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.

To the contrary, and as argued above, the “purpose” of the discovery is entirely proper: to obtain information identifying unknown Doe Defendants infringing Plaintiffs’ copyrights “in order to consider whether to name and serve them as defendants.”

Particularly troubling for courts is the high probability of misidentified Doe defendants (who may be the bill-payer for the IP address but not the actual infringer) settling a case for fear of the disclosure of the allegations against them or of the high costs of litigation.

Ironically, there are swarms on both sides, for copyright locusts have descended on the federal courts, exacting low-cost settlements from embarrassed John Does and then moving on to the next District

... the federal courts are not flexible enough to be shaped into "cogs in a plaintiffs copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that [Plaintiffs have] no intention of bringing to trial."

The Plaintiffs' tactic, if left unchecked, could turn copyright protection on its head. Congress intended to incentivize the creation of useful arts by providing a statutory right and a means of enforcement that would reward authors for their labors, hardly the Plaintiffs' strategy here.... In the BitTorrent pornography cases, settlements are for notoriously low amounts relative to the possible statutory damages, but high relative to the low value of the work and minimal costs of mass litigation. Cases are almost never prosecuted beyond sending demand letters and threatening phone calls. Severing the Doe defendants does not destroy the incentive to prosecute infringers who use peer-to-peer protocols; it merely restores the balance that Congress intended, not to mention that it ensures that courts receive the filing fees that Plaintiffs otherwise avoid.

Plaintiffs shall not contact any Doe defendant who does not remain in this or a subsequently-filed case, and any pending settlement not with John Doe 1 in each named case shall immediately cease. If after 14 days Plaintiffs have not reinstituted cases against the remaining Doe defendants, Plaintiffs shall destroy whatever personal information they presently have for those defendants and shall not use the information for any purpose. Ifany Doe defendant no longer named in a case is contacted following entry ofthis Order, I encourage them to contact the Court.

It is difficult to even imagine the extraordinary amount of time federal judges have spent on these cases.

Other than barebones references from two of the four movant ISPs that these subpoenas impose “a substantial administrative burden,” the ISPs fail to present any witness or other evidentiary detail to demonstrate a burden to the Court, let alone what steps the ISPs are or could be taking to deter infringing activity on their networks to reduce any burden subpoena compliance engenders.

The plaintiff’s estimates regarding the amount of online infringing activity and the economic harm resulting from such activity is corroborated by a recent government report. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10- 423, INTELLECTUAL PROPERTY: OBSERVATIONS ON EFFORTS TO QUANTIFY THE ECONOMIC EFFECTS OF COUNTERFEIT AND PIRATED GOODS 23-24 (2010) (estimating that U.S. economy annually loses $58 billion, over 370,000 jobs, and $2.6 billion in tax revenue as a result of copyright infringement over the Internet) (citing Stephen E. Siwek, THE TRUE COST OF COPYRIGHT INDUSTRY PIRACY TO THE U.S. ECONOMY, Institute for Policy Innovation (IPI), IPI Center for Technology Freedom, Policy Report 189 (Oct. 2007)).

Since there is an absence of data concerning these potential effects, the net effect cannot be determined with any certainty

Moreover, it appears that the claims of civil conspiracy themselves are unfounded, because the plaintiffs have not pleaded the existence of an agreement among the alleged conspirators... Additionally, based on what has been pleaded, it does not appear plausible that plaintiffs could plead the existence of a conspiracy. Consequently, the court finds that the complaints’ allegations of civil conspiracy are only unjustified attempts to bolster the obtaining of irrelevant discovery about non-parties.

Unnumbered Doe suggests that Liberty Media sought the public identities of Does 1-38 to coerce pretrial settlements. Unnumbered Doe’s Mot. 7 (“While we cannot know for certain how the Plaintiff intends to proceed . . . the likely course of action is to contact each of the individuals and demand a monetary payment for settlement of the claims in question.”). This allegation is not supported in the motion papers or by Liberty Media’s actions to date. It is purely speculative and not grounds for allowing the moving defendants to proceed anonymously.

Unnumbered Doe further argues that the anonymity of Does 1-38 should be protected because the disclosure of their identities in conjunction with this lawsuit, which involves homosexual pornography, may cause reputational harm and intrusion upon their privacy. Id. Unnumbered Doe asserts that being named as a party to this action amounts to “a public accusation” that the defendants downloaded and viewed homosexual pornography. Id. Doe 15 similarly argues that their public identification in the lawsuit will expose the defendants to “intrusive public scorn.” Doe 15’s Mot. 3.

