West Coast Prods., Inc. v. Does 1-1,434

• Decision Date: 06 August 2012
• Docket Number: Civil Action No. 11-55 (JEB/JMF)
• Parties: WEST COAST PRODUCTIONS, INC., Plaintiff, v. DOES 1-1,434, Defendants.
• Court: U.S. District Court — District of Columbia

WEST COAST PRODUCTIONS, INC., Plaintiff,

v.DOES 1-1,434, Defendants.

Civil Action No. 11-55 (JEB/JMF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Date: August 6, 2012

MEMORANDUM OPINION

This case was referred to me for full case management. Currently pending and ready for resolution are 1) Plaintiff's Motion for Extension of Time to Name and Serve Defendants [Fed. R. Civ. P. 4(m)] [#16] and 2) plaintiff's Renewed Motion for Leave to Take Additional Discovery Prior to Rule 26(f) Conference; Memorandum of Points and Authorities in Support Thereof [#17]. For the reasons stated below, both motions will be granted.

BACKGROUND

Plaintiff, West Coast Productions, is the owner of the copyright for the motion picture "Juicy White Anal Booty 4." Complaint for Copyright Infringement [#1] ¶5. According to plaintiff, numerous individuals illegally downloaded and distributed its film over the Internet, in violation of the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq.¹ Id. ¶¶ 1, 3. At the time the law suit was filed, plaintiff did not know the identities of these individuals. Id. ¶ 17. Plaintiff did, however, know the Internet Protocol ("IP") addresses of the computers associated with the alleged infringers. Id. Plaintiff therefore filed suit against all the individuals whose IP addressesit had, denominating them as "John Doe." Id. Once the complaint was filed, plaintiff then moved, pursuant to Rule 26(f) of the Federal Rules of Civil Procedure,² to conduct discovery prior to the conference required by that rule.³ At that time, plaintiff was unable to serve a summons or complaint on any of the Doe defendants, as it did not know who they were or where they were located. Plaintiff's motion for discovery was granted on June 28, 2011.⁴

On August 8, 2011, plaintiff moved for leave to take additional discovery.⁵ Thereafter, the Court denied plaintiff's motion without prejudice and ordered plaintiff to show cause "why this Court can assert jurisdiction over any defendant (a) who is not domiciled in the District of Columbia, or (b) as to whom plaintiff lacks a good faith basis to assert that he or she committed the act that is the premise of the plaintiff's claim for relief in the District of Columbia, and why venue is proper unless the defendant resides in the District of Columbia." Order [#20] at 1. These issues will now be resolved.

DISCUSSION

I. Introduction

This case and the numerous other cases just like it are extraordinary in that they involve an effort on the part of movie copyright holders to secure the identities of what may be hundreds of individuals so that they can be sued in this Court for illegally downloading a movie onto theirpersonal computers. As I will explain in more detail below, these cases have imposed and will continue to impose extraordinary burdens on the courts and the Internet Service Providers ("ISPs") that must comply with the subpoenas. Moreover, it confronts the Doe defendants, the alleged infringers, with the necessity of answering a complaint that demands substantial damages, often in courts far from their homes. These burdens convince me that the discovery sought must be conditioned upon certain requirements that I hope will establish a middle ground between the plaintiffs' need for information and the unique burdens being cast upon the courts, the subpoenaed parties, and the Doe defendants.

Additionally, I am concerned that there are significant issues that would preclude this Court from ever asserting personal jurisdiction over individuals who do not reside in the District of Columbia. It may also be true that venue can never be proper in this Court unless the defendant resides here. I do not intend to prejudge those issues before they are legitimately raised by persons who are in fact made parties to this lawsuit. I address them herein solely to alert plaintiff to the principles that will guide my future analysis of whether, as I am requiring plaintiff to do, it can in good faith name as defendants individuals who do not reside in the District of Columbia.

Finally, I will explain why the unique burdens imposed by this lawsuit on the Court, the subpoenaed parties, and the Doe defendants justify the other conditions I am imposing.

