Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`NU IMAGE, INC,
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`v.
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`DOES 1- 23,322,
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`Plaintiff,
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`Defendants.
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`Civil Action No. 11-cv-00301 (RLW)
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`MEMORANDUM OPINION DENYING MOTION FOR EXPEDITED DISCOVERY
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`The Plaintiff in this action, Nu Image, Inc., is a California corporation that allegedly
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`owns the copyright and/or pertinent exclusive rights to a motion picture entitled “The
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`Expendables.” Plaintiff brings this copyright infringement action against 23,322 John Doe
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`Defendants, who have allegedly employed the Internet to use “BitTorrent protocol” or “torrent”
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`software to unlawfully download a pirated copy of Plaintiff’s movie onto their computers. The
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`Plaintiff alleges that the BitTorrent technology allows a Defendant who downloads the movie to
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`also assist in the uploading of a copy of the movie to someone else, leading to “swarm
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`downloads” and “viral” infringement of its copyright rights. Plaintiff alleges in its complaint
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`that the true names and addresses of the Defendants are unknown to it at this time, but that its
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`investigation has revealed the Internet Protocol (“IP”) address that was assigned to each
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`Defendant by his or her Internet Service Provider at the time of the alleged infringing activity.
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`Before the Court is Plaintiff’s motion to serve discovery prior to a Rule 26(f) conference on
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`several non-party Internet Service Providers (ISPs) to determine the true identities and addresses
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`of the 23,322 Doe Defendants.
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`On June 7, 2011, the Court issued an order to show cause. In that order, the Court
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`ordered Plaintiff to:
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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 2 of 17
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`show cause as to why venue and joinder is proper for all 23,322 putative
`defendants in this case . . . [or alternatively] seek leave to amend its
`complaint to name a certain subset of defendants and file a new motion for
`expedited discovery, addressing both legally and factually why venue and
`joinder is proper as to each defendant, and how Plaintiff intends to
`establish the same.
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`June 7, 2011 Order (Docket No. 9 at 4). Plaintiff has elected not to fully respond to the
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`Court’s order, as Plaintiff did not attempt to show why venue was proper as to all 23,322
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`putative defendants. Plaintiff also chose not to submit an amended complaint and a new motion
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`for discovery with respect to a subset of defendants.
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`Instead, Plaintiff has filed a response that basically contends that joinder is appropriate as
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`to all 23,322 putative defendants, and that Plaintiff should not be required to make a showing as
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`to venue at this time in order to justify the requested discovery. The Court respectfully
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`disagrees.
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`Plaintiff argues that its motion is akin to a request for jurisdictional discovery, that
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`jurisdictional discovery is liberally granted in most circumstances, and that it is ordinarily not
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`appropriate for the Court to dismiss a case for lack of venue or personal jurisdiction sua sponte.
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`While those propositions are generally true, it is also true that the Court “has broad discretion in
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`its resolution of discovery problems that arise in cases pending before it.” Hussain v. Nicholson,
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`435 F.3d 359, 363 (D.C. Cir. 2006) (citing In re Multi-Piece Rim Prods. Lib. Litig., 653 F.2d
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`671, 679 (D.C. Cir. 1981)); see also Fed. R. Civ. P. 26(b)(2)(c) (requiring the court to limit
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`discovery when “the burden or expense of the proposed discovery outweighs its likely benefit”).
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`The Court’s broad discretion includes imposing reasonable limitations on discovery, particularly
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`where, as here, the Court has a duty to prevent undue burden, harassment, and expense of third
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`parties. In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 9 (D.D.C. 2010) (the “undue burden”
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`2
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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 3 of 17
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`test also requires the court to be “generally sensitive to the costs imposed on third-parties”).
