Four more decisions from U.S. District Judge Beryl Howell, thousands more disappointed "John Doe" defendants. Welcome to Washington, DCT (District of Copyright Trolls)!
To paraphrase Chief Brody, they’re gonna need a bigger courtroom down at the U.S. District Court for the District of Columbia. That’s because Judge Beryl Howell has been at it again. As we reported last month, in March Judge Howell hung out the welcome sign in a big way for plaintiffs seeking to bring “John Doe” lawsuits alleging copyright infringements by 1,000+ unnamed defendants. And now she’s issued four more similar decisions in cases with as many as 5,000 defendants! (Check them out here, here, here and here.)
Welcome to D.C., your go-to spot for BitTorrent litigation. Troll out the red carpet!
We’ve described the SOP of copyright trolls before (here and here). Judge Howell’s latest additions to the troll jurisprudence confirm her commitment to the view that troll-plaintiffs using that SOP are pretty much entitled to the identities of the folks associated with the IP addresses relied on to get the litigation started. In other words, when a troll-plaintiff subpoenas ISPs looking for defendants’ identities, challenges to those subpoenas don’t stand much chance, whether the challenges are based on personal jurisdiction, joinder or First Amendment arguments. Instead, such challenges can be made only after the defendant’s identity has been coughed up. But since the revelation of their identities is precisely what many defendants hope to avoid in such cases – to keep their names from being associated with downloading seemingly racy fare (like “Stripper Academy”, or worse) – Judge Howell’s position gives the troll-plaintiffs considerable leverage for settlement purposes.
(Note, though, that not all John Doe infringement suits involve seemingly sleazy movies. One of Judge Howell’s latest decisions involves allegedly infringing downloads of the critically-acclaimed Oscar® winner, The Hurt Locker.)
In her decisions, Judge Howell rejects arguments presented by slews of defendants seeking to keep the lid on their identities in the face of plaintiffs’ subpoenas. The defendants claimed variously that: they never downloaded anything; they didn’t do anything illegal; they’re entitled to remain anonymous; the court lacks personal jurisdiction over the defendants; etc., etc. – the same arguments the Judge rejected in her decision last March.
While her rationale on the joinder and jurisdiction issues tracks her earlier order, her latest opinions break some new ground on other issues. In response to defendants’ claims that they have not engaged in any infringement and thus need not be identified, Judge Howell says, in effect, “so what?” As she sees it, whether or not any defendant infringed the work is an issue for later, after the defendant had been identified (and, presumably, deposed). A “general denial of liability” is not a basis for “preventing the plaintiff from obtaining the putative defendants’ identifying information”.
Similarly, claims of protected privacy are immaterial because “whatever asserted First Amendment right to anonymity the putative defendants may have in this context does not shield them from allegations of copyright infringement.” Judge Howell also opines (in rejecting a request for a protective order) that any right to anonymity in the context of BitTorrent activity is minimal and outweighed by the plaintiff’s need to get the defendant’s identifying information in order to protect its copyrights.
Finally, as Judge Howell sees it, any claims of “undue burden” would apply only to the ISP – which would have to do the heavy lifting of matching up IP addresses with names and street addresses – not to the individual defendant, who essentially doesn’t have to do anything to “respond” to the subpoena.
These cases aggravate the unevenness of the already uneven playing field in this kind of John Doe copyright infringement litigation. Reiterating that I hold no love for copyright infringers, I do believe in strong Due Process protections, especially when those protections are invoked in furtherance of First Amendment values. Even if a BitTorrent user’s First Amendment rights may seem minimal to some, those rights do not evaporate entirely. An important component of traditional First Amendment protection lies in procedural measures that require plaintiffs to clear certain hurdles before a suit can go forward.
For my money, Judge Howell’s rulings have written these hurdles out of the law as far as John Doe copyright cases go. In Judge Howell’s view, a plaintiff will apparently be allowed to bring a single suit to be heard in a single court against thousands of people who have only the barest connection to each other or to that court’s jurisdiction. Those thousands of defendants will then be effectively forced, regardless of their claimed innocence, to opt for a de facto admission of guilt through settlement simply because that’s cheaper than paying the costs – attorney’s fees, travel, etc. – required to defend themselves in court. The approach that pervades Judge Howell’s decisions reflects a reversal of traditional presumptions, a “guilty of infringement until proven innocent” mindset that absolutely horrifies me.
So in case any troll-plaintiffs looking for a place to sue thousands of John Doe defendants missed Judge Howell’s March order, she has now reinforced the message in spades: the U.S. District Court in D.C. will welcome your business. But let’s hope that none of those cases go to trial, since the available courtrooms aren’t set up to accommodate 5,000+ litigants at a time.
[One final note: This blogger is aware of claims advanced elsewhere (and referenced by at least one person who commented on my post about Judge Howell’s March decision) that the Judge may hold a longstanding bias in favor of the copyright holders. I want to state emphatically that I do not endorse such claims and have seen no conclusive evidence to support them.]