Case 1:11-cv-00056-EGS Document 23 Filed 01/23/12 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`AXEL BRAUN PRODUCTIONS,
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`Plaintiff,
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`v.
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`DOES 1-2,823,
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`Defendants.
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`Civil Action No. 11-56 (EGS/JMF)
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`MEMORANDUM OPINION
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`This case was referred to me for full case management. Currently pending and ready for
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`resolution is plaintiff’s Motion for Leave to Take Additional Discovery Prior to Rule 26(f)
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`Conference; Memorandum of Points and Authorities in Support Thereof [#14].
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`Plaintiff, Axel Braun Productions, is the owner of the copyright for the motion picture
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`“Batman XXX: A Porn Parody”. Complaint for Copyright Infringement [#1] ¶5. According to
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`plaintiff, numerous individuals illegally downloaded and distributed its film over the Internet, in
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`violation of the Copyright Act of 1976, 17 U.S.C. § 101 et seq. Id. ¶¶1, 3. At the time the law
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`suit was filed, plaintiff did not know the identities of these individuals. Id. ¶17. Plaintiff did,
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`however, know the Internet Protocol (“IP”) address of the computers associated with the alleged
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`infringers. Id.
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`On June 29, 2011, this Court granted plaintiff’s first motion for leave to take discovery
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`prior to the Rule 26(f) conference. See Memorandum Order [#12]. In its current motion,
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`plaintiff seeks to conduct more of the same. [#14] at 1-5.
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` All references to the United States Code or the Code of Federal Regulations are to the
`lectronic versions that appear in Westlaw or Lexis.
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`Case 1:11-cv-00056-EGS Document 23 Filed 01/23/12 Page 2 of 6
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`Since the Court issued its Memorandum Order in June of 2011, it has had an opportunity
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`to reconsider the issue and has now concluded that such early, wide-ranging discovery is, for the
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`following reasons, not warranted.
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`Plaintiff seeks what is in essence jurisdictional discovery. Pursuant to Rule 26 of the
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`Federal Rules of Civil Procedure, although “[a] party may not seek discovery from any source
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`before the parties have conferred as required by Rule 26(f),” they may do so “when authorized . .
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`. by court order.” Fed. R. Civ. P. 26(f). Such authorization, however, must be based on a
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`showing of “good cause”. Fed. R. Civ. P. 26(d)(1). “[I]n order to get jurisdictional discovery[,] a
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`plaintiff must have at least a good faith belief that such discovery will enable it to show that the
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`court has personal jurisdiction over the defendant.” Caribbean Broad. Sys. Ltd. v. Cable &
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`Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998). Furthermore, it is well within the court’s
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`purview under Rule 26 to impose reasonable limitations on discovery when “the burden or
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`expense of the proposed discovery outweighs its likely benefit”. Fed. R. Civ. P. 26(b)(2)(c). See
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`also Linder v. Dep’t of Def., 133 F.3d 17, 24 (D.C. Cir. 1998) (“Whether a burdensome
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`subpoena is reasonable ‘must be determined according to the facts of the case,’ such as the
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`party’s need for the documents and the nature and importance of the litigation.”) (internal
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`citation omitted); In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 9 (D.D.C. 2010) (“The
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`‘undue burden’ test requires district courts to be ‘generally sensitive’ to the costs imposed on
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`third parties . . .”) (internal quotations omitted); N.C. Right to Life, Inc. v. Leake, 231 F.R.D. 49,
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`51 (D.D.C. 2005) (“While quashing a subpoena goes against courts’ general preference for a
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`broad scope of discovery . . . limiting discovery is appropriate when the burden of providing the
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`documents outweighs the need for it.”).
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`Case 1:11-cv-00056-EGS Document 23 Filed 01/23/12 Page 3 of 6
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`Plaintiff’s cause of action, tortious copyright infringement, is brought under a federal
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`statute, the Copyright Act. The Copyright Act does not provide for the exercise of personal
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`jurisdiction over alleged infringers on a nationwide or other basis. Plaintiff must therefore
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`predicate the court’s jurisdiction over the infringers on the reach of District of Columbia law. It
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`first provides for the exercise of personal jurisdiction over a person domiciled in the District of
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`Columbia as to “any claim for relief.” D.C. Code § 13-422 (2001). The so-called “long arm”
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`provision of the personal jurisdiction statute provides, in pertinent part, as follows:
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`(a)
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`A District of Columbia court may exercise personal
`jurisdiction over a person, who acts directly or by an agent,
`as to a claim for relief arising from the person’s - -
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`* * *
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`(3)
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`causing tortious injury in the District of Columbia
`by an act or omission in the District of Columbia;
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`D.C. Code § 13-423 (2001).
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`Thus, unless the infringer is domiciled in the District of Columbia, the question presented
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`is where the infringement occurred and whether it occurred in the District of Columbia.
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`In Nu Image, Judge Wilkins considered this very question and followed the approach
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`taken by the D.C. Circuit in Helmer v. Dolestskaya, 393 F.3d. 201 (D.C. Cir. 2004). Nu Image,
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`2011 WL 3240562, at *3. In Helmer, plaintiff, a U.S. citizen, brought suit against his former
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`girlfriend, a Russian citizen, for fraud and breach of contract. Helmer, 393 F.3d. at 203.
