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Archive for the ‘Doug McIntyre’ Category

“Oh what a tangled web we weave, When first we practise to deceive!”
– Sir Walter Scott, Marmion: Canto VI. (1771 – 1832)

My greatest effort in this blog is not to decide what to write about, but what NOT to write about. I’ve been very aware of John Steele’s issues in Minnesota (where he made an appearance for one of his cases, and was served by Paul Godfread’s process server on the Alan Cooper identity theft issue). I’ve also been aware of the issues as to whether AF Holdings, Guava, (and we won’t mention Ingenuity 13, or the older MCGIP lawsuits) are in fact entities or whether there is an bit of sham involved in their formation and/or the enforcement of the intellectual property they appear to hold. I have also noticed the clear trend from the smarter lawsuits where Steele moved from suing hundreds of John Doe Defendants to him suing smaller numbers of John Does (20-75) in smaller “under-the-radar” lawsuits, and then finally to the “John Doe” individual lawsuits, some of which ended up with named defendants who were not served, others where the defendants were actually served, and finally others where a defendant and his attorney agreed to allow Prenda to add hundreds of unrelated defendants to the lawsuits as potential co-conspirators.

Then when even the individual lawsuits looked to no longer be fruitful for him, I noticed the move from copyright enforcement to absurd tactics, some of which involved having Mark Lutz pose as a representative for a production company.  I noticed when Prenda had their own local counsel (Joseph Perea) shift titles to avoid unauthorized practice of law issues (e.g., in Florida), and I noticed when local counsel Brett Gibbs ended up as “of counsel” for Prenda Law Inc., only to later disavow association from the firm when federal Judge Otis Wright mentioned the word “jail.” These absurd tactics have gone even farther, most recently with the creation of the Livewire Holdings, Inc. entity (see, Part I; Part II) using fake pictures on their website for their so-called “partners,” and reports that Mark Lutz (Prenda Law Inc.’s former paralegal, now pictured as “partner” in the Livewire Holdings, Inc. site) is back at it, calling dismissed defendants using a fake name.  I almost fell off my chair when I read local counsel Brett Gibbs’ most recent declaration [under oath] that [he has been informed that] Mark Lutz was the CEO for AF Holdings, LLC (p.4, paragraph 7), and that he was also the CEO for Ingenuity 13, LLC (p.4, paragraph 8).  Really?!?

All of this drama (including the Minnesota lawsuit and the so-called fake Alan Cooper issue) are topics I have purposefully chosen NOT to write about for the sole reason that they do not help my clients or potential clients understand the issues surrounding the copyright infringement lawsuits they face when they receive a subpoena notice from their ISP in the mail.

Behind the scenes, as owner of the Cashman Law Firm, PLLC, I and my staff have spent literally months building up local counsel networks and researching each federal court’s rules to properly defend clients who are named as defendants in their copyright infringement lawsuits. I personally warned a number of copyright trolls that if they named my clients, myself and the attorneys I work with would find a way to make defending these cases affordable. So you can understand why I was amused when the principals at Prenda Law Inc. shifted from what looked to be a trend towards individual lawsuits against former John Doe Defendants to their more recent “world domination” shenanigans which led to widespread questions as to the identity of the “real” AF Holdings, LLC Alan Cooper, which of the copyright troll entities are real and which are shams, and then once caught, which led to the finger-pointing which began between their local counsel and other defense counsel, and then ultimately to the finger-pointing towards the principals at Prenda Law Inc. I’m happy that their lawsuits have gone nowhere these recent months, but personally I feel that their focus has shifted to “doubling down” on what appear to be outright lies rather than representing their clients to stop the piracy of their copyrighted films.  I often stop myself from asking, “wasn’t that the whole purpose of this grand charade?”  At least the war I thought I was fighting was to defend internet users from being subjected to copyright extortion-like lawsuits for the downloading or viewing of copyrighted movies and videos.

For these reasons, I really have nothing to say or comment because what Prenda Law Inc. / formerly, Steele|Hansmeier PLLC/ or more recently, the Anti-Piracy Law Group / John Steele / Paul Duffy / Brett Gibbs / former paralegal Mark Lutz (and their local counsel, many still disgruntled) have been doing and their antics have little-to-nothing to do with the so-called “rampant piracy” and the copyright infringement I thought they were here to stop.

