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Archive for July, 2011

On July 12th, 2011, we were all in dismay as to how Judge Kollar-Kotelly allowed the West Coast Productions v. Does 1-5,829 (1:11-cv-00057-CKK) case (in the US District Court for the District of Columbia) to stay alive, especially after imposing a hard deadline enforcing FRCP Rule 4(m) on the plaintiff attorneys which came and went with no comment, no order, essentially leaving us all wondering whether an order of hers actually was something to be taken seriously or not.

Well, today I would like to congratulate many of our clients at the Cashman Law Firm, PLLC on their dismissal from the case. Up front, this is not a complete dismissal, as a number of our clients are still putative defendants in this case.

That being said, as we know, Judge Kollar-Kotelly’s latest order still stands. BY AUGUST 15TH, 2011, PLAINTIFFS MUST NAME AND SERVE (or dismiss) ALL OTHER DEFENDANTS OR ELSE THE CASE WILL BE DISMISSED.

There was no indication as to why they did this today rather than in the next few weeks. My only guess (which is a weak one at best) is that when either the judge or the plaintiffs finally dismiss the case in its entirety, it might look better for the plaintiffs — in terms of preventing FRCP Rule 11 sanctions (should the court or any attorneys bring this up) for filing a frivolous lawsuit and not even naming one defendant after all these months — that the final dismissal be of just a handful of defendants rather than thousands of pages of IP addresses. That would certainly look bad.

I have attached a copy of the dismissal letter below for your viewing pleasure. To those of you who have been dismissed who are not our clients, please allow me to congratulate you on your victory.

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I was reviewing the various New Sensations, Inc v. Does cases in the US District Court for the Northern District of California, and one of them caught my attention.

In the New Sensations, Inc v. Does 1-1745 (3:10-cv-05863-WHA) case, I noticed that Judge William Alsup has taken over this case. This can only be good news for you and bad news for your plaintiff attorney, Ira Siegel. In short, Judge Alsup has the reputation for being known as “Mr. Rocket Docket”. Why? Historically, he has no patience for plaintiffs who sue and then sit around for months and months doing nothing (while they pressure defendants to settle). I have seen already a few cases where he gets tired of a case and on his own, he dismisses them for lack of prosecution. No doubt, if Mr. Siegel is paying attention, he’ll be paying attention to this case over the others or else he’ll have the case snatched from him.

To date, the other New Sensations, Inc v. Does cases in the US District Court for the Northern District of California are as follows:

New Sensations, Inc v. Does 1-1745 (3:10-cv-05863-WHA)
New Sensations, Inc v. Does 1-1474 (3:11-cv-02770-MEJ)
New Sensations, Inc v. Does 2-1768 (4:11-cv-02835-CW) <– severed from New Sensations, Inc v. Does 1-1768 (5:10-cv-05864-PSG) by Judge Paul S. Grewal.

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There is an interesting case coming out of the U.S. District Court for the Northern District of California — the court where most of John Steele’s newer and smaller Does 1-40 cases are showing up. In severing and dismissing all defendants (except Doe #1) in the Pacific Century International Ltd., v. Does 1-101 (4:11-cv-02533-DMR) case, Judge Donna Ryu held that it is improper to sue bittorrent users from different swarms in the same copyright infringement lawsuit, even if they all downloaded the same copyrighted work (e.g., the same movie).

In her decision, Judge Ryu made the distinction that each swarm has bittorrent users downloading a particular .torrent file, but the files themselves might not be similar enough for the plaintiff to join together all of the John Doe Defendants from the various swarms into one lawsuit claiming that all the John Doe Defendants downloaded “the same copyrighted work”.

For example, in one swarm, bittorrent users might download a low quality version of a pirated movie (e.g., perhaps from a “CAM” — an individual who takes a camrecorder into a theater and video tapes the film). Similarly, the bittorrent users of another swarm might be downloading a higher quality version of that same pirated movie, (e.g., a leaked high DVD quality version of a movie shared with movie screeners).

