Nu Image, Inc. v. Does 1-23,322
799 F. Supp. 2d 34
D.D.C.2011Background
- Nu Image, Inc. sues 23,322 John Doe defendants for copyright infringement of The Expendables.
- Plaintiff alleges BitTorrent-based swarming enables viral infringement by downloading and uploading copies.
- Plaintiff identified each Doe defendant by IP address assigned by an ISP at the time of alleged infringement.
- Plaintiff seeks expedited, non-party discovery from ISPs to identify true defendants prior to a Rule 26(f) conference.
- Court issued an order to show cause on venue and joinder; Plaintiff elected not to amend or limit the scope of discovery.
- Court ultimately denies the motion for expedited discovery and requires a narrowed plan targeting likely DC-resident defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expedited jurisdictional discovery is appropriate for all 23,322 Does | Plaintiff seeks broad discovery to establish venue/jurisdiction. | No good cause to extend discovery to non-DC residents; discovery would be futile for outside-DC defendants. | Denied; limited discovery only for DC-resident subset. |
| Whether venue under 1400(a) requires all defendants to reside or be found in DC | Venue may be proper by joinder across all defendants. | Under 1400(a), venue requires each defendant be found in DC or subject to DC long-arm. | DC venue requires each putative defendant to be found or jurisdictionally served in DC. |
| Situs of injury and personal jurisdiction in internet copyright cases | Injury can be linked to DC under long-arm analysis. | Injury occurs where the defendant resides or where the initial injury occurred; outside-DC defendants cannot be jurisdictionally found. | American Buddha and Helmer analyses show injury situs outside DC for outside defendants; no jurisdiction over non-DC residents. |
| Whether the Court should permit third-party discovery for all 23,322 Does or limit to DC-residents | Broad discovery necessary to identify all infringers and enforce venue. | Unwarranted burden and delay; relevant only for DC-resident defendants. | Denied; allow Rule 45 subpoenas for IPs with good-faith basis they're DC-resident within 30 miles. |
Key Cases Cited
- Penguin Grp. (U.S.A.), Inc. v. Am. Buddha, 640 F.3d 497 (2d Cir. 2011) (situs of injury for copyright is the location of the copyright holder)
- Helmer v. Doletskaya, 393 F.3d 201 (D.C.Cir. 2004) (economic injury location tied to original events; long-arm analysis)
- Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080 (D.C.Cir. 1998) (good-cause standard for discovery in jurisdictional context)
- In re Multi-Piece Rim Prods. Lib. Litig., 653 F.2d 671 (D.C.Cir. 1981) (court may limit discovery to avoid undue burden on third parties)
- Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F.Supp.2d 1 (D.D.C. 2009) (jurisdictional discovery justified only with good cause)
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1980) (discovery not justified when sought to use for other proceedings)