Welcome mat for trolls put out by District Judge Howell in 2011 has now been yanked back by a Circuit panel.
More than four years ago we introduced our readers to the porn troll, a particularly insidious creature who engages in a form of blackmail under the guise of copyright enforcement. Within six months of that introduction, we reported that the trolls were riding high after a couple of significant victories before U.S. District Judge Beryl Howell in Washington, D.C.
What a difference a few years make! Last year we noted that a federal judge in California had swatted down a porn troll collective. [Blogmeister’s note: If you haven’t read Tony Lee’s post about that particular decision, you’re missing a true classic.] And we are now pleased to report that the U.S. Court of Appeals for the D.C. Circuit has reversed one of Judge Howell’s rulings. As a result, the porn troll business has just gotten considerably harder, which is good news.
And, perhaps even more heartening (at least for us lawyers who deplore porn troll practices) is the disdain for trolls that dripped from the court’s opinion.
If you need a refresher on the porn troll business, the D.C. Circuit’s Judge David Tatel has given us an opinion that should be required reading.
From the first paragraph, you know it won’t end well for the troll: Judge Tatel brands trolls as “individuals seek[ing] to manipulate judicial procedures to serve their own improper ends” and then tips us off to the end result (as if we needed any more tipping off) by saying that “[t]his case calls upon us to evaluate – and put a stop to – one litigant’s attempt to do just that.” Three sentences later he observes that a “full understanding of this case requires knowing some things about the lawyer and the ‘law firm’ that initiated it.” (Practice tip: When a judge refers to your law firm as a “law firm” in quotation marks, you can be reasonably sure that that’s not good news for you.)
The case in question involved a garden-variety porn troll scenario. The plaintiff, AF Holdings, is a company formed by “attorneys with shattered law practices”. (Practice tip: See practice tip, above). It supposedly bought the copyright to a pornographic movie, Popular Demand, and then searched for evidence that the movie had been downloaded through BitTorrent. That search generated a list of downloaders’ IP addresses. AF Holdings then brought a single lawsuit against 1,058 John Does identified only by their IP addresses.
The next step in the porn troll playbook is to subpoena various ISPs seeking the names and addresses of the individuals associated with the IP addresses. The goal seems to be not to litigate any of the cases – in fact, according to Judge Tatel, none of AF Holdings’s previous cases had ever gone to trial. Rather, the apparent goal is to send a message, directly or otherwise, to the downloading individuals that they are about to be publicly named as (alleged) downloaders of pornography. That then leads to settlement negotiations with the anonymous John Does who would understandably prefer not to have their names associated, on the public record, with pornography.
The strategy has been successful. Judge Tatel reports that, without having to litigate even one case, one porn troll company managed to make about $15 million in less than three years.
The strategy, of course, depends on the troll’s ability to get over a couple of hurdles in the early stages of the litigation. As we spelled out here, ISPs and John Does trying to get the cases dismissed have a number of arguments available. Unfortunately, as we spelled out here, at least some district court judges – including particularly Judge Howell (but not including Judge Wright) – weren’t especially receptive to those arguments.
Which is why the D.C. Circuit decision is especially encouraging.
The ISPs had argued to Judge Howell that, under the Federal Rules of Civil Procedure, having to cough up the names and addresses associated with the 1,058 IP addresses would impose an “undue burden”. Their reasoning: AF Holdings couldn’t establish personal jurisdiction in D.C. over all but a few of the John Doe defendants. Specifically, only 20 of the 188 Verizon subscribers could be traced to D.C., while only one Comcast subscriber appeared to live in D.C. and none of the others had D.C. ties. Nor, they argued, was there any valid reason to join all the defendants in one lawsuit.
Predictably, Judge Howell ruled for AF Holdings, although she allowed the ISPs to appeal her decision immediately (rather than wait until the end of the trial). And that led to Judge Tatel’s decision (in which Judges Laurence Silberman and David Sentelle joined).
In Tatel’s view, modern geolocating technology being what it is, AF Holdings could not possibly believe that the majority of the 1,058 John Doe defendants were subject to personal jurisdiction in the District of Columbia. Judge Tatel noted that for just eight bucks some geolocation services can review the location of 1,000 IP addresses and determine the city or cities in which the users associated with those addresses are located. By taking this “minimal” step, AF Holdings could have narrowed its initial filing to only those John Doe defendants with actual D.C. ties. By trying to use the discovery process to determine the identities of scads of individuals over whom the court did not have jurisdiction, AF Holdings “clearly abused the discovery process”.
He reached a similar conclusion with regard to the issue of joinder. The Federal Rules allow a plaintiff to target (or “join”) multiple defendants in a single suit as long as, among other factors, the claims against all of them involve “the same transaction, occurrence or series of transactions or occurrences”. AF Holdings claimed that the use of BitTorrent necessarily meant all the defendants were part of the same downloading/sharing “transaction”.
Judge Tatel disagreed. Instead, he borrowed from an opinion by Judge Harold Baer (of the U.S. District Court for the Southern District of New York), whose explanation of BitTorrent is the most understandable I’ve ever read:
BitTorrent and similar protocols break a large file into pieces while tagging each piece with a common identifier. Where in the normal course a user would download a file from a single source, and download it sequentially from beginning to end, with the BitTorrent peer-to-peer protocol, users join forces to simultaneously download and upload pieces of the file from and to each other. This reduces the bottleneck of Internet traffic that normally occurs at the server where the entire file is located and allows for faster download speeds for users. This interconnected web of information flowing between users, or peers, is called a swarm.
While agreeing that users who participate in the same swarm at the same time might be part of the same series of transactions, Tatel concluded that merely downloading or sharing the same movie at different times is not the same. He was particularly swayed by an analogy presented by amicus curiae Electronic Frontier Foundation: those downloading or sharing at different times were more akin to blackjack players playing at the same table, with the same dealer, albeit at different times. They’re simply not playing together.
Where does this leave us? For both ISPs and potential defendants, in a good place. For would-be trolls, not so much. The welcome mat that Judge Howell had put out at the front door of the U.S. District Court in D.C. now appears to have been removed. And since D.C. may have been the only court that still allowed trolls to engage in mass filing against multiple John Doe defendants, the loss of that option should discourage, if not stem altogether, further troll activity. After all, the porn troll business model is built largely on the troll’s ability to get into court with such mass filings without having to do any of the hard work of identifying specific defendants. Once in the courtroom door, the troll can merely raise the fear that defendants might be identified through the discovery process. That then allows the troll to threaten the “outing” of a defendant as an illegal downloader, often of a pornographic movie, which threat can then be leveraged into a quick settlement that the defendant agrees to only as a means of concealing his or her identity and good name.
Without the opportunity to file mass suits again bunches of “John Does”, the troll faces a considerably more discouraging, and likely less lucrative, range of options.
The courts, of course, remain available for legitimate copyright infringement actions against properly identified wrong-doers. But the D.C. Circuit, for one, has now clearly signaled to would-be trolls that they are not welcome in D.C.
