Appeals Court Overturns Prenda Win From Former RIAA Lobbyist Judge

from the good-to-see dept

As we've been covering the Prenda debacle for years, there was still the one big "victory" it had, in which a DC district court judge ruled that randomly lumping together over a thousand unrelated "Does" was perfectly legitimate, something most other courts had found to be inappropriate. Of course, people quickly figured out that the judge who found in favor of this bizarre joinder ruling, had only recently been appointed to the bench, having previously been an RIAA lobbyist, and who, years earlier, had helped write the DMCA as a Congressional staffer.

That case made its way slowly through the appeals process, and earlier today, the DC Circuit appeals court overturned the ruling, highlighting a bunch of Prenda's bad behavior, but (perhaps more importantly) pointing out that the subpoenas for information on these 1,000+ Does was clearly inappropriate, first because almost none of the Does appeared to live in Washington DC, and thus were outside the court's jurisdiction. Prenda/AF Holdings complete failure to do anything even remotely close to figuring out if people might be located in DC was pretty damning here:
Federal Rules of Civil Procedure 45 and 26 set forth the relevant considerations. Rule 45(d)(3)(A) requires a district court to “quash or modify a subpoena that . . . subjects a person to undue burden.” If a subpoena compels disclosure of information that is not properly discoverable, then the burden it imposes, however slight, is necessarily undue: why require a party to produce information the requesting party has no right to obtain?
And, here, the court certainly finds the discovery attempts to be "undue," because AF Holdings/Prenda could show no good faith belief that they were going after information relevant to a lawsuit in that court.
Here, we think it quite obvious that AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district. AF Holdings concedes that under the District of Columbia’s long-arm statute, which along with the Due Process Clause governs this question... the only conceivable way that personal jurisdiction might properly be exercised over these Doe defendants is if they are residents of the District of Columbia or at least downloaded the copyrighted work in the District.... But AF Holdings has made absolutely no effort to limit its suit or its discovery efforts to those defendants who might live or have downloaded Popular Demand in the District of Columbia. Instead, it sought to subpoena Internet service providers that provide no service at all in the District. As Duffy reluctantly conceded at oral argument, AF Holdings could have no legitimate reason for objecting to the court’s quashing the subpoenas directed at these providers.... Even for those providers that do serve the District of Columbia, AF Holdings’s discovery demands were overbroad because it made no attempt to limit its inquiry to those subscribers who might actually be located in the District. It could have easily done so using what are known as geolocation services, which enable anyone to estimate the location of Internet users based on their IP addresses. Such services cost very little or are even free.
The court notes that Prenda's failure to do even the most basic things to limit discovery raises questions about its motives:
Given AF Holdings’s failure to take even these minimal steps, we cannot escape the conclusion that it sought the vast majority of this information for reasons unrelated to its pursuit of this particular lawsuit.... . Indeed, Duffy essentially admitted as much at oral argument, stating that if, as appears to be the case, 399 of Comcast’s 400 identified subscribers were found to live outside the District, “the 399 likely wouldn’t be named as defendants in this case.”
The court then checks in on the big question of "joinder" -- and whether or not it's appropriate to lump together over 1,000 totally unrelated individuals in one of these copyright trolling lawsuits. Like most courts to date, but unlike Judge Howell, the appeals court sees how problematic this is.
We are unconvinced. For purposes of this case, 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 Rule 20(a)(2). In that circumstance, the individuals might well be actively sharing a file with one another, uploading and downloading pieces of the copyrighted work from the other members of the swarm.

But AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time. Instead, it has simply set forth snapshots of a precise moment in which each of these 1,058 Does allegedly shared the copyrighted work—snapshots that span a period of nearly five months. Two individuals who downloaded the same file five months apart are exceedingly unlikely to have had any interaction with one another whatsoever. Their only relationship is that they used the same protocol to access the same work. To paraphrase an analogy offered by amicus counsel at oral argument, 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 may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions.... We therefore agree with those district courts that have concluded that the mere fact that two defendants accessed the same file through BitTorrent provides an insufficient basis for joinder.
It's nice to see that the court picked up on many of the amicus arguments made by EFF, ACLU, Public Knowledge and Public Citizen.

Oh, and, in case you're wondering about all the other stuff, such as the Alan Cooper forgery, the court notes those allegations, while saying they are unrelated to the issues here, but, at the very end, in sending the case back to the district court, tosses this in:
Accordingly, we vacate the district court’s order and remand for further proceedings consistent with this opinion. We leave it to the district court to determine what sanctions, if any, are warranted for AF Holdings’s use of a possible forgery in support of its claim.

Reader Comments (rss)

(Flattened / Threaded)

  •  
    icon
    That One Guy (profile), May 27th, 2014 @ 11:38am

    Benchslapped

    Good news indeed, now, hopefully they're sending it back to a different judge, one who isn't quite so clearly biased.

     

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  •  
    icon
    Ninja (profile), May 27th, 2014 @ 11:58am

    I'm having trouble at classifying this soap-opera. At times it looks like some reboot of the Three Stooges but now it's looking like some sort of Homeric Tragedy!