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`Furthermore, while jurisdictional discovery is liberally granted, a plaintiff is not entitled to take it
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`solely because he requests it—he still must make the requisite showing of good cause. Thus, the
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`law of this Circuit clearly requires that in order to engage in jurisdictional discovery, the plaintiff
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`“must have at least a good faith belief that such discovery will enable it to show that the court
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`has personal jurisdiction over the defendant.” Caribbean Broad. Sys., Ltd. v. Cable & Wireless
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`PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998); see also Exponential Biotherapies, Inc. v. Houthoff
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`Buruma N.V., 638 F. Supp. 2d 1, 11 (D.D.C. 2009) (while as a general matter discovery should
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`be “freely permitted,” jurisdictional discovery is justified only if the plaintiff “reasonably
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`demonstrates that it can supplement its jurisdictional allegations through discovery”). “Mere
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`conjecture or speculation” is not enough to justify jurisdictional discovery. FC Investment
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`Group LC v. IFX Markets Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008). As is further explained
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`below, Plaintiff has failed to show good cause to obtain the broad discovery it seeks and has not
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`demonstrated that it will be able to supplement its jurisdictional allegations through discovery.
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`The Court issued the order to show cause, in part, to seek clarity on the issue of venue. It
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`is worth noting here that Plaintiff’s counsel has brought similar copyright infringement suits
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`before this Court, and has asserted in each that venue is proper within this District under 28
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`U.S.C. § 1391(b) and/or 28 U.S.C. § 1400(a).1 However, when copyright infringement is the
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`sole claim being alleged, it is misleading, and arguably disingenuous, to assert that venue may be
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`1
`See Achte/Neunte Boll Koni Beteiligungs GMBH & Co. KG v. Does 1 – 4,577, No. 10-
`cv-00453 (D.D.C. filed March 18, 2010); Call of the Wild Movie, LLC v. Does 1 – 331, No. 10-
`cv-00455 (D.D.C. filed March 19, 2010); West Bay One, Inc. v. Does 1 – 1,653, No. 10-cv-
`00481 (D.D.C. filed March 23, 2010); Maverick Entertainment Group, Inc. v. Does 1 – 1,000,
`No. 10-cv-00569 (D.D.C. filed April 8, 2010); Voltage Pictures, LLC v. Does, No. 10-cv-00873
`(D.D.C. filed May 24, 2010); Cornered, Inc. v. Does, No. 10-cv-01476 (D.D.C. filed August 30,
`2010); OTT v. Does 1 – 15,551, No. 11-cv-00553 (D.D.C. filed March 11, 2011).
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`3
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`

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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 4 of 17
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`proper under section 1391(b), the general venue statute, when section 1400(a) is the exclusive
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`venue statute for copyright infringement actions.
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`As described in the Court’s prior order, venue for claims asserted under the Copyright
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`Act is governed by 28 U.S.C. § 1400(a), which requires that a civil suit to enforce the Copyright
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`Act be brought in a judicial district “in which the defendant or his agent resides or may be
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`found.” 28 U.S.C. § 1400(a). In essence, section 1400(a) requires that every single defendant
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`can be “found here” in order for venue to be proper in this Court. Plaintiff has made no effort to
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`dispute, and has not provided the Court with any authority to dispute, that section 1400(a) is the
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`correct venue provision.2
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`The application of the correct venue statute materially affects the analysis of Plaintiff’s
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`motion for leave to take expedited discovery. Application of section 1400(a) means that venue
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`will only be appropriate in this district for those putative defendants who reside in the District of
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`Columbia, or alternatively, as to those putative defendants for whom the Court has personal
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`jurisdiction pursuant to the District of Columbia’s long-arm statute, D.C. Code § 13-423. The
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`subsection of the District of Columbia long-arm statute that applies to tort claims – which is used
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`for copyright actions3 – requires that the tortious injury occur in the District of Columbia in order
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`for this Court to have personal jurisdiction.4 The District of Columbia’s long-arm statute is
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`2
`The Court’s prior Order is attached hereto for ease of reference.
`3
`It is well settled in this jurisdiction that a claim for copyright infringement sounds in tort.
`Stabilisierungsfonds Fur Wein v. Kaiser, 647 F.2d 200, 207 (D.C. Cir. 1981) (defendants in
`copyright infringement cases may be sued as joint tortfeasors); Costello Publishing Company v.
`Rotelle, 670 F.2d 1035, 1043 (D.C. Cir. 1981) (“it is well established that a suit for [copyright]
`infringement is analogous to other tort actions and infringers are jointly and severally liable”).
