or occurrence.”); cf. also Moore v. N.Y. Cotton Exch., 270 U.S. 593, 610
(1926) (explaining in the context of Rule 13(a) compulsory counterclaims that the
word “‘[t]ransaction’ . . . may comprehend a series of many occurrences, depending
not so much upon the immediateness of their connection as upon their logical
relationship”).
The Seventh Circuit has recognized that district courts have broad discretion
in deciding whether to sever a party for improper joinder. Chavez v. Ill. State Police,
251 F.3d 612, 632 (7th Cir. 2001) (citing Intercon Research Assocs., Ltd. v. Dresser
Indus., Inc., 696 F.2d 53, 56 (7th Cir. 1982)); Rice v. Sunrise Express, Inc., 209 F.3d
1008, 1016 (7th Cir. 2000). District courts may even sever the claims against
multiple parties sua sponte. See Fed. R. Civ. P. 21 (“On motion or on its own, the
court may at any time, on just terms, add or drop a party. The court may also sever

7

any claim against a party.”). Furthermore, in addition to the two Rule 20(a)
requirements, courts may consider “‘other relevant factors in a case in order to
determine whether the permissive joinder of a party will comport with the
principles of fundamental fairness.’” Chavez, 251 F.3d at 632 (quoting Intercon
Research Assocs., 696 F.2d at 58). For example, joinder may be improper if it “would
create prejudice, expense or delay.” Id. (internal quotation marks and citation
omitted). If the Rule 20(a) test is not satisfied or if there are other factors that make
joinder improper, then the district court can sever the claims against the defendants
under Rule 21. See Lee v. Cook Cnty., 635 F.3d 969, 971 (7th Cir. 2011); Elmore, 227
F.3d at 1012; see also Fed. R. Civ. P. 21 (“Misjoinder of parties is not a ground for
dismissing an action.”).
III. Analysis
Three Does have moved to sever the claims against them, each arguing that
joinder is improper because reFX’s claims against them do not arise out of, in the
words of Rule 20(a), the same transaction, occurrence, or series of transactions or
occurrences. First, Doe 51 argues that he was improperly joined because reFX has
not alleged that Doe 51 participated in the swarm at the same time as any of the
other Does joined in the lawsuit. Doe 51’s Mot. Sever & Quash at 2-3. As a result,
Doe 51 believes there can be no inference that Doe 51 exchanged any data with any
of the other Does. Id. at 3. Doe 51 also stresses that because there are 180
defendants joined in that lawsuit, defendant-specific questions of law or fact will
likely outweigh the efficiencies to be gained from joinder. See R. 30 (No. 13 C

8

03524), Doe 51’s Reply Br. at 2. Second, Doe 42 raises similar arguments,
emphasizing that reFX alleges that only two other Does were part of the swarm on
the same day as Doe 42, but none at the same time. Doe 42’s Mot. Sever & Quash at
7. Doe 42 also argues that reFX’s evidence does not demonstrate that Doe 42
exchanged any part of the file with any other Doe in the lawsuit. Id. Finally, Doe 5
argues that joining multiple Does in a single lawsuit “runs the tremendous risk of
creating unfairness and denying individual justice to those sued.” Doe 5’s Mot.
Quash at 2.
District courts—both in this District and others—are split over the issue of
whether defendants may be joined in a single lawsuit based solely on their
participation in the same BitTorrent swarm. See Malibu Media, LLC v. John Does
1-6, 291 F.R.D. 191, 203 (N.D. Ill. 2013) (listing cases); Malibu Media, LLC v.
Reynolds, No. 12 C 06672, 2013 WL 870618, at *9-10 (N.D. Ill. Mar. 7, 2013) (same).
The heart of this debate centers on whether a swarm of users downloading a file
with the same hash identifier qualifies as “the same transaction, occurrence, or
series of transactions or occurrences” under Rule 20(a)(2)(A). At one end of the
spectrum, some judges in this District have held that Rule 20 joinder is appropriate
only in narrow circumstances where the swarm members were simultaneously
present in the swarm or accessed the swarm close in time with each other. See, e.g.,
Reynolds, 2013 WL 870618, at *13; Zambezia Film (Pty) Ltd. v. Does 1-33, Nos. 13 C
01323, 13 C 01741, 2013 WL 1181587, at *2 (N.D. Ill. Mar. 20, 2013) (“[J]udges
should require plaintiffs to plead facts sufficient to show that the defendants were

