The district court’s conclusion that rules governing personal jurisdiction and venue provide no impediment to pre-Rule 26 discovery of the ISPs is legal error. A showing of “good cause,” which is required for discovery ostensibly intended to identify defendants, requires an evaluation of whether the information sought from the ISPs would be used to name and serve defendants in the forum. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352-53 & n.17 (1978) (where “the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied”). The Copyright Act and the District of Columbia’s long-arm statute limit the court’s reach to defendants who reside in the district. And the uncontroverted evidence before the district court showed that few, if any, of the targeted Internet subscribers reside in the District of Columbia—as publicly available geolocation software used by Plaintiff’s counsel in other cases confirms. The district court’s decision to defer any consideration of personal jurisdiction or venue until after the subscribers’ personal information had been disclosed to Plaintiff requires reversal.

The court’s decision to permit discovery of the ISPs before deciding whether the 1,000-plus “Does” are misjoined provides an additional basis for reversal. Plaintiff, by routinely declining to name and serve defendants after obtaining the subscribers’ personal information, virtually ensures that Rule 20’s requirements for joinder will go unaddressed if not evaluated at the outset. And as a growing majority of courts have concluded, deferring a ruling on joinder deprives the courts of filing fees and encourages a proliferation of improperly coercive lawsuits. Given the groundswell of published opinions that disagree with the lower court and have severed or dismissed non-resident “Does” or all Does except for “Doe No. 1,” deferring a ruling on joinder in a suit that seeks nationwide subscriber information also encourages forum shopping—as the record here shows persuasively.

The record reflects that Plaintiff’s counsel’s cases have migrated across the country, with the venues selected, not by the locus of the parties or situs of harm, but based on counsel’s perceptions of which forum is most likely to authorize the greatest discovery, at the lowest cost, with the least judicial oversight.

The specter of intra-district, judge-specific shopping in Plaintiff’s counsel’s cases further underscores the problem with the lower court’s approach. The ISPs raised below Plaintiff’s counsel’s practice of filing complaints and dismissing them vel non based on the judicial assignment—only to re-file in another court. When presented with the same facts, Judge Wilkins quoted with approval Judge Huvelle’s finding: “Plaintiff’s actions a[re] akin to ‘judge shopping.’… This Court could not agree more.” ...

The ISPs respectfully submit that the district courts in this Circuit should not be the destination for 1,000-plus Doe cases that are brought primarily to compile mailing lists—not to adjudicate actual cases or controversies.

AF Holdings and its counsel owe a duty of candor to the Court, and a duty of fairness to appellants.... The serious issues concerning attorney misconduct and potentially forged documents were not identified for the court below; they necessarily affect the “good cause” analysis and provide an alternative basis for reversal to address the evidence now being considered in the pending disciplinary proceedings in the Central District of California.

Specifically, in a series of cases beginning with Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756, 760-61, 342 N.J. Super. 134 (App. Div. 2001), courts have adopted a balancing standard to assess requests for early discovery to identify anonymous online speakers that protects the right to speak anonymously while at the same time ensuring that plaintiffs who have valid claims are able to pursue them. Without such a standard, abusive plaintiffs could too easily use extrajudicial means against defendants from whom they could not, in the end, obtain judicial redress. See Levy, Litigating Civil Subpoenas to Identify Anonymous Internet Speakers, 37 Litigation No. 3 (Spring 2011).

The use of BitTorrent to select and share movies is expressive and, therefore, protected by the First Amendment. Call of the Wild Movie, 770 F. Supp. 2d at 350 (“[F]ile-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants’ anonymity.”).

Although the expressive aspect of the conduct alleged here – the posting of copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that discovery to identify the anonymous user without adequate initial evidence that individual Doe Defendants committed the alleged infringement. The weakness of AF Holdings’ assertions of personal jurisdiction and proper joinder means that First Amendment concerns weigh more strongly here in favor of quashing the subpoenas. Certainly it was not appropriate for the district court to ignore the question altogether.

The decision to lift the protective order rests with the judge who put it in place. Documents provided by MIT in the Swartz case included individual names and information regarding MIT employees. It is MIT policy and practice to protect employee privacy. MIT provided the documents under the express understanding that they would be protected from disclosure, which is the purpose of the protective order. Given this, we are concerned about any public release of information about individual MIT employees: we will seek to protect their privacy. At the same time, MIT is eager to share important facts about its actions in the Aaron Swartz matter with the public: Professor Hal Abelson has been charged by President Rafael Reif with conducting an analysis that will be made public in the coming weeks.

