Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) has been a controversial case from the beginning. Judge Bates immediately noticed the faults with the case and he stayed the subpoenas. Magistrate Judge Facciola (who has since taken over the case) is now facing scrutiny for every step he makes — not only in this case, but also in the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case. In short, Judge Bates told putative defendants that they could file their motions under seal (meaning the defendants’ identities would remain anonymous), the Doe Defendants relied upon Bates’ order and following his instructions, they filed their motions under seal, and Judge Facciola reversed Judge Bates’ order. [Facciola's order essentially stated that motions to quash that were filed under seal will be filed publicly on February 1, 2012, revealing the anonymous defendants' identities to the world (and consequently to Prenda Law Inc., where we all now know what they will do with these).] Based on the volume of calls that must be coming into Judge Facciola’s chambers [(202) 354-3130], he is no doubt now stepping on eggshells based on the hundreds of defendants who are actively tracking this case and I’m sure he does not like it. No judge would.
To make matters worse for the Judge Facciola, the Electronic Frontier Foundation (“EFF”) filed for its attorney to appear in the case and file an amicus brief, (a “letter to the court informing them of the law and the issues,”) on behalf of the various Doe Defendants. The attorney also requested that the judge “stay” the case (which essentially means to put the case on hold until the issues are resolved). In short, if EFF is successful, all of the motions to quash which tomorrow are set to become public will be kept private. At the very least, Judge Facciola will be educated as to the issues surrounding this case (first amendment issues, personal jurisdiction, improper joinder), and perhaps it will inspire him to sever and/or dismiss it [and its sister AF Holdings case].
My favorite part about EFF getting involved in the case is the technology-based declaration which every bittorrent user accused in these cases should be aware of. While the technology-based arguments of non-infringement may be over the head of Judge Facciola, they no doubt in my opinion provide enough information to kill any bittorrent case, if any Doe Defendant is named.
To hit the nail on the coffin, so to speak, the EFF asked the court to take judicial notice of (meaning, to recognize and hopefully adopt the opinions of) other bittorrent cases which you have been reading about since this blog started back in 2010. You can read the orders of the other cases in a neatly filed package here.
While this motion as far as I’m concerned should be a “one-two knockout punch” for this case, we must also realize that the character of the judge and his leanings (dare I say bias) also play a factor in whether he’ll allow this motion to move forward. DC has never been a defendant-friendly state as we saw with the Dunlap Grubb & Weaver, PLLC lawsuits last year, and they have historically been known to disclose the identities of Doe Defendants who filed motions to quash filed under seal when they reject them. This is why I am both optimistic that EFF has gotten involved, but I am also very cautious when it comes to how Judge Facciola will react to yesterday’s motion which is a clear affront to his previous order. Again, no judge likes it when someone openly disagrees with his order.
[P.S. - Here is the link to Prenda Law Inc.'s response requesting that the court not allow EFF to intercede in the case based on their "anti-intellectual property" nature. Other websites covered the topic just fine (see, SJD's article here).]