1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Fornix Holdings LLC, et al., No. CV-24-03383-PHX-KML
10 Plaintiffs, ORDER
11 v.
12 Unknown Party,
13 Defendant. 14 15 On December 2, 2024, plaintiffs Fornix Holdings LLC and CP Productions, Inc., 16 filed a motion seeking an ex parte temporary restraining order. (Doc. 5.) The court denied 17 that motion the following day. (Doc. 6.) In doing so, the court directed plaintiffs to address 18 two issues if they filed a renewed motion. First, “why deactivation of [] 19 would be appropriate, even on a temporary basis” given that the site contains other material 20 not belonging to plaintiffs. (Doc. 6 at 2.) Second, plaintiffs’ “basis for seeking relief against 21 non-parties [VeriSign, Inc., and Cloudflare] considering” plaintiffs were informed in a 22 similar case filed in 2022 that it would be improper to grant relief against non-parties in a 23 situation almost identical to the present. (Doc. 6 at 2.) Plaintiffs waited ten days to file a 24 renewed motion. 25 The renewed motion addresses the two issues identified by the court in cursory 26 fashion. On the issue of whether plaintiffs’ requested injunction would be too broad, the 27 renewed motion argues “[w]hen infringing content on a defendant’s website is a persistent 28 and pervasive problem, even where not every post is infringing, courts may enjoin the 1 entire website as the only way to ‘halt the irreparable harm to Plaintiffs.’” (Doc. 8-1 at 17 2 (quoting Trial Film LLC v. Wu Daoai, No. CV-21-00984-PHX-JJT, 2021 WL 2949508, at 3 *2 (D. Ariz. July 14, 2021)). And on the issue of the propriety of the court issuing an order 4 requiring non-parties take action, the renewed motion argues, 5 In the past, Plaintiffs have given notice to Verisign and Cloudflare about similar websites and lawsuits and Verisign 6 and Cloudflare have agreed to effectuate similar orders from courts, without being named as a party. See Lin Decl. ¶ 8. 7 Cloudflare and Verisign’s inclination to comply creates a valid basis through which the Court may bind them, even though 8 they are not named parties. 9 (Doc. 8-1 at 19.) The cited paragraph of counsel’s declaration states 10 Based on my experience handling similar matters and my 11 previous dealings with VeriSign and Cloudflare, they have communicated to me that they will effectuate lawful and 12 validly entered court orders concerning domain names, without being named as a party in the litigation. Attached hereto as 13 Exhibit 4 is a true and correct copy of said communications. 14 The communications found at Exhibit 4, however, are from June 2023 involving a different 15 case. (Doc. 8-3 at 37-40.) Because plaintiffs’ argument regarding non-parties is not 16 convincing, the renewed motion is denied. Thus, the court need not reach the question 17 whether the breadth of plaintiffs’ requested relief would be permissible.1 18 Plaintiffs do not dispute that, in general, the court cannot issue a temporary 19 restraining order requiring non-parties take action. See Fornix Holdings LLC v. Unknown 20 Party, No. CV-22-00494-PHX-DLR, 2022 WL 992546, at *2 (D. Ariz. Apr. 1, 2022). Nor 21 do plaintiffs argue the alleged acts by VeriSign and Cloudflare in this case render them the 22 type of “person” that might be bound under Rule 65(d). See Comedy Club, Inc. v. Improv 23 1 That is not to say that if plaintiffs renew their motion, they should rest on the cursory 24 argument they have currently made. As the court previously stated, in the preliminary injunction context “[t]he scope of the remedy must be no broader and no narrower than 25 necessary to redress the injury shown by the plaintiff.” California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018). Plaintiffs describe the allegedly-infringing website as a “tube-style” 26 website which allows individuals to upload, store, and share videos, and which contains “many” videos plaintiffs believe to be infringing. (Docs. 8-1 at 1-2, 8-4 at 8.) Without 27 knowing an approximate proportion of material on the website that allegedly infringes a copyright (whether plaintiffs’ or someone else’s), it will be difficult for the court to 28 determine whether shutting down the entire website is even in the ballpark of a narrowly- tailored remedy. 1 W. Assocs., 553 F.3d 1277, 1287 (9th Cir. 2009) (“The text of Rule 65(d) is exclusive, 2 stating that an injunction can permissibly bind ‘only’ those persons listed in Rule 65(d).”). 