August 3, 2011 | By corynne mcsherry

Mass Copyright Litigation: Another Court Gets It Right

In a major blow to one of the most pernicious copyright trolls now operating, the US Copyright Group (USCG), federal judge Robert Wilkins of the District of Columbia has effectively dismissed thousands of Doe defendants due to lack of jurisdiction.

The ruling, which partially echoes arguments EFF has made in cases around the country, comes in a mass copyright case that was notable for just how very massive it was -- 23,322 Doe defendants. The plaintiff in the case, represented by USCG, is Nu Image, a California corporation that claims to own the rights to the movie "The Expendables." Following the normal protocol in these cases, Nu Image/USCG filed a copyright infringement complaint again anonymous BitTorrent users who had allegedly downloaded the movie, listing their supposed IP addresses, and then asked the court for permission to subpoena their identities. The court initially granted the request. Two months later, however, when it learned that Nu Image/USCG hadn't gotten around to issuing a single subpoena and that the vast majority of the defendants likely did not reside in D.C., the court ordered Nu Image/USCG to explain why the suit should proceed there.

Nu Image/USCG responded with the now-familiar theories that courts apply a liberal standard to "jurisdictional discovery" -- meaning, initial investigations to determine where a person can be sued -- and, besides, some of the Does who live outside DC might have committed infringement there. Not good enough, said the court:

The Court’s broad discretion includes imposing reasonable limitations on discovery, particularly where, as here, the Court has a duty to prevent undue burden, harassment, and expense of third parties. . . . Furthermore, while jurisdictional discovery is liberally granted, a plaintiff is not entitled to take it solely because he requests it—he still must make the requisite showing of good cause.

Hear, hear.

Applying a variety of standards, including a copyright-specific provision that ties jurisdiction to the residency of the defendant, the court concluded that Nu Image/USCG could not establish the court's jurisdiction over any defendant that did not reside in D.C. Therefore, Nu Image/USCG could issue subpoenas only where, using generally available geolocation services, it could determine that the defendant was likely to be located there.

Wryly observing that it understood that using single lawsuit as a vehicle to identify thousands of Does was "convenient" for Nu Image/USCG, the court noted that this approach put a significant burden on others -- including the court itself:

[T]he Court must take into account the delay and unproductive utilization of court resources in prosecuting this lawsuit if the Plaintiff is allowed to seek discovery with respect to all 23,322 putative defendants, only to result in the eventual dismissal of the vast majority of those John Does later when it is revealed that they are not District of Columbia residents.

Torrentfreak has run the numbers and concluded that just 84 of the IP addresses the plaintiffs originally submitted are likely to be connected to computers located in D.C. Thus, over 23,000 Does can breathe a sigh of relief.

Aside from the sheer number of Does affected, this decision is notable for two more reasons. First, it is based on jurisdiction. Most of the other decisions that have effectively dismissed the mass copyright cases have been based on improper joinder, or the idea that it is not fair to lump together hundreds or even thousands of people based solely on the allegation that they used the same software to share the same work (or group of works).

Second, it comes out of the District of Columbia which, due to some unfortunate legal decisions, like this one, has been perceived as a sympathetic venue for copyright trolls. This decision should help shift that perception, and fast.

It's great to see yet another federal judge recognize the problems with mass copyright litigation. Kudos to Judge Wilkins for refusing to allow USCG to play fast-and-loose with fundamental due process rights.


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