So now John Steele and the entities he supposedly has nothing to do with are suing Paul Godfread, the real Alan Cooper (as opposed to the one they have not yet produced), along with all of the anti-copyright troll internet population, probably most notably, Sophisticated Jane Doe (http://www.fightcopyrighttrolls.com), Die Troll Die (http://www.dietrolldie.com), and probably a handful of others who have been hugely helpful to our law firm over the years through their reporting on Twitter. I could easily be part of this group of anti-copyright troll “Does” from all the posts I have written on his cases.

The problem with the “sue everyone for defamation” approach is 1) the elements of defamation are simply not there (as Forbes Magazine might report, John Steele is clearly a “public person” who has cast himself forth as being one of the foremost and first copyright trolls), 2) his lawsuits likely invoke the anti-SLAPP laws because they appear to have been filed to “create chilling effects and to stifle speech,” and most importantly, 3) people like Sophisticated Jane Doe, Die Troll Die, and the others blog and tweet anonymously. Thus, even if they figured out which IP addresses did the posting or the tweeting, the IP address will likely point to a private VPN service who have no ability to even know who these anonymous bloggers are.

In closing, there is not much to say about these lawsuits. Techdirt wrote about them here.  ArsTechnica wrote about them here.  Sophisticated Jane Doe wrote about them here. Copyright Clerk wrote about them here. Jordan Rushie wrote about them here. No doubt there will be many more articles, and no doubt there will be much more drama. However, as far as these lawsuits affect his copyright infringement and “hacker” lawsuits (the purpose for which I write this blog), I cannot see them affecting his lawsuits positively, and if anything, this was a misstep for Steele and his affiliates.


UPDATE (3/9/2013): DENIED.  Automattic, Inc. letter to Prenda Law Inc. (on behalf of WordPress.com sites) rejects Prenda’s attempts to ascertain the IP addresses of the anti-troll community citing five (5) deficiencies in their subpoena.  Other notable reasons for non-compliance with the subpoena include: 1) rights under the First Amendment to anonymous speech; 2) right to privacy; 3) subpoena (“outrageously”) overly broad; 4) subpoena seeks information that is not likely to lead to discoverable information.

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The Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) case in the District of Columbia has been dead for almost a month now, and Prenda Law Inc. (now the “Anti-Piracy Law Group”) is still calling each and every dismissed defendant as if the case were still alive.

In my opinion, these calls to dismissed defendants are indeed very concerning. The threat is that unless a dismissed defendant settled, they will immediately name and serve them in the federal court in their home state.


HOW TO CHECK WHETHER THEIR THREATS HAVE ANY MERIT

I have literally been hearing about these threats from dismissed defendants for weeks, and there is a VERY EASY way to test whether their threats have merit or not — simply check to see whether Hard Drive Productions, Inc. has filed lawsuits naming individuals. The easiest way to do this is to visit http://www.rfcexpress.com, scroll down on the right-hand side, and check only the “copyright” button. Type “Hard Drive Productions” into the “Party Name” field, click submit, and you’ll see the last state and the last date they filed suit against defendants. [As of 6:45pm on 1/16/2013, there have been ABSOLUTELY NO FILINGS by Hard Drive Productions, Inc. since they tried to sue defendants here in the Southern District of Texas using Doug McIntyre as their local counsel — and you know how badly that ended for them.]


SHOULD YOU CALL THEM?

Now this should be common sense, but you NEVER want to be calling the attorney who is threatening to sue you. Especially when you already know that their game is to extort and solicit settlements from those they believe they can scare into settling.


CAN THEY FOLLOW-UP ON THEIR THREAT AND SUE YOU INDIVIDUALLY?

Obviously Prenda Law Inc. (now the “Anti-Piracy Law Group”) has the capacity to name and serve many individuals in many states.  However, they are lawyers just as we are lawyers. And, whatever Prenda Law Inc. does on behalf of a client, somebody needs to pay the bill (especially if there is local counsel involved). If they are suing on behalf of Hard Drive Productions, Inc., then Hard Drive Productions, Inc. needs to pay their bills (or, you do by way of your settlements). Lawsuits are not cheap for a plaintiff, and the up-front cost of filing one ($350 per lawsuit), plus all the time drafting and responding to motions in front of a judge for each case is quite an undertaking.