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`4
`The applicable subsections of the long-arm statute provide that a District of Columbia
`court may exercise personal jurisdiction where a defendant either (1) causes tortious injury in the
`District of Columbia by an act or omission in the District of Columbia; or (2) causes tortious
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`4
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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 5 of 17
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`“more restrictive than the Due Process Clause of the Constitution—meaning that the District
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`government has made a deliberate decision not to allow access to D.C. courts to every person
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`who is injured here and otherwise could bring a claim for civil redress.” Kopff v. Battaglia, 425
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`F. Supp. 2d 76, 82 (D.D.C. 2006) (citing Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987)
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`(“The drafters of this provision apparently intended that the (a)(4) subsection would not occupy
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`all of the constitutionally available space.”)). Thus, a District of Columbia court may only
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`exercise personal jurisdiction over a nonresident defendant in this matter if the defendant “causes
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`tortious injury in the District of Columbia.”
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`In a very recent decision, the United States Court of Appeals for the Second Circuit has
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`had occasion to rule, in the context of New York’s long-arm statute, on where the tortious injury
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`occurs in an internet piracy copyright infringement action. Significantly, the District of
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`Columbia’s long-arm statute is very similar to New York’s statute. New York’s long-arm statute
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`allows a court in New York to exercise personal jurisdiction over an out-of-state defendant when
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`the nondomiciliary: “commits a tortious act without the state causing injury to person or property
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`within the state, ... if he ... expects or should reasonably expect the act to have consequences in
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`the state and derives substantial revenue from interstate or international commerce.” 35 N.Y.
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`C.P.L.R. § 302(a)(3)-(4) (emphasis added). The Second Circuit, after certifying the question to
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`the New York Court of Appeals, held that for purposes of determining jurisdiction under New
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`York’s long-arm statute in a copyright infringement action, the situs of the injury is the location
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`injury in the District of Columbia by an act or omission outside the District of Columbia if he
`regularly does or solicits business, engages in any other persistent course of conduct, or derives
`substantial revenue from goods used or consumed, or services rendered, in the District of
`Columbia. See D.C. Code § 13-324(a)(3)-(4). Thus, under either theory, the defendant must
`“cause tortious injury in the District of Columbia.”
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`5
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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 6 of 17
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`of the copyright holder. Penguin Group (USA), Inc. v. Am. Buddha, 640 F.3d 497, 500-501 (2d
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`Cir. 2011). This Court finds the reasoning in American Buddha persuasive, particularly the
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`explanation that “the unique bundle of rights granted to copyright owners” by the Copyright Act
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`and the “overarching right to exclude others from using his property” tips the balance in favor of
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`identifying the situs of the injury as the location of the copyright holder. Id. at 4 (internal
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`quotation marks and citation omitted).
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`The District of Columbia Circuit has not had occasion to rule on the situs of the tortious
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`injury in a copyright infringement case for the purpose of the District of Columbia’s long-arm
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`statute. However, the District of Columbia Circuit has held that economic injury does not
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`necessarily occur where the plaintiff is domiciled, but rather that the site of the injury is the
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`location of the “original events that caused the alleged injury.” Helmer v. Doletskaya, 393 F.3d
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`201, 209 (D.C. Cir. 2004) (declining to exercise personal jurisdiction over plaintiff's fraud claim
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`because the cause of his injuries occurred in Russia, where his girlfriend had used his credit
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`cards and purchased and registered in her name a Moscow apartment)5; see also Lans v. Adduci
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`Mastriani & Schaumberg L.L.P., No. 02-21652011, 2011 WL 1957688, at *60 (D.D.C. May 23,
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`2011) (economic injury occurs at the location of the original event which caused the injury and
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`not the location where the resultant damages are subsequently felt by the plaintiff); Exponential
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`Biotherapies, 638 F. Supp. 2d at 10-11 (citing Helmer and explaining that economic injury does
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`not necessarily occur where plaintiff resides; injury can also occur at the location of the “original
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`5
`Notably, the District of Columbia Circuit cited approvingly of a Second Circuit case
`interpreting New York’s long-arm statute, recognizing the similarities between the two statutes
`and that the analysis of New York’s long-arm statute is relevant to the situs of injury analysis as
`it pertains to the District of Columbia statute. Id. at 208 (citing Mareno v. Rowe, 910 F.2d 1043
`(2d Cir. 1990). Thus, it is possible that our Circuit may also find persuasive value in the
`American Buddha opinion if it ever has occasion to consider the application of the District of
`Columbia’s long-arm statute to an internet copyright infringement case.
