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USCA Case #12-8011

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No. 12-8011

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

AF HOLDINGS, LLC, Plaintiff-Respondent, v. DOES 1 1,508, Defendants. From an Order by the U.S. District Court for the District of Columbia The Honorable Beryl A. Howell, Judge Presiding (Case No. 1:12-cv-00048-BAH) ANSWER IN OPPOSITION OF AF HOLDINGS, LLC TO PETITION OF COX COMMUNICATIONS, INC. ET AL. FOR PERMISSION TO APPEAL PURSUANT TO 28 U.S.C. 1292(B) Paul A. Duffy Prenda Law, Inc. 161 N. Clark St., Suite 3200 Chicago, IL 60601 Telephone: (312) 880-9160

Attorney for Respondent AF Holdings, LLC

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TABLE OF CONTENTS Page INTRODUCTION .....................................................................................................1 QUESTION PRESENTED AND RELIEF SOUGHT ..............................................4 STATEMENT OF THE CASE ..................................................................................4 I. II. PLAINTIFFS COPYRIGHT INFRINGEMENT LAWSUIT .............4 PLAINTIFFS EX PARTE APPLICATION FOR LEAVE TO ISSUE SUBPOENAS PRIOR TO THE RULE 26(F) CONFERENCE .....................................................................................6 PERSONAL JURISDICTION OVER THE ISPS SUBSCRIBERS ....................................................................................6 THE ISPS MOTION AND DISTRICT COURTS ORDER DENYING THE MOTION TO QUASH AND CERTIFYING THE ORDER FOR APPEAL ................................................................6

III. IV.

REASONS FOR GRANTING PERMISSION TO APPEAL ...................................7 I. THIS CASE DOES NOT YET PRESENT IMPORTANT, CONTROLLING QUESTIONS OF LAW THAT WILL EVADE APPELLATE REVIEW ABSENT PERMISSION TO APPEAL ................................................................................................8 A. B. The Order Denying the ISPs Motion to Quash Does not Present a Controlling Issue of Law .............................................8 The Issues Presented Will Not Evade Appellate Review Without an Order From This Court Granting Permission to Appeal .....................................................................................9

II.

THERE ARE NOT SUBSTANTIAL GROUNDS FOR DIFFERENCE OF OPINION AS TO THE LEGAL STANDARD GOVERNING MOTIONS TO QUASH ......................10

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TABLE OF CONTENTS (continued) Page A. B. C. Personal Jurisdiction and Venue ...............................................10 Joinder .......................................................................................12 Courts Are Not Divided Concerning the ISPs Obligations to Prove Alleged Cumulative Burdens With Evidence ....................................................................................14

III.

AN IMMEDIATE APPEAL MAY MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION ....................................................................................15

CONCLUSION ........................................................................................................15 CORPORATE DISCLOSURE STATEMENT .......................................................17

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TABLE OF AUTHORITIES Page(s) CASES AF Holdings LLC v. Does 1-1140, No. 11-1274 (D.D.C. Jan. 30, 2012) ............................................................................................................ 11, 13 AF Holdings, LLC v. Does 1-162, No. 11-23036 (S.D. Fla. Jan. 12, 2012) ...................................................................................................................12 AF Holdings, LLC v. Does 1-162, No. 11-23036, 2012 WL 488217 (S.D. Fla. Jan. 12, 2012) .....................................................................................14 Arista Records LLC v. Does 1-19, 551 F.Supp.2d 1, 11 (D.D.C. 2008) .................14 Call of the Wild Movie, LLC v. Does 1-1,062, 770 F.Supp. 2d 332, 347 (D.D.C. 2011) ................................................................................................6 Feinman v. FBI, No. 09-cv-2047, 2010 WL 962188 (D.D.C. Mar. 15, 2010) .....................................................................................................................8 First Time Videos LLC v. John Doe, No. 11-00690 (E.D. Va. Apr. 18, 2012) ...................................................................................................................12 First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241 (N.D. Ill. Aug. 9, 2011) ........................................................................................................ 12, 14 First Time Videos, LLC v. Does 1-76, 276 F.R.D. 254 (N.D. Ill. Aug. 16, 2011) ...................................................................................................... 12, 13 First Time Videos, LLC, v. Does 1-28, 11-2982 (N.D. Ill. Sept. 26, 2011) .....................................................................................................................5 Hard Drive Productions, Inc. v. Does 1-1,495, No. 11-1741 (D.D.C. Aug. 13, 2012) ............................................................................................. 11, 13 Hard Drive Productions, Inc. v. Does 1-118, No. 11-1567 (N.D. Cal. Nov. 8, 2011) ............................................................................................... 12, 14

