FUNimation Entertainment v. DOES 1 - 1,427

Filing 43

MEMORANDUM OPINION AND ORDER - Signed by Judge Rodney Gilstrap on 9/16/2013. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
FUNIMATION ENTERTAINMENT
A TEXAS LIMITED PARTNERSHIP,
Plaintiff,
v.
DOES 1 – 1,427,
Defendants.

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CIVIL ACTION NO. 2:11-CV-00269

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Anthony Clark’s (“Clark”) Motion to Dismiss for
Improper Venue in a Copyright Infringement Case (Dkt. No. 38), filed September 17, 2012. The
Court having fully considered the same finds that the motion should be GRANTED for the
reasons set forth below.
I.

BACKGROUND
Plaintiff Funimation Entertainment produces, markets, and distributes motion pictures

and other media in the United States. In this action, Plaintiff brought suit against 1,427 John Doe
defendants, alleging infringement of its copyright in the film The Legend Is Born: Ip Man.
Plaintiffs allege that the defendants, identified by their Internet Protocol (IP) addresses, used a
computer peer-to-peer file sharing protocol known as BitTorrent to illegally download and
distribute copies of the film to other BitTorrent users.
BitTorrent allows its users to download files more quickly and efficiently than its
predecessor file sharing protocols. Rather than downloading files directly from centralized
servers or individual users, BitTorrent allows users, or “peers” to split a file up into pieces and
download multiple pieces simultaneously from multiple peers. Once a peer downloads a

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particular piece of the file in question, he or she automatically begins to share that piece with
other peers. These multivariate connections between downloading and uploading users create a
“swarm,” eventually allowing participating users to collect all pieces of a file and reassemble it
into its final form. A peer who makes a complete file available to other peers is known as a
“seed.” As the name implies, each swarm begins with a seed; however, BitTorrent users often
remain in a swarm after they have completed downloading a file, thus becoming seeds
themselves.
BitTorrent peers are identified to each other only by their IP addresses. Though an IP
address, without more, typically cannot be traced back with certainty to an individual user,
Internet Service Providers can generally link an IP address to its account owner. Moreover,
commonly available free web applications can often trace an IP address back to a general
geographic area, such as a city or postal code. Thus, BitTorrent users are partially anonymous to
each other. While peers’ names and other identifying details are opaque, their IP addresses and
(to some extent) their locations may be logged and tracked. Importantly, BitTorrent users do not
typically control the peers to whom they connect—BitTorrent software connects to other peers in
a swarm automatically, without any input from the user.
In May 2011, Plaintiff’s “Infringement Specialist” allegedly observed an IP address
associated with Clark in a BitTorrent swarm around Plaintiff’s film. Plaintiff alleges that a
computer at Clark’s IP address, which was seeding the Plaintiff’s film, made a direct connection
to a computer with an IP address located in Longview, TX, at 10:01 PM on May 21, 2011. One
other BitTorrent user in the May 2011 swarm appears to have been located in Longview, and one
more in Lufkin, TX, though there is no evidence that Clark ever connected directly to these
users. Longview and Lufkin are both located in the Eastern District of Texas. Apart from these

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fleeting exchanges of data, Clark, a resident of Fort Worth, TX, has no connections to the
Eastern District of Texas that are relevant to this case.
In the instant motion, Clark seeks to dismiss the suit against him for improper venue, as
authorized by Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1400(a); in the
alternative, he asks that venue be transferred to the Northern District of Texas, where he resides.
II.