SHOULD YOU SETTLE?

Thus, if you have no reason to settle, then don’t settle. If you see that they are naming and serving individuals, then contact one of us lawyers. Depending on your circumstances and if I can figure out a way for you to fight your case without settling, that might be the cheaper alternative. Just please don’t try to respond to their calls thinking that you’ll negotiate your way out of this. The only way to get out of this is to back them into a financial corner forcing them to drop your case, defend your case on the merits, or to pay them to make the case go away. I like any option that does not include sending them a check.

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So… I was in the Southern District of Texas court this afternoon, and I thought that I would stop by and sit in on the Sunlust Pictures, LLC v. Does 1-75 (Case No. 4:12-cv-00695) case management hearing.

Prenda Law Inc.’s local counsel was a no show.

Using the court’s speaker phone, the clerk called Douglas Clemons, Prenda’s answer to Doug McIntyre’s withdrawal as local counsel from all of their cases.

RECEPTIONIST: “Manfred Sternberg & Associates, how may I help you?”

CLERK: “We are looking for Douglas Clemons.  He has a hearing scheduled with Judge Ellison.”

RECEPTIONIST: “With who?”

CLERK: “Judge Ellison.”

RECEPTIONIST: “Let me see if he is here… No, he is not in the office.  I don’t even see anything on his calendar for today.  I’m going to transfer you to his cell phone. [click. dial tone.]”

In other words, Doug Clemons, local counsel to Prenda Law Inc. didn’t even know he had a hearing this afternoon.  This baffles me — I’ve known about it for weeks.  I expect that he has some explaining to do.

As far as the Sunlust Pictures, LLC v. Does 1-75 case is concerned, the hearing from today will probably be rescheduled with no consequences to the plaintiffs or to Prenda Law Inc.’s local counsel.  That being said, I do want to point out that the John Doe Defendants in this case likely have nothing to worry about — well, at least the Comcast Cable Communications subscribers.

Comcast refused to comply with the subpoena issued to them to release the names of the accused defendants, and Prenda sued Comcast in DC in a “motion to compel” case entitled “Sunlust Pictures, LLC v. Comcast Cable Communications, LLC” (Case No. 12-mc-00383).  They have done this before.  The judge denied Prenda’s motion, and thus Comcast will not be complying with the subpoena which essentially means that any Sunlust Pictures, LLC clients here in the Texas lawsuits are home free.  Your plaintiff attorneys will not know who you are.

As for non-Comcast defendants, there will be another case management hearing.  It’s probably a good idea to mount a proactive defense and at least let yourselves be heard.  Judge Ellison is a fair judge, and he will listen to you regardless of whether you are represented by an attorney or not.

I think more generally that it is probably a good idea for Doe Defendants across the country to start showing up to these hearings.  If you don’t have an attorney, wear a tie and a jacket, and say hello to the judge and the clerk.  If you do not have an attorney representing you, then represent yourselves.  I don’t think one local counsel who doesn’t have his heart invested in these cases can stand up to many of you, especially when you are passionately against these kinds of lawsuits.

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I sometimes feel like a duck in a pond — everything seems calm on the surface, but under the water, I am directing local counsel with a fury. No doubt copyright trolls operate the same way (John Steele did it, and quite frankly, this is the only way a multi-jurisdictional law practice can properly operate).

The problem happens, however, when one of your local counsel drowns. What do you do — do you let them take the fall? Or do you do whatever it takes to support them even when your cherished law firm name is not on their court filings?

I am sad to share that my nemesis of sorts, Doug McIntyre, has drowned, and his copyright troll employer appears to have let him take the fall.

Doug McIntyre was the name that appeared on a number of Prenda Law Inc.’s cases — names such as Millennium TGA, Inc., Bubble Gum Productions, LLC, Pacific Century Int’l, Ltd., and Sunlust Pictures, LLC (to name a few). What I thought was commendable was that for reasons we cannot discuss (think, “There is no honor among thieves. Copyright troll thieves”), Doug went ahead and started taking on his own clients — West Coast Productions, Inc., Combat Zone Corp. — and started to mold himself into a copyright troll rather than local counsel for someone else. I actually thought it was commendable that he was going off on his own and was standing on his own two feet rather than being a patsy for some other troll.

