May 25, 2015

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The End of a Brief Era: Recent Appellate Decisions in “Copyright Troll” Litigation

The onslaught of “copyright troll” litigation began only a few years ago, with lawsuits implicating hundreds or even thousands of “John Doe” defendants, who were identified by IP addresses with timestamps corresponding to alleged uses of BitTorrent services to share and download video content without authorization. Recently, federal appellate opinions confirmed growing consensus in district courts concerning this type of litigation.

These cases raised issues of jurisdiction, joinder, and potential abuses associated with the disclosure of personal information in response to subpoenas issued pursuant to expedited, ex parte discovery orders. In practice, claims rarely were litigated because plaintiff lawyers coerced settlements from subscribers who, regardless of whether they were using the Internet account at the specified time, may have wanted to avoid the expense and embarrassment associated with being accused of illegal downloads (typically of pornographic content with salacious titles). Once enough settlements were obtained, the cases were dismissed.

Subscribers, Internet service providers, and public interest organizations such as the Electronic Frontier Foundation pushed back. The courts began to require that the IP addresses in a given suit should be limited to those that could be geolocated to the forum (in the absence of any other method of determining the likely place of the defendants’ residence). They also decided that only one Doe (or a small number) should be sued at a time, and they began to impose other protective measures (such as court review of settlement communications and/or Doe anonymity through the discovery period). Today the typical BitTorrent copyright infringement lawsuit is only brought against a single Doe defendant who is believed to reside in the forum.

Federal appellate courts have finally had the opportunity to address these cases and the zeal of plaintiffs’ counsel in pursuing them.

On May 27, 2014, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion in a case that implicated over 1,000 putative “John Doe” defendants from across the country. The appellate court vacated an order of the district court, holding that issues of personal jurisdiction and venue could be raised by ISPs in response to the plaintiff’s subpoenas. Such issues normally should be raised by the defendants themselves, but “[d]ifferent principles apply where, as here, a plaintiff seeks not just to file a complaint, but instead attempts to use the machinery of the courts to force a party to comply with its discovery demands … why require a party to produce information the requesting party has no right to obtain?” If the subpoena is improper, “the burden it imposes, however slight, is necessarily undue.” The D.C. Circuit’s opinion makes clear that a plaintiff must have a good faith basis for contending that personal jurisdiction and venue are proper when filing suit and that the practice of suing numerous “John Doe” defendants without regard to likely geolocation is patently improper.

The D.C. Circuit also addressed the issue of joinder of multiple members of a BitTorrent swarm in a single lawsuit – an issue as to which courts have reached a number of different conclusions (including that joinder of multiple defendants is never proper in the special circumstances of these cases). Here, the court found, “we may assume that two individuals who participate in the same swarm at the same time are part of the same series of transactions within the meaning of [the federal joinder rule].” Similar to players at a blackjack table at various times over the course of an evening, “the mere fact that two defendants accessed the same file through BitTorrent provides an insufficient basis for joinder.”

Then, on July 31, 2014, the U.S. Court of Appeals for the Seventh Circuit issued an opinion upholding a sanctions order and a related contempt order against several attorneys who were amongst the most active in filing these cases (all of whom were related at one time or the other to the same firm that prosecuted the D.C. case). The underlying litigation was a “hacking” case involving pornographic website content and implicating over 6,000 subscribers – so-called “co-conspirators” – located across the country. Early on, a group of ISPs had challenged the plaintiff’s subpoenas and obtained extraordinary relief from the Illinois Supreme Court, ordering that the subpoenas be quashed. Instead of moving on, though, the plaintiff named a defendant and then also sued the ISPs as co-conspirators. The ISPs removed the case to federal court, where the plaintiff brazenly sought the very same discovery that the Illinois Supreme Court had already ruled improper.

After some motion practice and, eventually, a voluntary dismissal by the plaintiff, the federal district court found that the case against the named defendant “smacked of bullying pretense” and that an award of attorneys’ fees incurred by the named defendant and by the ISPs was proper under 28 U.S.C. § 1927, which provides for sanctions against an attorney who “multiplies the proceedings in any case unreasonably and vexatiously.”

The Seventh Circuit wholeheartedly agreed. After discussing the history of the case and other findings in similar cases, the appellate court confirmed the groundless nature of the conspiracy claim against the ISPs (which the court noted was “all the more outrageous given the fact that the Illinois Supreme Court quashed a functionally identical abusive subpoena”) as well as the other claims asserted against the ISPs. With respect to the unjust enrichment claim, for example, the court noted:

To this day, the [sanctioned plaintiff attorneys] have provided no support for the idea that every time an internet user does something unlawful online, the user’s ISP is unjustly enriched because it continues receiving subscriber fees from the malefactor. The law in fact is to the contrary. See 17 U.S.C. § 512(a).


The use of BitTorrent and similar online services to infringe copyright is wrong. The “Digital Millenium Copyright Act” does not provide a good solution. But that does not excuse abuse of the legal system to extract “settlement” payments from thousands of Internet subscribers outside of the normal advocacy process, in cases with no actual defendants. Fortunately, by the time these two federal appellate courts reached the issues, district courts across the country had already learned what was really going on, and the ex parte, expedited discovery motions of the plaintiffs in these cases had become anything but routine.