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Archive for March, 2011

Over the past few days, as a response to last weeks article where plaintiff attorneys Dunlap, Grubb & Weaver dumped thousands of defendants, Judge Beryl Howell wrote a memorandum indicating which issues the US District Court for the District of Columbia court will hear, and which they will not. In short, as the various articles describe (see here, and here), the judge has opined that any arguments of jurisdiction, joinder, or first amendment defenses are not relevant until a John Doe defendant is named as a defendant in the case.

For the most part, when reading this 42 page memo, I was unimpressed. Her motivations and proclivities in favor of the plaintiff copyright holders were apparent, but her opinion was unmoving. I shrugged my shoulders and thought to myself that this was not a controversial opinion. It wasn’t until I started reading the forums in ArsTechnica.com that the users realized that the judge had some serious bias issues. Some were even of the opinion that the judge should not have heard the case in the first place because of conflicts of interest and violations of rules of recusal.

As for her opinion, plaintiff attorneys and courts for months now have been holding that a defendant does not have standing to contest jurisdiction (e.g., “Dear Court, I was sued in the District of Columbia. I live in New York. Court has no personal jurisdiction.”) until they are named in the lawsuit (e.g., John Doe #123 -> Real Name Defendant). This is the reason defendants have been unsuccessful in filing motions to quash the various subpoenas issues by the courts against the internet service providers ordering them to surrender over their subscribers’ information.

The change in this Judge’s opinion was that while many cases (e.g., the various Larry Flynt Productions cases and the Far Cry lawsuits, just to name a few) over the previous months have been severed and dismissed because of improper joinder issues (e.g., one accused defendant downloading a copyrighted file on Monday should not be joined in a lawsuit with a defendant he does not know who downloaded that same copyrighted file on a Wednesday, or “subsequent acts of copyright infringement by unrelated defendants are not sufficient to justify the joining of the defendants together in one John Doe lawsuit.”), here Judge Howell has stated that she will not even entertain a misjoinder argument from a defendant until that defendant is named as a defendant in the lawsuit.

In my opinion, the court is simply ‘kicking the can down the road’ for matters of simplicity. This opinion was nothing fantastic, and it did not affect our clients because none of them have been named in any of these lawsuits.

However, as a result of Judge Howell’s decision, articles on TorrentFreak (“BitTorrent Case Judge Is a Former RIAA Lobbyist and Pirate Chaser“) and ArsTechnica.com (“RIAA lobbyist becomes federal judge, rules on file-sharing cases“) have surfaced pointing out obvious ethical issues regarding her even sitting on the bench for these cases given her past intimate connection with copyright lobbying groups, including past employers, conflicts of interest, issues of bias, and issues of recusal which have raised a flare of users’ objections to her adjudicating these cases.

As far as my clients need to worry, this is simply an opinion by a judge (biased or not) giving the plaintiffs free reign to go after John Doe defendants and to continue to solicit exorbitant settlement fees in the amount of thousands of dollars all while the plaintiff attorneys continue to tell the judges that they are conducting “discovery.” The issues have not changed, and there is no new law with this opinion. For my clients who are defendants in these cases, this opinion simply means that the court will likely not sever the case on its own as it did in the Far Cry case, but rather, it will wait until the plaintiff attorneys begin naming defendants before they consider whether the defendants are properly joined together with the thousands of other defendants.

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In a flick of the wrist and a slight of hand letter to the court, plaintiffs Dunlapp, Grubb, & Weaver (“DGW”) have possibly dismissed more accused John Doe defendants than ever before in the history of these bittorrent lawsuits. In a letter to the court titled a “Consolidated Status Report Pursuant To The Court’s Direction of 3/1/2011,” the plaintiff attorneys have dismissed* almost every defendant in almost every one of their mass copyright infringement lawsuits.

*I will explain below what I mean by dismissed, because I am not using the term in its conventional use. A more proper term for what they have done is that they have “dumped” these defendants rather than having them dismissed and released from the lawsuit.

The cases in which John Doe defendants have been affected are:

Call of the Wild Movie, LLC v. Does 1-1,062 (1:10-cv-004455-BAH)
Maverick Entertainment Group, Inc. v. Does 1-4,350 (1:10-cv-00569-BAH)
Voltage Pictures, LLC v. Does 1-5,000 (1:10-cv-00873-BAH), and
Donkeyball Movie, LLC v. Does 1-171 (1:10-cv-01520-BAH).

- NOTE: the “BAH” at the end of the case names is a recent change in the case names. When checking your case to determine whether this applies to you, just look at the 1:10-cv-“XXXXX” number and compare it to the case number you received from your ISP to determine whether this is your case.

This is a huge victory to our clients and those of the 10,000+ defendants that have been dismissed. No doubt we will be sending letters of congratulations to our clients in these cases in the coming days.

Now a little about these cases. These were what I like to call the initial “monster” cases, filed by DGW. They were the cases where thousands of John Doe defendants were sued, regardless of whether the courts had jurisdiction or not. These cases were also filed prior to the 6,000 Larry Flint Productions (LFP Internet Group, LLC) cases in the US District Court for the Northern District of Texas and other cases (e.g., Far Cry) were severed and dismissed for improperly joining defendants in one John Doe lawsuit. In addition, these cases were more famously known as “the Hurt Locker” case, “The Call of the Wild” case, among other more famous titles.

As you can read by the filing, the plaintiff attorneys have determined that there is nobody to name in these cases, and thus they have determined to dump the defendant pool as a whole and rethink their strategy.

If you are a former defendant in this case, firstly we congratulate you. This is a big victory. However, with every victory comes a bit of bitterness. Here, the plaintiffs have determined on their own to not proceed with the current pool of defendants, which means that they have a few years from the alleged date of infringement to sue these defendants individually or as smaller groups in their home states.

On top of this, this is not an explicit dismissal, as a voluntary dismissal of all defendants would be. Here, the plaintiff attorneys have simply mentioned that they are not going to “name” defendants (see our article here to understand what it means to be “named”). In addition, it is not an order of severance by the judge dismissing all defendants. It is simply a “heads up” letting the court know they won’t be going after the various defendants.

This is good, with three caveats:

Firstly. Their note only refers to defendants where the ISP has handed their subscriber information over to the plaintiff attorneys. Defendants whose information has not yet been shared (e.g., my more recent clients in the past few weeks) are likely not included in this declaration of theirs because the ISPs have not yet given over their information to the plaintiff attorneys.

Secondly. The plaintiff attorneys can still sue all of these defendants in the US District Courts for the district where the defendants live. (You can read more about the likelihood of them doing this in this article.)

Thirdly. These cases are still alive! After filing this memo, the plaintiff attorneys proceeded to file a memo why a number of motions to quash the subpoena should be denied. They also filed an opposition motion asking the judge to deny these motions to quash. So the cases themselves are still alive and for the time being, well.

In closing. To those John Doe defendants and the Cashman Law Firm, PLLC clients who have been sitting around for months, feel free to breathe easy for now. I will continue monitoring these cases for changes, but you should feel comfortable considering yourselves dismissed. The numbers are certainly on your side and while the risk of being sued individually is always present, the likelihood of hearing from the plaintiff attorneys ever again is very low.

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