The below originally appeared in the Daily Journal.

The past year has seen the emergence of a new litigation strategy that poses particular challenges for the federal courts: mass copyright litigation. Over 130 mass copyright cases – i.e., copyright infringement cases joining together hundreds and often thousands of Doe defendants at once - have been filed in just the last 15 months in federal district courts across the country, targeting over 135,000 people. These cases involve significant and substantive early, ex parte activity before the individual defendants are even aware of the litigation, much less in a position to respond. Yet even at this early stage, these cases raise fundamental due process concerns. While there has yet to develop a body of published case law about the novel issues raised by the mass copyright cases, a growing body of largely unpublished judicial decisions can help both courts and attorneys handling them, whether on behalf of an ISP (Internet service provider) or on behalf of a defendant.

The cases generally follow the same path. A complaint is filed against hundreds or thousands of unnamed “John Does,” usually involving a single claim of copyright infringement over a single copyrighted work. The cases are brought in the jurisdiction where the plaintiff’s attorney is located, while the defendants are ordinary Internet users scattered across the country. The copyrighted works are usually “independent” movies or pornographic films. One title, for instance, is “Nude Nuns with Big Guns”; others have titles even less safe for work. Immediately after filing, the plaintiff moves for leave to issue early subpoenas to the ISPs of the defendants in order to obtain their identifying information .

If leave is granted and the information obtained, plaintiffs’ attorneys send demand letters to the now-identified individuals sued, giving them a stark choice: They can attempt to defend a suit in a far away court, risking liability up to $150,000 in copyright statutory damages plus attorney fees and costs. Or, they can pay a settlement in the $2,000-$5,000 range. Because the settlement amount is less than the cost of even a pro forma defense, and the downside risk of litigation is so great under copyright’s lopsided damages scheme, the pressure to settle rather than raise legitimate defenses is high. For those accused of infringing pornographic movies, many with gay themes, the prospect of being publicly named in a lawsuit is a further reason to settle quickly. Thus, a court’s decision granting leave to issue discovery often gives the plaintiffs in these cases the only remedy they really want: the ability to demand settlements from the Doe defendants.

So what does this mean for the courts and ISPs receiving the subpoenas? It means that judicial supervision over the early, ex parte stages of these mass copyright cases is critical.

Luckily, several district courts have taken the time to review the questions raised in the ex parte phase, sometimes sua sponte and sometimes in response to concerns raised by ISPs or amicus briefs. The courts have addressed two main concerns rooted in due process: joinder and personal jurisdiction.

First, joinder. Courts in West Virginia, Texas and California have severed over 40,000 defendants from these cases on the grounds that they are not properly sued jointly. Rule 20 requires that, for parties to be joined in the same lawsuit, the claims against them must arise from a single transaction or a series of closely related transactions. The only thing linking the defendants in these cases is the use of a computer protocol, called BitTorrent, to allegedly infringe the same movie. As one court observed “[M]erely committing the same type of violation in the same way does not link defendants together for purposes of joinder.” Tellingly, only a handful of cases have been re-filed against individuals in the proper jurisdictions following these mass dismissals.

Second, lack of personal jurisdiction. This takes a bit of technical knowledge, but at bottom the concern is that plaintiffs have not met their burden of pleading specific facts sufficient to support the court’s exercise of personal jurisdiction over the defendants. In fact, the plaintiffs own filings normally demonstrate that personal jurisdiction over many of the thousands sued is lacking. This is because while the defendants initially are unnamed “John Does,” they are conditionally identified by an Internet Protocol (IP) address that plaintiffs’ allege was collected during its investigations of BitTorrent users. IP addresses are assigned to Internet users by the user’s ISP, then are used by Web sites and other places a person visits online to ensure that the information sought by the user is routed over the Internet to the user’s computer. Because it assigns the IP addresses to its customers, an ISP can usually connect a particular IP address to the customer using it at that time. Readily available free online tools allow an IP address to be tracked back to the ISP that is assigned to it, and that is how plaintiffs know which ISP to subpoena for which IP address.

Importantly, in addition to allowing the plaintiffs’ to identify the ISP to subpoena defendants, the IP address lookup also gives sufficient information to the plaintiffs to allow them to determine the location of the defendant, usually to within about 25 miles. This geolocation is generally sufficient to identify the judicial district where the defendant is located. So the process by which the plaintiff locates the relevant ISP is the same process by which it can discover the likely proper jurisdiction for the lawsuit. Yet the mass copyright cases continue to be brought not where the defendant (or even the plaintiff) is located, but rather where plaintiffs’ counsel is located, a strategic decision that greatly impacts the defendants’ ability to marshall a defense.

Indeed, a plaintiffs’ attorney in West Virginia recently brought six separate cases targeting thousands of customers of ISPs that did not even do business in West Virginia. In dismissing the case, the court admonished: “These amended complaints shall proceed only against Does with IP addresses of computers located within the State of West Virginia. According to testimony presented to the court, there is a publicly-available website that allows the plaintiff to determine the physical location of each Does’ computer at the time of the alleged copyright infringements.”

Amici are also concerned that courts have failed to apply the appropriate First Amendment test for revealing the identity of Internet users. This test, which has been applied in online copyright infringement cases as early as 2004, requires a careful balancing of the free speech interests of the defendant with the needs of the plaintiff and imposes a number of procedural and substantive obligations that help achieve that balance. Many of the mass copyright cases have failed to make those required showings.

While several courts have raised joinder and jurisdictional concerns, and many defendants have been dismissed based on them, at least one judge in the District Court for the District of Columbia, has ruled that the defendants suffer no due process concerns or harms until they are formally named in the litigation. Given the business model of pursuing settlements that are less than the cost of a defense, however, this ruling is troubling.

The explosion of these mass copyright cases raise novel issues for the courts. Moreover, given the pressure to settle created by the prospect of being named in and defending a copyright infringement suit involving pornographic works, often in a distant location, the initial decision to allow the identities of the accused to be revealed may be the only judicial decision made in the case. Judges presented with these lawsuits, and counsel for ISPs of the accused users, should carefully consider the due process issues raised by courts around the country, and take special care in considering whether to allow early discovery. Finally, this situation could be greatly helped by the issuance of some published decisions so that courts and litigants across the country can better draw upon the experience of others.

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