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`Specifically, plaintiff claimed that the defendant failed to reimburse him for real and personal
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` “It is well settled in this jurisdiction [the District of Columbia Circuit] that a claim for
`opyright infringement sounds in tort.” Nu Image, Inc. v. Does 1-23,322, — F. Supp. 2d —,
`2011 WL 3240562, at *8, n.3 (D.D.C. 2011) (citing Stabilisierungsfonds Fur Wein v. Kaiser,
`647 F.2d 200, 207 (D.C. Cir. 1981)).
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`Case 1:11-cv-00056-EGS Document 23 Filed 01/23/12 Page 4 of 6
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`property acquired while they were living together in Moscow. Id. The court of appeals upheld
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`the lower court’s finding that the injury occurred outside of the District of Columbia:
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`The district court ruled that although [defendant] fraudulently
`concealed her personal background during her visit to the District
`of Columbia, the fraud did not cause injury here because [plaintiff]
`was not “physically present” in the District of Columbia when
`[defendant] incurred the credit card charges, when [plaintiff] paid
`the credit card charges, when [plaintiff] purchased the apartment,
`or when [defendant] registered the apartment in her own name.
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`Id. at 208.
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`As a result, the court of appeals held that, because plaintiff failed to demonstrate that
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`defendant’s fraud caused him injury in the District of Columbia, the court could not exercise
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`personal jurisdiction over her as to that count. Id. at 209.
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`In Nu Image, Judge Wilkins ultimately concluded that it was difficult to see how
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`defendants living outside of the District of Columbia could have caused plaintiff tortious injury
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`within the District of Columbia when they downloaded plaintiff’s film. Nu Image, 2011 WL
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`3240562, at *4. To that end, Judge Wilkins therefore held that discovery prior to the Rule 26(f)
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`conference was warranted if “the Court finds that the Plaintiff has a good faith basis to believe a
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`putative defendant may be a District of Columbia resident if a geolocation service places his/her
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`IP address within the District of Columbia, or within a city located within 30 miles of the
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`District of Columbia.” Id. Thus, Judge Wilkins denied the plaintiff’s motion for expedited
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`discovery as to all defendants and indicated instead that he would only entertain a motion for
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`expedited discovery on the ISPs to “obtain identifying information only for IP addresses that
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`Plaintiff has a good faith basis to believe are reasonably likely to correspond to internet accounts
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`located in the District of Columbia.” Id. at *6.
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`Case 1:11-cv-00056-EGS Document 23 Filed 01/23/12 Page 5 of 6
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`In the case at bar, the issue is where the situs of the injury is with respect to the
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`simultaneous uploading and downloading of copyrighted material from the Internet. According
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`to plaintiff, the illegal infringement took place as follows:
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`The initial file-provider intentionally elects to share a file with a
`torrent network. This initial file contains Plaintiff’s entire
`copyrighted work and is called a “seed.” Other peers on the
`network connect to the seek file to download the file wherein the
`download creates a free digital co[p]y of Plaintiff’s copyrighted
`film. As yet additional peers request the same file each additional
`user becomes a part of the network from where the file can be
`downloaded. However, unlike a traditional peer-to-peer network,
`each new file downloader is receiving a different piece of the data
`from each host user in the swarm who has already downloaded the
`file that together comprises the whole. The effect of this
`technology makes every downloader also an uploader of the
`illegally transferred file(s). This means that every “node” or peer
`user who has a copy of the infringing copyrighted material on a
`torrent network must necessarily also be a source of download for
`that infringing file.
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`[#1] ¶13.
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`Irrespective of whether the injury is viewed to be the uploading of the movie, the
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`downloading of the movie, or both, the focus would be on the physical location of the computers
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`bearing the unique IP addresses plaintiff claims were involved in the unauthorized distribution of
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`its film. For non-resident defendants, that would most likely be outside of the District of
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`Columbia, unless it were shown that they were visiting the District of Columbia at the time of
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`the alleged infringement.
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`As concluded by Judge Wilkins in Nu Image, this Court cannot see how it could exercise
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`personal jurisdiction over non-District of Columbia residents under the current facts. The Court,
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`therefore, will order plaintiff to show cause why it should assert jurisdiction over the person of
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`each John Doe defendant unless it has a good faith belief that that person is domiciled in the
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`Case 1:11-cv-00056-EGS Document 23 Filed 01/23/12 Page 6 of 6
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`District of Columbia which, as Judge Wilkins found, may be premised on “utilizing geolocation
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`services that are generally available to the public to derive the approximate location of the IP
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`addresses identified for each putative defendant.” Nu Image, 2011 WL 3240562, at *4.
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`Finally, the statutory requirements as to venue under the Copyright Act provide
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`additional and equally insurmountable obstacles to this lawsuit remaining in this Court. Venue
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`is governed exclusively by 28 U.S.C. § 1400, which states the following: “Civil actions, suits, or
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`proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask
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`works or designs may be instituted in the district in which the defendant or his agent resides or
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`may be found.” 28 U.S.C. § 1400(a). Thus, plaintiff will also have to convince me that venue
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`would be proper in this Court.
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`An Order accompanies this Memorandum Opinion.
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`SO ORDERED.
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`_____________________________
`JOHN M. FACCIOLA
`UNITED STATES MAGISTRATE JUDGE
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