LEGAL STANDARDS
A defendant in a federal suit may request that the court dismiss a lawsuit for improper

venue. Fed. R. Civ. P. 12(b)(3). Once a defendant raises the issue of proper venue by motion, the
burden of sustaining venue lies with the plaintiff. See Psarros v. Avior Shipping, Inc., 192 F.
Supp. 2d 751, 753 (S.D. Tex. 2002). In the absence of an evidentiary hearing, a court should
allow a plaintiff to carry this burden by setting forth facts, that when taken as true, establish
venue. Although a defendant need not affirmatively disprove all bases for the plaintiff's venue
choice, the court will nevertheless give plaintiff every benefit of the doubt in ascertaining what
facts control its legal decision. See id. The court may, however, look outside of the complaint to
consider undisputed facts. See EnviroGlas Prods., Inc. v. EnviroGlas Prods., LLC, 705 F. Supp.
2d 560, 567 (N.D. Tex. 2010).
Venue in copyright cases is governed by 28 U.S.C. § 1400(a), instead of the general
venue provision of 28 U.S.C. § 1391. Section 1400(a) allows plaintiffs to bring suit for copyright
infringement “in the district in which the defendant or his agent resides or may be found.”
Innumerable courts have held that a defendant “may be found” in any district in which he or she
may be subject to personal jurisdiction, as analyzed as if the district were a separate state. See,
e.g., Collins v. Doe, No. H-10-2882, 2012 U.S. Dist. LEXIS 56492, at *8-9 (S.D. Tex. 2012).
Though this formulation is expansive, we need not determine its accuracy here, since, as will be

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seen below, Clark’s Motion should be granted even assuming that venue and personal
jurisdiction are coextensive.
A court may exercise personal jurisdiction over a nonresident defendant when two
conditions are met. First, the forum state’s long-arm statute must permit jurisdiction (Texas has
made clear that its long-arm jurisdiction is coextensive with constitutional limits, see American
Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801 (Tex. 2002)). Fed. R. Civ. P. 4(k)(1).
Second, the exercise of jurisdiction must be legitimate under the Due Process Clause of the
Fourteenth Amendment: “Where the plaintiff alleges specific jurisdiction . . . due process
requires (1) minimum contacts by the defendant purposefully directed at the forum state, (2) a
nexus between the defendant’s contacts and the plaintiff’s claims, and (3) that the exercise of
jurisdiction over the defendant be fair and reasonable.” ITL Int’l, Inc. v. Constenla, S.A., 669
F.3d 493, 498 (5th Cir. 2012). Even “isolated and sporadic” contacts may support jurisdiction,
given a sufficiently tight nexus to the claim, but the contacts may not be “‘random, fortuitous, or
attenuated, or of the unilateral activity of another party or third person.’” Id. at 498-99 (quoting
Burger King Corp. v. Ridzewicz, 471 U.S. 462, 475 (1985)). The ultimate inquiry is whether
defendant has “‘purposefully avail[ed]’” herself of “‘the privilege of conducting activities within
the forum,’” such that he or she “should reasonably anticipate being haled into court.” WorldWide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297 (1980) (quoting Hanson v. Denckla, 357
U.S. 235, 253 (1958)).
III.

ANALYSIS
Assuming that the standard for copyright venue is the same as the standard for personal

jurisdiction, then, the question before the Court is whether Clark, by allegedly seeding Plaintiff’s
film from his home in the Northern District of Texas, made himself subject to the personal

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jurisdiction of the Eastern District of Texas. Because Clark’s contact with the Eastern District
was not purposeful, but fortuitous, attenuated, and at the whim of a third party, this Court
concludes that the minimum contacts standard is not satisfied.
There is no allegation that Clark purposefully directed his alleged dissemination of
Plaintiff’s film toward the Eastern District of Texas in particular; indeed, the log of Clark’s
alleged connections reveals that almost all of the users who may have downloaded from Clark
reside outside of the Eastern District. Dkt. No. 39-2. Plaintiff argues, however, that Clark’s
alleged intent to share the file would suffice to support jurisdiction in any district to which he
transmitted copyrighted material, and hangs its jurisdictional hat on a single connection to a user
in Longview. Dkt. No. 39, at 5, 2. Plaintiff supports this interpretation of the “purposeful”
requirement by analogizing to Collins v. Doe, 2012 U.S. Dist. LEXIS 56492 (S.D. Tex. 2012), a
case in which the court found personal jurisdiction stemming from defendants’ intentional
distribution of an adult magazine in the district. But Collins fails to resolve the issue at hand—
whether defendant must intend only to do an act, or to do it in a specific place—because the
Collins court assumed that defendants intended to distribute their magazine in the Southern
District. Collins, at *14.
As far as this Court is aware, every court to have squarely addressed this issue has held
that BitTorrent users’ random connections with peers are not sufficient contacts to support
personal jurisdiction those peers’ districts of residence. As one court put it:
Because every user simultaneously receives and transfers information to the other
users in the swarm, a participant in the swarm has no control over where he
distributes the information; it is automatically distributed to the other users.
Where the files get distributed to is controlled by the location of the other
participants in the swarm, not by the distributor's conduct. For example, as in this
case, if a New York resident participates in a BitTorrent swarm and a file gets
distributed to California, it is not because the New York resident directed the file
to California. It is because another person participating in the swarm happened to