But then the KHOU Channel 11 News did a story on Doug McIntyre (as documented by DieTrollDie here), and reporter Scott Noll pinned Doug McIntyre as the mastermind copyright troll for First Time Videos, LLC and many of Prenda Law Inc.’s clients. Prenda Law Inc. said NOTHING and let him take the fall.

On a personal note, even though Doug and I are enemies on paper, I couldn’t help but to feel bad for him because he was merely local counsel filing motions for his employer, John Steele, the master copyright troll himself. And yet, Doug’s reputation here in Houston is tarnished as being the fall guy for someone else. As Captain Duck, I want to reiterate here that I would not let any of my local counsel in any state take the fall, and that all blame would always rest with my firm, the Cashman Law Firm, PLLC.

That being said, I’m sorry to say that as of yesterday, it appears to me as if Doug McIntyre has withdrawn as counsel from all of Prenda Law Inc.’s cases, and like other copyright trolls (e.g., Kevin Harrison), he appears to have left the game.

MCINTYRE’S TEXAS SOUTHERN DISTRICT CASES:
Bubble Gum Productions, LLC v. Does 1 – 60 (TXSD; 4:12-cv-00262) — WITHDRAWN
Millennium TGA, Inc. v. Doe (TXSD; 4:11-cv-04501) — WITHDRAWN
Pacific Century International Ltd. v. Does 1-20 (TXSD; 4:12-cv-00698) — WITHDRAWN

As Doug’s replacement, Prenda hired a new “Doug,” Doug Clemons, who has “significant Federal Court experience which he gained from flood insurance litigation.” Aside from the joke that he has relevant litigation in torrent litigation (my apologies for the dry humor), this new “Doug” has ZERO experience in copyright law. While I would ordinarily say “this will be fun” (as I do anytime I see a new copyright troll), quite frankly, even with this new patsy at the helm, I’m still fighting John Steele in these cases because in my humble opinion, Steele is the one filing the motions in the cases anyway. Thus, I expect to see more of the same.

In sum, welcome Doug Clemons, Prenda Law Inc.’s new patsy here in the Southern District of Texas (and let’s hope you have the originality to fight your own cases), and my condolences to Doug McIntyre, the local counsel who took the fall for Prenda Law Inc. I obviously say all of this with a bit of reservation, because you shouldn’t have taken the copyright troll cases in the first place, as Doug Clemons and his Manfred Sternberg & Associates, PC law firm are about to learn the hard way.

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I am always hesitant to write articles which are not relevant to the reason you are here. Very simply put, you and I are fighting against the production companies (the “copyright trolls”) who hire Intellectual Property (“IP”) Enforcement Companies and “copyright troll attorney” law firms who turn around and hire local counsel (your “Doug McIntyres, Joseph Pereas, and Mike Meiers” of the world) who sue defendants on behalf of their bosses to shake down internet users (regardless of whether they actually did the bittorrent downloads or not) to extort thousands of dollars “or else they will move forward in a copyright litigation lawsuit against that individual John Doe Defendant.” This is *our* fight.

However, there is a bigger fight looming in the courts, and our so-called “piracy” lawsuits are getting influenced by their headwinds — there is a brewing fight between 1) the CONTENT DISTRIBUTORS (e.g., the cable companies, the ISPs, and streaming content providers such as Netflix, Hulu, and now Amazon Prime), and 2) the CONTENT CREATORS (e.g., the television networks and movie, film, and production companies) who produce the films that the ISPs share with you, sometimes for a fee or a premium membership. Where it is impacting us is the strange and recent “out-of-place” rulings in our cases discussing the applicability of the Cable Act to ISPs. It appears that the judges want the ISPs and the CONTENT DISTRIBUTORS to fall under the Cable Act.