    The best part is that even with a completely biased judge they are managing to lose. At least justice is working this time!

     

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    •  
      icon
      DannyB (profile), May 27th, 2014 @ 12:21pm

      Re:

      > At times it looks like some reboot of the Three Stooges
      > but now it's looking like some sort of Homeric Tragedy!

      Since this is Prenda suing over gay pr0n they induced people to download, maybe you should have said Homoerotic Tragedy!

       

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    •  
      icon
      simality (profile), May 28th, 2014 @ 1:33am

      Re:

      >I'm having trouble at classifying this soap-opera.
      > At times it looks like some reboot of the Three Stooges but now it's looking like some sort of Homeric Tragedy!

      I believe the word you are looking for is 'farce'.

       

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    •  
      icon
      G Thompson (profile), May 28th, 2014 @ 9:57am

      Re:

      I call it "As the toilet flushes... so are these days of prenda"

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, May 27th, 2014 @ 12:12pm

    "Prenda/AF Holdings complete failure to do anything even remotely close to figuring out if people might be located in DC"

    Kinda like how copy protection trolls try to take down content without doing anything to determine if they even have privileges over that content first. A good example is the following.

    "RedHat Hit With Youtube Takedowns
    posted by LaminatorX on Sunday May 25, @04:11AM Printer-friendly
    Techonomics

    Angry Jesus writes:

    Michael Tiemann, Vice President of Open Source Affairs at Red Hat Inc, recently shot a video set to music published under the CC-BY-NC Creative Commons license which, when he uploaded it to Youtube, got hit with multiple Content-ID takedowns. His experience demonstrates how Youtube's system has stacked the deck against independent creators. When even a VP of an S&P 500 company can't tame the beast, the little guys have no chance at all."

    http://soylentnews.org/article.pl?sid=14/05/25/0252214

     

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    •  
      identicon
      PRMan, May 27th, 2014 @ 12:45pm

      Re:

      Red Hat should sue the company for tortuous interference. They are disrupting your business relationship with YouTube.

       

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  •  
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    Ben (profile), May 27th, 2014 @ 12:35pm

    I've got to love:
    A full understanding of this case requires knowing some
    things about the lawyer and “law firm” that initiated it.
    The quotes on "law firm" seem exceptionally appropriate.

    I didn't find any mention of Judge Howell in the ruling; has there been any public mention of censure or other penalties for the judge not recusing himself from the case?

     

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      simality (profile), May 28th, 2014 @ 1:41am

      Re:

      I didn't find any mention of Judge Howell in the ruling; has there been any public mention of censure or other penalties for the judge not recusing himself from the case?

      Herself, and no.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    John Thacker, May 27th, 2014 @ 1:05pm

    Scare quotes FTW

    One of my favorite parts of the ruling is that they put "law firm" in scare quotes when referring to Prenda:
    A full understanding of this case requires knowing some things about the lawyer and “law firm” that initiated it.

     

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    •  
      identicon
      Anonymous Coward, May 27th, 2014 @ 1:22pm

      Re: Scare quotes FTW

      They should have put "judge" in quotes.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        David, May 28th, 2014 @ 3:04am

        Re: Re: Scare quotes FTW

        The district court rejected these arguments, holding that
        “considerations of personal jurisdiction and joinder are
        premature when discovery is sought before the plaintiff has
        named a defendant and the discovery is targeted to identify
        unknown individuals associated with the IP addresses.” But
        acknowledging that several other district courts had reached
        contrary conclusions in similar situations, and recognizing
        that a substantial ground for difference of opinion existed, the
        district court certified its order for immediate appeal. See 28
        U.S.C. § 1292(b).

        It looks like the judge was perfectly aware of being in conflict with other decisions at the same level she did not agree with and was prepared to let her work be checked by a higher level (at the cost of plaintiffs, defendants, and subpoenaed parties). To put "judge" in quote marks, she would have needed to go out of her way not to let her work get rechecked.

        She was rather fresh on the job and would have liked to see herself establish some case law she considered nice while leaving the door wide open to have her approach sacked.

        That's an "I might be wrong but" approach that is not quite fitting to count as a stooge or an idiot.

        One will have to see how far she is able or willing to let the RIAA taint be washed out of her brain in future decisions.

         

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    •  
      icon
      simality (profile), May 28th, 2014 @ 1:43am

      Re: Scare quotes FTW

      My favorite part was where they cited TorrentFreak. Steele probably turned puce when he saw that part.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, May 27th, 2014 @ 1:13pm

    it was obvious at the time that Judge Howell was as bias as you could get. however, you need to look further than just the way she behaved in this case. she was recommended for the post by other members of the Judiciary and to me it shows how deliberate her appointment was, ie, to be completely on the side of the entertainment industries and to try to get as many copyright infringement cases assigned to her court as possible. thank goodness the appeals court reversed her loaded decision! let's hope that she either gets removed from office completely, never gets to sit and rule on any cases involving copyright, even in the slightest way, or gets severely reprimanded over her behavior! there is enough bias on the part of the entertainment industries anyway, because they refuse to do anything to please customers preferring to get them locked up and/or bankrupted, without her or any other judge being given loaded cases to rule on.