The potential embarrassment to Does 1-38 of being associated with allegations of infringing hardcore pornography does not constitute an exceptional circumstance that would warrant allowing the defendants to proceed anonymously. As the Superior Court of Massachusetts stated, “mere embarrassment [is] not sufficient to override the strong public interest in disclosure.” Roe, 2011 WL 2342737, at *1. Thus, the potential embarrassment or social stigma that Does 1-38 may face once their identities are released in connection with this lawsuit is not grounds for allowing them to proceed anonymously.

Most of these motions, however, are filed by pro se litigants and cut and pasted from BitTorrent defense kits or otherwise copied...

[....] These motions are expensive to defend against. Indeed, many such motions intentionally raise issues that have absolutely nothing to do with the subject matter before the court or matter which no court has ever held justify the motion. Consequently, Plaintiff has to spend substantial resources arguing against irrelevancies and abstractions.

Increasing the costs associated with this litigation by forcing Plaintiffs to file individual suits would only increase the settlement demands and make settlements less probable.

The Court currently has three similar cases before it, all brought by the same attorney. The suits are virtually identical in their terms, but filed on behalf of different film production companies. In all three, the plaintiffs sought, and the Court granted, expedited discovery allowing the plaintiffs to subpoena information from ISPs to identify the Doe defendants. According to some of the defendants, the plaintiffs then contacted the John Does, alerting them to this lawsuit and their potential liability. Some defendants have indicated that the plaintiff has contacted them directly with harassing telephone calls, demanding $2,900 in compensation to end the litigation. When any of the defendants have filed a motion to dismiss or sever themselves from the litigation, however, the plaintiffs have immediately voluntarily dismissed them as parties to prevent the defendants from bringing their motions before the Court for resolution.

This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants' personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does. Whenever the suggestion of a ruling on the merits of the claims appears on the horizon, the plaintiffs drop the John Doe threatening to litigate the matter in order to avoid the actual cost of litigation and an actual decision on the merits.

The plaintiffs' conduct in these cases indicates an improper purpose for the suits. In addition, the joinder of unrelated defendants does not seem to be warranted by existing law or a non-frivolous extension of existing law.

"Given the administrative burden of simply obtaining sufficient identifying information to properly name and serve alleged infringers, it is highly unlikely that the plaintiffs could protect their copyrights in a cost-effective manner. Indeed, Time Warner urges the Court to sever the defendants for this very reason. Time Warner asserts that, if joinder were disallowed, its burden of complying with subpoenas would be diminished because the plaintiffs would not be able to proceed against all of the putative defendants individually At this procedural juncture, the plaintiffs have met the requirements of permissive joinder under Rule 20(a)(2). The putative defendants are not prejudiced but likely benefited by joinder, and severance would debilitate the plaintiffs' efforts to protect their copyrighted materials and seek redress from the putative defendants who have allegedly engaged in infringing activity."

Nevertheless, file-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 by compelling the production of these defendants' identifying information.

"Heads will roll. I said it once, and I'll say it again, Fuck 'em all. I didn't get into this fight thinking it was going to be an easy one, but I can assure you that I am not quitting."

Under the BitTorrent protocol, the initial file-provider intentionally elects to share or upload a file via a BitTorrent network.... This is called "seeding." ... Other users ("peers") on the network connect to the seeder to download.... As additional peers request the same file, each additional user becomes a part of the network (or "swarm") from where the file can be downloaded, which means that such additional user's computer is connected not only to the seeder/uploader but also to other peer/downloaders.... Unlike the older P2P protocols, each new file downloader is receiving a different piece of the data from each user who has already downloaded that piece of data, all of which pieces together comprise the whole.... This means that every "node" or peer user who has a copy of the infringing copyrighted material on such a network--or even a portion of a copy--can also be a source of download for that infringing file, potentially both copying and distributing the infringing work simultaneously....

This distributed nature leads to a rapid viral spreading of a file through peer users, all of whom are both uploading and downloading portions of the file simultaneously.... As more peers join the swarm, the likelihood of a successful download increases... Because of the nature of the BitTorrent protocols, any peer that has downloaded a file prior to the time a subsequent peer downloads the same file is automatically a possible, and even likely, source of the file for the subsequent peer.... Essentially, because of the nature of the swarm downloads as described above, every infringer is simultaneously stealing copyrighted material through collaboration from many other infringers, through a number of ISPs, in numerous jurisdictions around the country.

A brief entry in the official court docket lays out the order. "MINUTE ORDER requiring Plaintiff to show cause in writing no later than June 21, 2010 why Doe Defendants 2 through 2000 should not be dismissed for misjoinder under Federal Rule of Civil Procedure 20," wrote the judge in The Steam Experiment case. The same order was repeated in a separate case targeting 4,577 users alleged to have shared the film Far Cry.