Case 1:11-cv-00058-ESH-JMF Document 23 Filed 08/06/12 Page 15 of 16
“C. Third Condition: To Alleviate the Burden on the Doe Defendants 1
As I noted above, I am concerned by the prospect of plaintiff’s making settlement offers to the Doe defendants when these individuals may not be aware that they have legitimate defenses, particularly the defenses of lack of jurisdiction over the person, improper venue, and improper joinder. I have no inclination to dictate to plaintiff (or any one else) what they may or may not say during settlement negotiations. However, I have decided to preclude plaintiff from communicating directly with the Doe defendants prior to plaintiff’s naming these individuals as actual defendants in the complaint. Once they are named, further communications with them will require my permission.

D. Fourth Condition: Good Faith Requirement
Finally, I am requiring plaintiff to name as actual defendants only those Doe defendants who it believes, in good faith, to be amendable to the assertion of jurisdiction by this Court over their persons and as to whom venue is proper in this forum. I am not prejudging any argument as to either of those issues. While plaintiff will have an opportunity to address them in the ordinary course, if this case survives the naming of the defendants, I remind plaintiff that I purposefully identified the relevant principles pertaining to personal jurisdiction and venue. I expect that they will be ready to establish why this Court may assert personal jurisdiction over the Doe defendants who do not reside in the District of Columbia and why venue over any non-resident is proper in this judicial district”

The document that quote is from is well cited and researched. It looks like an excellent opinion. Mysteriously in 1:11-cv-01741 document 49 Facciola just yesterday seems to have allowed unfettered discovery, that document also seems written by someone with a poorer vocabulary. He quashed all motions to sever etc. and dissolved the stay on discovery from several months ago while imposing no conditions on the discovery. Which is bizarre because in the previous document he wrote:

“I am firmly convinced that it would be a gross abuse of discretion for me not to impose certain conditions upon plaintiffs being permitted to take the jurisdictional discovery they seek. There is simply nothing ordinary about these cases and they require something more than ordinary judicial passivity while service is accomplished.”

I can only assume he will issue similar conditions in all his cases, otherwise he is accusing himself of a gross abuse of discretion.

At any time, a John Doe Defendant who does not wish to be contacted by Plaintiff may inform Plaintiff by phone or send Plaintiff’s counsel an e-mail addressed to copyright@lebfirm.com that states: “Please do not contact me (again) prior to serving me in this matter.

Given the social climate in the US these days, I don’t think many would seriously be questioning the copyrightability of pornography if not for Copyright Trolls, even if adult film companies were filing copyright infringement lawsuits along more traditional lines (i.e. suing for outright copying ‘scripts,’ concepts or characters, or suing bootleggers who are profiting from selling copies of their movies).

For a judge to even bring this up suggests that he wants to send a message and is looking for ways to reign in this behavior. Basically saying “look guys, we let you test drive these privileges, we thought you could handle it, but if you can’t behave like responsible adults maybe we have to take it back.” With guys like Meier admitting to 30% error rates, Steele filing lawsuits and requesting statutory damages for works that aren’t even registered, and everyone shamelessly turning lawsuits into a business model, it is quite obvious that the adult film industry has come to use copyright law with no regard for playing by the letter or spirit of it, and has possibly crossed over into criminality with their dunning practices.

If this actually turns into a real battle for the Trolls and goes to the Supreme Court I can’t imagine porn will ultimately be found uncopyrightable, and I wouldn’t want to see that (without getting into my overall feelings about copyright I’ll just say I don’t think porn should be treated differently than other media). The real risk here is provoking that battle in the first place, then getting caught up in perhaps years of actually having to litigate instead of just pretending to litigate to scare people into sending checks. This judge appears to be warning the Trolls that they are in the Danger Zone.