3 Instead of establishing, or even arguing, that VeriSign and Cloudflare qualify as one of the 4 persons listed in Rule 65(d), plaintiffs argue VeriSign and Cloudflare have previously 5 indicated they will abide by court orders and that should be good enough. It is not. 6 The evidence plaintiffs offer that VeriSign and Cloudflare have already agreed to 7 be bound by any order issued in this case consists of correspondence in June 2023 between 8 plaintiffs’ counsel, VeriSign, and Cloudflare. That correspondence involved a different 9 case. Plaintiffs read that correspondence as establishing VeriSign and Cloudflare have 10 agreed to comply with all orders in all cases of this type. The court is not confident that is 11 correct. And because any violation of an order might subject VeriSign and Cloudflare to 12 contempt, the court will not rely on statements made by those entities eighteen months ago 13 in connection with a different case. 14 Hoping to convince the court that the past statements are sufficient, plaintiffs cite 15 Wavve Americas Inc. v. Unknown Party, No. CV-24-02071-PHX-DWL, 2024 WL 16 4120365, at *4 (D. Ariz. Sept. 9, 2024). The plaintiffs in that case sought an injunction 17 against the named defendants and nonparty Namecheap, Inc. The court denied an initial 18 request for an injunction requiring Namecheap take action because Namecheap had not 19 been named as a defendant. Wavve Americas Inc. v. Unknown Party, No. CV-24-02071- 20 PHX-DWL, 2024 WL 3848437, at *1 (D. Ariz. Aug. 16, 2024). The plaintiffs then 21 executed a written stipulation with Namecheap wherein Namecheap agreed it would 22 “comply with any orders issued by the Court regarding the domain names at issue.” Id. at 23 *4 (D. Ariz. Sept. 9, 2024); (see also Doc. 22-2 at 7 in CV-24-2071-PHX-DWL.) That 24 stipulation was sufficient for the court to conclude an order aimed at Namecheap was 25 permissible. There is not presently any such case-specific stipulation between plaintiffs and 26 VeriSign or Cloudflare here. 27 The renewed motion for temporary restraining order is denied again without 28 prejudice. If plaintiffs file another motion it must either be accompanied by case-specific 1 || evidence establishing VeriSign and Cloudflare agree to comply with a court order issued || in this case or plaintiffs may indicate they no longer wish to obtain relief against the non- 3|| parties and the court should resolve the motion regarding the named defendant.” In 4|| addition, given their decision to wait ten days to renew their motion, plaintiffs must address 5 || whether a temporary restraining order remains appropriate. See Granny Goose Foods, Inc. 6|| v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of Alameda Cnty., 415 U.S. 423, || 439 (1974) (temporary restraining orders “should be restricted to serving their underlying 8 || purpose of preserving the status quo and preventing irreparable harm just so long as is 9|| necessary to hold a hearing, and no longer’’). 10 Accordingly, 11 IT IS ORDERED the Motion for Temporary Restraining Order (Doc. 8) is DENIED WITHOUT PREJUDICE.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Fornix Holdings LLC, et al., No. CV-24-03383-PHX-KML
10 Plaintiffs, ORDER
11 v.
12 Unknown Party,
13 Defendant. 14 15 On December 2, 2024, plaintiffs Fornix Holdings LLC and CP Productions, Inc., 16 filed a motion seeking an ex parte temporary restraining order. (Doc. 5.) The court denied 17 that motion the following day. (Doc. 6.) In doing so, the court directed plaintiffs to address 18 two issues if they filed a renewed motion. First, “why deactivation of [] 19 would be appropriate, even on a temporary basis” given that the site contains other material 20 not belonging to plaintiffs. (Doc. 6 at 2.) Second, plaintiffs’ “basis for seeking relief against 21 non-parties [VeriSign, Inc., and Cloudflare] considering” plaintiffs were informed in a 22 similar case filed in 2022 that it would be improper to grant relief against non-parties in a 23 situation almost identical to the present. (Doc. 6 at 2.) Plaintiffs waited ten days to file a 24 renewed motion. 25 The renewed motion addresses the two issues identified by the court in cursory 26 fashion. On the issue of whether plaintiffs’ requested injunction would be too broad, the 27 renewed motion argues “[w]hen infringing content on a defendant’s website is a persistent 28 and pervasive problem, even where not every post is infringing, courts may enjoin the 1 entire website as the only way to ‘halt the irreparable harm to Plaintiffs.’” (Doc. 8-1 at 17 2 (quoting Trial Film LLC v. Wu Daoai, No. CV-21-00984-PHX-JJT, 2021 WL 2949508, at 3 *2 (D. Ariz. July 14, 2021)). And on the issue of the propriety of the court issuing an order 4 requiring non-parties take action, the renewed motion argues, 5 In the past, Plaintiffs have given notice to Verisign and Cloudflare about similar websites and lawsuits and Verisign 6 and Cloudflare have agreed to effectuate similar orders from courts, without being named as a party. See Lin Decl. ¶ 8. 7 Cloudflare and Verisign’s inclination to comply creates a valid basis through which the Court may bind them, even though 8 they are not named parties. 9 (Doc. 8-1 at 19.) The cited paragraph of counsel’s declaration states 10 Based on my experience handling similar matters and my 11 previous dealings with VeriSign and Cloudflare, they have communicated to me that they will effectuate lawful and 12 validly entered court orders concerning domain names, without being named as a party in the litigation. Attached hereto as 13 Exhibit 4 is a true and correct copy of said communications. 