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TABLE OF AUTHORITIES (continued) Page(s) Irons v. Karceski, 74 F.3d 1262 (D.C. Cir. 1995) ...................................................10 Judicial Watch, Inc. v. Natl Energy Policy Dev. Group, 233 F. Supp. 2d 16 (D.D.C. 2002) .............................................................................................8 Media Products, Inc. v. Does 1-120, No. 3:12-cv-30100-KPN (D. Mass. July, 26, 2012) ............................................................................................2 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) ....................................................................................................................3 MGCIP v. Does 1-316, No. 10-6677, 2011 WL 2292958 (N.D. Ill. June, 9, 2011) ......................................................................................................14 Patrick Collins, Inc. v. Does 1-2,590, No. 11-2766, 2011 WL 3740487 at *6 (N.D. Cal. 2011) .........................................................................14 Sunlust Pictures, LLC v. Does 1-75, No. 12-1546 (N.D. Ill. Aug. 27, 2012) ...................................................................................................................14 U.S. v. State of Michigan, 940 F.2d 143 (6th Cir. 1991) ...........................................1 Virgin Records America, Inc. v. Does 1-35, No. 05-1918, 2006 WL 1028956 at *3 (D.D.C. 2006) .............................................................................12 Voltage Pictures, LLC v. Does 1-5,000, No. 10-0873, 2011 WL 1807438 at *3 (D.D.C. May 12, 2011) ........................................................ 11, 13 Statutes 28 U.S.C. 1292(b) ...............................................................................................1, 4

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INTRODUCTION The traditional grounds for appeal are not present in the instant action. There is simply no split of authority on the issue that was decided by the district court. The non-party Internet Service Providers (ISPs) asserted that respondents subpoenas imposed an undue burden on them, but they failedtwiceto offer a shred of evidence in support of their assertion. (Mem. Op. at 16-18, attached hereto as Attachment A.) Accordingly, the district court held that the ISPs undue burden argument was without merit. (Id. at 37.) Non-parties may not evade compliance with a subpoena by merely reciting the phrase, undue burden. The ISPs now attempt to argue the propriety of personal jurisdiction and joinder on behalf of the parties. See generally Petition of Cox Communications, Inc. et al. for Permission to Appeal Pursuant to 28 U.S.C. 1292(b) (hereinafter ISP Pet.). To condone this behavior would improperly introduce an intruder with equal litigating rights of a named party/real party in interest, and extend carte blanche discretion to a trial judge to convert the trial court into a freewheeling forum of competing special interests capable of frustrating and undermining the ability of the named parties/real parties in interest to expeditiously resolve their own dispute. U.S. v. State of Michigan, 940 F.2d 143, 166 (6th Cir. 1991). This is not a theoretical problem. Plaintiff filed its complaint over

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seven months ago. It has yet to accomplish the traditionally uncontroversial task of ascertaining the defendants identities. While allowing a non-party to obstruct the judicial process is troubling, there is a far more alarming aspect to the ISPs efforts. The ISPs would sacrifice the due process rights of their subscribers. Personal jurisdiction and joinder both relate to defenses that defendants can make strategic decisions to raise or waive. Indeed, defendants have argued both for and against joinder in comparable copyright enforcement actions. See, e.g., Partial Oppn to Mot. to Sever, Media Products, Inc. v. Does 1-120, No. 3:12-cv-30100-KPN (D. Mass. July, 26, 2012), ECF No. 18 (JD30 believes that at this point, he and other Defendants are best served by continued joinder.), attached hereto as Attachment B. Defendants have also raised and waived personal jurisdiction defenses. (Mem. Op. at 31 n.11) (noting the waiver of personal jurisdiction defenses in other comparable cases before the Court). These defendants enjoyed the freedom to decide their own litigation strategy. The ISPs have no right to interfere. The district court identified the motivation behind the ISPs focus on personal jurisdiction and joinder. The ISPs wish to make effective copyright enforcement prohibitively difficult. At the motions hearing the court had the following exchange with counsel for the ISPs: THE COURT: So you are embracing the world view of 10,000 individual lawsuits filed in every district in this 2

