This is one of many lawsuits known as "copyright troll" suits. They commonly are filed against hundreds of "john doe" defendants. The federal courts have shown extreme hostility to these suits.
This is one of many lawsuits known as "copyright troll" suits. They commonly are filed against hundreds of "john doe" defendants. The federal courts have shown extreme hostility to these suits.
This is one of many lawsuits known as "copyright troll" suits. They commonly are filed against hundreds of "john doe" defendants. The federal courts have shown extreme hostility to these suits.
FOR MIAMI-DADE COUNTY, Case No. 11-29024-CA-05 .. - '"" , ; ..... ;1, :x .. 3:Ia , co :::0 : :) - .. ; :-;, r- ( 0"\ ) " -" } BOY RACER, INC., a foreign corporation, ) .-, - " -" ; .., 0 ::t: --, , ..
J:" ) Plaintiff, ) ) vs. ) f:\' ," ) JOHN DOES 1-615, ) ) Defendant(s). ) ----------------------------) Order Quashing Subpoena, Vacating Order to Compel - and Dismissing Complaint This cause came before the Court on March 20, 2013, on Plaintiffs supplemental motion to strike all pending motions objecting to subpoenas as moot. The Court reviewed the motion, any and all responses filed thereto, and heard oral argument. This is one of many lawsuits known as "copyright troll" suits. They commonly are filed against hundreds of "John Doe" defendants and then used in order to attempt to obtain or ''troll'' for names of subscribers of an Internet Service Provider ("ISP") such as Comcast Cable Holdings, LLC. The plaintiff then uses that subscriber to attempt to elicit a settlement from each named defendant before the defendant is publicly identified. The federal courts have shown extreme hostility to these suits, identifying them as fishing expeditions that improperly join numerous defendants (thus avoiding court filing fees), as failing to meet federal pleading standards, and as being used to extort settlements from defendants who are neither subject to the courts' personal jurisdiction nor guilty of copyright infringement, but who are fearful of the consequences of being publicly named as a defendant in a suit that seeks Bk 28039 Pg 2741 CFN 2012019507903/19/2012 15:16:21 Pg 1 of 9 Mia-Dade Cty, FL disclosure of the contents of their personal computers. i Typically, federal courts have dismissed these mass lawsuits. 2 The Plaintiff in this lawsuit seeks to invoke Florida's ancient equitable doctrine of the pure bill of discovery. Defendant John Doe 376 argued in response to the Complaint that this equitable device is not available to allow the plaintiff to pursue its objectives, and requested both dismissal of the Complaint and an order vacating this Court's order of October 13, 2011, compelling Comcast Corporation to respond to a subpoena served by the Plaintiff. A number of other John Doe Defendants filed motions to dismiss, quash, and/or compel. Instead of In CP Productions, Inc. v. Does 1-300, No.1 :1O-cv-06255 (N.D. Ill. Feb. 24,2011), U.S. District Judge Milton Shadur held "there is no justification for dragging into an Illinois federal court, on a wholesale basis, a host of unnamed defendants over whom personal jurisdiction clearly does not exist and -- more importantly -- as to whom CP's counsel could readily have ascertained this fact." Slip Op. at 2. 2 See, e.g., Boy Racer, Inc. v. Does 1-60, No. C 11-01738 SI (N.D. Cal. Aug. 19,2011) (order granting Doe Defendant's Motion to Quash and Dismissing Case Without Prejudice); 10 Group v. Does 1-19, 2010 U.S. Dist. LEXIS 133717, at *8-9 (N.D. Cal. Dec. 7,2010) (plaintiffs allegations that the defendants conspired with each other to provide the infringing reproductions of the works were "wholly conclusory and lacked facts to support an allegation that defendants worked in concert to violate plaintiffs copyright"); Laface Records, LLC v. Does 1 - 38, 2008 U.S. Dist. LEXIS 14544 (E.D.N.C. Feb. 27, 2008) (ordering the severance of claims against thirty-eight defendants where plaintiff alleged each defendant used the same ISP as well as the same peer-to-peer network to commit the alleged copyright infringement, but there