Steele Hansmeier, the antipiracy law firm that has been routinely hammered by judges in Illinois, is now getting hammered by judges in California. The firm has tried desperately to head off all the common objections to its mass file-sharing lawsuits over online porn, and has even taken to geolocating IP addresses before filing a lawsuit; its Hard Drive Productions case in California only went after 188 IP addresses that appeared to be located in the state. But the firm still had its entire case severed down to a single defendant last week.

Geolocation tools may help convince skeptical judges that a lawsuit is more than a national fishing expedition, one mainly targeting people outside a court's personal jurisdiction. (Judges in other jurisdictions have expressed annoyance such tools weren't first used to winnow the list of IP addresses.) But P2P lawsuits have other problems, including the fact that they generally "join" people who have little in common except for a taste in digital porn (in this case "Amateur Allure - Erin"). And increasingly savvy judges are now parsing claims about BitTorrent with a scholar's eye to see if these defendants really should be linked.

"The court remains unpersuaded that the peer-to-peer architecture of the BitTorrent technology justifies the joinder of otherwise unrelated defendants in a single action," wrote (PDF) federal Magistrate Judge Joseph Spero last week before launching into a detailed analysis of how BitTorrent "swarm" activity might be mapped to existing legal notions about "acting in concert":

First, the Hansmeier declaration [about BitTorrent technology] argues at length about the "concerted activity" within a given swarm. Presumably he does so in response to the concern highlighted by Judge Ryu that users in different swarms have nothing in common other than downloading the same work, which as this court and others have noted is insufficient under our precedent. But the Hansmeier declaration itself offers overwhelming evidence that the IP addresses were in fact gathered from multiple swarms. Second, even if the IP addresses at issue in this motion all came from a single swarm, there is no evidence to suggest that each of the addresses "acted in concert" with all of the others. In fact, the nearly six-week span covering the activity associated with each of the addresses calls into question whether there was ever common activity linking the addresses in this case. In this age of instant digital gratification, it is difficult to imagine, let alone believe, that an alleged infringer of the copyrighted work would patiently wait six weeks to collect the bits of the work necessary to watch the work as a whole. At the very least, there is no proof that bits from each of these addresses were ever assembled into a single swarm. As the court previously explained, under this court's precedent regarding other file sharing protocols, merely infringing the same copyrighted work over this period is not enough. Finally, nothing in the BitTorrent architecture changes the fact that each defendant also will likely have a different defense.

This last point, a thoroughly practical rather than theoretical one, carried real weight with Spero. Even if all users were in his state, and even if they were all part of the same swarm, he still wasn't going to let them all be joined into a monolithic case.

The Court finds that permissive joinder of the Doe Defendants does not comport with the “notions of fundamental fairness,” and that it will likely cause prejudice to the putative defendants. The joinder would result in numerous hurdles that would prejudice the defendants. For example, even though they may be separated by many miles and have nothing in common other than the use of BitTorrent, each defendant must serve each other with all pleadings - a significant burden when, as here, many of the defendants will be appearing pro se and may not be e-filers. Each defendant would have the right to be at each other defendant’s deposition - creating a thoroughly unmanageable situation. The courtroom proceedings would be unworkable - with each of the 188 Does having the opportunity to be present and address the court at each case management conference or other event. Finally, each defendant’s defense would, in effect, require a mini-trial.

Spero thus severed 187 defendants from the case; he noted that this approach has become common among California federal judges, making the Golden State an unpromising place to pursue P2P litigation en masse. Suing people remains an option, but one that has to be exercised on a case-by-case basis with all the filing fees and massive increase in paperwork that this entails.