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country as opposed to merely hundreds of file-sharing lawsuits against tens of thousands of IP addresses? Is that right? MR. HUFFMAN: I dont believe they would do that. I dont believe that meets their business plan, but there is an alternative, which is -THE COURT: Because of the cost? MR. HUFFMAN: Right. THE COURT: Which means you are banking on the copyright owners simply not enforcing their rights because of the expense of filing tens of thousands of lawsuits and the armies of lawyers it would take to initiate and prosecute those cases in every district in the country. Transcript of April 27, 2012 Motions Hearing at 127, attached hereto as Attachment C. For over fourteen years the ISPs have been obstructing subscriber identification efforts because they profit so handsomely from providing Internet service. (Cf. Mem. Op. at 8-14.) These profits come at a cost. Copyright holders are being devastated by unlawful digital distribution. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 92829 (2005) (citing the concern that digital distribution of copyrighted material threatens copyright holders as never before.). While the traditional statutory grounds for an interlocutory appeal are not present in the instant action, Respondent AF Holdings respectfully requests that this Court exercise its discretion to grant the non-party ISPs Petition for 3

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Permission to Appeal Pursuant to 28 U.S.C. 1292(b) and affirm the district courts ruling. This Courts ruling will provide important guidance to district courts in this Circuit and nationwide with respect to the degree to which nonparties may interfere in litigation between parties. QUESTION PRESENTED AND RELIEF SOUGHT Should the Court grant the ISPs Petition for Leave to Appeal Pursuant to 28 U.S.C. 1292(b) and ultimately affirm Judge Howells ruling? (Yes.) STATEMENT OF THE CASE I. PLAINTIFFS COPYRIGHT INFRINGEMENT LAWSUIT On January 11, 2012 AF Holdings, LLC (AF Holdings) filed a complaint for copyright infringement in the U.S. District Court for the District of Columbia. In its complaint, plaintiff nominally identified 1,058 doe defendants. (Compl., attached hereto as Attachment D.) The action was filed against pseudonymous defendants because AF Holdings did not know the defendants names. (Id. 11.) The defendants were identified by Internet Protocol (IP) addresses. (Id.) An IP address is simply a number that identifies devices, such as computers, that are connected to the Internet. (Id.) The actual number of defendants that will ultimately be named in this action is presently unknown. The number of doe defendants, 1,058, corresponds to the number of infringing IP addresses observed by plaintiffs agents. Although it is

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theoretically possible that all 1,058 IP addresses will be associated with unique individuals, experience dictates that the IP addresses will be associated with a much smaller group. By way of example, in a prior action filed against 28 nominal doe defendants, all 28 IP addresses were associated with the same individual. First Time Videos, LLC, v. Does 1-28, 11-2982 (N.D. Ill. Sept. 26, 2011), ECF No. 15, attached hereto as Attachment D. If this numerical relationship holds true in the instant action, AF Holdings will ultimately name and serve approximately 35 unique defendants. This number could be drastically lower, of course, depending on the number of settling defendants. The defendants are alleged to have used an advanced file-distribution protocol known as BitTorrent. (Compl. 3.) Earlier protocols involved whole file transfers between individuals. (Id. 5.) The BitTorrent protocol greatly accelerates downloads by enabling BitTorrent users to grab small pieces of files from multiple users simultaneously. (Id. 6.) When a BitTorrent user downloads pieces, he then begins uploading the pieces to other BitTorrent users. (Id.) Every BitTorrent user is both a downloader and uploader of pieces. (Id.) The BitTorrent protocol is an intensely collaborative and efficient method for transferring large files. For over seven months AF Holdings lawsuit has not advanced whatsoever because the ISPs continue to obstruct the subscriber identification process.

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II.

PLAINTIFFS EX PARTE APPLICATION FOR LEAVE TO ISSUE SUBPOENAS PRIOR TO THE RULE 26(F) CONFERENCE On January 18, 2012, AF Holdings filed a motion for leave to take discovery

prior to the Rule 26(f) conference. (Dkt. 4.) The motion was filed on an ex parte basis because the defendants identities are unknown. The district court granted AF Holdings motion, and narrowly tailored the scope of information that the subpoenas could demand. 1 (Dkt. 5.) Moreover, the district court provided the ISPs subscribers 30 days to file motions challenging the disclosure of their identifying information. (Id.) III. PERSONAL JURISDICTION OVER THE ISPS SUBSCRIBERS Until the ISPs subscribers are identified, Plaintiff has limited information to assess whether any putative defendant has a viable defense of lack of personal jurisdiction or to evaluate possible alternate bases to establish jurisdiction. Call of the Wild Movie, LLC v. Does 1-1,062, 770 F.Supp. 2d 332, 347 (D.D.C. 2011). IV. THE ISPS MOTION AND DISTRICT COURTS ORDER DENYING THE MOTION TO QUASH AND CERTIFYING THE ORDER FOR APPEAL On March 2, 2012, the ISPs filed a motion to quash AF Holdings subscriber identification subpoenas. (Dkt. 8.) The ISPs argued that the burden imposed on
1