While each of these users who download copies of the copyrighted work — whether low quality or high quality — would likely be found guilty of copyright infringement [should any of the plaintiff attorneys decide to take these cases to trial rather sending out "scare" letters, making threatening phone calls, and in some cases naming defendants for the sole purpose of eliciting settlements], Judge Ryu ruled that it is improper to join the first swarm of bittorrent users (e.g., the low quality film downloaders) with the second swarm of bittorrent users (e.g., those downloading the leaked DVD version of that same work) BECAUSE the first swarm of downloaders WOULD NEVER INTERACT with the second swarm of downloaders. Thus, plaintiffs who join the John Doe Defendants of multiple swarms into one lawsuit claiming that each defendant necessarily participated in the SAME TRANSACTION OR OCCURRENCE is a faulty argument. Swarm #1 will never take part in the same transaction or occurrence as Swarm #2, and thus the judge ruled that it is improper to join defendants of the two swarms into one lawsuit.

This ruling flies in the face of almost every plaintiff attorney’s claim that each John Doe Defendant is properly joined with all the other defendants in that same lawsuit. Moving forward, should judges in other cases and in other jurisdictions adopt this judge’s opinion, following this opinion, the rule would be “ALL LAWSUITS THAT SUE DEFENDANTS OF DIFFERENT BITTORRENT SWARMS IN THE SAME LAWSUIT SHOULD BE SEVERED AND DISMISSED.”

How does this change the playing field? As we already know, John Steele, Ira Siegel, and the other plaintiff attorneys have already started suing smaller numbers of John Doe Defendants. Seeing a “Plaintiff v. Does 1-40″ or “Plaintiff v. Does 1-60″ (or even smaller) has become commonplace in bittorrent lawsuits. However, these smaller lawsuits have been made smaller in order to 1) fix the inherent issues of jurisdiction (e.g., suing defendants in the wrong court), and 2) to keep the case under the radar of the judges (after all, a lawsuit suing fifty defendants (Does 1-50) will incur far less attention than a lawsuit suing five thousand defendants (Does 1-5,000). Thus, in the new trend of these lawsuits, California defendants are now being sued in the California courts, Illinois defendants are being sued in the Illinois courts, and so on. Until the plaintiff attorneys begin suing defendants swarm-by-swarm (where a swarm is merely a snapshot of users uploading and downloading at a particular time), these smaller lawsuits also suffer the inherent flaw of “improper joinder,” and thus in time, they too will be severed and dismissed.

As a disclaimer, obviously this case is still alive as to John Doe #1 who remains a defendant in the case. In addition, there have been additional filings where the plaintiff attorney appears to be trying to convince the judge to change her mind on this matter.

I have attached a copy of the order below for your viewing and reading pleasure.

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I cannot believe I am saying this, but the West Coast Productions v. Does 1-5,829 (1:11-cv-00057-CKK) case filed in the US District Court for the District of Columbia is still ALIVE.

In short, Judge Kollar-Kotelly has made no secret of the fact that she is beginning to tire of this case. In her most recent order yesterday, she wrote, “the Court shall not permit this case to languish on its docket indefinitely.” (p.3).

In addition, she has made no secret that she has every intention to enforce FRCP Rule 4(m) in order to dismiss this case if the plaintiffs do not name or dismiss defendants within her new deadlines. Following her scant 3-page ruling are eighteen (18) pages of IP addresses in large print belonging to John Doe Defendants who are now dismissed. Surprisingly, none of them belong to our clients.

What we can pull from this order are a whole new set of deadlines that the plaintiff attorneys must adhere to (or maybe we might see yet another extension in a few months).

In short, here is what “must” happen according to her current order:

By July 15th, plaintiffs must file a report with the court indicating who has been dismissed, who they are waiting to hear from, etc. This is nothing so exciting; no doubt the plaintiff attorneys will comply.

By July 29th, plaintiffs must name and serve defendants — and they must file proof with the court that they have complied by August 3rd. My guess is that nobody will be named and served, but a few defendants will be dismissed, and we will see yet another extension request early August.

NEW DEADLINE: BY AUGUST 15TH, 2011, PLAINTIFFS MUST NAME AND SERVE ALL OTHER DEFENDANTS OR ELSE THE CASE WILL BE DISMISSED [AGAIN].

