Law, Technology & Arts Blog

AF Holdings v. Does: Copyright Trolls Lose Battle to Porn Pirates and ISPs

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By Max Burke

The D.C. Circuit dealt a blow to copyright trolls last Tuesday when it vacated the district court’s order for discovery in AF Holdings v. Does. The case, which was filed about two years ago, lists over 1,000 “Doe” defendants who are suspected of downloading AF Holdings’ pornographic films without permission. In an attempt to identify the unknown defendants, AF Holdings motioned the district court to compel Internet service providers (ISPs) to turn over the defendants’ personal information. The court granted the motion.

The ISPs, which include Comcast and Verizon, appealed the court’s order, arguing that the court lacked personal jurisdiction over the defendants, the venue was improper, and the defendants could not properly be joined together. The ISPs were mainly concerned that the order would allow AF Holdings to evade normal judicial procedures and unfairly leverage the defendants. Specifically, they believed the information sought would be used “to compile a contact list for Plaintiff to demand ‘settlement’ payments (typically ranging from $2,000-$4,000) from each subscriber . . . before any defendant is named or served in the lawsuits.”

AF Holdings has used this tactic before. Indeed, it and the related (but now defunct) Prenda Law group have filed hundreds of similar “trolling” cases over the years. As the Circuit Court explained in its opinion, Prenda and AF Holdings would employ a strategy similar to the one used here, often with great success. None of the cases have “proceeded to trial or resulted in any judgment in the Plaintiff’s favor other than by default.” Fed up with Prenda’s methods, numerous courts have sanctioned Prenda and its attorneys. One of those attorneys, Paul A. Duffy, represents AF Holdings in this case.

Here, the Circuit Court began its opinion by admonishing the Plaintiff, stating that the “case calls upon us to … put a stop to” the litigant’s attempt “to manipulate judicial procedures to serve [its] own improper ends.” The court then addressed the ISPs’ three main legal arguments. In regards to personal jurisdiction and venue, the court held that a plaintiff pursuing discovery of this sort must have “a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendants. Absent such a threshold showing, there is little reason to believe that the information sought will be relevant to the subject matter involved in the action.” The court found that AF Holdings “could not possibly” have had such a good faith belief because most of the Does clearly did not reside in the District of Columbia. The court believed that the true intention of AF Holdings’ discovery request was to gather information for use outside of the present lawsuit. Accordingly, the district court erred in allowing such discovery.

The court then turned to the issue of joinder. Quoting Federal Rule of Civil Procedure 20, the court stated that multiple defendants can be joined when their actions arise out of the same transaction or occurrence. The court did not buy AF Holdings’ argument that those who download the same file (via the file-sharing protocol BitTorrent) are a part of the same transaction. Rather, “two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times …. [They have] engaged in entirely separate transactions.”

Although the case is not shut yet—it has been remanded to the district court—the Circuit Court’s decision is the ringing of the death knell for this particular action. Of course, AF Holdings can still sue the Does in the jurisdictions in which they actually reside, but its task has certainly been made more difficult.

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