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Only the Westlaw Citation Is Currently Available Page 1 --- F.3d ----, 2014 WL 2178839 (C.A.D.C.) (Cite as: 2014 WL 2178839 (C.A.D.C.)) sue the overwhelming majority of un- Only the Westlaw citation is currently named defendants that the owner claimed available. illegally shared a pornographic film, and thus the owner's subpoena for informa- United States Court of Appeals, tion about the identity of the defendants District of Columbia Circuit. from nonparty internet service providers AF HOLDINGS, LLC, Appellee (ISPs) was unduly burdensome, where v. the applicable long-arm statute would DOES 1–1058, Appellees only extend to residents of or downloads Cox Communications, Inc., et al., Appel- within the forum, and the owner made no lants. effect to limit its discovery to such indi- viduals. Fed.Rules Civ.Proc.Rule No. 12–7135. 26(b)(1), 28 U.S.C.A.; Fed.Rules Argued April 14, 2014. Civ.Proc.Rule 45, 28 U.S.C.A.; D.C. Of- Decided May 27, 2014. ficial Code, 2001 Ed. § 13–423(3, 4). Background: Copyright owner brought [2] Witnesses 410 16 infringement action, alleging that 1,058 unknown individuals used a peer-to-peer 410 Witnesses file-sharing application to download and 410I In General distribute the owner's copyrighted movie. 410k16 k. Subpoena Duces Tecum. The United States District Court for the Most Cited Cases District of Columbia, Beryl A. Howell, J., If a subpoena compels disclosure of 286 F.R.D. 39, upheld subpoenas against information that is not properly discover- internet service providers (ISPs) requir- able, then the burden it imposes, however ing the ISPs to identify customers associ- slight, is necessarily undue. Fed.Rules ated with certain internet protocol (IP) Civ.Proc.Rule 45, 28 U.S.C.A. addresses. The District Court certified its order for immediate appeal. [3] Federal Civil Procedure 170A 1261 Holdings: The Court of Appeals, Tatel, Circuit Judge, held that: 170A Federal Civil Procedure (1) discovery sought from the ISPs was 170AX Depositions and Discovery unduly burdensome, and 170AX(A) In General (2) joinder of the unknown individual as 170Ak1261 k. In General. Most defendants was improper. Cited Cases A district court's discretion to order Order vacated and remanded. discovery when no party has been spe- cifically named as a defendant is cabined West Headnotes by requirements that a discovery order be [1] Witnesses 410 16 for good cause and relate to a matter rel- evant to the subject matter involved in the 410 Witnesses action. Fed.Rules Civ.Proc.Rule 26(b)(1), 410I In General 28 U.S.C.A. 410k16 k. Subpoena Duces Tecum. [4] Federal Civil Procedure 170A Most Cited Cases A copyright owner did not have a 1275.5 good faith belief that it could successfully © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 --- F.3d ----, 2014 WL 2178839 (C.A.D.C.) (Cite as: 2014 WL 2178839 (C.A.D.C.)) 170A Federal Civil Procedure as defendants in the owner of the film's 170AX Depositions and Discovery copyright infringement action, in the ab- 170AX(A) In General sence of any evidence that the users parti- 170Ak1275.5 k. Jurisdictional cipated in downloading and sharing the Discovery. Most Cited Cases film at the same time. Fed.Rules A plaintiff pursuing jurisdictional dis- Civ.Proc.Rule 20(a)(2), 28 U.S.C.A. covery regarding unknown defendants must have at least a good faith belief that [7] Federal Civil Procedure 170A such discovery will enable it to show that 241 the court has personal jurisdiction over 170A Federal Civil Procedure the defendants. Fed.Rules Civ.Proc.Rule 170AII Parties 26(b)(1), 28 U.S.C.A. 170AII(F) Permissive Joinder [5] Copyrights and Intellectual Prop- 170AII(F)1 In General erty 99 79(3) 170Ak241 k. In General. Most Cited Cases 99 Copyrights and Intellectual Property Simply committing the same type of 99I Copyrights violation in the same way does not link 99I(J) Infringement defendants together for the purposes of 99I(J)2 Remedies permissive joinder of parties. Fed.Rules 99k72 Actions for Infringe- Civ.Proc.Rule 20(a)(2), 28 U.S.C.A. ment 99k79 Jurisdiction and Appeal from the United States District Venue Court for the District of Columbia (No. 99k79(3) k. Venue. 1:12–cv–00048).Benjamin J. Fox argued Most Cited Cases the cause for appellants. With him on the Under the statute governing venue in briefs were Deanne E. Maynard, Bart W. copyright actions, the propriety of venue Huffman, Hugh S. Balsam, John D. Seiv- turns on whether the defendant is subject er, Ronald G. London, Leslie G. Moylan, to personal jurisdiction. 