9

not only part of the same swarm, but that they were part of the same swarm at the
same time as one another.” (citation omitted)); Sunlust Pictures, LLC v. Does 1-75,
No. 12 C 01546, 2012 WL 3717768, at *4 (N.D. Ill. Aug. 27, 2012) (holding that
joinder was appropriate only because the plaintiff alleged that the defendants
simultaneously participated in the same swarm). At the other end of the spectrum,
other district-court judges have held that joinder is proper whenever plaintiffs
allege that the defendants participated in the same swarm, no matter how long the
swarm lasts. See, e.g., Malibu Media, LLC, 291 F.R.D. at 204 (“It suffices for joinder
that defendants indirectly interact with one another through participation in the
same BitTorrent swarm.”); Pac. Century Int’l v. Does 1-31, No. 11 C 09064, 2012 WL
2129003, at *2 (N.D. Ill. June 12, 2012) (holding that joinder was proper when the
plaintiff alleged that the “anonymous defendants participated in the same ‘swarm’
(at varying times spanning just over one month)”). The federal appellate courts
have not yet addressed this BitTorrent-specific joinder issue.3
reFX asserts that its joinder theory is based on three factors: (1) all of the
Does participated in the same swarm by uploading reFX’s software file with the
same hash identifier to reFX’s investigator; (2) all of the Does’ IP addresses are
traced to Illinois; and (3) the Does’ combined swarm activity spanned the same onemonth period.4 Pl.’s Resp. Br. Opp’n Does’ Mot. Sever at 13; see also R. 14 (No. 13 C

3There

is an appeal pending in the D.C. Circuit that addresses this issue, but the
court will not hear oral argument until April 14, 2014. See AF Holdings, LLC v. Does, 11058, No. 12-7135 (D.C. Cir. Feb. 18, 2014), Doc. No. 1480299.
4reFX also argues that joinder is proper because some of the Does are likely
duplicates of each other. R. 30 (No. 13 C 01793), Pl.’s Mot. Compel Reply Br. at 10; see also
id. (estimating that around 8.5% of the Does are duplicates). This duplication likely arises

10

03524), Pl.’s Supplement Mot. Early Discovery at 1. But, when all is said and done,
reFX’s permissive-joinder theory is based only on a swarm of users downloading and
uploading a copy of the software with the same hash identifier. Two of the three
factors—geography and the one-month time period—were self-imposed by reFX and
really have nothing to do with defining a “transaction or occurrence” for joinder
purposes. This is true because, in reality, the swarm is not actually limited by
geographic boundaries; instead, geography only enters the equation because of
personal-jurisdiction concerns. See Compl. ¶ 3. As reFX itself alleges in its
complaint, “each swarm member is helping all other swarm members participate in
illegal file sharing, regardless of geographical boundaries.” Id. ¶ 20; see also id. ¶ 21
(alleging that swarm members are “linking together globally” through a “worldwide
network”). And, with regard to the time-period limit, there is no reason—at least no
reason based on the transaction-or-occurrence standard—why reFX limited the
infringement in these cases to a one-month period. Cf. id. ¶ 8 (noting that reFX
“elected” to set these limits). Just as a swarm is not limited geographically, a swarm
is also not defined by a specific time-frame. See Pl.’s Supplement Mot. Early
Discovery at 2 (admitting that the infringement extended beyond the one-month
period it selected). The one-month period instead provides another way to limit the
number of Does. Although that makes sense for purposes of judicial efficiency and
fairness to the parties, that limitation does nothing to help define a “transaction or

when ISPs rotate and recycle IP addresses. Id. As a result, multiple IP addresses may be
linked to the same person. Id. Mistakenly including duplicate Does, however, says nothing
of whether any of the Does are part of the same series of transactions or occurrences. It
simply means that there are potentially fewer Does in each lawsuit.

