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Archive for December, 2011

DISTRICT OF COLUMBIA — Everyone knows by now that DC is not a friendly jurisdiction to be sued in. Like Washington D.C., the judges do not follow one another, and each judge does what he or she feels should be policy. Two examples — Judge Beryl Howell, a copyright lobbyist turned federal judge, and Judge Bates — friendly towards downloaders (but subsequently removed by other judges from the Hard Drive Productions, Inc. case).  As far as I am concerned, this court is wrought with as much politics as Washington D.C. is in general.

So let’s go through some case updates, sorted by plaintiff attorney.

I) DUNLAP GRUBB & WEAVER, PLLC

Imperial Enterprises v. Does 1-3,545 (Case No. 1:11-cv-00529) [at one point it was Imperial Enterprises, Inc. v. Does 1-3,145] — dead. On 9/26, Judge Reggie Walton ordered the plaintiffs to name and serve or dismiss defendants or dismiss them [according to Federal Rules of Civil Procedure (“F.R.C.P.”), Rule 4(m)] by 12/20/2011. Instead of naming defendants, Dunlap Grubb & Weaver, PLLC (who sends out settlement demand letters under the name “Media Law Group” or “MLG”) decided to dismiss all defendants. Case dismissed; congratulations to all Cashman Law Firm, PLLC defendants (and all others) who were Doe Defendants in this case. See order here.

Voltage Pictures, Inc. v. Does 1-24,582
, a.k.a., “the Hurt Locker case” (Case No. 1:10-cv-00873) [at one point it was Voltage Pictures, Inc. v. Does 1-5,000]dead. This one was actually funny. On 11/4, Judge Beryl Howell got tired of this case being on her docket. So she gave Dunlap Grubb & Weaver, PLLC (“DGW”) until 12/5 (extended to 12/12) to name and serve defendants or to dismiss them (again, the judge invoked F.R.C.P. Rule 4(m) to wipe what became a stale case off her docket).  However, DGW missed the deadline, and instead of having the judge dismiss the case, they dismissed it themselves to save themselves the embarrassment of having yet another case dismissed for them failing to move forward against defendants.

Regarding this plaintiff attorney, I received word that they were gearing up to sue individual defendants in their home states. This is nothing new as they have already started “naming” defendants for their older dismissed cases. More recently, I received word that they are hiring local attorneys and following the Patrick Collins, Inc. model of stating to dismissed defendants, “we have hired XYZ attorney in your state — unless you settle with us, we will name you in a lawsuit in your state.” The problem here is I have reason to believe they’ll follow up with the lawsuits.

There are some other “conspiracy” issues regarding this plaintiff, namely that they sent subpoena letters demanding names and contact information for various John Doe Defendants *AFTER* dismissing their IP addresses and releasing them from the case. This was written up by Torrentfreak.com, and you can read up about it here.  (NOTE: After the ISPs refused to hand over subscriber information, they added the IP address back into the lawsuit — something I don’t think they were allowed to do — but these Doe Defendants have since been dismissed as well and now they are receiving “scare” letters now as we speak.)

II) STEELE | HANSMEIER, PLLC (NOW PRENDA LAW INC.)

As we know, a few months back, Steele Hansmeier, PLLC (now Prenda Law Inc.) ventured into the DC District doing some “forum shopping” with their Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) and their AF Holdings, Inc. v. Does 1-1,140 (Case No. 1:11-cv-01274) cases — having been essentially locked out of their own Illinois jurisdiction, they were looking for a few favorable rulings based on DC’s “plaintiff-friendly” reputation in the bittorrent cases of the past year (they have since found a happier home filing suits in the Florida / Miami Dade state courts). In these cases was the first appearance of Paul Duffy who has since taken over Steele’s position in the firm (yes, it appears as if he is out).

AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) has survived scrutiny without a hiccup as Prenda has been “pretending” to search and see which defendants lived in DC. To make their searches appear valid, they immediately started dismissing a bunch of defendants a few at a time (“NOTICE of Voluntary Dismissal re Does 1-8,” “…Does 9-15,” “…Does 16-35,” “…Does 36-65″ — what I do not understand is, “Hasn’t Judge Reggie Walton figured out their game yet?” After all, it appears to me as if none of the defendants [so far] live in DC. And, they filed the complaint in JULY 2011! Did it REALLY take them 5 MONTHS to figure out that the first 65 defendants did not live in DC? I could have done this in just a few minutes using known geolocation tools). In short, Judge Reggie Walton is allowing this to move forward for now, but he is not stupid. My prediction is that he is going to bust this case using FRCP 4(m) any time now.

Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) is the case that is filled with controversy. It was in this case where Judge Bates figured out that most of the defendants did not live within the jurisdiction of the DC court. He invited Doe Defendants to file motions to quash and promised that he would keep their information sealed and private. My first inclination when I saw this was “watch out! — DC does not keep sealed documents as private — as soon as they deny the motions to quash, they expose the defendants’ information when denying the motions.”  Then a few days later, as we wrote about here, whether for political reasons or from pressure from the other judges, Judge Bates was removed from the Hard Drive Productions, Inc. v. Does case and he was replaced by Judge Facciola, someone who in my estimation was not friendly towards bittorrent defendants. For weeks, we saw nothing from him — no indication as to whether he would honor Judge Bates’ offer to submit motions to quash anonymously, or whether he would summarily deny them. I suspected he would deny them in line with DC’s past strong stance AGAINST motions to quash.

Well, I am sad to share that Judge Facciola ended up being exactly who I thought he was. In his 12/21 ruling, he reversed everything Judge Bates was trying to do when he wrote in his order that “I will not consider any motion unless it is publicly filed.” In other words, unless you use your real information in your motion to quash (e.g., your real name, address, phone number, etc. — the exact information the plaintiff attorneys are looking for in order to start sending you “scare” letters and calling you with the effect of scaring you into a settlement), Facciola’s court will not consider your sealed motions to quash as Bates promised they would.  It need not be said that when you file a motion to quash, everybody can see it as the filing is a public document. However, Judge Facciola does not care about your privacy interests, nor does he care if plaintiff attorneys receive your private information, because according to him, “[i]ndividuals who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information.” (emphasis added) I wonder when the last time an ISP allowed a subscriber to open an account without the subscriber’s personal information.

In sum, expect this case to move forward like all the others. We appear to have a copyright-troll friendly judge here, so please prepare yourselves to have your private information handed out to your plaintiff attorneys by your ISPs; until now, I expect that they haven’t done so. I would love to give you good news here, but so far there is no indication this is going away any time soon — at least not until Prenda Law Inc. gets its payday.

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Please allow me to extend a warm congratulations to the Cashman Law Firm, PLLC defendants (and all others) who have been dismissed from the New Sensations, Inc. v. Does 1-1,474 (Case No. 3:11-cv-02770) case and the Patrick Collins, Inc. v. Does 1-2590 (Case No. 3:11-cv-02766) case, both in the U.S. District Court for the Northern District of California. While this is no longer news since the dismissal happened literally days after my last post, I wanted to follow up with a quick comment on these two cases.

I hate to pin this on Ira Siegel as no doubt Steele Hansmeier, PLLC (now Prenda Law Inc.) have made a mess of cases in the Northern District of California, but with these two plaintiff attorneys making messes of the bittorrent cases (to your benefit, of course), judges have smartened up about bittorrent lawsuits, and have been giving both of them a bunch of hurt. [There is news about the Hurt Locker case as well, but I’ll save it for the next posting.] In short, I no longer believe that there is a judge in Northern California who is oblivious to what is going on in these bittorrent cases, and I feel that these cases moving forward will be shut down faster than the plaintiff attorneys can say “boo!” (akin to how John Steele (and soon Prenda Law Inc.) was essentially shut out of the Northern District of Illinois courts).

Here is the interesting part about these two cases. In Judge James’ order (almost identical in the two cases), she forbade Siegel from accepting settlements after 12/7. This means that if you have not already received an “I’m sorry for asking you for money” letter (actually phrased as “we intend to go after you after the issues are resolved”), expect one in the mail (or in your e-mail, as this is how your plaintiff attorney likes to cut costs and avoid huge postage fees).

The problem in my mind is that while Judge James dismissed the case without prejudice [meaning that Siegel can easily file against any of the Doe defendants in their home courts], she was UNCLEAR as to whether Siegel can now accept settlements now that the case is dismissed. In other words, there is an AMBIGUITY in her order which on its face means that Ira can no longer accept settlements from Doe Defendants from this case; logic suggests that this is not the case. I actually inquired about this, and two days ago (12/22, pasted below), Ira asked the court for a clarification as to whether he is still allowed to accept settlements moving forward now that the case is dismissed. He wrote the same inquiry to the court in the Patrick Collins, Inc. case (link here). We will wait and see what the judge says.

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As many of you have no doubt read on other blogs, some of the smaller cases have gone bust, others have been given permission to move forward.  At the risk of sounding repetitive, when you see a blog entry on this site, that means that something certainly relevant and of note happened in the bittorrent litigation world.