Specifically, the order restricted the scope of Plaintiffs subpoenas to the name, current and permanent address, telephone number, e-mail address and Media Access Control (MAC) address of the subscribers associated with the IP addresses identified on Plaintiffs complaint. (Dkt. 5.)

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the ISPs by Plaintiffs subpoenas is an undue burden. (emphasis in the original). (Dkt. 8-1 at 1.) The ISPs failed to provide any evidentiary support for this statement in their moving papers. (Mem. Op. at 16-18.) The district court offered the ISPs an opportunity to present witnesses at the motions hearing. (Id.) The ISPs declined this opportunity and instead continued to argue personal jurisdiction and joinder on behalf of the parties. (Id.) Accordingly, the district court ruled that the ISPs failed to establish undue burden. (Id.) As part of their motion to quash, the ISPs requested certification of the denial for interlocutory appellate review. (Dkt. 8-1 at 17.) The district court granted this request. (Mem. Op. at 42.) REASONS FOR GRANTING PERMISSION TO APPEAL The traditional grounds for an interlocutory appeal are not present in the instant action. There is no controlling question of law at stake. There are no substantial grounds for difference of opinion as to the rules governing motions to quash. Nevertheless, respondent moves this Court to grant the non-party ISPs Petition for Permission to Appeal Pursuant to 28 U.S.C. 1292(b) and affirm the district courts ruling. This Courts ruling will provide important guidance to district courts in this Circuit and nationwide with respect to the degree to which non-parties may interfere in litigation between parties.

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I.

THIS CASE DOES NOT YET PRESENT IMPORTANT, CONTROLLING QUESTIONS OF LAW THAT WILL EVADE APPELLATE REVIEW ABSENT PERMISSION TO APPEAL The ISPs incorrectly recite the order that the district certified for appeal as

the order authorizing discovery of the ISPs. (ISP Pet. at 6.) The order that the district court actually certified for appeal was its denial of the Movant ISPs motion to quash. (Mem. Op. at 42.) The certified order does not present a controlling question of law. A. The Order Denying the ISPs Motion to Quash Does not Present a Controlling Issue of Law

A controlling question of law under section 1292(b) is one that would require reversal if decided incorrectly or that could materially affect the course of litigation with resulting savings of the courts or the parties resources. Feinman v. FBI, No. 09-cv-2047, 2010 WL 962188, at *1 (D.D.C. Mar. 15, 2010) (quoting Judicial Watch, Inc. v. Natl Energy Policy Dev. Group, 233 F. Supp. 2d 16, 19 (D.D.C. 2002)). The district courts denial of the ISPs motion to quash would not require reversal if it was decided incorrectly. An order on a non-party motion to quash is collateral to the merits of the underlying action when the lone objection is undue burden. The only possible remedy on remand would be efforts to compensate the non-party for the burden that it faced. The ISPs incorrectly state that pursuit of ISP subscribers identities is the only issue typically litigated in multi-doe defendant actions. (ISP Pet. at 6-7.) The 8

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source of the ISPs confusion may be one of timing. Multi-doe defendant actions comparable to the underlying action are a relatively recent phenomenon. It takes substantial time to file cases, ascertain subscriber identifying information, review the merits of the subscribers defenses, engage in settlement negotiations and, if necessary, prepare the paperwork required to name and serve the defendants. The outdated citations provided by the ISPs miss recent developments. See, e.g., Hard Drive Productions, Inc. v. John Doe and Soukha Phimpasouk, No. 113826 (N.D. Cal. 2011) (litigating the issue of whether or not copyright infringement preempts claims of negligence); Seth Abrahams v. Hard Drive Productions, Inc., et al., No. 12-1006 (N.D. Cal. 2012) (litigating the merits of the copyright holders claims); Malibu Media, LLC v. Fantalis, et al., No. 12-00886 (D. Colo. 2012) (litigating whether or not adult content is copyrightable). B. The Issues Presented Will Not Evade Appellate Review Without an Order From This Court Granting Permission to Appeal

