Because Meta was going to face the contributory infringement claim anyway, it would not prejudice Meta to require discovery on the issue so late in the class action, Chhabria wrote.
Further, “denying the motion to add the contributory infringement claim could potentially harm the interests of the proposed class members,” Chhabria said. If the class action proceeded without the claim, members would be barred from ever raising it, even if the Entrepreneur Media case ruling went against Meta, the judge noted.
“There is a serious concern that the interests of the absent class members would be harmed, through no fault of their own,” Chhabria wrote, while noting that he granted authors’ request “reluctantly.”
“On the flip side,” Chhabria said, adding the claim to the class action basically “meant that if the named plaintiffs obtained summary judgment and subsequently obtained class certification, proposed class members would know, when deciding whether to opt out of the class, that they had essentially already won.”
Chhabria’s ruling perhaps incentivizes Meta to dodge these claims as fast as possible. He noted that Meta faces no discovery in the class action “until plaintiffs can get past summary judgment on the distribution and contributory infringement claims.”
Moving forward, authors may feel somewhat more optimistic that they could get a partial win. Chhabria explained the standard for contributory infringement as a lower bar, proving that Meta was “facilitating copyright infringement by third parties by uploading protected works onto the torrenting network.”
Yet authors can’t be sure, since looming on the horizon, Meta is drafting a filing based on the Supreme Court ruling that could change the game.
Already Meta is seemingly willing to make any argument to escape consequences for torrenting. It’s continuing to argue that the number of works at dispute is a small fraction of the total data that was torrented. And it has even claimed that there’s no way to prove that Meta ever knew that torrenting required uploading.
However, if Meta loses at the summary judgment stage, authors are ready to argue that none of Meta’s internal discussions of torrenting should be privileged. If that discovery request is eventually granted, it could finally expose who exactly at Meta approved the torrenting and how well did they understand how BitTorrent works.