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`6
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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 7 of 17
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`events that caused the injury”); Etchebarne-Bourdin v. Radice, 754 A.2d 322, 327 (D.C. 2000)
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`(holding that tortious injury occurs in D.C. if the “original physical injury” or “triggering event”
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`occurs in D.C.); Kissi v. Hardesty, 3 A.3d 1125, 1131 (D.C. 2010) (finding that defendant’s
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`alleged acts of fraud or conversion perpetrated in Maryland do not result in tortious injury in the
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`District of Columbia under the long-arm statute, even when plaintiff is a D.C. resident).
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`We now turn to Plaintiff’s motion. Plaintiff contends that the requested discovery is in
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`the nature of jurisdictional discovery. If so, then the question is whether the expedited discovery
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`can be justified because there is good cause to believe that the requested discovery will enable
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`the Plaintiff to show that this Court has personal jurisdiction over the 23,322 putative defendants.
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`Here, it is undisputed that the copyright owner, the Plaintiff, resides in California. If the
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`Court were to apply the American Buddha analysis from the Second Circuit, the location of the
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`injury under the District of Columbia’s long-arm statute with respect to each of 23,322 putative
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`defendants in this case will be California, and no amount of discovery would affect that analysis.
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`Thus, using the American Buddha analysis, Plaintiff will not be able to establish personal
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`jurisdiction over putative defendants who reside outside of the District of Columbia.
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`Alternatively, using the test articulated by the District of Columbia Circuit in Helmer for
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`economic injury, the question is whether Plaintiff has a good faith basis to believe that discovery
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`will show that the “original events that caused the alleged injury” occurred within the District of
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`Columbia. Plaintiff’s theory of copyright infringement alleges that the nature of the BitTorrent
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`technology “makes every downloader also an uploader of the illegally transferred file(s).” First
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`Am. Compl. ¶ 3. However, a defendant must first download the file (or at least initiate the
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`download) before he can upload or become a source of download for that infringing file.
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`Applying these facts to the Helmer analysis, it appears that the “triggering event” must be a
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`7
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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 8 of 17
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`defendant’s download of the copyrighted material because the download is the “original event”
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`that caused the injury. The situs of injury under this analysis will be where the download took
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`place—the location of the putative defendant and his or her computer. Thus, as applied to the
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`nonresident John Does, the Helmer analysis compels a finding that the tortious injury occurred
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`outside the District of Columbia and there is no good faith basis to believe that discovery would
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`prove otherwise.
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`Therefore, under either the American Buddha or Helmer analysis, this Court cannot see
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`how Plaintiff can establish that putative defendants who reside outside of the District of
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`Columbia caused tortious injury within the District of Columbia as required by the long-arm
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`statute. Up to this point, Plaintiff has refused to limit its discovery request to those putative
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`defendants who are likely to reside in the District of Columbia, and Plaintiff has not proffered
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`how the requested discovery will enable it to establish personal jurisdiction (and therefore venue)
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`over the putative defendants who are not District of Columbia residents. As set forth above, it
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`appears to the Court that any effort to establish personal jurisdiction over the putative defendants
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`who reside outside of the District of Columbia will be futile.6
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`Based on the facts currently before the Court, Plaintiff has only shown good cause for,
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`and will only be entitled to discovery related to, those John Does for whom there is a good faith
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`basis to believe may reside in the District of Columbia. Plaintiff can establish such a good faith
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`basis for residence or personal jurisdiction by utilizing geolocation services that are generally
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`available to the public to derive the approximate location of the IP addresses identified for each
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`6
`Since it appears that Plaintiff could not establish personal jurisdiction under either test,
`this Court need not (and therefore does not) reach a holding as to whether the American Buddha
`or the Helmer test applies to the District of Columbia’s long-arm statute in internet piracy
`copyright infringement actions.
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`8
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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 9 of 17
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`putative defendant. Plaintiff argues that these “publicly available IP lookups reveal only where a
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`defendant is ‘likely’ to be located” and therefore are not sufficiently accurate to resolve the
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`question of whether personal jurisdiction is proper. June 7, 2011 Response to Order to Show
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`Cause (Docket No. 10 28-29). To further support its contention, Plaintiff cites to a webpage
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`titled “How accurate is Geolocation?” and provides the following quote:
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`[d]etermining the physical location down to a city or ZIP code, however, is
`more difficult and less accurate because there is no official source for the
`information, users sometimes share IP addresses and Internet service
`providers often base IP addresses in a city where the company is basing
`operations. Accuracy rates on deriving a city from an IP address fluctuate
`between 50 and 80 percent, according to DNS Stuff, a Massachusetts-based
`DNS and networking tools firm.
