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Archive for May, 2011

[NOTE TO CLIENTS: Regarding the article below, if you are one of those who have been dismissed, I will be sending you a congratulations letter shortly, and I will tell you what the next steps are and what to expect from Dunlap Grubb & Weaver, PLLC.]

Congratulations to our clients who have been dismissed in the West Coast Productions v. Does 1-5829 case (1:11-cv-00057-CKK). I must say up front that NOT ALL DEFENDANTS HAVE BEEN DISMISSED.  In short, this dismissal is merely Judge Kollar-Kotelly enforcing her 5/11/2011 order where she ordered the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC to either name and serve the defendants identified in their 4/15 statement by 5/16 or else she will dismiss them on her own.  Like Judge Shadur has done to dispose with John Steele’s CP Productions v. Does case in the U.S. District Court for the Northern District of Illinois a few months back, Judge Kollar-Kotelly is employing the same Federal Rules of Civil Procedure, Rule 4(m) to dismiss these defendants.

The case itself is still alive.

As for what to expect next, there are a series of dates to watch for.  Firstly, Judge Kollar-Kotelly has set a 6/1 deadline for the plaintiffs to give her a status update as to the various Does still pending in the case.  Nothing of relevance will happen here.  Then, by 6/20/2011, plaintiff attorneys must either name and serve the defendants identified in their 6/1 statement or else she will dismiss them on her own just as she has done here.  Since they have a few days to inform the court of what they have done, we will likely see an order similar to the one we see today on 6/28/2011.

I have attached the order below for your viewing.  To those of you who are not one of our Cashman Law Firm, PLLC clients, please use the attached document to view whether your accused IP address is one of the IP addresses which are now dismissed.  If so, I congratulate you on your dismissal.

Last, but not least, on an ethics note.  It has been brought to my attention that it is the practice of some of unscrupulous attorneys to send out what are known as “scare letters” demanding thousands of dollars, even after a dismissal.  While this is obviously not legal advice, if I received such a demand letter after being dismissed from a lawsuit such as this one, I would immediately contact Judge Kollar-Kotelly’s chambers at (202) 354-3340, and I would ask to fax in a copy of the letter I have received so that the court can be made aware should the plaintiff choose to send such a letter.

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[UPDATE: I just found out that Judge Howell wrote almost identical opinions in the Voltage Pictures, LLC v. Does 1-5,000 (1:10-cv-00873-BAH) case and the Call Of The Wild Movie, LLC v. Does 1-331 (1:10-cv-00455-BAH) case to the opinion she wrote in the Maverick Entertainment Group v. Does 1-2,115 case, as described below.]

No doubt there will be many questions about the new order in the now Maverick Entertainment Group v. Does 1-2,115 case (1:10-cv-00569-BAH) — same case, new number of defendants from the recent dismissals. In addition, there is new news in the West Coast Productions v. Does 1-5,829 case (1:10-cv-00057-CKK).

First, the Maverick Entertainment Group news. Today, Judge Howell mentioned in her order that no jurisdiction nor any joinder arguments will be entertained by the court until defendants are named in the case. This twenty-six page ruling is essentially the same as her previous ruling, but this time she explicitly said that once defendants are named, they will have these defenses, and chances are they will be meritorious. To use her words, “[t]he putative defendants’ argument that they are improperly joined may be meritorious should they be named as defendants in this action.” (emphasis added, p.11)

*Surprisingly missing from her opinion was the elephant in the room — the settlement demand letters.* Judge Howell goes on to say, “…the putative defendants are not subject to the plaintiff’s subpoenas, and therefore do not face any ‘annoyance, embarrassment, oppression, or undue burden or expense’ from the plaintiff’s discovery request (as per Fed. R. Civ. P. 26(c)(1)).” I cannot possibly believe Judge Howell does not know that the plaintiff attorneys are demanding settlements from defendants.

They say justice is blind, but not stupid. Perhaps a few of us attorneys and our clients should send Judge Howell a sampling of the settlement letters our clients have received over the past few months.

Next topic, the West Coast Productions case. In short, yesterday, Judge Colleen Kollar-Kotelly ordered that certain defendants should be named and served with process by May 16th, 2011 or they should be dismissed. My guess is that that they will dismiss these defendants so that the case will remain alive.