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be in California. Therefore, a participant in a BitTorrent swarm does not “directly
target” California, even if he participates in a swarm that results in his files being
downloaded to a computer in California.
Liberty Media Holding, LLC v. Tabora, 11-CV-651-IEG JMA, 2012 WL 28788 (S.D. Cal. Jan.
4, 2012) (citations omitted); see also Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 39
(D.D.C. 2011) (“Plaintiff will not be able to establish personal jurisdiction over putative
defendants who reside outside the District of Columbia.”); Berlin Media Art e.k. v. Does 1-654,
2001 WL 36383080 (N.D. Cal. Oct. 18, 2011) (“The Court is not aware of any caselaw that
suggests that this Court has personal jurisdiction over all 654 Defendants simply because ‘at least
one’ of the defendants (unidentified) allegedly happened to download the file at some point
during the time period in question from a computer located in this District.”); Millenium TGA v.
Doe, 10-C-5603, 2011 WL 7444064 (N.D. Ill. Sept. 26, 2011) (“[S]imply because the Doe IP . . .
participated in a swarm does not confer personal jurisdiction”); DigiProtect USA Corp. v. Does,
10-CIV.-8760 PAC, 2011 WL 4444666 (S.D.N.Y. Sept. 26, 2011) (“[T]he Court does not want
to ‘ensnar[e] unsophisticated individuals from around the country in a lawsuit based in New
York,’ who likely would be encouraged to settle rather than incur the burden and embarrassment
of contesting the litigation.”) (citing DigiProtect v. Does 1-266, 10-CIV-8759, 2011 WL
1366073, April 13, 2011); On the Cheap, LLC. v. Does 1–5011, 280 F.R.D. 500, 504-505 (N.D.
Cal. 2011) (“The problem with this theory is that since plaintiff could have filed this lawsuit in
any state, the logical extension would be that everybody who used P2P software such as
BitTorrent would subject themselves to jurisdiction in every state. This is a far cry from the
requirement that “there be some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State,” which is the hallmark of specific
jurisdiction.”); CP Productions, Inc. v. Does 1–300, No. 10-C-6255, February 24, 2011, order,
Dkt. # 32 (N.D. Ill.) (“[T]here is no justification for dragging into an Illinois federal court, on a
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wholesale basis, a host of unnamed defendants over whom personal jurisdiction clearly does not
exist.”).
As these cases make clear, Clark’s fleeting alleged contact with the Eastern District of
Texas does not rise to the level of “purposeful availment” of its legal system. See Burger King,
471 U.S. at 475. There is no allegation that Clark had knowledge or control over the locations of
his BitTorrent connections—to the contrary, there is every indication that his connections were,
if not strictly “random,” then at least “fortuitous” in the sense that circumstances beyond Clark’s
control or purpose dictated the location of his connections. See id. Importantly, chief among
these circumstances is the location of other BitTorrent users seeking to download Plaintiff’s film.
Clark’s connection to the district was thus not only fortuitous, but also at the mercy of the
“unilateral activity of another party or third person.” See id. (quoting Helicopteros Nacionalies
de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984)). Finally, the nature of Clark’s alleged
conduct suggests that his connection with the Eastern District was “attenuated” in the extreme.
Id. Clark allegedly seeded Plaintiff’s file from his home in Fort Worth, transmitting pieces of the
file to peers in dozens of locations around the country. Though electronic transmissions
necessarily involve both an origin and an endpoint, the obvious predominant situs of Clark’s
infringing activity is Clark’s residence, not the panoply of destinations to which Clark allegedly
transmitted pieces of infringing files.1
“The Due Process Clause protects an individual's liberty interest in not being subject to
the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or
relations.” Burger King, 471 U.S. at 471-72 (quoting International Shoe, 326 U.S. at 319). The
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Obviously, a defendant need not be physically present in a forum state in order for personal jurisdiction to attach; a
mail or electronic communication with the forum will support jurisdiction so long as the communication is
However, in this case, where
“purposefully directed” toward the forum. See Burger King, 471 U.S. at 476.
transmission endpoints are indescriminately disbursed across the globe, it seems most reasonable to focus our attention
on the sourceof the transmission rather than on the location of an individual projection eminating therefrom.