The ISPs argue that the Court should grant certification on the premise that concerns about personal jurisdiction and joinder will never reach the appellate courts. (ISP Pet. at 8.) As mentioned, these issues are being actively litigated by parties in district courts across the nation. In fact, these issues are presently before the U.S. Court of Appeals for the Ninth Circuit on two separate appeals by partiesno non-parties required. Plaintiffs counsel is aware of at least one other

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appeal that will soon be pending. The argument that these issues will never reach appellate courts is simply unfounded. II. THERE ARE NOT SUBSTANTIAL GROUNDS FOR DIFFERENCE OF OPINION AS TO THE LEGAL STANDARD GOVERNING MOTIONS TO QUASH Once again, the ISPs incorrectly recite the order certified for appeal as the order authorizing discovery of the ISPs. (ISP Pet. at 8.) The order that the district court actually certified for appeal was its denial of the Movant ISPs motion to quash. (Mem. Op. at 42.) The certified order does not involve substantial grounds for difference of opinion. This Circuit has provided clear guidance on the legal standard governing motions to quash. See Irons v. Karceski, 74 F.3d 1262, 1264 (D.C. Cir. 1995) (stating that the party seeking to quash a subpoena bears a heavy burden of proof) (citation omitted). Here, the ISPs forfeited their opportunity to offer evidence of any burden, much less undue burden. (Mem. Op. at 17.) There is no basis for holding they are suffering an undue burden. A. Personal Jurisdiction and Venue

Issues of personal jurisdiction and venue are not germane to assessing whether a non-party subpoena recipient suffers an undue burden. After all, the time it takes an ISP to identify a subscriber does not vary depending on whether a given court has personal jurisdiction over the subscriber. Further, to the extent there was a split in this Circuit regarding this issue, there is not one anymore. The ISPs

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identified only two judges in this Circuit who followed Judge Wilkins Nu Image decision. Since Judge Howell issued her order, one judge has already reconsidered his position. The other has not had an opportunity to rule. Here is how Judge Facciola, one of the judges whom the ISPs encourage this Court to follow, recently ruled: it is improper as a matter of law to evaluate questions of personal jurisdiction and venue when no defendants have yet been named because 1) a plaintiff is not obliged to assert a basis for personal jurisdiction over the defendant in her complaint; 2) when there are no named defendants, there is no one whose ties to the District of Columbia can be evaluated with respect to jurisdiction or venue; 3) it is premature to consider personal jurisdiction before plaintiff has an opportunity to conduct relevant discovery; and 4) it is improper to consider personal jurisdiction prior to the naming of defendants since individuals may choose to waive their defenses and litigate in the forum. Hard Drive Productions, Inc. v. Does 1-1,495, No. 11-1741 (D.D.C. Aug. 13, 2012), ECF No. 49 at *6. Judge Howells authoritative reasoning is followed by the overwhelming majority of judges in this Circuit and nationwide.2 Merely

AF Holdings LLC v. Does 1-1140, No. 11-1274 (D.D.C. Jan. 30, 2012), ECF No. 29 at *3 (Regarding the putative defendants jurisdictional and merits arguments, these arguments are prematurely raised because the putative defendants are not named as defendants in this lawsuit and may never be named as defendants.), attached hereto as Attachment E; Voltage Pictures, LLC v. Does 1-5,000, No. 100873, 2011 WL 1807438 at *3 (D.D.C. May 12, 2011) (the putative defendants personal jurisdiction arguments are premature at this time because they have not been named as parties to this lawsuit.); Virgin Records America, Inc. v. Does 1-

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because a judge has ruled differently does not mean that his reasoning is persuasive or that there are substantial grounds for difference of opinion. B. Joinder