"This statement is an insult to my intelligence. The documents were provided to the government before any protective order was entered, and directly contrary to this statement, with the express understanding that they would be used in a criminal prosecution', which would lead to a PUBLIC TRIAL, at which time the documents would be offered into evidence and the witnesses would testify, in public. MIT never could have expected these materials not to become public, and I find this statement to be shockingly misleading and insincere."

Criminal proceedings in our nation's courts are presumptively public....

As described above, the circumstances in this case have changed dramatically. Perhaps most obviously, with Mr. Swartz's death, there is no longer a case to prosecute and thus no danger that disclosure will impede a fair trial. Mr. Swartz's tragic death has also led to an increase in public interest in both the details of the investigation and prosecution and the reasonableness of prosecutions under the CFAA generally. In its discussions with Mr. Swartz's counsel about modifying the Protective Order, the Government has not, to date, asserted any reliance interest based on the Protective Order. Even if it were to assert such an interest, any Government reliance on the Protective Order's terms is tempered by the fact that it is a blanket order and therefore inherently overinclusive. As this District explained in Bulger, modification of such a blanket order is not unusual. Id. at 54. As a result, the only interest left to be balanced against the significant public interest in access to unredacted documents is the alleged privacy interest of the government employees and third party individuals named in the discovery materials. For the reasons discussed below, those interests are minimal and are overcome by the public interest in the disclosure of these documents.

“I welcome President Reif's commitment to transparency. However, this announcement is misleading. MIT does not get to decide in what form the evidence is released publicly. The judge does. MIT has already given this evidence to the courts, at which point it gave up proprietary control over the evidence. President Reif's decision simply foreshadows the inevitability that the judge will release at least this much of the evidence. It sets a low bar, but it does not decide the matter. The redacted documents MIT is releasing only tell one part of the story. Huge amounts of information would still be hidden beneath the protective order -- information that MIT's investigators themselves will not have access to unless the protective order is lifted. If MIT is really committed to transparency and having a full, complete investigation, they need to join the call with Aaron’s lawyers to lift the protective order."

"This is not a change in MIT's position. MIT could have no expectation of privacy or security since this evidence was given to the government with the understanding that it was evidence in a public trial,” said Robert Swartz, Aaron’s father. “They understood when they gave these documents to the government that they had no rights to privacy or security. MIT should release all internal communications related to this case whether or not they were provided to the government including all internal communications they had related to how they handled it and decided not to ask the government to drop the case."

Michael offered me a settlement deal. The deal consisted of the following parts:

a. I would agree to be sued.

b. Prenda would ask for, and I would provide, a copy of the bit-torrent log from my computer. The excuse for gathering this log is that it would corroborate the IP address evidence that they had already gathered through the use of Prenda's sottware.

c. Prenda would, upon receipt of the information, dismiss the case against me.

4. In discussion of the settlement, Michael stated that he did not know of any pro bono attorneys in Oregon, but could provide the name of an attorney who might take my case in Minnesota. Because I cannot afford to pay an attorney, I agreed to be sued in the state of Minnesota. I then retained my attorney, Trina Morrison, based on the information provided to me by Prenda Law.

5. Before the start of this case, I had not heard of Guava LLC. I believed that I would be sued by Hard Drive Productions, Inc. I believe that Guava LLC's case against me is based on my admission to Michael that I downloaded the video at issue in the Hard Drive Productions case.

6. Before the case against me was filed, I had not heard of Alpha Law Firm. I believed that opposing counsel was Prenda Law.

7. Afier subpoenas were served in the case against me, I learned of Guava LLC's and Prenda Law's practice of finding one John Doc to be a named defendant, and then discovering the names of and requesting settlement money from other John Does by issuing subpoenas to ISPs.

8. Last week, on 01/15/13, I was once again contacted by Prenda Law Firm. I received a voice mail from someone on behalf of Prenda Law stating that I needed to make payment arrangements or I would be sued.