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`Id. Plaintiff, however, fails to quote the very next paragraph of the webpage which states:
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`Even when not accurate, though, geolocation can place users in a bordering
`city, which may be good enough for the entity seeking the information.
`This happens because a common method for geolocating a device is
`referencing its IP address against similar IP addresses with already known
`locations.
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`See http://whatismyipaddress.com/geolocation-accuracy. It therefore appears that while these
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`geolocation services are not 100% accurate, these services can place a user no farther away than
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`a city that borders the user’s actual location. Thus, the Court finds that the Plaintiff has a good
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`faith basis to believe a putative defendant may be a District of Columbia resident if a geolocation
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`service places his/her IP address within the District of Columbia, or within a city located within
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`30 miles of the District of Columbia. Without this threshold good faith showing, the Court finds
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`Plaintiff’s motion for expedited discovery inappropriate, as it would otherwise be based on
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`Plaintiff’s mere conjecture or speculation that this Court will have personal jurisdiction and
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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 10 of 17
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`therefore venue over these John Doe defendants.7
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`The Court understands why, for the sake of convenience and expense, the Plaintiff would
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`desire to use this single lawsuit as a vehicle to identify all of the 23,322 alleged infringers.
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`Furthermore, the Court understands and is sympathetic to the need to combat copyright
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`infringement. However, it is not appropriate, and there is not good cause, to take third-party
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`discovery in this case solely to obtain information that will be used in another lawsuit in a
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`different venue. As the Supreme Court has stated, “[i]n deciding whether a request comes within
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`the discovery rules, a court is not required to blind itself to the purpose for which a party seeks
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`information. Thus, when the purpose of a discovery request is to gather information for use in
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`proceedings other than the pending suit, discovery properly is denied.” Oppenheimer Fund, Inc.
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`v. Sanders, 437 U.S. 340, 352 n.17 (1978); see also El Pollo Loco, S.A. de C.V. v. El Pollo Loco,
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`Inc., 344 F. Supp. 2d 986 (S.D. Tex. 2004); Trans Pacific Ins. Co. v. Trans-Pacific Ins. Co., 136
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`F.R.D. 385, 391 (E.D. Pa. 1991).
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`In addition, the Court must take into account the delay and unproductive utilization of
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`court resources in prosecuting this lawsuit if the Plaintiff is allowed to seek discovery with
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`respect to all 23,322 putative defendants, only to result in the eventual dismissal of the vast
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`majority of those John Does later when it is revealed that they are not District of Columbia
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`7
`Plaintiff cites to several cases before this Court where expedited discovery has been
`granted based on nearly identical allegations. June 7, 2011 Response to Order to Show Cause
`(Docket No. 10 18-19). Indeed, initially this Court agreed with the analysis of those other
`decisions and granted Plaintiff’s motion for expedited discovery. The Court’s decision to grant
`Plaintiff’s motion was based in large part on the erroneous representation by Plaintiff that 28
`U.S.C. § 1391(b) was the appropriate venue statute, and that venue would be proper as long as
`one defendant could be found within the District of Columbia. However, once the Court realized
`that 28 U.S.C. § 1400(a) was the appropriate venue statute, and that it requires that every single
`defendant can be “found here,” the Court felt compelled to focus more sharply on personal
`jurisdiction and the good cause standard for expedited discovery. The Court recognizes its initial
`error and seeks to correct it here.
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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 11 of 17
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`residents. The Court would need to govern litigation over motions to quash third-party
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`subpoenas and motions to dismiss relating to hundreds or thousands of putative defendants who
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`cannot be tried in this Court (if they make a motion).