was no assertion that the multiple defendants acted in concert); Interscope Records v. Does 1-25, 2004 U.S. Dist. LEXIS 27782 (M.D. Fla. Apr. 1, 2004) (magistrate recommended sua sponte severance of multiple defendants in action where only connection between defendants was allegation that they used same ISP and peer-to-peer network to conduct copyright infringement); see also BMG Music v. Does, 2006 U.S. Dist. LEXIS 53237, No. 06-01579 (Patel, 1.) (N.D. Cal. July 31, 2006) (finding improper joinder of four Doe defendants where the complaint alleged that each defendant used the same ISP to engage in distinct acts of infringement on separate dates at separate times, and there was no allegation that defendants acted in concert); Twentieth Century Fox Film Corp. v. Does 1-12, No. C 04-04862 WHA (N.D. Cal. Nov. 16,2004) (Alsup, J.) (severing twelve Doe defendants in a copyright infringement case where although defendants used the same ISP to allegedly infringe motion picture recordings, there was no allegation that the individuals acted in concert); cf In the Matter of DIRECTV,INC. 2004 U.S. Dist. LEXIS 24263, No. 02-5912 (Ware, J.) (N.D. Cal. July 26, 2004) (severing and dismissing hundreds of defendants in a case alleging that defendants purchased and used modified access cards and other pirate access devices to permit view of plaintiffs programming without authorization). 2 Bk 28039 Pg 2742 CFN 2012019507903/19/2012 15:16:21 Pg 2 of 9 Mia-Dade Cty, FL responding to the substance of these motions, the Plaintiff voluntarily dismissed John Doe 376 and the other moving Defendants, and moved to strike those motions as moot. Plaintiff further agreed that the Court should modify its October 13, 2011 order to relieve Comcast of its obligation to respond to identify the dismissed Defendants. The Plaintiff appears to have taken this tack to avoid a Court ruling that would undermine its effort to continue to misuse this Court's jurisdiction to achieve Plaintiffs ends. However, as noted by John Does 376, this Court does not have jurisdiction over the subject matter of the Complaint. Furthermore, it would be inappropriate to allow Plaintiff to proceed in the manner it seeks. This Court Lacks Subject-Matter Jurisdiction It is a basic principle that "the limits of a court's jurisdiction are of primary concern." Polk Co. v. Sojka, 702 So.2d 1243, 1245 (1997). Therefore, a Court is required "to address the issue sua sponte when any doubt exists." Id Defendant John Doe 376 brought a substantial jurisdictional defect to this Court's attention, and in light of the morass of pleadings and motions (as is to be expected when 615 individual anonymous defendants are joined together), this Court - on its own initiative - first will address the jurisdictional issue. After so doing, this Court finds jurisdiction lacking, as explained below. The Supreme Court often has recognized that the First Amendment protects anonymous speech. 3 Other federal courts have held that Internet users sharing copyrighted works via the BitTorrent application are themselves engaged in anonymous speech that warrants First 3 Watchtower Bible & Tract Soc. o/NY, Inc. v. Village o/Stratton, 536 US 150 (2002) (ordinance requiring registration of solicitors violates the First Amendment); Buckley v. American Constitutional Law Found, 525 U.S. 182, 200 (1999) (invalidating, on First Amendment grounds, state statute requiring initiative petitioners to wear identification badges). As the Court has held, "[a]nonymity is a shield from the tyranny of the majority." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995) (invalidating state law that prohibited dissemination of campaign literature that did not name issuer). 3 Bk 28039 Pg 2743 CFN 2012019507903/19/2012 15:16:21 Pg 3 of 9 Mia-Dade Cty, FL Amendment protection. 