This motion is made on the ground that "good cause" exists to authorize the limited discovery requested, per Rule 26(d)(1), because, very recently, deeply troubling factual allegations have been made which suggest the plaintiff is engaged in a widespread and systemic fraud on the Courts affecting thousands of ISP subscribers. Specifically, very troubling questions have been raised as to whether Prenda Law, Inc., has misappropriated the identity of one Mr. Alan Cooper of Minnesota, holding him out in federal court filings as the principal of plaintiff Ingenuity 13, a shell entity organized in St. Kitts and Nevis, without Mr. Cooper's knowledge or consent. For weeks, undersigned counsel, and others, have sought answers from Prenda Law, Inc. and its clients AF Holdings, LLC and Ingenuity 13, LLC, to try and put these concerns to rest. None of the answers proffered to date have been at all reassuring; to the extent Prenda has engaged on the issue at all, the only answers provided have been evasive to a degree that is almost comical.

If Prenda Law would simply identify the "Alan Cooper" who it claims is the true principal of Ingenuity 13, LLC and AF Holdings, LLC, or even confirm that such a person actually exists (notwithstanding the allegations of Alan Cooper of Minnesota), this ex parte application would not be necessary. Essentially, whether or not there is another Alan Cooper is the million-dollar question. However, Prenda Law has explicitly stated that it will not address any of the troubling factual circumstances raised by Mr. Cooper, or answer any questions on this topic, unless it is compelled to do so.

1. Other than the Alan Cooper of Minnesota who is represented by attorney Paul Godfread, is there another Alan Cooper who is currently the principal of Ingenuity 13, LLC — yes or no?
2. If the answer to the first interrogatory is yes, state all contact information for this Alan Cooper, including current home address, business address, and telephone number.
3. Other than the Alan Cooper of Minnesota who is represented by attorney Paul Godfread, was there ever another Alan Cooper who was, in the past, the principal of Ingenuity 13, LLC — yes or no?
4. If the answer to the third interrogatory is yes, state all contact information for this Alan Cooper, including all known home addresses, business addresses, and telephone numbers.
5. Other than the Alan Cooper of Minnesota who is represented by attorney Paul Godfread, is there another Alan Cooper who is currently the principal of AF Holdings, LLC — yes or no?
6. If the answer to the fifth interrogatory is yes, state all contact information for this Alan Cooper, including current home address, business address, and telephone number.
7. Other than the Alan Cooper of Minnesota who is represented by attorney Paul Godfread, was there ever another Alan Cooper who was, in the past, the principal of AF Holdings, LLC — yes or no?
8. If the answer to the seventh interrogatory is yes, state all contact information for this Alan Cooper, including all known home addresses, business addresses, and telephone numbers.
9. If the answer to the third interrogatory is yes, state each position this Alan Cooper held at Ingenuity 13, LLC and the dates such position was held.
10. If the answer to the seventh interrogatory is yes, state each position this Alan Cooper held at AF Holdings, LLC and the dates such position was held.
11. Eleventh Special Interrogatory: Was the Alan Cooper of Minnesota who is represented by attorney Paul Godfread ever a principal, even unwittingly, of Ingenuity 13, LLC?
12. Was the Alan Cooper of Minnesota who is represented by attorney Paul Godfread ever a principal, even unwittingly, of AF Holdings, LLC?
13. On November 26, 2012, when undersigned counsel emailed Brett Gibbs to ask for a routine extension request, Mr. Gibbs responded by email “I would have to check with our client about that request. Just an FYI, our client usually does not like to grant these types of requests on short notice unless there is a reasonable chance that settlement may occur in the case.” Later, Mr. Gibbs purported to have an answer on his query to the “client” regarding an extension. Who is the client contact at Ingenuity 13, LLC that Mr. Gibbs spoke with on this matter? Note, no details of the communication are being requested, just the name of the client contact.
14. Reference is made to the following civil actions filed by AF Holdings, LLC and Ingenuity 13, LLC in the Northern District of California: 4:2012-cv-02049-PJH; 3:2012-cv-02393-CRB; 5:2012-cv-02394-LHK; 3:2012-cv-02396-EMC; 3:2012-cv-02404-SC; 4:2012-cv-02411-PJH; 3:2012-cv-02415-CRB; 4:2012-cv-03248-PJH; 3:2012-cv-04218-WHA; 5:2012-cv-04219-LHK; 5:2012-cv-04446-EJD; 5:2012-cv-04447-RMW; 5:2012-cv-04448-EJD; 3:2012-cv-04982-CRB; 3:2012-cv-04216-JSW; 3:2012-cv-04217-RS; 5:2012-cv-04445-LHK; 3:2012-cv-04449-SC; 3:2012-cv-04450-MMC; 3:2012-cv-04976-JSW; 3:2012-cv-04977-WHA; 4:2012-cv-04978-PJH; 5:2012-cv-04979-LHK; 5:2012-cv-04980-EJD; 3:2012-cv-04981-RS. With respect to the copyright assignments attached to the complaints in these actions, as Exhibit B thereto, which all appear to have a similar signature by "Alan Cooper," please state whether the person who signed these assignments was the Alan Cooper of Minnesota who is represented by attorney Paul Godfread — yes or no?
15. If the answer to the fourteenth interrogatory is no, then state all contact information for the person that did sign these documents, including all known home addresses, business addresses, and telephone numbers.