14 The communications found at Exhibit 4, however, are from June 2023 involving a different 15 case. (Doc. 8-3 at 37-40.) Because plaintiffs’ argument regarding non-parties is not 16 convincing, the renewed motion is denied. Thus, the court need not reach the question 17 whether the breadth of plaintiffs’ requested relief would be permissible.1 18 Plaintiffs do not dispute that, in general, the court cannot issue a temporary 19 restraining order requiring non-parties take action. See Fornix Holdings LLC v. Unknown 20 Party, No. CV-22-00494-PHX-DLR, 2022 WL 992546, at *2 (D. Ariz. Apr. 1, 2022). Nor 21 do plaintiffs argue the alleged acts by VeriSign and Cloudflare in this case render them the 22 type of “person” that might be bound under Rule 65(d). See Comedy Club, Inc. v. Improv 23 1 That is not to say that if plaintiffs renew their motion, they should rest on the cursory 24 argument they have currently made. As the court previously stated, in the preliminary injunction context “[t]he scope of the remedy must be no broader and no narrower than 25 necessary to redress the injury shown by the plaintiff.” California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018). Plaintiffs describe the allegedly-infringing website as a “tube-style” 26 website which allows individuals to upload, store, and share videos, and which contains “many” videos plaintiffs believe to be infringing. (Docs. 8-1 at 1-2, 8-4 at 8.) Without 27 knowing an approximate proportion of material on the website that allegedly infringes a copyright (whether plaintiffs’ or someone else’s), it will be difficult for the court to 28 determine whether shutting down the entire website is even in the ballpark of a narrowly- tailored remedy. 1 W. Assocs., 553 F.3d 1277, 1287 (9th Cir. 2009) (“The text of Rule 65(d) is exclusive, 2 stating that an injunction can permissibly bind ‘only’ those persons listed in Rule 65(d).”). 3 Instead of establishing, or even arguing, that VeriSign and Cloudflare qualify as one of the 4 persons listed in Rule 65(d), plaintiffs argue VeriSign and Cloudflare have previously 5 indicated they will abide by court orders and that should be good enough. It is not. 6 The evidence plaintiffs offer that VeriSign and Cloudflare have already agreed to 7 be bound by any order issued in this case consists of correspondence in June 2023 between 8 plaintiffs’ counsel, VeriSign, and Cloudflare. That correspondence involved a different 9 case. Plaintiffs read that correspondence as establishing VeriSign and Cloudflare have 10 agreed to comply with all orders in all cases of this type. The court is not confident that is 11 correct. And because any violation of an order might subject VeriSign and Cloudflare to 12 contempt, the court will not rely on statements made by those entities eighteen months ago 13 in connection with a different case. 14 Hoping to convince the court that the past statements are sufficient, plaintiffs cite 15 Wavve Americas Inc. v. Unknown Party, No. CV-24-02071-PHX-DWL, 2024 WL 16 4120365, at *4 (D. Ariz. Sept. 9, 2024). The plaintiffs in that case sought an injunction 17 against the named defendants and nonparty Namecheap, Inc. The court denied an initial 18 request for an injunction requiring Namecheap take action because Namecheap had not 19 been named as a defendant. Wavve Americas Inc. v. Unknown Party, No. CV-24-02071- 20 PHX-DWL, 2024 WL 3848437, at *1 (D. Ariz. Aug. 16, 2024). The plaintiffs then 21 executed a written stipulation with Namecheap wherein Namecheap agreed it would 22 “comply with any orders issued by the Court regarding the domain names at issue.” Id. at 23 *4 (D. Ariz. Sept. 9, 2024); (see also Doc. 22-2 at 7 in CV-24-2071-PHX-DWL.) That 24 stipulation was sufficient for the court to conclude an order aimed at Namecheap was 25 permissible. There is not presently any such case-specific stipulation between plaintiffs and 26 VeriSign or Cloudflare here. 27 The renewed motion for temporary restraining order is denied again without 28 prejudice. If plaintiffs file another motion it must either be accompanied by case-specific 1 || evidence establishing VeriSign and Cloudflare agree to comply with a court order issued || in this case or plaintiffs may indicate they no longer wish to obtain relief against the non- 3|| parties and the court should resolve the motion regarding the named defendant.” In 4|| addition, given their decision to wait ten days to renew their motion, plaintiffs must address 5 || whether a temporary restraining order remains appropriate. See Granny Goose Foods, Inc. 6|| v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of Alameda Cnty., 415 U.S. 423, || 439 (1974) (temporary restraining orders “should be restricted to serving their underlying 8 || purpose of preserving the status quo and preventing irreparable harm just so long as is 9|| necessary to hold a hearing, and no longer’’). 10 Accordingly, 11 IT IS ORDERED the Motion for Temporary Restraining Order (Doc. 8) is DENIED WITHOUT PREJUDICE. 13 Dated this 23rd day of December, 2024. 14
16 Honorable Krissa M. Lanham 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 * Plaintiffs have not identified the named defendant and they have not argued a temporary 28 restraining order against that unknown defendant would accomplish any of the relief they
-4-