In addition, the judge ordered that by June 1st, 2011, the plaintiffs need to give the court an accounting as to which of the defendants have been dismissed; which of the John Does have been disclosed by the various ISPs, and which they are still waiting for; and, which John Does cannot be named because the ISPs no longer have their contact information (e.g., likely because they purged the records after six months according to each ISP’s IP retention policy).

Last, but not least [and this is the juicy part], the judge ordered that by June 20th, the plaintiffs should either name their defendants or dismiss them. She is doing this by way of FRCP Rule 4(m), which is the way Judge Shadur dismissed the CP Productions, Inc v. Does case in the US District Court for the Northern District of Illinois just a few months ago.

In short, it seems as if the DC court is getting tired of these cases. Judge Beryl Howell (the former copyright lobbyist) is sticking to her guns and not dismissing these cases and she is turning a blind eye to what the plaintiff attorneys are doing. Yet, possibly due to political pressure, she has softened her approach and has conceded that as soon as plaintiffs start naming defendants, she may start severing and dismissing them for lack of jurisdiction and/or improper joinder. [She also gave one strong evidentiary hint as to the weaknesses of these cases, but we will deal with that in another article if and when it becomes relevant.] Similarly, in this same court, Judge Colleen Kollar-Kotelly seems to also be tiring of these cases. Instead of playing chicken with the plaintiffs in a “don’t name or else” stance as Judge Howell has done, Judge Kollar-Kotelly seems to be going the route of Illinois Judge Shadur in using FRCP Rule 4(m) to dispose of the case.

This is all good news. I am happy to share it with you.

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*** AUGUST 30TH, 2012 UPDATE: Judge Thomas Wilson of the Middle District of Florida just suggested that Cable Operators who are also ISPs could be bound by the Cable Act. ***

*** AUGUST 27TH, 2012 UPDATE:  Because of Judge Facciola’s ruling in the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) DC case, I pasted (below) the original article from 5/2011.  Related article is  “Judge Facciola opens up a can of worms with the Cable Act.” ***

Dear Readers,

This morning I posted an article about how it may be possible to sue internet service providers for the disclosure of subscribers’ private information pursuant to a subpoena from an expedited discovery order.

I have since pulled the article because the arguments as I described them would likely not hold up in the courts. The statutes I referenced dealt with government entities seeking subscriber information for the purposes of prosecuting criminal acts. In our John Doe cases, the plaintiffs seeking subpoenas are not government entities.

What fascinated me about the arguments from a purely legal perspective was that the same activity of disclosing private subscriber information while once legal would have over time become illegal based on activities in the courts and would have even subjected the ISPs to civil liability simply for changed circumstances.

In short, part of being your attorney is not only playing the part, but seeking out and testing new applications for statutes and making new arguments in the courts which have not yet been addressed by the current case law or the statutes. This argument will not work. The next one might.

*** AUGUST 27TH, 2012 UPDATE***

Because this issue became relevant in Judge Facciola’s ruling against Cablevision in the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) case in the District of Columbia, I am reprinting the article that I pulled under the condition that readers understand that this was a legally unsound argument. I am merely posting it here for INTELLECTUAL CURIOSITY. As readers will note, 1) the statute does not apply to our circumstances, and 2) there is an abundance of case law which states that the Cable Act does not apply to ISPs (although DC never ruled on this issue).

Law can sometimes be dry, but once in a while, it can provide a sweet and juicy protection for those dealing with copyright infringement claims.

It appears to me as if there might be a way to stop the ISPs from handing out subscriber information to the plaintiff attorneys who have been incessantly using expedited discovery motions to gain subscriber information for the purpose of extorting money from them as defendants in these John Doe copyright infringement lawsuits.

Whenever a defendant receives a subpoena, if he or she calls their ISP, they will likely say, “file a motion to quash or else we will be forced to comply with the subpoena.”

However, as soon as they do file the motion to quash, the plaintiff attorneys have been claiming in their motions opposing almost each and every motion to quash that “so-and-so filed a motion to quash; so-and-so has never been named in this lawsuit and is thus not yet a party to the action. So-and-so thus does not have standing to file this motion to quash and so the court should deny his motion to quash.”

READ THIS CLOSELY.

47 U.S.C. 551, entitled “Protection of subscriber privacy,” apparently provides a remedy to this issue. The statute states that the ISPs can disclose private subscriber information only if the accused defendant is given “the opportunity to appear and contest” the plaintiff’s claim [e.g., in a motion to quash].