The story Plaintiff now sets forth is rather simple: Honorable Judge Otis D. Wright, II simply abhors plaintiffs who attempt to assert their rights with respect to online infringement of pornography copyrights. Honorable Judge Wright’s abhorrence of such assertions of right under the Copyright Act has risen to a level such that a neutral observer would have reasonable grounds to question Honorable Judge Wright’s impartiality. Indeed, in light of Honorable Judge Wright’s conduct, Plaintiff contends that it would be impossible to convince a neutral observer that Honorable Judge Wright regards this particular type of case impartially.

The other element, of course, is the music itself, and its "sonic promise". But again, to understand any given piece of music, is it not useful to have access to the pieces written before and after it by the artist, the pieces that influenced it, and those that it influenced? Or what about all the pieces written in that year, or for the same musicians, or played at the same venue? Those complex cuts of the totality of recorded music -- the rich and surprising playlists that people make and share -- are something that the Internet with its digital abundance is uniquely well-placed to supply in a way that CDs never could. Isn't that multidimensional richness something to be welcomed, not feared?

On the one hand, Spies seems to be saying that today it's too easy, that we don't do enough to earn the pleasure of our music by spending time as we did in the old days:

if I was going to buy a CD, back when I bought them, I had to eke out some time, and even pray for a little luck, as I could spend hours in a dimly lit store, and leave with nothing. So I had to make a conscious decision that I was going to take my chances.

I suspect that the generation now growing up with digital abundance will have no difficulty forming their own deep and important emotional bonds with collections of music that they have discovered not through a slow process of seeking and finding in the physical world, but by constant, high-velocity adventures through an equally valid digital space.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

In my view disclosure should be provided by the requesting state. The Act provides the person sought with a right to challenge whether the threshold for extradition has been met before he will be extradited. Consistent with the requirements of... the Bill of Rights Act to a fair hearing, the person sought should be given access to sufficient information to enable him or her to fully participate in that hearing on an equally informed basis. Without access to materials relevant to the extradition hearing phase, the person sought will be significantly constrained in his or her ability to participate in the hearing and the requesting state will have a significant advantage in terms of access to information.

She also found the "Record of Case", the document which made the argument for extradition, did not currently meet the legal requirements. She said the FBI was under an "obligation of candour" to provide any evidence which could impact on the court's judgment of whether the extradition threshold had been met - and no information had been provided to support FBI claims. The document "did not comply", she said.

What is significant here is that the judge made the fair use decision before there had been a trial. He examined the pleadings and found that everything he needed to make this easy call was already before him. Then he ruled favorably on a motion to dismiss the case on the basis of those pleadings (technically a “motion to dismiss for failure to state a claim”) and dismissed the case with prejudice (which means plaintiff cannot re-file it).

Librarians and other academics are often afraid to rely on fair use, even when there arguments would be strong, because of the expense of defending a lawsuit even when you win. Content companies often encourage that fear, reminding academics that fair use is a defense that can only be decided with certainty at a trial. While this case is a little bit unusual, it invites us, I think, to look at this “chilling effect” and perhaps lend it less credence.

In his ruling to dismiss, Judge Stadtmueller explicitly notes that “evaluating an affirmative defense, and indeed the ‘fair use’ defense, at the pleadings stage is ‘irregular’.” But he thinks it is justified precisely because when the case for fair use is “obvious,” “the court can conclude that this dispute does not warrant ‘putting the defendant[s] through the expense of discovery’.” In other words, in straightforward cases, a fair use claim can be evaluated before there is a trial, explicitly to prevent the cost of litigation from itself becoming an obstacle to proper exercise of fair use.