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contacts requirement protects citizens from the arbitrary and unpredictable exercise of legal
power:
By requiring that individuals have “fair warning that a particular activity may
subject [them] to the jurisdiction of a foreign sovereign,” the Due Process Clause
“gives a degree of predictability to the legal system that allows potential
defendants to structure their primary conduct with some minimum assurance as to
where that conduct will and will not render them liable to suit.”
Id. (quoting Shaffer v. Heitner, 433 U.S. 186, 218 (1977) (Stevens, J., concurring) and WorldWide Volkswagen, 444 U.S., at 297). If the Court were to accept Plaintiff’s logic in this case,
Clark would be legitimately subject to legal action, not merely in almost any District Court in the
United States, but also in the courts of Canada, the United Kingdom, Norway, Sweden, Greece,
Singapore, Morocco, the Phillipines, and Saudi Arabia.2 This expansive jurisdictional spreading
is precisely the reason the minimum contacts test remains vital today. Though modern
communications may have made the physical boundaries of legal jurisdictions less important, the
legal boundaries on state power remain as vital as ever. Clark, a resident of the Northern District
of Texas, may always be sued in his home district; but in this case there is no supportable basis
to try the case against him in the Eastern District of Texas.
Since Clark’s alleged conduct does not satisfy the minimum contacts prong of the
personal jurisdiction test, this Court need not inquire into whether jurisdiction would satisfy the
requirements of traditional notions of fair play and substantial justice. See Burger King, 471
U.S., at 476 (dividing the minimum contacts and substantial justice inquiries). Even assuming
that the copyright venue provision of 28 U.S.C. § 1400(a) should be interpreted in parallel with
the constitutional test for specific personal jurisdiction (with the district analyzed as if it were a

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Plaintiff helpfully left blank the locations of IP addresses apparently sourced in foreign countries, but a quick
search of these addresses using web-based IP locator tools confirms alleged connections with each of these
jurisdictions. See Dkt. No. 39-2.

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separate state), Clark cannot be said to reside or “be found” within the Eastern District. Thus,
venue in the Eastern District of Texas is improper and Clark’s motion to dismiss should be granted.
IV.

CONCLUSION
Plaintiff brought suit in the Eastern District of Texas against 1,427 John Doe defendants,

only three of whom seem to have been located within the physical territory of the district. Since
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neither Clark nor 1,424 of the Doe defendants are alleged to have acted with what amounts to
“purposeful direction” of their activities toward the Eastern District of Texas, it would be both
inconvenient and unfair to try Clark in this Court.
For the reasons stated herein, the Court finds that Defendant’s Motion to Dismiss for
Improper Venue should be and is hereby GRANTED. It is ORDERED that all claims against
defendant Clark are dismissed without prejudice.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 16th day of September, 2013.

____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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