II. Standard of Review

Pursuant to Rule 26 of the Federal Rules of Civil Procedure, although "[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)," they may do so "when authorized . . . by court order." Fed. R. Civ. P. 26(f). Such authorization, however, must be based on a showing of "good cause." Fed. R. Civ. P. 26(d)(1). "[I]n order toget jurisdictional discovery[,] a plaintiff must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant." Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998). Furthermore, all discovery, whether before or after the Rule 26(f) conference, should be precluded when "the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(c).⁶

Ultimately, Rule 26 "vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery." Fed. R. Civ. P. 26; Watts v. Sec. & Exch. Comm'n., 482 F.3d 501, 507 (D.C. Cir. 2007) (internal citation omitted). Generally, this Circuit takes a liberal approach to jurisdictional discovery. Caribbean Broad. Sys., Ltd., 148 F.3d at 1090. Plaintiffs are, of course, still subject to Rule 11's good faith requirements. See Fed. R. Civ. P. 11.

III. Applicable Law

A. Law Governing Personal Jurisdiction

Plaintiff's cause of action, tortious copyright infringement,⁷ is brought under a federalstatute, the Copyright Act. [#1] ¶ 1 (citing 17 U.S.C. § 101). The statute cited does not provide for the exercise of personal jurisdiction over alleged infringers on a nationwide or other basis. Plaintiff must therefore predicate the court's jurisdiction over the infringers on the reach of District of Columbia law. Fed. R. Civ. P. 4(e)(1).

With respect to an individual domiciled in the District of Columbia, District of Columbia law provides for the exercise of personal jurisdiction as to "any claim for relief." D.C. Code § 13-422 (2001). But, with respect to an individual who is not domiciled in the District of Columbia, the so-called "long arm" provision of the personal jurisdiction statute imposes a significant requirement. The statute provides the following:

(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's - -

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(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;

D.C. Code § 13-423 (2001). Thus, to meet the statutory test for imposing jurisdiction over the person of a putative infringer, it would appear that the plaintiff must show that the infringer caused the tort of infringing by an act done in the District of Columbia.

In this context, and in cases similar to this one, it is worth noting that plaintiffs have argued that the way in which these movies are downloaded, via the BitTorrent protocol, permits the assertion of jurisdiction by this Court over persons who do not reside in the District of Columbia. To better understand the argument, one must first understand the BitTorrent technology. The following excerpt is taken from Diabolic Video Productions, Inc. v. Does 1-2,099, No. 10-CIV-5865, 2011 WL 3100404 (N.D. Cal. May 31, 2011):

Instead of relying on a central server to distribute data directly to individual users, the BitTorrent protocol allows individual users to distribute data among themselves by exchanging pieces of the file with each other to eventually obtain a whole copy of the file. When using the BitTorrent protocol, every user simultaneously receives information from and transfers information to one another.

In the BitTorrent vernacular, individual downloaders/distributors of a particular file are called "peers." The group of peers involved in downloading/distributing a particular file is called a "swarm." A server which stores a list of peers in a swarm is called a "tracker." A computer program that implements the BitTorrent protocol is called a BitTorrent "client."

The BitTorrent protocol operates as follows. First, a user locates a small "torrent" file. This file contains information about the files to be shared and about the tracker, the computer that coordinates the file distribution. Second, the user loads the torrent file into a BitTorrent client, which automatically attempts to connect to the tracker listed in the torrent file. Third, the tracker responds with a list of peers and the BitTorrent client connects to those peers to begin downloading data from and distributing data to the other peers in the swarm. When the download is complete, the BitTorrent client continues distributing data to the peers in the swarm until the user manually disconnects from the swarm or the BitTorrent client otherwise does the same.

Id. at *1-2.

While certain plaintiffs have asserted that the technology associated with this "swarm of peers" permits any court to assert jurisdiction over all of them, that argument has been rejected by some of the courts to whom it has been addressed. See, e.g., 808 Holdings, LLC v. Collective Sharing Hash E37 . . ., No. 12-CIV-191, 2012 WL 1581987, at *6 (S.D. Cal. May 4, 2012) ("It is unlikely that an individual in a distant jurisdiction would envision that the acts alleged would subject him to the jurisdiction of this Court. Similarly, any allegation that personal jurisdiction exists because of the swarming activity is inadequate."); Liberty Media Holding, LLC v. Tabora, No. 11-CIV-651, 2012 WL 28788 (S.D. Cal. Jan. 4, 2012) (rejecting swarm technology as basisfor establishing personal jurisdiction); Berlin Media Art e.k. v. Does 1-654, No. 11-CIV-3770, ...