28 U.S.C.A. § and Lisa B. Zycherman. Marc A. Hearron 1400(a). entered an appearance. [6] Copyrights and Intellectual Prop- Corynne McSherry argued the cause for erty 99 81 amici curiae Electronic Frontier Founda- 99 Copyrights and Intellectual Property tion, et al. in support of appellants. On 99I Copyrights the brief were Mitchell L. Stoltz, Arthur 99I(J) Infringement B. Spitzer, Catherine Crump, and Paul 99I(J)2 Remedies Alan Levy. 99k72 Actions for Infringe- Paul A. Dufy argued the cause and filed ment the brief for appellee AF Holdings, LLC. 99k81 k. Parties. Most Cited Cases Users of a file-sharing service who al- Before TATEL, Circuit Judge, and SIL- legedly downloaded and shared a porno- BERMAN and SENTELLE, Senior Cir- graphic film over five months were un- cuit Judges. likely to have had any interaction with one another, and thus the users did not participate in the same series of transac- Opinion for the Court filed by Circuit tions as would permit joinder of the users Judge TATEL. © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 --- F.3d ----, 2014 WL 2178839 (C.A.D.C.) (Cite as: 2014 WL 2178839 (C.A.D.C.)) TATEL, Circuit Judge: Holdings,” acquired “several copyrights *1 Generally speaking, our federal ju- to pornographic movies,” then initiated dicial system and the procedural rules massive “John Doe” copyright infringe- that govern it work well, allowing parties ment lawsuits. Id. at *5–6. These suits to resolve their disputes with one another took advantage of judicial discovery pro- fairly and efficiently. But sometimes in- cedures in order to identify persons who dividuals seek to manipulate judicial pro- might possibly have downloaded certain cedures to serve their own improper ends. pornographic films. Such individuals, al- This case calls upon us to evaluate—and though generally able to use the Internet put a stop to—one litigant's attempt to do anonymously, are, like all Internet users, just that. linked to particular Internet Protocol (IP) addresses, a series of numbers assigned to I. each Internet service subscriber. Internet Appellee AF Holdings, a limited liab- service providers like Appellants can use ility company formed in the Caribbean is- IP addresses to identify these underlying lands of Saint Kitts and Nevis, sued and subscribers, but not necessarily the indi- then sought discovery regarding more viduals actually accessing the Internet than a thousand unknown individuals through the subscribers' connections at who it claimed had illegally shared a any given time. Confronted with these copyrighted pornographic film. This in- realities, Prenda Law's general approach terlocutory appeal arises from a district was to identify certain unknown persons court order granting AF Holdings's dis- whose IP addresses were used to down- covery requests. load pornographic films, sue them in gi- gantic multi-defendant suits that minim- A full understanding of this case re- ized filing fees, discover the identities of quires knowing some things about the the persons to whom these IP address lawyer and “law firm” that initiated it. were assigned by serving subpoenas on AF Holdings is represented by attorney the Internet service providers to which Paul A. Duffy. Until very recently, Duffy the addresses pertained, then negotiate was associated with “Prenda Law,” an or- settlements with the underlying sub- ganization that, since representing AF scribers—a “strategy [that] was highly Holdings in the district court, appears to successful because of statutory-copyright have disbanded and then reconstituted it- damages, the pornographic subject mat- self in a similar form. See Ben Jones, ter, and the high cost of litigation.” Id. at Prenda Suffers More Fee Award Blows, *6–7; see also Claire Suddath, Prenda TorrentFreak (August 9, 2013), ht- Law, the Porn Copyright Trolls, tp://torrentfreak.com/prenda–suffers–mor Bloomberg Businessweek (May 30, e–fee–award–blows–130809. 2013), ht- Prenda Law, as Judge Otis Wright II tp://www.businessweek.com/articles/201 put it in a case similar to this, was a 3–05–30/prenda-law-the-porn-copyright-t “porno-trolling collective.” Ingenuity 13 rolls (recounting Prenda Law's history LLC v. John Doe, No. 2:12–cv–8333, and litigation tactics). If an identified de- 2013 U.S. Dist. LEXIS 64564, at *3 fendant sought to actually litigate, Prenda (C.D.Cal. May 6, 2013). According to Law would simply dismiss the case. See Judge Wright, Duffy and the other prin- Ingenuity 13 LLC, 2013 U.S. Dist. LEXIS cipals of Prenda Law were “attorneys 64564, at *6–7. As Duffy acknowledged with shattered law practices” who, at oral argument, of the more than one “[s]eeking easy money, ... formed ... AF hundred cases that AF Holdings has initi- ated, none has proceeded to trial or resul- © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 --- F.3d ----, 2014 WL 2178839 (C.A.D.C.) (Cite as: 2014 WL 2178839 (C.A.D.C.)) ted in any judgment in its favor other Doe(s), No.
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