15
work—snapshots that span a period of nearly five months.
Two individuals who downloaded the same file five months
apart are exceedingly unlikely to have had any interaction
with one another whatsoever. Their only relationship is that
they used the same protocol to access the same work. To
paraphrase an analogy offered by amicus counsel at oral
argument, two BitTorrent users who download the same file
months apart are like two individuals who play at the same
blackjack table at different times. They may have won the
same amount of money, employed the same strategy, and
perhaps even played with the same dealer, but they have still
engaged in entirely separate transactions. And “[s]imply
committing the same type of violation in the same way does
not link defendants together for the purposes of joinder.”
Hard Drive Productions,
Inc. v. Does
1-30, No. 2:11cv345,
2011 U.S. Dist. LEXIS 119333, at *7 (E.D. Va. 2011)
(internal quotation marks omitted). We therefore agree 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. See Malibu Media
LLC, 286 F.R.D. 113, 116 (D.D.C. 2012) (‘Nothing in the
complaint negates the inference that the downloads by the
various [Doe] defendants were discrete and separate acts that
took place at different times.’”) (quoting Digital Sins, Inc. v.
Does 1-245, No. 11 Civ. 8170, 2012 U.S. Dist. LEXIS
69286, at *6 (S.D.N.Y.
2012)); accord,
e.g., Patrick Collins,
Inc. v. Does 1-44, No. 8:12-cv-00020, 2012 U.S. Dist. LEXIS
47686, at *18 (D. Md. Apr. 4, 2012) (“A majority of courts
... have specifically held that the properties of BitTorrent are
insufficient to support joinder.”’); In re BitTorrent Adult Film
Copyright Infringement Cases, 296 F.R.D. 80, 90-91
(E.D.N.Y. 2012).
As with personal jurisdiction and venue, AF Holdings
could have brought a suit for which it had some reasonable
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