     

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    •  
      icon
      That Anonymous Coward (profile), May 27th, 2014 @ 4:29pm

      Re:

      There is this thing called recusal...
      I remember a Judge who had a stock portfolio that included a company with a name similar to one who would appear before her but unrelated. She recused herself to avoid ANY appearance of impropriety.
      Judge Howell took no such considerations, backed Pretenda, and now I hope it bites her in the ass.

      Remember campers she sat on the bench and claimed that EVERYONE needed to do more to protect copyrights, despite there being nothing in the law supporting that position.
      One wonders how a lobbyist could EVER be impartial in a copyright case of any variety, she was paid to advocate a certain position and not look at the whole picture. Her disregard of basic legal principles deserve a 2nd look. Even as letters came to her court from does in jurisdictions well outside of her purview she refused to consider the implications of allowing the case to move forward involving citizens she had no jurisdiction over.

       

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      •  
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        ltlw0lf (profile), May 28th, 2014 @ 7:23am

        Re: Re:

        Remember campers she sat on the bench and claimed that EVERYONE needed to do more to protect copyrights, despite there being nothing in the law supporting that position.

        What bothers me most about this whole thing is that Judge Thomas Penfield Jackson, presiding judge over the United States vs Microsoft Corp., got into hot water for statements he made while hearing the case (though the comments were not printed until after the case was over,) in which he found Microsoft guilty of abusing their Monopoly position. The Appellate court argued that he should have recused himself from the case since he was not impartial. He did not make those comments before the case, and from statements he made, he pretty much determined that Microsoft was bad during the case, based on their own actions, before it was completed, and made those comments to reporters at that time.

        Here, we obviously have a jurist that *is* biased before the case, and the Appellate didn't make any comments about this and why the jurist should have recused themselves because of the bias. High-court vs. low-court? I don't think it really is this, but instead just differences on opinion over two similar cases.

         

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  •  
    icon
    DB (profile), May 27th, 2014 @ 1:48pm

    I'm pretty sure that Prenda considered this case a loss at the first objection.

    The DC circus just a rear-guard action. Losing the appeal rather than winning it is a loss solely because now Duffy will have to prepare for and attend another hearing.

    Their business model wasn't to win cases. It wasn't even to start litigation and settle. It was to never be in court at all. They only needed to use the power of the court for discovery and to threaten potential victims. They needed discovery to get the names and addresses of targets. They then used the threat of ruinous legal expense -- not punishment for wrong-doing -- to extort money.

    Ideally this would take only a single filing fee, with no document ever needing to be reviewed by a judge.

     

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    •  
      icon
      That Anonymous Coward (profile), May 27th, 2014 @ 7:57pm

      Re:

      which is why when the suggestion of a "small claims" style courts for copyrights was met with much concern.

      The ever popular victorian mindset about pornography makes even those who are truly innocent of anything consider settling to avoid the 'what will the neighbors think' effect.

      There are many other models out there right now, trolling for "small" amounts without ever involving the courts at all. DMCA notices with attached settlement agreements forwarded onto account holders... and some people who fear the $150K hammer slamming into them or a long protracted fight where they might not get their costs repaid if they win... yeah the odds are they will pay the "small" amount to make it go away. Of course the small amount always gets bigger once they get a live one... and they are caught in the catch 22 of but if you weren't guilty why did you offer to settle? Suddenly they discover you need to settle for much more...

      The system is ripe for and filled with abuse, one only hopes that Pretenda in its death throws will poison the well enough to start closing off these avenues or somehow spark needed copyright law reform.

       

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  •  
    icon
    madasahatter (profile), May 27th, 2014 @ 7:57pm

    Between the lines

    The CofA basically said you no longer paid by Hollywood.

     

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
     
    identicon
    Whatever, May 28th, 2014 @ 5:59am

    good job leaving out all the details again

    Mike Masnick just hates it when copyright law is enforced.

     

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    •  
      identicon
      Anonymous Coward, May 28th, 2014 @ 2:07pm

      Re: good job leaving out all the details again

      Yeah, I hate it when copyright law is enforced, and yet Prenda can't seem to win a case.

      Bwahahahahahaha!!!! Karma's a bitch, ain't it?

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      That One Guy (profile), May 28th, 2014 @ 3:12pm

      Re: good job leaving out all the details again

      So I'm curious, do you have a file you just copy/paste that line from, or do you type it out each time?

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Pragmatic, Jun 1st, 2014 @ 12:06pm

      Re: good job leaving out all the details again

      This new ruling IS a case of copyright law being PROPERLY enforced, and Mike just loves it, you dumb troll.

      They wanted to hit Does who didn't even live within the jurisdiction of the court so no ruling could legally be enforced against them. Learn to read!

       

      reply to this | link to this | view in chronology ]

  •  
    icon
    simality (profile), May 28th, 2014 @ 6:16am

    Wooohooo, John Steele is in the house.

    So, Mr. Steele, where are you living these days?

     

    reply to this | link to this | view in chronology ]


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