BitTorrent Copyright Trolls: A Deficiency in the Federal Rules of Civil Procedure?

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I. Who are Copyright Trolls? A. Copyright Troll Tactics II. Bittorrent and Peer-to-Peer Technology A. Traditional Downloads B. Peer-to-Peer File Transfers C. The Bittorrent Protocol III. Subpoenas A. Motion to Quash B. Motion For Protective Order IV. Joinder V. Personal Jurisdiction A. New York Long-Arm Statute Analysis 1. Defendant Committed a Tortious Act Outside of the State 2. The Cause of Action Arises from the Out-of State Tortious Act 3. The Act Caused Injury to a Person or Property within the State 4. Defendant Expected or Should Reasonably Have Expected the Act to Have Consequences in the State 5. Defendant Derived Substantial Revenue from Interstate or International Commerce B. Due Process Clause 1. Minimum Contacts 2. Traditional Notions of Fair Play and Substantial Justice 3. Burden on the Defendant C. Interests Of The Forum State 1. Plaintiffs Interest in Obtaining Relief 2. Interstate Judicial System's Interest in Obtaining the Most Efficient Resolution of Controversies. 3. Shared Interest of the Several States in Furthering Fundamental Substantive Social Policies Conclusion I. Who are Copyright Trolls? Who are trolls? Simply put, copyright are law firms, individual attorneys, or other organizations that acquire the of a particular work, usually a movie, and subsequently sue Internet users with the intent of extracting settlements using questionable legal tactics that border on extortion. (1) The tactics typically used by trolls involve infringement allegations against large groups of anonymous Doe defendants for the purpose of minimizing court costs, utilizing the incredibly high statutory damages in law to intimidate defendants, and causing them to settle quickly with little or no and without regard to innocence or guilt. (2) A. Copyright Troll Tactics Lawsuits initiated by trolls typically proceed along a common path. First, trolls work with companies that specialize in monitoring peer-to-peer file sharing networks such as those using the BitTorrent protocol. (3) These companies collect the IP address and timestamp data of anyone believed to be uploading or downloading the copyrighted material owned by the troll. (4) Once a troll obtains a list of IP addresses alleged infringers of its intellectual property rights, the next step is to find the people associated with those IP addresses. To accomplish this, the troll will file a lawsuit against a large group of Doe defendants. (5) By consolidating the defendants, the troll can save tens of thousands of dollars on court filing fees. (6) Subsequently, the troll secures a subpoena from the court ordering the Internet service provider (ISP) that serves the particular IP addresses to match the IP addresses with the actual individual subscribers. (7) Having obtained the subscriber names and other contact information of those accused of the infringement, the troll then sends out litigation demand letters to all of the accused infringers threatening a lawsuit that can result in a judgment of 150,000 dollars. (8) These demand letters typically require the accused to pay a settlement, typically an amount that is just shy of the cost of litigation, in return for a waiver of claims against them. (9) Because the settlement amount requested is typically similar to the cost the defendant would bear to retain an attorney and dispute the allegations, but without the guarantees of a relatively small monetary outlay, and expedient resolution of the matter, many defendants decide to simply settle. …