In short, I am disappointed by this wimpy excuse for a ruling. If the judge had some spine she would have stuck to her hard deadline of “name or dismiss by June 30th, or else.” Giving in again and again as far as I am concerned is like telling a child “no, you cannot have that lolly pop,” and then giving it to them. What makes the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC think that if they do not adhere to this deadline that the judge will not extend it yet again?

Maybe this is her plan. Pretend to be against the plaintiff attorneys, but continue to give them as much leeway as they need to collect the thousands-of-dollar extortion payments from each of the thousands of Doe Defendants while she screams about deadlines and court dockets, threatening that she is going to dismiss the case under FRCP Rule 4(m).

Okay, so now what. John Doe defendants who have spoken to me, your case is still alive. This means that the plaintiff attorneys will be contacting you, they will continue to be demanding settlement amounts from you, etc. etc. Their game is now well known.

Obviously it is a basic ethical rule that as soon as I give them notice that I am your attorney, all their calls and “solicitations” must stop. In addition, any correspondences must go through me. This allows me to act as a barrier between you and the plaintiff attorney so that you won’t say anything incriminating, and it allows me to interact with your opponents on your behalf. There are obviously other things I do as your attorney, but bottom line, your judge has given them carte blanche to do whatever they want until this new deadline.

In short, no dismissal.

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We at the Cashman Law Firm, PLLC hereby congratulate our clients who have been dismissed from the MCGIP, LLC v. Does 1-316 (1:10-cv-06677) case in the US District Court for the Northern District of Illinois. We can actually thank John Steele for this dismissal, as he is the one who dismissed the defendants on his own, apparently without any coercion from the judge.

While this dismissal might be news for most, our clients received a heads up e-mail from our firm on June 22nd, 2011 that the MCGIP case was likely going to crack. Read on if you are interested in an interesting connect-the-dots story…

On June 14th, John Steele of Steele Hansmeier, PLLC sent out a huge number of “scare” letters demanding settlement payments. The timing seemed odd to me, especially since the judge in the MCGIP case wrote an order siding with John Steele on a whole number of issues just a few days before his letters were sent out (June 9th).

In Judge Kendall’s June 9th order, she relied heavily on the Donkeyball Movie, LLC v. Does 1-171 case (then pending in DC). In addition, in supporting Steele, she cited in a number of places to the Call of the Wild Movie, LLC v. Does 1-1062 (“COTW”) case (also pending at the time in DC).

Coincidentally, on June 14th — the same day Steele drafted and sent these scare letters — the Donkeyball case was dismissed in its entirety, and the COTW case (again, almost 1,000 defendants large) had all but 14 defendants dismissed.

Immediately seeing this connection between the dismissals in the DC cases and the judge’s reliance on those now dismissed cases, we at the Cashman Law Firm, PLLC sent a notice to our clients giving them the heads up that the DC case support Judge Kendall relied upon just fell apart.

Now, less than a month later, (for most defendants, at least) the case is over. The dismissal was by Steele himself rather than the court which means that he can still file against defendants in their home states. That being said, for now, please enjoy your victory.

I have pasted the dismissal letter dismissing all defendants, along with the Exhibit A identifying which of the Doe defendants are still under threat of being named in this lawsuit.

…and Exhibit A identifying those defendants who still can be named and sued in this case.

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[7/10 Update: As of this morning, there is *still* no new activity in this case.  I will continue to monitor the docket, and as soon as I see anything, I will be sure to post about it.]

A lot of people have been asking about the West Coast Productions v. Does 1-5829 case (1:11-cv-00057-CKK) in the US District Court for the District of Columbia. As per our most recent article on the case, the deadline for Judge Kollar-Kotelly’s 5/11 Order (Doc. #72 in the case docket) requiring all remaining defendants be named and served or dismissed by June 30th has passed and there has yet to be a decision.

I will post an article on this site as soon as a decision has been rendered. For those of you that will be dismissed, allow me to congratulate you now.  For those of you that may remain defendants (if a dismissal does not occur or should the case continue on), should you realize that you still need an attorney, you may schedule an appointment for me to answer questions about your case at http://www.cashmanlawfirm.com.

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