11

occurrence.” Therefore, after eliminating the geography and temporal-proximity
factors, reFX’s permissive-joinder definition is, at bottom, based solely on a single
swarm for the unique hash identifier in this case.
That definition of transaction or occurrence (or a series of transactions or
occurrences) is too broad. To be sure, there is no hard-and-fast definition of
“transaction or occurrence,” whether for purposes of Rule 20(a)(2) permissive
joinder or other Rules in which the same terms are used, such as what compulsory
counterclaims must be brought under Rule 13(a)(1)(A) and what claims or defenses
relate back to prior pleadings under Rule 15(c)(1)(B). “[T]here is no formalistic test
for determining whether suits arise out of the same transaction or occurrence.
Instead, we have held that courts should consider the totality of the claims,
including the nature of the claims, the legal basis for recovery, the law involved,
and the respective factual backgrounds.” Ross v. Bd. of Educ. of Twp. High Sch.
Dist. 211, 486 F.3d 279, 284 (7th Cir. 2007) (internal quotation marks and citation
omitted) (interpreting transaction or occurrence for compulsory counterclaims
under Rule 13(a)(1)(A)). Those considerations take into account legal issues (“the
legal basis for recovery, the law involved”), factual issues (“the respective factual
backgrounds”), and issues involving a combination of the two (“the nature of the
claims”). Similarly, in the context of relation back under Rule 15(c)(1)(B), a claim or
defense arises out of the same “conduct, transaction, or occurrence” as a previously
pled claim or defense if both claims or defenses arise from a “common core of
operative facts.” Mayle v. Felix, 545 U.S. 644, 659 (2005) (internal quotation marks

12

and citation omitted). That formulation, too, does not focus exclusively on facts, but
also on how the facts intersect with the law, that is, which facts are operative
depends on the law that applies to the claim. Courts must avoid viewing the
transaction-or-occurrence standard at “too high a level of generality,” Mayle, 545
U.S. at 661 (internal quotation marks and citation omitted), lest claims be
capaciously joined in one lawsuit even though the only thing they have in common
is a solitary fact or set of facts that are not tied together in both law and in fact.
To demonstrate how reFX’s single-hash-identifier theory of joinder casts
transaction or occurrence (or series thereof) at too high a level of generality,
consider that reFX’s theory would allow defendants to be joined even though they
have no direct connection with one another (that is, they did not download or upload
to one another) and, worse, even though they have only the most tenuous of indirect
connections to one another. Here is a simplified diagram of what reFX would
consider a properly joined swarm, where Doe 1 seeded the swarm and distributed to
Does 2 to 4, and then those Does distributed to other Does, and so on:
Doe 1
Doe 2
Doe 5

Doe 6

11 12 13 14 15 16

Doe 101

Doe 3
Doe7

Doe 4

Doe 8

17 18 19

20 21 22

[Does 102 to 459]

13

Doe 9

Doe 10

23 24 25

26 27 28

Doe 460

Under reFX’s theory, Doe 101 is properly joined with Doe 460, even though those
two Does have not directly downloaded or uploaded from one another, and indeed, it
takes four levels of download/uploads to get from Doe 101 back to Doe 1, and then
another four levels of downloads/uploads to get to Doe 460. No fact of any kind
concerning Doe 460 need be proven, or would even be relevant, to showing that Doe
101 engaged in copyright infringement. Yet under reFX’s joinder theory, all of the
Does in the illustration above could be properly joined because they have all
participated in the same swarm. See Pl.’s Mot. Compel at 10 (noting that each Doe’s
participation in the swarm “leads to viral infringement through multiple successive
generations of infringers”). This application of “series” of transactions or
occurrences is at too high a level of generality, sweeping in Does who are multiple
(maybe even hundreds or thousands of) levels away from Doe 1. All told, reFX is
treating the 459 downloads/uploads5 that would be depicted in the diagram as one
transaction or occurrence, or one series of transactions or occurrences. And, in
reality, the lack of connection between those Does is even more gaping because this
is a simplified diagram of a swarm. In the real world of BitTorrent, the distributions
to the Does do not comprise the entirety of the copyrighted software; instead, due to
the nature of BitTorrent, almost surely the Does are distributing (and others
correspondingly downloading) only pieces of the software, so Doe 101 (for example)
really downloads pieces of the software from many different Does (not just Doe 11).

