Judge Beryl Howell CREATES A SPLIT in the DC Court.

There is a balancing act in this post as to how to make it NOT deathly boring, and how do I convey the information you need to understand what you have in front of you. Here we go.

Judge Beryl Howell once again issued a scathing opinion favoring copyright trolls and ruling against John Doe Defendants, their ISPs, the EFF, and everyone in favor of making these cases go away once and for all. However, there is a twist here in her decision, so read on.

In the AF Holdings LLC v. DOES 1-1,058 case (Case No. 1:12-cv-00048-BAH, Doc. 46) in the U.S. District Court for the District of Columbia, Judge Howell wrote a 42 page opinion essentially regurgitating all of her opinions of “judicial economy,” “personal jurisdiction,” “joinder,” whether an ISP has standing to file a MOTION TO QUASH on behalf of their subscribers’ arguments, and whether a subscriber’s MOTION TO QUASH is “ripe” for adjudication.

I want to be clear that this order is not written to the John Doe Defendants filing motions to quash, but to the ISPs who filed motions to quash on behalf of their subscribers.  To put it into context, this order is written to the ISPs telling them why they must comply with the subpoenas requesting their subscribers’ information.  However, her opinion has clear implications as to what a John Doe Defendant needs to be aware of if he decides to file a motion to quash in her court.

Restating her opinion of these cases, Judge Howell believes the following:

1) Copyright trolls have a right to sue defendants for sharing content over the bittorrent network.

PERSONAL JURISDICTION
2) “Personal jurisdiction” over a John Doe Defendant is IRRELEVANT before that defendant is “named and served” as a defendant in a lawsuit.

3) The proper place for a NAMED defendant to assert a lack of personal jurisdiction is in a responsive pleading (e.g., the “answer”) under a FRCP Rule 12(b)(2) motion.

4) A motion to quash by an unnamed defendant is NOT the proper place to assert improper jurisdiction.

JOINDER
5) “Joinder” — the question of whether the various John Doe Defendants are properly sued together (e.g., based on the “bittorrent swarm” theory) is IRRELEVANT before those defendants are “named and served” as defendants in a lawsuit.

6) Only NAMED defendants (not ISPs, not John Doe Defendants) may assert improper joinder.

7) A motion to quash by an unnamed defendant is NOT the proper place to assert improper joinder.

“JUDICIAL ECONOMY” (CONVENIENCE OF THE COURT)
8) It is more economical to deal with 1,000+ defendants in one lawsuit rather than dealing with the identical issues in 1,000 lawsuits.

Now essentially, as much as Paul Duffy, John Steele, and everyone at Prenda Law Inc. are overly excited about their wonderful order, there is not much that is new in this order that we didn’t know from Judge Howell’s previous orders.

Her breakdown of WHY MOTIONS TO QUASH DO NOT WORK, however, was astounding.

In her opinion, she states that NOWHERE IN THE FEDERAL RULES OF CIVIL PROCEDURE DOES IT SAY THAT A THIRD-PARTY MAY FILE A MOTION TO QUASH BASED ON IMPROPER JURISDICTION OR IMPROPER JOINDER.

Her words: “The plaintiff is correct that lack of personal jurisdiction and misjoinder are not delineated under Federal Rule of Civil Procedure [“FRCP” Rule] 45 as bases to quash a subpoena issued to a third-party [e.g., an ISP]. Indeed, third-parties cannot assert these defenses as a basis to dismiss the underlying action because, if either of these flaws did exist in the underlying action, they must be raised, and may be waived, by named defendants.  See FRCP Rule 12(b)(2) (lack of jurisdiction must be asserted in a responsive pleading [e.g., in the “answer”]); FRCP Rule 21 (“Misjoinder of parties is not a ground for dismissing an action…)” (emphasis added)

You can find a link to the actual order here.

MY OPINION:
This ruling is just another one of Judge Howell’s many opinions essentially saying the same thing.  The issues that inherently plague these cases (“jurisdiction,” “joinder,”) are unimportant to her, because as far as she is concerned, the copyright trolls have done everything properly according to the letter of the law.  Further, as far as she is concerned, there is no need for these smaller “John Doe 1-5” cases that we see Lipscomb & Eisenberg filing on behalf of Malibu Media, LLC, Patrick Collins, Inc., K-Beech, Inc., and the like.  Rather, just sue hundreds or thousands IN ONE CASE in HER DC COURT and she’ll let it go on indefinitely while the copyright trolls extort thousands of dollars from each defendant.

Further, as I have said before, JUDGE HOWELL (A FORMER COPYRIGHT LOBBYIST) DOES NOT CARE IF COPYRIGHT TROLLS EXTORT MONEY FROM JOHN DOE DEFENDANTS.  She even clearly states it here:

“At this stage, the plaintiff is attempting to identify those infringing… That the plaintiff chooses, after obtaining identifying information, to pursue settlement or to drop its claims altogether is of no consequence to the Court.“

MOVING FORWARD FROM THIS CASE:
Luckily, however, Judge Howell is just one judge in one small federal court, and her opinions ARE NOT BINDING on other federal courts outside D.C.  And, even in D.C., we have a clearly an opposing opinion by Judge Wilkins, who has killed a number of bittorrent cases.  In short, Judge Howell has created a CLEAR SPLIT IN THE D.C. COURT which she has certified for interlocutory appeal.

What this means is that D.C. now has two opposing sets of case law, each which says the law is something opposite from what the other says it is.  For this reason, Judge Howell has authorized an immediate interlocutory appeal to a higher court so that these issues of jurisdiction, joinder, and the other issues discussed in the case (not discussed here) can be decided once and for all by a higher court.

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