However, if we consider what plaintiffs have been saying to the courts for many months now, (e.g., that unnamed John Does do not have standing to file motions to quash because they are not parties to the action), then this would indicate that accused defendants are NOT given the opportunity to “appear and contest” their being hauled into court to defend a copyright infringement lawsuit. Plaintiff attorneys joke about this regularly stating that few (if any) motions to quash have ever been successful.

ISPs should be put on notice of this fact by attorneys defending John Doe defendants, because 47 USC 551(f) allows any person aggrieved by this statute to sue the ISP in a US District Court. If sued, the ISP can be found liable for actual damages, punitive damages, and reasonable attorneys’ fees and other litigation costs if they are found to be in violation of this statute.

Once we confirm that this is a viable argument, for those defendants who have been aggrieved by the ISPs’ unauthorized disclosure of their information and have been subjected to unnecessary harassment, settlement costs, or attorney fees in defending such a copyright infringement lawsuit, perhaps this might be a way to right a wrong that so many have suffered.

While we will obviously need to research this statute further to determine whether this can actually be used to stop or deter ISPs in the future from disclosing subscriber information to plaintiff attorneys in copyright cases, for now it appears to be a promising argument that I will bring to their attention. As with any other posting on this site, this article is not to be taken as legal advice and is the editorial of the author, and no representations have been made as to future acts that may be taken by the Firm.

[ONCE AGAIN, I PULLED THIS ARTICLE SHORTLY AFTER POSTING IT BECAUSE THE ARGUMENTS WERE UNSOUND. I AM SIMPLY POSTING IT HERE TO GIVE A BIT OF BACKGROUND ON WHAT IS GOING ON WITH THE OPENMIND SOLUTIONS, INC. CASE WITH JUDGE FACCIOLA AND CABLEVISION'S REJECTED ARGUMENT.]

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I have always been saying that one day these John Doe copyright infringement lawsuits will end and we all will need to go back to being what we were before these John Doe mass copyright infringement lawsuits started being filed.  Well my friends, we may have just seen the order that may end all future John Doe lawsuits.

In what appeared to be a mere denial of a court allowing new copyright infringement plaintiff VPR Internationale (a Montreal, Quebec-based adult film producer) expedited discovery in a reverse class action John Doe lawsuit, we may have just witnessed the shift from Judge Howell’s carte blanche approach of letting the plaintiff attorneys do whatever they please (e.g., extort as many settlement offers from unsuspecting defendants under threats of being sued individually) to United States District Judge Harold A. Baker’s approach denying the plaintiffs access to subpoena the internet service providers in order to obtain the contact information of the John Doe accused subscribers.

In short, the way the plaintiff attorneys have started their lawsuits is that they would request permission from the court to send a subpoena to various ISPs and demand that they hand over their accused subscribers’ information so that they can conduct “expedited discovery.”  Once they obtain the subscribers’ information, they would begin a morass of phone calls, threatening letters, and tactics in order to scare John Doe defendants into paying thousands of dollars a piece in order to ‘settle’ their case.  In other words, they are paying the plaintiffs so that they do not sue them individually.

NO MORE.

In Judge Baker’s opinion in an interlocutory appeal from the VPR Internationale v. Does 1-1,017 case (Case No. 2:11-cv-02068) filed in the U.S. District Court for the Central District of Illinois, he quoted Orin Kerr, a George Washington University Law School professor in saying that if one who is sued in these cases, “whether you’re guilty or not, ‘you look like a suspect.'”

In questioning whether expedited discovery could be used to extort quick settlements, even from people who have done nothing wrong, Judge Baker states that “[t]he embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether the plaintiff VPR has competent evidence to prove its case.” (emphasis added).

The underlying court from which interlocutory appeal was sought stated that “until at least one person is served, the court lacks personal jurisdiction over anyone.  The court has no jurisdiction over any of the Does at this time; the imprimatur of this court will not be used to advance a “fishing expedition by means of a perversion of the purpose and intent” of class actions.

I have always been saying that one day the courts will start catching on to what is going on in these cases.  One day, the judges will find a way to put a stop to these John Doe cases once and for all.  I have no doubt this ruling is the first of many to come, where the judges stop the plaintiff in their tracks by denying them access to the ISPs’ subscriber records before a single subpoena is issued.

Note to self and to my attorney peers — these cases are about to get a lot more complicated.  I have no doubt the plaintiff attorneys will try to find other ways to sue defendants.  This will be fun.

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