This morning, I read an ArsTechnica article written by New York Law School Professor James Grimmelmann entitled “Why Johnny can’t stream: How video copyright went insane,” which skillfully goes through the recent changes in the evolving application of copyright law from the creation of VHS and VCRs to today’s digital age of DVRs and more recently, Cablevision’s own DVR-RS (remote streaming — “DVRs in the cloud”) technology.

The ultimate issue which everyone is tiptoeing over is simply, “can an internet user download, share, stream, view, or save copyrighted content on their computers (or in their computer’s memory) and not be in violation of the copyright laws?” I suspect the answer will eventually be “yes,” but the law has a lot of catching up to do, and a lot of people like you and me will be sued in the process. This sounds scary, but this is the bigger fight we are in the middle of with our bittorent piracy lawsuits.

In the ArsTechnica article, it appears as if there is a circle of corporate parties fighting to capture the dollar of the internet user. The TV networks create and copyright the movies and the videos they produce, and the cable companies, the ISPs, and the online streaming companies pay extensive licensing fees to the TV networks in order to provide that TV show or that movie to their paying subscribers (and the advertisers who subsidize when subscribers view “free” content). The problem is that as a particular show (in my case, Stargate SG-1 which was pulled from Netflix a few weeks ago without explanation) gets popular, more people view and subscribe to the cable companies’ and online streaming companies’ websites to view the film. The problem is that as shows get more popular and the content distributors make more money from their subscriptions and their advertisers, the TV networks and content creators increase the licensing fees they demand from the cable companies and online streaming companies to erase their profits (and quite often to grossly unfair amounts). As a result, the cable companies and online streaming companies simply pull the show from the list of shows they offer their subscribers, and everyone loses. No TV show is being shown, the online content providers lose subscribers who go elsewhere, the advertisers don’t pay their advertising dollars (products that would be shown in the ads do not get sold) and the TV networks lost their licensing fees. Quite frankly, it is my opinion that this is where piracy kicks in, where users share with others shows that they cannot find online through normal streams of commerce without an outright purchase of a particular season at retail prices — in other words, the internet user loses as well.

In my opinion, the ArsTechnica article is more than a history lesson on copyright as its application to the everyday viewer has evolved over the years as the internet and technology has advanced, but it also discusses the absurdity of the “hoops” that cable companies and other start-ups are jumping through in order to be in strict compliance with the draconian copyright laws. Really? 10,000 tiny antennas so that a cable company does not infringe a TV network’s copyright [when ONE ANTENNA would serve exponentially more viewers at a dramatically LOWER COST to both the cable company AND the viewer]? This is where the laws are interfering with technology (think eating wet glue), and I have a problem with this.

As to the applicability of the cable companies (the “cable operators”) and the internet service providers (“ISPs”), I understand that these smaller-case Cable Act rulings in our cases have nothing to do with our problem, but with the fight between the cable companies, the ISPs, and the television networks. Cable companies have clear regulations as to where they fit within the Cable Act and the FCC’s rules. ISPs however are not so clear, and the water gets muddied when one skilled in telecommunications law compares the rules governing an ISP run by a cable company (e.g., Cablevision, or Xfinity run by Comcast, or Roadrunner run by Time Warner Cable, etc.) and the rules governing an ISP which provides their DSL, satellite (e.g., Dish Network), or fiber optic (e.g., Verizon “Fios”) who use means to allow users to view content other than through a coaxial cable. THE RELEVANCE OF THIS WHOLE FIGHT APPEARS TO BE OVER THE EVER-SKYROCKETING LICENSING FEES PAID TO THE TELEVISION NETWORKS, AND THE CABLE COMPANIES AND ISPs WHO ARE TRYING TO FIND WAYS NOT TO PAY THEM.

I understand that this should help you understand the headwinds which are affecting our cases, and while it is not relevant to the outcome of whether Hard Drive Productions, Inc. or West Coast Productions, Inc. sues thousands of internet users, or whether Malibu Media, LLC (a.k.a., “x-art”) has an unfair strategy in hooking internet users who download one torrent file (a bittorrent “siterip”) and are sued for twenty copyrighted films (even though they probably never downloaded them all in their entirety), it is still interesting to know that judges adjudicating the fight between the television networks and the ISPs are using our small lawsuits to plant case law which I suspect in the coming months and years will become relevant in the fight over licensing fees and which content provider has to pay them.