4 In file sharing cases, courts have adopted a five-prong standard, first stated in Sony Music Entertainment, Inc. Entertainment, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004), to determine whether a user's First Amendment right to remain anonymous is outweighed by a litigant's need for identifying information. In order to mandate disclosure of a user's identities, a plaintiff in a file-sharing case must set forth: (1) a concrete showing of a prima facie claim of actionable harm, (2) specificity of the discovery request, (3) the absence of alternative means to obtain the subpoenaed information, (4) a central need for the subpoenaed information to advance the claim, and (5) the party's expectation of privacy. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 164 (D. Mass. 2008) (citing Sony Music, 326 F. Supp. 2d at 564-65); see also Call of the Wild Movie, 770 F. Supp. 2d at 351 (citing and adopting Sony Music five-prong test); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 248-49 (N.D. Ill. 2011) (same). The first element of the Sony Music test requires Plaintiff to set forth "a concrete showing of a prima facie claim of actionable harm." London-Sire Records, 542 F. Supp. 2d at 164-65. This, in tum, has three parts: First, the plaintiffs must assert an "actionable harm," a claim upon which relief can be granted. Second the claim must be supported by prima facie evidence .... Finally, both the claim and the prima facie evidence supporting it must be concrete. That is, they must be reasonably grounded in allegations of a specific act of infringement. 4 Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 350 (D.D.C. 2011) ("file sharers are engaged in an 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"); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 248-49 (N.D. Ill. 2011); London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 164 (D. Mass. 2008); Sony Music Entertainment, Inc. v. Does 1-40, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004). 4 Bk 28039 Pg 2744 CFN 2012019507903/19/2012 15:16:21 Pg 4 of 9 Mia-Dade Cty, FL Id. at 164-65. The burden is on Plaintiff to establish each of these three parts in order to satisfy the first Sony Music element and trump a Defendant's First Amendment right to anonymity. See Call of the Wild Movie, 770 F. Supp. 2d at 351. But, the only actionable harm even alluded to in the Complaint - copyright infringement - is one that this Court cannot exercise jurisdiction over. A claim of copyright infringement has two elements: (1) a valid copyright; and (2) a violation of one of the copyright holder's exclusive rights. London-Sire Records, 542 F. Supp. 2d at 176. However, this Court is barred from exercising any jurisdiction over copyright infringement claims. 28 U.S.C. 1338(a) ("No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights."). Therefore, this Court is without jurisdiction to rule on whether Plaintiff possesses, or has stated prima facie evidence that it possesses, a valid copyright, or whether any of Defendants' alleged conduct constitutes copyright infringement. See id. Therefore, this Court is without jurisdiction to determine whether Plaintiff has stated a prima facie case of copyright infringement sufficient to meet the first Sony Music requirement. Without such a ruling, Boy Racer cannot invade the defendants' First Amendment right to remain anonymous. Accordingly, Plaintiffs Complaint, containing a sole count for a bill of discovery, must be dismissed, the subpoenas issued to ISPs quashed, and this Court's October 13, 2011 Order to Compel vacated. A Bill of Discovery Cannot Issue for the Purpose Plaintiff Seeks Independent of the jurisdictional defect, whether it is appropriate to allow the Plaintiff to proceed in this fashion requires a brief examination of the merits of the arguments advanced by John Doe 376. That Defendant pointed out that a pure bill of discovery is an action in equity pre-dating the Florida Rules of Civil Procedure and the discovery provisions therein. See Daniel Morman, The Complaint for a Pure Bill of Discovery A Living, Breathing Modern Day 5 Bk 28039 Pg 2745 CFN 2012019507903/19/2012 15:16:21 Pg 5 of 9 Mia-Dade Cty, FL Dinosaur?, 78-MAR Fla. B.J. 50, 50-51 (2004). Courts allowed the pure bill of discovery so that a plaintiff could obtain specific discovery relating to an identified