Issues of joinder are not germane to assessing whether a non-party subpoena recipient suffers an undue burden. Further, the ISPs correctly note that the judges in this Circuit have ruled that evaluating joinder is premature until defendants are 35, No. 05-1918, 2006 WL 1028956 at *3 (D.D.C. 2006) (In each case, courts have rejected [the jurisdiction] argument as premature, even where the Doe defendants assert that they live outside the court's jurisdiction and have minimal or no contacts with that jurisdiction.); First Time Videos LLC v. John Doe, No. 1100690 (E.D. Va. Apr. 18, 2012), ECF No. 25 at *3 n 4 (the Court notes that any inquiry into the Courts personal jurisdiction over Doe No. 16 is premature at this early stage of the litigation.), attached hereto as Attachment F; AF Holdings, LLC v. Does 1-162, No. 11-23036 (S.D. Fla. Jan. 12, 2012), ECF No. 22 at *5 (the putative defendants personal jurisdiction arguments are premature at this time because they have not been named as parties to this lawsuit. Given that they are not named parties, the putative defendants are not required to respond to the allegations presented in the plaintiffs Second Amended Complaint or otherwise litigate in this district.), attached hereto as Attachment G; Hard Drive Productions, Inc. v. Does 1-118, No. 11-1567 (N.D. Cal. Nov. 8, 2011), ECF No. 28 at *3 (a court cannot assess whether personal jurisdiction exists over a particular defendant until the defendant has been identified.), attached hereto as Attachment H; First Time Videos, LLC v. Does 1-76, 276 F.R.D. 254 (N.D. Ill. Aug. 16, 2011) (to the extent that the suit poses questions concerning personal jurisdiction, [the movants] arguments are once again premature. Without discovery regarding the identity of the various Doe defendants, it is unclear whether the individuals in question are parties to the suit; and even assuming they are parties, I lack sufficient information at this time for evaluating their jurisdictional defenses.); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241 (N.D. Ill. Aug. 9, 2011) (personal jurisdiction arguments are premature because the Putative Defendants are under no obligation either to produce information under [the] subpoena or to litigate in this jurisdiction.).

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actually joined. (ISP Pet. at 14-17.) Again, Judge Howells authoritative reasoning is followed by the overwhelming majority of district courts nationwide. First Time Videos, LLC, v. Does 1-76, 276 F.R.D. 254 (N.D. Ill. Aug. 16, 2011) (N.D. Ill. (Aug. 16, 2011) ([I]n any event, findings of misjoinder in such cases are rare. The overwhelming majority of courts have denied as premature motions to sever prior to discovery) (collecting cases). The overwhelming majority of district courts nationwide have rejected motions to sever as premature because it is illogical to sever individuals who have not yet been named as defendants. Hard Drive Productions, Inc. v. Does 1-1,495, No. 11-1741 (D.D.C. Aug. 13, 2012), ECF No. 49 at *6-7 (Complaints about improper joinder can hardly be justifiable before plaintiff even names the movants as actual defendants.). As discussed, supra, there is not necessarily a one-to-one relationship between IP addresses and defendants. That the ISPs can cite a small handful of severance decisions from other Circuits from the hundreds of cases that have found inquiries into joinder to be premature at the discovery stage of the litigation does not mean that they have identified a split of authority in this Circuit.3

AF Holdings LLC v. Does 1-1140, No. 11-1274 (D.D.C. Jan. 30, 2012), ECF No. 29 at *3 (the infringing activity alleged in the complaint arises out of the same series of occurrences or transactions . . .); Voltage Pictures, LLC v. Does 1-5,000, No. 10-0873, 2011 WL 1807438 at *7 (D.D.C. May 12, 2011) (The Court

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C.

Courts Are Not Divided Concerning the ISPs Obligations to Prove Alleged Cumulative Burdens With Evidence