5In

the diagram, the set of 459 downloads/uploads is comprised of 3 in the first level
(Doe 1 to Does 2 to 4), plus 6 in the second level (Does 2 to 4 to Does 5 to 10), plus 18 in the
third level, plus 72 in the fourth level (if Does 11 to 18 each distribute to four other Does),
plus 360 in the fifth level (if Does 29 to 100 each distribute to five other Does).

14

So reFX’s joinder theory really would treat many, many more than 459
downloads/uploads all as one transaction or occurrence, or one series thereof.
As the case law demands, the correct view of transaction or occurrence (or a
series thereof) must take into account the nature of the claims, the legal basis for
recovery, and the factual background. Rule 20(a)(2)(A) asks whether the “right to
relief” arises out of the same transaction or occurrence, and in the BitTorrent
context, reFX asserts a “right to relief” from copyright infringement. Under the
Copyright Act, that right includes relief from both copying (downloading) and
distributing (uploading) the copyrighted work. See 17 U.S.C. § 106(1) (reproduction);
id. § 106(3) (distribution). Given this right to relief, the joinder analysis in
BitTorrent cases should focus on the direct exchange of the copyrighted work (or
pieces of it)—both downloading and uploading—between Does in a particular
swarm. A plaintiff may only join as defendants those swarm members who have
directly exchanged a part of a copyrighted work (identified by the same unique hash
identifier) with one particular individual. In other words, a plaintiff can join with
any one alleged infringer all the other alleged infringers who downloaded content
directly from or uploaded content directly to that same infringer. This rule—
requiring the actual exchange of data—takes into account both the factual and legal
bases of the claim because proving the actual exchange of data is a requirement for
the underlying substantive copyright-infringement claim itself.
A simplified illustration of how this joinder rule works may help:

15

Doe 8

Doe 9

Doe 10

Doe 11
Downloading
(Reproduction)

Doe 2

Doe 3

Doe 4

Doe 1

Doe 5

Doe 12

Uploading
(Distribution)

Doe 6

Doe 13

Doe 7

Doe 14

Doe 15

Start with Doe 1. Doe 1 downloaded the copyrighted work from Does 2, 3, and 4.
Doe 1 then uploaded the work to Does 5, 6, and 7. Because Does 2 through 7 directly
exchanged parts of the work with Doe 1, they are all part of the “same . . . series of
transactions or occurrences” that gave rise to the right to relief against Doe 1. Fed.
R. Civ. P. 20(a)(2)(A). All the Does that have exchanged data with Doe 1 are related
by the right to relief, and there will be substantial evidentiary overlap in the facts
giving rise to the claims against Does 2 through 7 because their exchange of data
with Doe 1 will be central to each claim. See In re EMC Corp., 677 F.3d at 1358.
Does 8 through 15, on the other hand, only indirectly exchanged parts of the work
with Doe 1. They are therefore too far removed to be part of the “same . . . series of
transactions or occurrences.” Fed. R. Civ. P. 20(a)(2)(A) (emphasis added). Instead,
Does 8 and 9, for example, are part of an entirely different series of transactions
with Doe 2. They are one level removed from the series of transactions that gave
16