Mr. Stone surreptitiously issued unauthorized subpoenas to an unknown number of internet service providers ("ISPs"), demanding the disclosure of the identities of anonymous Defendants so that he could pressure the alleged downloaders of pornography into settlement. Incredibly, months later Mr. Stone participated in the briefing of the very question of whether he should be allowed to issue discovery... all the while allowing ISPs to process the improperly issued subpoenas. Plaintiff's counsel's behavior demonstrates blatant contempt for the rule of law and the authority of this Court.

Moreover, the full extent of Mr. Stone's actions is not yet known because he refuses to meet and confer. Accordingly, rather than requesting a specific form of relief, Defendants instead ask this Court to order Mr. Stone to fully account for his actions so that the Court and Defendants can be made aware of the harm inflicted and so that they may respond accordingly. Once the Court has ascertained the full extent of Mr. Stone's actions, and the extent to which his client should properly bear responsibility for his actions ostensibly performed on his client's behalf, the Court can then decide whether an award of attorney's fees under 17 U.S.C. § 505, discovery sanctions under the Federal Rules, or some other relief is appropriate. Defendants ask this Court to impose some sanction for Mr. Stone's conduct to send a message that should hardly be necessary: abusing the Court's authority to improperly investigate and push settlements onto litigation opponents will not be tolerated.

From: DiscoveryChannel
To: Admin
Hi Editors @ DeadliestCatchTV ,

My name is Soumik Pal, I work at Discovery Channel and I'm writing to offer you free preview content and assets from the new season of Deadliest Catch! We feel that the show is a great fit with your site (and especially your readers) and would love to get the word out about some exciting new Catch initiatives this season!

[...]

To get your readers ready for the new season, I've included the official press release, high-quality preview videos, exclusive photography, brief episode descriptions and much more...

[...]

I'm happy to act as your point of contact for any additional requests and we hope your readers might like some of the content we've provided! Please let me know if there's anything more we can provide you with to help get geared up for the new season of Catch.

Thank you!

Soumik Pal
Digital Media, Discovery Channel
Discovery Communications

When I questioned this with Discovery I was told only the employee no longer worked at Discovery and they "were looking in to this". The second lawyer I spoke to from Discovery stated that they had a change of heart and have now decided they wanted to police any sites using their material (Although previously they were providing it for promotion purposes).

The one issue that I really question is that part of the claim made by Discovery was that my "...display of and/or provision of access to unauthorized copies of our client's copyrighted material infringes Discovery's copyrights..." The material in question were actually videos that were posted BY DISCOVERY on YOUTUBE where the embed code was made available for all to use. I spoke to one of the lawyers briefly on the phone today and he understood how this could be confused but maintained that even though the code is there you are NOT ALLOWED TO USE THE EMBED CODE ON ANY WEBSITE.

Defendant subpoenaed Facebook for plaintiff's Facebook information, including photos of plaintiff and her friends dancing on the bar. The court quashed the subpoena to Facebook, and in response, defendant issued a subpoena to plaintiff's friends, who are witnesses in the case. The defendant sought photos posted by plaintiff and her friends that depicted the events on the night in question. The court finds that the subpoenas issued to these witnesses cannot be enforced by the district court in Nashville, and if defendant wants to move to compel, it must do so in Colorado and Kentucky, the districts where the subpoenas were issued out of.

The magistrate judge chastises both parties for their failure to cooperate in the discovery process, and specifically calls out the defendant for its "mishandling of the Facebook subpoena." The judge then offers to create a Facebook account "for the sole purpose of reviewing photographs and related comments in camera . . . and disseminat[ing] any relevant information to the parties." Assuming the non-party witnesses (who will be located/contacted via email (!)) will accept the judge's Facebook friend requests, the magistrate judge agrees to review their Facebook information, provide any relevant information or photographs to the parties, and then close the Facebook account. (It doesn't seem like the court will store copies of the non-relevant portions of the Facebook pages, even under seal.)

"Google appears to have the view that it is above the law," says Perfect 10 President, Dr. Norm Zada.

"Under the DMCA, a search engine such as Google may receive limited immunity from monetary damages for copyright infringement if it complies with the requirements of the DMCA," Zada says. "The search engine must act expeditiously to remove or disable access to infringing material upon receiving notice of infringement from the copyright owner, and it must adopt a procedure so that copyright holders will not have to provide the search engine with notices about the same infringing material or the same infringers over and over."