D.C. Circuit Administers More Punishment To Prenda Law and Paul Duffy

The case is captioned, AF Holdings, LLC v. Does 1-1058, Cox Communications, Inc., 12-7135.

This is another case where Duffy, on behalf of AF Holdings, “sued and then sought discovery regarding more than a thousand unknown individuals who it claimed had illegally shared a copyrighted pornographic film.” Cox Communications appealed from an order granting AF Holdings motion to proceed with discovery. AF Holdings sued over 1000 defendants alleging that they had improperly downloaded a copyrighted pornographic film. AF Holdings then served subpoenas on five internet providers, seeking information about the John Doe clients who were sued. The internet service providers refused to produce documents, on the ground that the subpoena would subject them to an “undue burden” because AF Holdings did not establish that the court would have personal jurisdiction over the defendants. Very few of the over 1000 defendants resided in the District of Columbia. 

The D.C. Circuit reversed the district court’s order granting leave to serve the subpoenas on the internet service providers. The court stated “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 1058 John Doe defendants in this district.” By seeking to enforce broad subpoenas on individuals who did not reside in the district, AF Holdings “clearly abused the discovery process.” at 12.

The court then held that most of the defendants (those who did not live in the district) were improperly joined in the case. The court then reversed the district court’s order granting AF Holdings the right to proceed with discovery. The court held that the subpoenas should have been quashed because very few of the defendants resided in the district and because the vast majority of the defendants were improperly joined in the lawsuit. 

The court then remanded the case to district court with a suggestion that the court consider awarding sanctions for Prenda’s use of an allegedly forged copyright assignment. 

The first paragraph of the opinion illustrates how hostile the federal courts have become to Prenda. “Generally speaking, our federal judicial system and the procedural rules that govern it work well, allowing parties to resolve their disputes with one another fairly and efficiently. But sometimes individuals seek to manipulate judicial procedures to serve their own improper ends. This case calls upon us to evaluate–and put a stop to– one litigant’s attempt to do just that.”

Prenda, in my opinion, can no longer move forward with any cases against anyone. It has been destroyed by the federal courts. However, the destruction of Prenda will not stop others from bringing copyright actions against those who wrongfully download movies. It is naive to think that the copyright trolls are gone for good. Soon they will reemerge with more carefully thought out lawsuits against more plausible defendants. Just this past two weeks, the owners of the movie, Dallas Buyer’s Club have initiated numerous lawsuits in the Northern District of Illinois against those who allegedly wrongfully downloaded the movie. Only time will tell if the plaintiffs in that case are correct.

Edward X. Clinton, Jr.

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