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`Plaintiff argues that because lack of venue and personal jurisdiction are waivable
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`defenses, the Court should not consider those issues in deciding whether to allow the requested
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`discovery. Plaintiff’s argument ignores the well-settled rule that all discovery requires a showing
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`of good cause; indeed, our Circuit requires such a showing for jurisdictional discovery, as
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`discussed infra, even though that defense is waivable. Furthermore, it defies common sense for
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`the Court to assume that all of the nonresident John Does will waive viable lack of venue and
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`lack of personal jurisdiction defenses – indeed, those defenses have been routinely raised in other
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`similar file sharing lawsuits.
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`From a judicial economy perspective, it makes more sense for Plaintiff to bring its case
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`against those John Does in the court where they have a good faith belief that venue and personal
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`jurisdiction are attainable and where the case can actually be prosecuted. This is particularly true
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`here, where at the rate proposed in Plaintiff’s discovery plan, the third-party discovery of the
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`23,322 IP addresses would take several years to complete. This delay would be prejudicial to the
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`defendants residing in the District of Columbia, and it presents multiple case management
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`problems for the Court. The delay and case management difficulties are further reason to find
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`that there is no good cause to grant the motion for leave to take third-party discovery with
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`respect to all 23,322 putative defendants, where the vast majority of them are almost certainly
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`outside the jurisdiction and venue of this Court.
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`For the foregoing reasons, the Court denies Plaintiff’s motion for expedited discovery as
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`filed. The Court will entertain a motion by Plaintiff to serve Rule 45 subpoenas on the ISPs to
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`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 12 of 17
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`obtain identifying information only for IP addresses that Plaintiff has a good faith basis to
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`believe are reasonably likely to correspond to internet accounts located in the District of
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`Columbia. An Order consistent with this Memorandum will be issued.
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`SO ORDERED.
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`DATE: July 29, 2011
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`____/s/_________
`ROBERT L. WILKINS
`United States District Judge
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`Case 1:11-cv-00301-RLW Document 9 Filed 06/07/11 Page 1 of 5
`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 13 of 17
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`NU IMAGE, INC,
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`v.
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`DOES 1- 23,322,
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`Plaintiff,
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`Defendants.
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`Civil Action No. 11-cv-00301 (RLW)
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`ORDER TO SHOW CAUSE
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`This Court recently held a status conference to discuss several issues that have recently
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`come to light regarding this case, including the status of the expedited discovery requested by
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`Plaintiff and Plaintiff’s basis for venue, joinder, and personal jurisdiction with respect to all
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`putative defendants in this case.
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`On February 17, 2011, Plaintiff sought leave of the Court to serve limited discovery prior
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`to a Rule 26(f) conference on several non-party Internet Service Providers (ISPs) to determine
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`the true identities of the Doe Defendants, and requested that the Court “enter an order allowing
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`Plaintiff to serve Rule 45 subpoenas on the ISPs immediately and that the ISPs shall comply with
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`the subpoenas. [DKT #5]. The Court granted Plaintiff’s motion and entered an order consistent
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`with Plaintiff’s request on March 17, 2011. [DKT #6].
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`Now, over two months later, Plaintiff has informed the Court that not a single subpoena
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`has been served in this case. The Court finds this especially surprising given the fact that one of
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`Plaintiff’s stated reasons for “good cause” for the expedited discovery was that the ISPs typically
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`retain the information that Plaintiff seeks for only a limited period of time, and if this
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`information is erased, Plaintiff will be unable to pursue its lawsuit. [DKT #5]. Plaintiff’s delay
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`Case 1:11-cv-00301-RLW Document 9 Filed 06/07/11 Page 2 of 5
`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 14 of 17
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`in pursuing the discovery they requested on an expedited basis is inexcusable.1
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`In its original and amended complaints for copyright infringement, Plaintiff alleges that
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`venue is proper under 28 U.S.C. §§ 1391(b) and 1400(a). 28 U.S.C. § 1391(b) sets forth the
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`general venue requirements when jurisdiction is not based on diversity:
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`A civil action wherein jurisdiction is not founded solely on diversity of
`citizenship may, except as otherwise provided by law, be brought only in (1)
`a judicial district where any defendant resides, if all defendants reside in the
`same State, (2) a judicial district in which a substantial part of the events or
`omissions giving rise to the claim occurred, or a substantial part of property
`that is the subject of the action is situated, or (3) a judicial district in which
`any defendant may be found, if there is no district in which the action may
`otherwise be brought.
