With decision from D.C. judge, copyright trolls may have found a new go-to jurisdiction

Score one for the trolls . . . the copyright trolls, that is. A recent preliminary decision by U.S. District Judge Beryl Howell may lead those trolls to funnel much if not most of their litigation through the U.S. District Court in Washington, D.C. Judge Howell’s decision will almost certainly make it easier for the trolls to pressure their defendants – including even purely blameless defendants – into pre-trial settlements favorable to the trolls.

Disclosure: I know Judge Howell. It’s not like we’re friends or anything, but I did meet her when she was working on FOIA legislation with the Senate Judiciary Committee. She’s extremely smart, well-intentioned and easy to work with.

But as the newest addition to the U.S. District Court in DC, she has certainly not endeared herself to those interested in First Amendment rights – which clearly includes me – with her recent ruling in Call of the Wild Movie, LLC, v. Does 1-1,062.

As you might guess from, say, the case title which identifies a gazillion defendants only as “John Does”, this case (actually, Howell’s decision involves three separate consolidated cases) was brought by copyright trolls. I described the general troll MO in a blog we posted last fall.

As I described there, the drill starts when the copyright holder of, say, a movie determines that the work has been shared on-line (through a service like BitTorrent). Normally, all that is known about the sharers is their IP addresses. But that’s enough to file a complaint, identifying the defendants as John Does. Once the complaint has been filed, the plaintiff (a/k/a copyright troll) asks the court for a subpoena directed to all the Internet Service Providers (ISPs) associated with the known IP addresses. The purpose of the subpoena is to get the ISPs to cough up the names and addresses associated with the IPs. Once the troll can thus identify individual defendants, it can start to pressure them into settling in order to avoid the time, hassle and potential embarrassment of a trial.

The ISP can move to quash the subpoena. More often than not, however, the ISP will simply notify its subscribers (i.e., the ones associated with the IP addresses listed in the complaint) that he or she will be identified to the plaintiffs unless the subscriber notifies the ISP that he or she has filed a motion to quash the subpoena. (Time Warner is a notable exception, having fought back in several cases). At this point, many subscribers surrender. They contact the plaintiff’s attorneys seeking simply to make the matter go away, in return, of course, for an appropriate payment to the plaintiff.  This plays right into the entire business model of the trolls – use the efficiency of mass litigation to grab as much low-hanging fruit as you can.

My knowledge of this issue has grown exponentially in recent months. At first, I noted (and tracked) the troll trend as an interesting, if irritating, development affecting two interests in my wheelhouse: First Amendment and intellectual property. But the troll lawsuits began to replicate like a virus. And I found myself in the middle of the fray, moving from interested observer to active counselor. I have advised some ISP clients on dealing with trolls’ subpoenas (move to quash? respond?). And I have represented individuals who were notified (by their ISPs) of subpoenas the individuals would need to move to quash. You could say we are now fully engaged in the copyright troll wars.

So I’m thankful to groups like the Electronic Frontier Foundation, Public Citizen and the American Civil Liberties Union. They have filed amicus briefs in many troll cases, arguing (among other things):

  • jurisdictional issues (with many John Doe defendants scattered around the country, it’s effectively impossible to determine that any particular court has personal jurisdiction over any of the defendants);
  • joinder issues (is it legally permissible to combine all defendants in a single action?)
  • First Amendment issues that should be resolved before the identification of John Does can be compelled.

The efforts of these groups have rebuffed many of the trolls. (We recently pointed out on our Twitter account (@CommLawBlog) that EFF was reporting that over 40,000 John Doe defendants were dismissed in a span of just a few weeks from cases brought in California, D.C., Illinois, Texas and West Virginia. Such victories are immensely helpful – any disruption in the smooth progression from mass filing to large scale settlement deters future litigation.

That brings us back to Judge Howell’s order, which does defendants no favors and, thus, should encourage the trolls.

The case itself isn’t unusual. The plaintiffs are movie studios whose works were downloaded and shared via BitTorrent programs. Per the usual drill, subpoenas were issued to various ISPs. Time Warner moved to quash the subpoenas, arguing that having to turn over all the requested identifying information would impose an undue burden and expense; alternatively, Time Warner asked for up to three years to respond. EFF, Public Citizen, the ACLU Foundation and the ACLU of the Nation’s Capitol filed an amicus brief in support of the defendants, arguing the jurisdiction, joinder and First Amendment issues.

Addressing Time Warner’s arguments, Judge Howell found that the subpoenas aren’t unspecific, undefined or unduly broad. While there are a large number (1,028 total) of subpoenas, they all seek basic information, which Time Warner appears to be able to provide, if slowly. (Time Warner contends it can produce only 28 IP addresses a month, which seems somewhat low when compared to the lookup/production rates of other ISPs that were entered into the record.)  In addition, plaintiffs offered to pay for extra staff to assist in the process.  In view of these and other factors, Judge Howell simply wasn’t convinced that Time Warner would be unduly burdened if forced to comply with the subpoena.

Unfortunately, the Judge similarly had no problems rejecting the amici’s arguments:

Joinder: Claims against a number of separate and distinct defendants can generally be joined if either (a) the claims arise from the same transaction or occurrence (or series of transactions or occurrences), or (b) a question of law or fact exists that is common to all the claims. The amici argued that the 1,000+ defendants were engaged in similar, but technically separate, conduct: they were at separate locations, using separate computers and not always interacting with each others.

