Comcast, Verizon and Co. Stop Mass Piracy Lawsuits on Appeal

[Ernesto]

Two years ago district court Judge Beryl Howell, a former RIAA lobbyist, granted adult movie company AF Holdings the right to obtain the personal details of more than 1,000 Internet users suspected of downloading their works using BitTorrent.

The verdict was a big win for the porn studio and its controversial law firm Prenda, since many other judges had previously rejected joining so many defendants in one lawsuit. The ruling would allow copyright holders to sue large groups of alleged pirates who may have never interacted, or even lived near the district they were being sued in.

The ISPs were not happy with Howell’s ruling and Comcast, Verizon, AT&T, Time Warner and Cox filed an appeal. The providers hoped to reverse the earlier ruling and stop copyright trolls from targeting hundreds of defendants in a single lawsuit.

The ISPs were joined in their efforts by several citizen rights groups including EFF, American Civil Liberties Union and Public Knowledge, who all argued that the mass-lawsuits should be struck down.

Yesterday, nearly two years after the original ruling, Court of Appeals Judge David Tatel finally came to a decision. The verdict is a clear win for the providers and concludes that AF Holdings and Prenda’s mass-lawsuits are an abuse of the judicial process.

“Sometimes individuals seek to manipulate judicial procedures to serve their own improper ends. This case calls upon us to evaluate—and put a stop to—one litigant’s attempt to do just that,” the Judge begins.

One of the issues at stake was that of personal jurisdiction. According to Judge Tatel the evidence made it clear that the porn company had no real intention of pursuing cases again all these defendants, not least because many do not live in the District of Columbia.

“We think it quite obvious that AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district,” Judge Tatel writes.

“In seeking such information, AF Holdings clearly abused the discovery process,” he adds.

The same reasoning also applies to the issue of venue, with the Judge noting that it’s improper to lump together hundreds of IP-addresses from people scattered all over the country.

Finally, Judge Tatel looked at the joinder issue. While he doesn’t define any clear rules, the verdict makes it clear that adding hundreds of BitTorrent users in one suit because they downloaded the same file is not sufficient. Especially when there’s no indication that they ever exchanged files with each other.

“AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time. Instead, it has simply set forth snapshots of a precise moment in which each of these 1,058 Does allegedly shared the copyrighted work—snapshots that span a period of nearly five months.”

To illustrate the issue, Judge Tatel uses a blackjack analogy that was brought up by one of the citizens’ rights group counsels.

“To paraphrase an analogy offered by amicus counsel at oral argument, two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times. They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions.”

All in all the ruling makes it clear that the copyright troll tactic of suing hundreds of individuals without showing that they are connected and living in the district they are being sued in, is a no go. While it doesn’t sent any strict rules on when a case is appropriate, and when not, it can be seen as a “crushing blow” for copyright trolls.

Most importantly is that the Internet providers, and the various groups that joined the case, have prevented worse. If the previous ruling would have held up copyright trolling would have been made much easier and more lucrative than it is today.


Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.


Originally Published: Wed, 28 May 2014 09:03:26 +0000
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[Mike]

As we've been covering the Prenda debacle for years, there was still the one big "victory" it had, in which a DC district court judge ruled that randomly lumping together over a thousand unrelated "Does" was perfectly legitimate, something most other courts had found to be inappropriate. Of course, people quickly figured out that the judge who found in favor of this bizarre joinder ruling, had only recently been appointed to the bench, having previously been an RIAA lobbyist, and who, years earlier, had helped write the DMCA as a Congressional staffer.

That case made its way slowly through the appeals process, and earlier today, the DC Circuit appeals court overturned the ruling, highlighting a bunch of Prenda's bad behavior, but (perhaps more importantly) pointing out that the subpoenas for information on these 1,000+ Does was clearly inappropriate, first because almost none of the Does appeared to live in Washington DC, and thus were outside the court's jurisdiction. Prenda/AF Holdings complete failure to do anything even remotely close to figuring out if people might be located in DC was pretty damning here:

Federal Rules of Civil Procedure 45 and 26 set forth the relevant considerations. Rule 45(d)(3)(A) requires a district court to “quash or modify a subpoena that . . . subjects a person to undue burden.” If a subpoena compels disclosure of information that is not properly discoverable, then the burden it imposes, however slight, is necessarily undue: why require a party to produce information the requesting party has no right to obtain?

And, here, the court certainly finds the discovery attempts to be "undue," because AF Holdings/Prenda could show no good faith belief that they were going after information relevant to a lawsuit in that court.

Here, we think it quite obvious that AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district. AF Holdings concedes that under the District of Columbia’s long-arm statute, which along with the Due Process Clause governs this question... the only conceivable way that personal jurisdiction might properly be exercised over these Doe defendants is if they are residents of the District of Columbia or at least downloaded the copyrighted work in the District.... But AF Holdings has made absolutely no effort to limit its suit or its discovery efforts to those defendants who might live or have downloaded Popular Demand in the District of Columbia. Instead, it sought to subpoena Internet service providers that provide no service at all in the District. As Duffy reluctantly conceded at oral argument, AF Holdings could have no legitimate reason for objecting to the court’s quashing the subpoenas directed at these providers.... Even for those providers that do serve the District of Columbia, AF Holdings’s discovery demands were overbroad because it made no attempt to limit its inquiry to those subscribers who might actually be located in the District. It could have easily done so using what are known as geolocation services, which enable anyone to estimate the location of Internet users based on their IP addresses. Such services cost very little or are even free.

The court notes that Prenda's failure to do even the most basic things to limit discovery raises questions about its motives:

Given AF Holdings’s failure to take even these minimal steps, we cannot escape the conclusion that it sought the vast majority of this information for reasons unrelated to its pursuit of this particular lawsuit.... . Indeed, Duffy essentially admitted as much at oral argument, stating that if, as appears to be the case, 399 of Comcast’s 400 identified subscribers were found to live outside the District, “the 399 likely wouldn’t be named as defendants in this case.”

The court then checks in on the big question of "joinder" -- and whether or not it's appropriate to lump together over 1,000 totally unrelated individuals in one of these copyright trolling lawsuits. Like most courts to date, but unlike Judge Howell, the appeals court sees how problematic this is.

We are unconvinced. For purposes of this case, we may assume that two individuals who participate in the same swarm at the same time are part of the same series of transactions within the meaning of Rule 20(a)(2). In that circumstance, the individuals might well be actively sharing a file with one another, uploading and downloading pieces of the copyrighted work from the other members of the swarm.

But AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time. Instead, it has simply set forth snapshots of a precise moment in which each of these 1,058 Does allegedly shared the copyrighted work—snapshots that span a period of nearly five months. Two individuals who downloaded the same file five months apart are exceedingly unlikely to have had any interaction with one another whatsoever. Their only relationship is that they used the same protocol to access the same work. To paraphrase an analogy offered by amicus counsel at oral argument, two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times. They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions.... We therefore agree with those district courts that have concluded that the mere fact that two defendants accessed the same file through BitTorrent provides an insufficient basis for joinder.

It's nice to see that the court picked up on many of the amicus arguments made by EFF, ACLU, Public Knowledge and Public Citizen.

Oh, and, in case you're wondering about all the other stuff, such as the Alan Cooper forgery, the court notes those allegations, while saying they are unrelated to the issues here, but, at the very end, in sending the case back to the district court, tosses this in:

Accordingly, we vacate the district court’s order and remand for further proceedings consistent with this opinion. We leave it to the district court to determine what sanctions, if any, are warranted for AF Holdings’s use of a possible forgery in support of its claim.

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