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`28 U.S.C. § 1391(b). The copyright venue statute, 28 U.S.C. § 1400(a), is more restrictive. It
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`provides that “[c]ivil actions, suits, or proceedings arising under any Act of Congress relating to
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`copyrights or exclusive rights in mask works or designs may be instituted in the district in which
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`the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a).
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`However, Plaintiff cites to no authority that supports the proposition that § 1391(b), and
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`not § 1400(a), is the controlling venue statute in copyright cases. In fact, the weight of authority
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`strongly indicates that § 1391(b) is inapplicable to this case. Indeed, the Supreme Court held
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`long ago that “[t]he venue of suits for infringement of copyright is not determined by the general
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`provision governing suits in the federal district courts,” but rather by the specific copyright
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`venue provision passed by Congress. Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176
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`(1923) (discussing the general venue provision in Section 51 of the Judicial Code (Act March 3,
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`1 During the June 2, 2011 Status Conference, counsel for Plaintiff stated that he refrained from
`serving the subpoenas on the ISPs because of potentially case-dispositive issues the Court raised
`with respect to venue, joinder, and personal jurisdiction in this case. The Court notes that it did
`not raise these issues until its Minute Order entered on May 25, 2011.
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`2
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`Case 1:11-cv-00301-RLW Document 9 Filed 06/07/11 Page 3 of 5
`Case 1:11-cv-00301-RLW Document 11 Filed 07/29/11 Page 15 of 17
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`1911, c. 231, 36 Stat. 1101) and the venue provision found in the Copyright Act of 1909)2. See
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`also Time, Inc. v. Manning, 366 F.2d 690, 696 (5th Cir. 1966) (noting that if the plaintiff’s cause
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`of action was a claim under federal copyright law, “the suit may be brought only in the district
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`where the defendant ‘resides or may be found’” (quoting 28 U.S.C. § 1400(a)); Goldberg v.
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`Cameron, 482 F.Supp.2d 1136, 1143 (N.D. Cal. 2007) (section 1400(a) governs venue for
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`copyright infringement suits (citing Lumiere)). Furthermore, the Supreme Court has also held
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`that 28 U.S.C. § 1400(b), a related venue statute for patent infringement actions, “is the sole and
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`exclusive provision controlling venue in patent infringement actions, and that it is not to be
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`supplemented by the provisions of 28 U.S.C. § 1391(c).” Fourco Glass Co. v. Transmirra
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`Products Corp., 353 U.S. 222, 229 (1957). Accordingly, Plaintiff’s reliance on § 1391(b)
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`appears to be unfounded and venue is this case is only proper in a district in which “the
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`defendant or his agent resides or may be found.”3 28 U.S.C. § 1400(a).
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`Here, Plaintiff conceded at the status conference that the vast majority of the 23,322
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`putative defendants do not reside in the District of Columbia. Furthermore, while counsel for
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`Plaintiff has posited theories about how some of the putative defendants residing outside of this
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`2 Section 1400(a) contains the same relevant language as the Copyright Act of 1909, which
`stated: “[t]hat civil actions, suits, or proceedings arising under this Act may be instituted in the
`district of which the defendant or his agent is an inhabitant, or in which he may be found.” Act
`of March 4, 1909, ch. 320, § 35, 35 Stat. 1075, 1084
`3 It is well established that § 1400(a)’s “may be found” clause refers to a judicial district in which
`a defendant is subject to personal jurisdiction. See Milwaukee Concrete Studios, Ltd. v. Fjeld
`Mfg. Co., Inc., 8 F.3d 441, 445-47 (7th Cir. 1993). This court may assert personal jurisdiction
`over a defendant only if the District of Columbia’s long-arm statute authorizes it and to the
`extent permitted by due process. The applicable long-arm statute provides that a District of
`Columbia court may exercise personal jurisdiction where a defendant either (1) causes tortious
`injury in the District of Columbia by an act or omission in the District of Columbia; or (2) causes
`tortious injury in the District of Columbia by an act or omission outside the District of Columbia
`if he regularly does or solicits business, engages in any other persistent course of conduct, or
`derives substantial revenue from goods used or consumed, or services rendered, in the District of
`Columbia. See D.C. Code § 13-324(a)(3)-(4).
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`3
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`Case 1:11-cv-00301-RLW