from the good-rulings dept
Paul Alan Levy points us to a good ruling in the Southern District of NY district court concerning yet another mass infringement lawsuit filing (pdf and also embedded below), this time by Digiprotect. The ruling touches on a few different issues, and actually may be quite useful, in light of some other recent rulings. Also, if you recognize the name Digiprotect, that may be because it was heavily involved in many of these kinds of mass infringement lawsuits in Europe, helping, in some ways, to pioneer the strategy of suing a ton of people in the hopes that many will settle. I hadn’t realized it had set up shop in the US as well, but apparently it has. In this case, it appears to have taken on a Righthaven-like strategy, rather than a US Copyright Group strategy. That is, it actually “purchased” the copyrights, in some form or another, in order to sue, rather than just acting as the lawyers for a copyright holder. In this case, the actual content was produced by a California porn studio, Patrick Collins, Inc., better known as Elegant Angel Productions.
Digiprotect sued 266 individuals based on IP addresses, and asked the court for expedited discovery to find out who those people were. As has happened in similar lawsuits, Comcast and Time Warner protested, and after some wavering, the court asked Comcast and Time Warner to identify how many of the IP addresses listed from their subscribers, were actually in New York. In the end, Comcast said none of its subscribers on the list were in New York, and Time Warner said only 10 were. Digiprotect itself then admitted that on the entire list there were only 20 to 25 in NY. The court then told Digiprotect that it would only allow discovery for the IP addresses for NY subscribers, and suggested that Digiprotect file an amended complaint that only listed those IP addresses.
Digiprotect, apparently seeking to piss off the judge, instead filed an amended complaint still listing all 266 defendants. Bad idea.
The court makes it clear that those outside of its jurisdiction should not be included in this filing, and that it completely understands the business model aspect of what Digiprotect is trying to do:
During that conference the court noted its concern about ensnaring unsophisticated individuals from around the country in a lawsuit based in New York. The court was concerned then, and remains concerned, that defendants over whom the court has no personal jurisdiction will simply settle with plaintiff rather undertake the time and expense required to assert their rights.
That’s an important point that we would hope other judges would note as well. Compare this to Judge Beryl Howell’s ridiculous claim that lumping all these different defendants into a single lawsuit filed far away benefits defendants.
Separately, the court touches on another recent ruling we discussed, involving jurisdiction for copyright infringement under New York’s “long arm” statute. As you may recall in that lawsuit (Penguin Group vs. American Buddha), the court basically said, “if it’s on the internet, and the company is based in NY, it’s okay to file in NY.” We found that troubling, and apparently Digiprotect pointed to that case, since its US operations are based in NY… but the judge isn’t buying it, and highlights some important limitations to the Penguin/American Buddha ruling. First, it notes that it’s not even clear if that ruling applies to Digiprotect, because the real company “harmed” by the infringement is not Digiprotect, but Patrick Collins, which is based in California, not NY. It notes that Digiprotect really only received a “very narrow license,” (which makes me wonder if it could be facing the same problems Righthaven is now facing for “buying lawsuits” instead of “buying copyrights”).
More importantly, however, the court notes that even with the Penguin/American Buddha ruling, the company would still need to show that the defendants had “minimum contacts” in the state and that the lawsuit “comports with traditional notions of fair play and substantial justice, as required by the Federal Due Process clause.” The court doesn’t find that to be the case with Digiprotect:
Digiprotect has made no showing that any of the Doe defendants expected or reasonably should have expected their downloading of this film to have consequences in New York, particularly when the producer of the film is located in California. Furthermore, Digiprotect surely has no basis from which to allege that the unknown defendants derived substantial revenue from interstate or international commerce.
From there, the court limited the subpoenas only to the small number likely to be located in New York. Nice to see another judge recognizing how these lawsuits are more about a business model than about actual justice.
Filed Under: copyright, jurisdiction, mass lawsuits