substantive cause of action from a party against whom the plaintiff intended to assert the cause of action. See id. With the bill of discovery in hand, the plaintiff could enforce the discovery request, because the defendant's failure to comply could be met with orders of contempt or default judgment. See id. A bill of discovery was, and still is, simply a means to enforce compliance with specific discovery requests issued to a defendant. See First Nat. Bank of Miami v. Dade-Broward Co., 171 So. 510, 510 (Fla. 1936) (defining a bill of discovery as an action in equity that "lies to obtain the disclosure of facts within the defendant's knowledge, or deeds or writings or other things in his custody."); see also Complaint for Bill of Discovery filed in Precious Homes at Twin Lakes Prop. Owner's Ass 'n., Inc. v. Venezia Lakes Homeowners Ass 'n., Inc., at pp., 3-4, Case No.: 08-75939-CA-23 (Fla. Cir. Ct. Miami-Dade Cty. 2008) (including in the complaint a request for documents and seeking relief that the "Court grant the discovery sought herein"). 5 The Plaintiff in the instant case made a general request simply "to conduct discovery" rather than for specific information sought from the John Doe Defendants. A complaint for a bill of discovery is not, as Plaintiff would have it, a complaint that opens the whole world to discovery pursuant to the Florida Rules of Civil Procedure. Instead, a bill of discovery is equitable relief that narrowly allows the Plaintiff to obtain specifically identified information from the party against whom the Plaintiff asserts it intends to file a substantive claim. See Carner v. Ratner, 207 So.2d 310, 311 (Fla. 3rd DCA 1968) (stating that the Florida Rules of Civil Procedure do not "abrogate, or abolish, the traditional right of a court to entertain pure bills 5 The Precious Homes complaint provides an example of the type of information that may be requested in a Bill of Discovery. At ~ 12, the plaintiff lists a series of contracts it wants copies of and seeks relief in the form of a Court order granting that discovery. 6 Bk 28039 Pg 2746 CFN 2012019507903/19/2012 15:16:21 Pg 6 of 9 Mia-Dade Cty, FL of discovery."). In a complaint seeking a bill of discovery, a plaintiff may seek either an order of the Court demanding that a defendant disclose information within his or her knowledge (i.e. an interrogatory sought through the equitable powers of the Court) or that a defendant produce documents in its possession (i. e. a request for the production of documents sought through the equitable powers of the Court). Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369, 1370 (Fla. 4th DCA 1997) ("A pure bill of discovery 'lies to obtain the disclosure of facts within the defendant's knowledge, or deeds or writings or other things in his custody''') citing First Nat. Bank of Miami v. Dade-Broward Co., 171 So. 510, 510-511 (Fla. 1937). This is the relief available on a claim for a bill of discovery, an order that the defendant respond to an interrogatory or a request for production. Plaintiffs request to "conduct discovery" from Comcast and others as possible witnesses is not the form of relief the pure bill of discovery allows and for good reason. The pure bill of discovery has never been a license to conduct fishing expeditions from persons who are not parties and that might reveal claims. "[A] Pure Bill of Discovery may not be used to obtain information, prior to the bringing of an action at law, from third-party witnesses." Schwab v. Television 12 of Jacksonville, Inc., 1993 WL 169181, at *3 (Fla. Cir. ct. 1993) (finding petitioner had no right to bring a claim for bill of discovery). Instead, a bill of discovery "lies to obtain the disclosure of facts within the defendant's knowledge, or deeds or writings or other things in his custody." Publix Supermarkets, 696 So.2d at 1370 (emphasis added). Long-established precedent also clearly shows that plaintiff cannot maintain a claim for bill of discovery directly against the ISPs. See First Nat. Bank of Miami, 171 So. at 511 ("a person who has no interest in the subject-matter