rise to the right to relief against Doe 1. In short, Does 2 through 7 can be joined in
the lawsuit against Doe 1, but Does 8 through 15 cannot.
As reFX’s claims are currently pled, the Does in these lawsuits are not
properly joined. reFX submitted declarations from the investigator it retained to
identify the Does, see, e.g., R. 8 (No. 13 C 03524), 5/7/13 Padewet Decl., but those
declarations do not show proper joinder as defined by this opinion. According to the
investigator, someone at the investigator’s company, Copyright Defenders, searched
for BitTorrent users who were offering to distribute reFX’s software. Id. ¶ 23.
Copyright Defenders then downloaded a copy of the software from those users,
verified that the file contained the same unique hash identifier, and made note of
the users’ IP addresses and other information. Id. ¶¶ 23, 25. reFX has also provided
charts purporting to illustrate the date-and-time overlap between Does in the
swarm. See, e.g., R. 14-1 (No. 13 C 03524), Pl.’s Exh. A. reFX argues that these
charts demonstrate the Does’ “collective participation” in the swarm and confirm
that multiple Does were in the swarm at the same time. See Pl.’s Supplement Mot.
Early Discovery at 1-2; see also R. 16 (No. 13 C 1793), Pl.’s Mot. Compel Br. at 10.
Ultimately, the investigator’s declarations and reFX’s charts do not
sufficiently allege facts that satisfy this Court’s definition of proper joinder. Because
the actual exchange of data is required, reFX must allege that a certain group of
Does all exchanged data with the same individual, giving rise to the same right to
relief. While it is true that properly joined swarm members will likely overlap for
some amount of time, temporal proximity alone is not controlling because, as a

17

swarm is generally conceptualized, all members need not be in the swarm at the
same time. Returning to the example above, they simply must overlap at some point
in time with Doe 1 so that it can plausibly be inferred that they all directly either
downloaded to Doe 1 or uploaded from Doe 1 (or both). It is the actual direct
exchange of data with Doe 1 that renders proper the joinder of multiple defendants
with that particular Doe.6
Finally, given that each lawsuit spans a one-month period of alleged
infringement, it is unlikely that the charts represent only one download attempt7 or
right to relief. Instead, it is much more likely that the investigator joined a swarm
for this software on multiple occasions and made multiple attempts to download the
software. Each successfully completed download attempt represents a new series of
transactions or occurrences that must be the basis of a separate and independent
lawsuit.
IV. Conclusion
For the reasons stated above, the Does’ motions to quash or to sever [R. 20, R.
24 (No. 13 C 03524); R. 23 (No. 13 C 07494)] because of improper joinder are
6It

is possible that the hypothetical “Doe 1” in these types of cases will not actually
be a Doe Defendant, but instead be the plaintiff’s retained investigator. Regardless of who
“Doe 1” is, though, the controlling issue for proper joinder in BitTorrent cases is the actual
exchange of data. As far as what this means at the pleading stage, joinder is properly “pled”
if the data shows that the sued Does were online at the same time as the one Doe (or
investigator) chosen to be Doe 1. Simultaneous online timing might even be enough
circumstantial evidence for the ultimate proof of copyright infringement, but the Court
need not decide that here.
7The Court uses the word “attempt” here because it is not clear from the declaration
whether the investigator ever downloaded a complete version of the file or instead simply
joined the swarm just long enough to download a “part” of the file and then identify the IP
addresses of the Does. See 5/7/13 Padewet Decl. ¶¶ 23-25 (admitting that Copyright
Defenders would only download a “part” of the file).

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granted. As a formal matter, reFX’s motion to compel [R. 15 (No. 13 C 01793)] and
AT&T’s motion to quash [R. 36 (No. 13 C 01793)] are therefore denied as moot.
Practically, though, because reFX has not demonstrated that the Does in these four
lawsuits are properly joined, the non-party subpoenas pending in all of these
lawsuits will not be issued. By April 7, 2014, reFX may file amended complaints in
each of these lawsuits that plausibly allege claims for relief that are properly joined,
as defined by this opinion. Any Does that are sued in the current complaint but who
are not properly joined must not be sued as defendants in the amended complaint. A
status hearing in all of these cases is set for April 11, 2014, at 10 a.m.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: March 24, 2014

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