As far as I am concerned, the former Steele | Hansmeier, PLLC (now Prenda Law Inc.) firm has started to copy the Patrick Collins, Inc. / K-Beech, Inc. business model (the Lipscomb & Eisenberg / Miami Dade / Florida State lawsuit model) of suing defendants in Florida under that state’s Bill of Discovery statutes, getting the judge there to rubber stamp their request to obtain defendants’ contact information from the ISPs (often without notice to the defendants), and then cold calling defendants and threatening to sue in that defendant’s home state unless they settle.  Ira Siegel’s firm has done the same thing with their Mike Meier attorney pretending to defend accused defendants and then switching sides only to start suing in federal courts of various states.  Dunlap Grubb & Weaver, PLLC has been quiet, naming some defendants and then subsequently dismissing them (presumptively when they settle or the court severs and dismisses their case for improperly suing defendants together in one lawsuit), and their big monster cases of last year have been widdling down into non-existence (bye bye Voltage Pictures, Inc. v. Does 1-5,000, etc.).  That means nothing, because now they are playing the same game as everyone else — sending thousands of “scare” letters telling defendants that if they do not settle, they will not only increase the settlement cost, but that they will “name” that defendant in a federal court in their home state.  While this is obviously not the topic of this blog entry, 1) please do not be gullible and give into their demands just because they have made up some arbitrary date and settlement amount, and 2) please do not be cocky as to think that you can outsmart them and take care of this matter on your own.  Both of these approaches have caused much angst for Doe defendants who later realized what they paid for was a second settlement.

The topic of this blog entry is not Ira Siegel or his Copyright Enforcement Group, but it is Judge Maria-Elena James of the US District Court for the Northern District of California.  Prior to John Steele abandoning his cases in Illinois, the judges there started to shut them down as fast as he filed them.  I would posit that the failing of Steele’s business model of suing hundreds of out-of-state defendants in one lawsuit should have been a lesson to Ira Siegel who has not been paying attention, and now his cases are in trouble.  California’s Judge Maria Elena James — once a friend to Ira and his methods, has started to turn a fierce eye of judgement towards his cases.  It is for this reason that I suspect a bunch of his cases are about to go bust.

Until 12/1/2011, all seemed to be good for Ira Siegel.  Sure he suffered a few setbacks, dismissed a few cases, but these – New Sensations, Inc. v. Does 1-1,474 (3:11-cv-02770) and Patrick Collins, Inc. v. Does 1-2590 (Case No. 3:11-cv-02766) — his milk and honey — were moving forward flawlessly… until Judge James figured out that Ira Siegel was filing suits against thousands of defendants, extorting settlement agreements, and all this without naming even one defendant in any of his cases.  This angered her, and she ordered Siegel in both cases (identical orders) to disclose to the court all the details he could about all the Doe defendants, along with why she should not dismiss the case because he has failed to name and serve defendants within the 120 day limit given to him in the Federal Rules of Civil Procedure, Rule 4(m) (the reason a number of Dunlap Grubb & Weaver, PLLC’s (“DGW”) cases went bust in DC).  Essentially, this should have served as a warning sign that his case is about to be dismissed, but instead of fighting back or dismissing a smaller group of defendants (a tactic which DGW did in the West Coast Productions, Inc. v. Does case which kept their case alive for many months), Ira kept silent.

One week later, by 12/7/2011, Judge James utilized simple and free programs known as “geolocation tools” to isolate the location of where a random sample of the putative defendants lived.  When she saw that none of them lived in California, she filed an orders in both cases questioning Ira’s “good faith” in filing this case in the first place.  She also indicated that had she known then what she knows now, she would have never given the order to allow Ira to subpoena the ISPs to determine who the John Doe Defendants were.  As a result, she ordered Ira to run the geolocation tools himself and dismiss everybody who did not live in California (coming soon).  She also ORDERED that Ira Siegel MAY NO LONGER SEND ANY SETTLEMENT DEMAND LETTERS.  Even better, to any Doe Defendants to whom he sent letters, he must send them a second letter telling them that they do not need to comply with his demand letter.  Lastly, she nullified any settlement reached on or after the date of her order.  Ira asked her to change her order, and on 12/8, she denied his request.  Thus, to those of you who received settlement letters, expect to get a second letter explaining everything that I have written here.

While the scope of this article is to discuss the recent acts by Judge James, I wanted to point out that on Friday, the Digital Rights Foundation filed an amicus brief with the court urging them that Ira Siegel not only knew about these issues (e.g., filing against Doe defendants knowing the court had no personal jurisdiction over them), but essentially that what he has done amounts to fraud upon the court.

You could end reading the article here, but if you would like to know Ira’s most recent set of acts (and this might actually make you upset) — for some time, he has been hiring local attorneys and has only now started suing John Doe defendants in states OUTSIDE of California — something in the past he never did.  In short, he is copying what Patrick Collins, Inc. has done for months now, and what John Steele (now, Prenda Law, Inc.) are now doing — that is, he is suing smaller groups of defendants in their home states, most recently with his Digital Sin v. Does cases that he is having Mike Meier file on his behalf.  I hate to make the comparison to something sinister, but you stamp him down in one court, and he spreads his tentacles out to other courts.  Obviously there is more to come.  I expect more news starting on Wednesday, 12/14 (or perhaps on the day(s) following this should the judge learn that he has not complied with her orders).

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