of the suit, or is merely a witness, cannot be made a party defendant to a bill either for relief or for purposes of discovery"); Poling v. 7 Bk 28039 Pg 2747 CFN 2012019507903/19/2012 15:16:21 Pg 7 of 9 Mia-Dade Cty, FL Petroleum Carrier Corp., 194 So.2d 925,927 (Fla. 1st DCA 1967) (affinning dismissal of bill of discovery sought against entities that could not be sued in the underlying action complained of because "the general rule in equity is that a person who has no interest in the subject matter of the suit, or is merely a witness, cannot be made a party defendant to a bill either for relief or for purposes of discovery"). In light of these important principles drawn to the Court's attention by John Doe 376, it is not appropriate to strike the Motion to Dismiss and to Quash filed by John Doe 376. The Court recognizes, of course, that the Plaintiff is entitled under Florida Rule of Civil Procedure 1.420 to voluntarily dismiss a defendant without order of the Court before a hearing on a motion for summary judgment or before submission of a nonjury case to the court for decision. But here, the Plaintiff already has obtained from the Court an order which in essence granted it most of the relief it was seeking -- an order requiring Internet service providers to disclose the identities of the persons assigned to certain IP addresses. Having obtained that relief, it is not appropriate for this Court to ignore Defendants' request for relief from that decision merely because the Plaintiff now contends he no longer wishes to maintain the action against the Defendants seeking that relief. Put another way, this Court's prior order cannot be vacated by Plaintiff, simply because it claims it changed its mind. Being fully advised in the premises, it is hereby ORDERED AND ADJUDGED that: 1. Plaintiffs Supplemental Motion is DENIED. 2. All motions filed by Defendant John Does 233, 376, and 486, identified by Plaintiff as the Defendants related to the IP addresses, 24.1.238.101, 24.9.248.67, and 67.183.216.250, respectively (the "Dismissed Defendants") are GRANTED. 3. Plaintiffs Complaint is DISMISSED with prejudice. 8 Bk 28039 Pg 2748 CFN 2012019507903/19/2012 15:16:21 Pg 8 of 9 Mia-Dade Cty, FL 4. This Court's Order Granting Plaintiffs Motion to Compel Non-Party Internet Service Providers ("ISP's") To Disclose Indentifying Information Regarding Unknown John Doe Defendants 1-615, dated October 13,2011, is VACATED in its entirety and the Internet Service Providers (ISPs) are relieved of their obligation to respond to any subpoenas served by the plaintiff. 5. Counsel for Plaintiff shall provide a copy of this Order to all ISPs identified in Exhibit A to the Complaint in this action, within 5 days of the date of this Order. DONE AND ORDERED in Chambers, Miami-Dade County, Florida, this A- day of __ ....:../UI_IL __ , 2012. Copies furnished to: Marc Schumacher Circuit Court Judge Neil H. Rubin, Esq., Rubin & Bickman, PLLC, 1130 Washington Ave., 4th Floor, Miami Beach, FL 33139 Steele Hansmeier, PLLC, 1111 Lincoln Road, Suite 400, Miami Beach, FL 33139 Joseph Perea, Prenda Law, Inc., 1111 Lincoln Road, Suite 400, Miami Beach, FL 33139 Joseph M. Dobkin, Esq., 9990 S.W. 77th Avenue, Penthouse Three, Miami, Florida 33156 Diane B. Hernandez, Esq., Hernandez & Hicks, P.A., 5800 N. Andrews Avenue, Fort Lauderdale, FL 33310 Paul Haralson, Esq., The Haralson Law Firm, P.A., 7001 Biscayne Blvd., 2nd Floor, Miami, Florida 33138 Danny Simon, Esq., Lalchandi Simon P.L., 990 Biscayne Blvd., Office 503, Miami, FL 33132 Bradford A. Patrick, Esq., Law Offices of Bradford A. Patrick P.A., 3001 North Rocky Point, Drive East, Suite 200, Tampa, Florida 33607 Justin S. Brenner, Esq., Hunton & Williams LLP, 1111 Brickell Ave., Suite 2500, Miami, FL 33131 9 Bk 28039 Pg 2749 CFN 2012019507903/19/2012 15:16:21 Pg 9 of 9 Mia-Dade Cty, FL
Liberty Media Holdings v. Tabora (S.D. Cal. Jan. 4, 2012) (alleged participation in a bit torrent swarm that resulted in Plaintiff's work being distributed to computer in California deemed insufficient to establish specific jurisdiction)