DOE 1 v. GitHub, Inc.

Background

The plaintiffs moved to certify the court’s June 24, 2024 order dismissing their claims under Section 1202(b) of the Digital Millennium Copyright Act for an interlocutory appeal. An interlocutory appeal is an appeal taken before the district court has finished the case. The plaintiffs also asked the court to stay, or pause, the district-court proceedings while the appeal request was reviewed.

Certification for Interlocutory Appeal

Under 28 U.S.C. § 1292(b), a district court may certify a nonfinal order for possible immediate appeal if three requirements are met: the order involves a controlling legal question, there is substantial ground for disagreement about that question, and an immediate appeal may materially advance the end of the litigation.

The court found all three requirements satisfied. The controlling legal question was whether Sections 1202(b)(1) and (b)(3) of the Digital Millennium Copyright Act impose an “identicality” requirement. The court characterized that as a purely legal question of statutory interpretation and noted that a decision favoring the plaintiffs could allow them to proceed with their claims, which their counsel described as the “heart” of their class case.

The court also found substantial grounds for disagreement because courts had reached different conclusions about whether Section 1202(b) requires an identical copy. Finally, the court concluded that review by the Ninth Circuit could materially advance this case and other cases presenting the same issue by providing guidance before the parties incurred additional litigation costs.

Stay of Proceedings

The court applied a three-factor test considering possible harm from a stay, hardship or inequity if the case proceeded, and whether a stay would promote the orderly administration of justice.

The defendants did not argue that a stay would cause them harm or hardship. The court noted that discovery was still in its early stages. It also reasoned that, if the case proceeded and the Ninth Circuit later revived the plaintiffs’ claims, the parties might have to repeat fact discovery, expert testimony, or class-certification work. The court therefore concluded that staying the case would best serve judicial efficiency because the Ninth Circuit’s decision could provide guidance and materially change the district court’s decisions.

Disposition

The court granted the plaintiffs’ motion to seek an interlocutory appeal. It also granted the plaintiffs’ request for a stay of trial-court proceedings while the order certifying interlocutory appeal was reviewed by the Ninth Circuit. The parties were ordered to notify the district court within 10 days after receiving a decision from the Ninth Circuit Court of Appeals. This order did not itself state that the Ninth Circuit had accepted the appeal.