Judge Howell disagreed. The nature of BitTorrent necessarily requires that every defendant is interacting with every other defendant. (Later users are really pulling little pieces from every prior user to speed up the download process – that’s my attempt at oversimplifying a BitTorrent explanation.)  In addition, the plaintiff must establish the same legal claims against every defendant. Judge Howell ruled that there would be no prejudice to any individual defendant because, at least at this point in the litigation, they will only be identified; they will not be required to respond or assert a defense until later (if at all). By contrast, this identification is essential to the plaintiffs’ ability to move their case forward.

Jurisdiction: The amici argued that each defendant must be sued in the jurisdiction in which he or she resides, as due process principles require. Judge Howell didn’t disagree, but instead held that this concern is better raised later in the process: each defendant will have ample opportunity to assert jurisdictional defects down the line.

First Amendment: The amici argued that the defendants’ use of BitTorrent constituted conduct protected by the First Amendment, assuring the defendants anonymity. Judge Howell acknowledged that BitTorrent users’ conduct is protected “expressive activity”. But she also found it entitled only to minimal protection because “the [defendants’] ultimate aim ‘is not to communicate a thought or convey an idea’ but to obtain movies and music for free”. The plaintiffs were able to overcome this minimal protection for a number of reasons: plaintiffs had made a prima facie claim of copyright infringement; they are (at this point in the litigation) making requests for specific information they can’t obtain otherwise; there is an overriding need for the information to resolve the case; and the defendants do not have a significant privacy interest, since Time Warner’s terms of service specifically preclude illegal infringing activity.

While other courts have declined to be completely persuaded by similar joinder/jurisdiction/First Amendment arguments, most have at least questioned the plaintiffs’ need for widespread discovery leading to the identification of these defendants. Judge Howell’s order is probably the strongest I’ve seen in favor of keeping all defendants as part of the same case through discovery.

Judge Howell’s decision has a number of important implications:

First, it plays right into the copyright trolls’ hands. Their business model is built upon efficiency and designed to force quick settlement. The sooner the troll can tie a particular, identified defendant to a particular instance of alleged infringement, the quicker the troll can squeeze that defendant for a pre-trial deal. (Selling points: avoid litigation hassles/costs, avoid embarrassment from having your name connected, rightly or wrongly, with unlawful downloading – especially if the material allegedly downloaded is (how do we say this politely?) unseemly.)

Any bump in the litigation road costs money and devalues the lawsuit, as far as the troll is concerned. Requiring the plaintiffs to sue individual defendants, or at least file lawsuits involving the same movie in every jurisdiction where a defendant is located, is a serious disincentive to these mass lawsuits.

I want to be clear on one thing: if an individual actually engages in copyright infringement, he or she needs to be held accountable.  Copyright infringement is not a “victimless crime”. It is a real, and increasingly common, violation of law that has a considerable economic impact.   But there is no reason to allow the legal process – and especially First Amendment and Due Process values – to be hijacked to redress these injuries.

But that’s what’s happening when Judge Howell says the amicis’ arguments can be deferred.   The result will be nearly irresistible pressure on a significant number of defendants to settle their cases before they are formally identified in court – even though they may have legitimate defenses to raise, including complete innocence.

Want an example? Imagine that you’re accused of downloading a pornographic title. You know you did not download this movie.  You have a wireless router that may not have been properly secured, or maybe it was hacked while you were out of the country. You can prove all of this. So you’re as sympathetic a defendant as possible. Prior to Judge Howell’s ruling, you would ordinarily not be subject to identification through ISP-directed subpoenas unless you were sued in your home court. But now you’re stripped of any of the pre-identification procedural defenses. Under no circumstance do you want your name publicly associated with a pornographic movie, even if the allegation can eventually be disproven – particularly because disproving it will require expensive and time-consuming litigation.

Given those circumstances, a defendant could easily conclude that the only acceptable alternative would be to settle (even if the plaintiff’s cash demand were inflated as a result of Judge Howell’s ruling). Again, I don’t want to exonerate the guilty, but I also don’t want to allow the threat of a kind of “outing” to serve as an undue pressure point on innocent people. Yet that’s what is really occurring here.

The second result of Judge Howell’s decision?  She and her colleagues will likely feel the full brunt of this decision in their own workloads. As noted earlier, tens of thousands of John Doe defendants have already been dismissed on procedural grounds in jurisdictions other than D.C.   I’m guessing that all of those cases, and lots more, will be funneled to the District Court here in the Nation’s Capital from here on out. Indeed, we’ve already seen one current case apparently involving a pornographic film (West Coast Productions v. Does 1-5,829) that followed that arc: initially a large portion of the defendants were severed from the case when it was filed in West Virginia because the defendants didn’t live there; the plaintiffs refiled against all non-West Virginia defendants in D.C., without regard to whether the remaining defendants all live in D.C. If that’s not evidence future plaintiffs will forum-shop to D.C., what is?

So Judge Howell (and her D.C. colleagues) may soon reap what she has sown.