The ISPs complain about the substantial administrative burden on the ISPs. (Dkt. 8-1 at 3.) Yet, the ISPs present[ed] no evidence to support this claim of hardship. (Mem. Op. 16.) In support of their motion to quash, the ISPs provided declarations from five individuals, but only two of those declarations even mentioned the administrative burden, and that is essentially all they [did]. recognizes that each putative defendant may later present different factual and substantive legal defenses, but that does not defeat, at this stage of the proceedings, the commonality in facts and legal claims that support joinder under Rule 20(a)(2)(B).); Arista Records LLC v. Does 1-19, 551 F.Supp.2d 1, 11 (D.D.C. 2008) (the Court also finds that this [joinder] inquiry is premature without first knowing Defendants identities and the actual facts and circumstances associated with Defendants conduct.); Sunlust Pictures, LLC v. Does 1-75, No. 12-1546 (N.D. Ill. Aug. 27, 2012), ECF No. 43 at *7 (Finding joinder proper because the plaintiff alleged that the defendants participated in the swarm simultaneously and that it observed the defendants transferring data from the Video between themselves.), attached hereto as Attachment I; AF Holdings, LLC v. Does 1-162, No. 11-23036, 2012 WL 488217 (S.D. Fla. Jan. 12, 2012), ECF No. 22 (same); Hard Drive Productions, Inc. v. Does 1-118, No. 11-1567 (N.D. Cal. Nov. 8, 2011), ECF No. 28 at *5 (same); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 252 (N.D. Ill. Aug. 9, 2011) (joinder at this stage is consistent with fairness to the parties and in the interest of convenience and judicial economy because joinder will secure the just, speedy, and inexpensive conclusion for both [the plaintiff] and any future named defendants.); MGCIP v. Does 1-316, No. 106677, 2011 WL 2292958 (N.D. Ill. June, 9, 2011), ECF No. 133 (The Court also finds that the putative defendants arguments that they were improperly joined are premature.); Patrick Collins, Inc. v. Does 1-2,590, No. 11-2766, 2011 WL 3740487 at *6 (N.D. Cal. 2011) ([T]he Court finds that Plaintiff has at least presented a reasonable basis to argue that the BitTorrent protocol functions in such a way that peers in a single swarm downloading or uploading a piece of the same seed file may fall within the definition of same transaction, occurrence, or series of transactions or occurrences for purposes of Rule 20(a)(1)(A).).

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(Id.) Other than barebones references from two of the four movant ISPs the ISPs fail to present any witness or other evidentiary detail to demonstrate a burden to the Court, let alone what steps the ISPs are or could be taking to deter infringing activity on their networks to reduce any burden subpoena compliance engenders. (Id. at 17.) III. AN IMMEDIATE APPEAL MAY MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION Plaintiff agrees with the district courts reasoning that an immediate appeal may materially advance the ultimate termination of the litigation. Without the most crucial information imaginablethe identities of the defendantsPlaintiff will have no means of defending its copyrights. The ISPs are the sole entities in possession of the subscribers names. The district court did not err; the phrase undue burden is not an incantation that excuses the ISPs from subpoena compliance. Without a defendant there is no case. CONCLUSION The traditional grounds for an interlocutory appeal are not present in the instant action. There is no controlling question of law at stake. There are no substantial grounds for difference of opinion as to the rules governing motions to quash. Nevertheless, respondent moves this Court to grant the non-party ISPs Petition for Permission to Appeal Pursuant to 28 U.S.C. 1292(b) and affirm the district courts ruling. This Courts ruling will provide important guidance to 15

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district courts in this Circuit and nationwide with respect to the degree to which non-parties may interfere in litigation between parties.

Dated August 30, 2012

Respectfully submitted,

By: Paul A. Duffy Prenda Law Inc. 161 N. Clark St., Suite 3200 Chicago, IL 60601 Telephone: (312) 880-9160 Facsimile: (312) 893-5677 Attorney for the Respondent AF Holdings, LLC

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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rules of Appellate Procedure 26.1 counsel for respondent AF Holdings, LLC states that it has no parent company. No publicly held corporation owns 10 percent or more of its stock. As is relevant to the litigation AF Holdings, LLC is the holder of the copyright that is alleged to have been infringed by the defendants in the district court action.

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CERTIFICATE OF SERVICE I certify that on August 30, 2012, copies of the foregoing Answer in Opposition to the Petition for Permission to Appeal Pursuant to 28 U.S.C. 1292(b) were served by First Class U.S. Mail, postage prepaid, upon the following: Deanne E. Maynard Benjamin J. Fox Morrison & Foerster LLP 2000 Pennsylvania Ave., NW Washington, D.C. 20006-1888 Attorneys for Petitioners Bright House Networks, LLC, Cox Communications, Inc. and Verizon Online LLC Hugh Balsam Bart W. Huffman Locke Lord LLP 111 South Wacker Drive Chicago, IL 60606 Attorneys for Petitioner SBC Internet Services, Inc. d/b/a AT&T Internet Services

John D. Seiver Leslie G. Moylan Lisa B. Zycherman Davis Wright Tremaine LLP 1919 Pennsylvania Ave., N.W., Suite 800 Washington D.C. 20006 Attorneys for Petitioner Comcast Cable Communications Management, LLC

Thomas P. Hartnett Law Offices of Thomas P. Hartnett 1310 Pennsylvania Ave., SE Washington D.C. 20003

Attorney for Andrew Fignar, Jr.

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