Chhabria wrote, because Meta was facing a contributory infringement claim anyway, this would not require Meta to pursue discovery on the issue so late in the class action.
Additionally, “denying a motion to add a contributory infringement claim could potentially harm the interests of proposed class members,” Chhabria said. The judge said that if the class action proceeds without a claim, members would be barred from ever bringing it up, even if the Entrepreneur Media case is decided against Meta.
“There is a serious concern that the interests of absent class members will be harmed through no fault of their own,” Chhabria wrote, while adding that he accepted the authors’ request “reluctantly.”
Chhabria said, “On the other hand, adding claims to a class action basically means that if the named plaintiff obtains summary judgment and later obtains class certification, the proposed class members will know, when deciding to withdraw from the class, that they have essentially already won.”
The Chhabria decision probably encourages Meta to move away from these claims as quickly as possible. He said Meta does not face any discovery in the class action “unless the plaintiffs receive final summary judgment on the distribution and contributory infringement claims.”
Going forward, the authors may feel a little more optimistic that they may get a partial victory. Chhabria explained the standard of contributory infringement as a lower bar, proving that Meta was “facilitating copyright infringement by third parties by uploading protected works to torrenting networks.”
Yet the authors can’t be too sure, as Meta is drafting a filing based on a Supreme Court decision in the near future that could change the game.
Meta is already ready to give any argument to avoid the consequences of torrenting. It continues to be argued that the number of works in question is a small fraction of the total data that was torrented. And it has even been claimed that there is no way to prove that Meta ever knew that torrenting required uploading.
However, if Meta loses at the summary judgment stage, the authors are prepared to argue that any internal discussions of Meta about torrenting should not be privileged. If that search request is ultimately granted, it could finally expose who actually approved torrenting in Meta and how well they understood how BitTorrent worked.
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