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Congratulations to the Texas Millennium TGA, Inc. defendants who (with the assistance of their Comcast ISP) will never have their information shared with Prenda Law Inc., Doug McIntyre (Prenda’s local counsel), or Millennium TGA, Inc. Essentially, you have won your case because the copyright trolls will never know who you are (without great effort).

In short, as we discussed back in our “Forum Shopping” article on 5/16, Millennium TGA, Inc. made the mistake of suing the same “John Doe” defendants in Texas as they did two weeks before in DC. This wasn’t a mistake — the judge that was assigned to their DC case (referred to as “MILLENNIUM TGA I“) — Judge Wilkins — was known to be unfriendly to copyright trolls. As soon as Prenda Law Inc. figured this out, they dismissed MILLENNIUM TGA I, and using their local attorney Doug McIntyre in Texas, they filed “MILLENNIUM TGA II” [Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501)] here in the Southern District of Texas.  When the Texas judge gave the okay for Prenda to demand the names of the subscribers from their ISPs, Comcast recognized the similarities of the John Doe Defendants to the DC case just dismissed, and they refused to comply with the rubber stampped subpoena given to Millennium TGA, Inc. by the Texas judge. Millennium TGA, Inc. (through Prenda Law Inc., their attorneys) filed a lawsuit against Comcast in DC (MILLENNIUM TGA, INC. v. JOHN DOE (Case no. 1:12-mc-00150), also referred to as “MILLENNIUM III“) asking the court to force Comcast to comply with the Texas judge’s subpoena and hand over the names, addresses, and contact information for the subscribers implicated in the MILLENNIUM TGA II Texas case.

Then, after an adverse ruling by the DC court which [in its order by Judge Alan Kay, order now overturned] forced Comcast to comply with the subpoena, John Seiver (Comcast’s attorney) wrote an amazing appeal which resulted in the DC case being transferred back to Judge Wilkins — the enemy of the copyright trolls. We wrote about this in our “Comcast wins battle against Millennium TGA & Prenda. Subscribers lose.” article on 5/29.

Now, almost one month later, I am happy to share that Judge Wilkins issued the order we have been looking for all along. In his ruling this Monday, he DENIED Millennium TGA, Inc.’s motion to compel Comcast to comply with the subpoenas (and hand out the subscribers’ information). In other words, congratulations to the Cashman Law Firm, PLLC clients who have been entangled in this mess — your plaintiff attorneys Prenda Law Inc. and their local counsel Doug McIntyre will likely NEVER know who you are. In addition, congratulations on your victory in your Texas case, because without knowing who you are, they cannot name you as a defendant, and they cannot move forward against you. Score!

Food For Thought Moving Forward:
Okay, here is the silver lining. For those of you who do not have Comcast as your ISP, your Texas case is moving forward as usual. Similarly, for those of you who do not live in Texas, Judge Wilkins has ordered that Comcast turn over to Prenda Law Inc. ONLY the CITY AND STATE which is linked to your accused IP address. That way, if Prenda wishes to file a follow-up lawsuit against you, they can sue you in your home state’s federal court… or not. Here is my thinking.

Remember the “two-strike rule” in the Federal Rules of Civil Procedure (“FRCP”) Rule 41?? — a dismissal in the Texas court in a number of John Does’ cases would be the second dismissal [which is deemed to be “on the merits.”] This could preclude your copyright trolls from filing suit against you a THIRD time in your home state’s federal court. See DieTrollDie’s “Two Strikes and You’re “Out!” – FRCP 41 & Copyright Trolls” article, and for more discussion on the topic, see Sophisticated Jane Doe’s “A Trolling Lawsuit Ends With Style” article here.

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As a response to the “You Have Been Shopped” article written by DieTrollDie on forum shopping, I do have some insight to add to this.  In short, there are not two Millennium TGA lawsuits in this forum shopping scandal, but three (if you are counting the “motion to compel” lawsuit in DC which is the key to understanding exactly what is going on — this is the missing link which provides the insight I am sharing).

MILLENNIUM TGA I: In short, on 12/7/2012, Millennium TGA v. Does 1-939 (Case No. 1:11-cv-02176) (hereinafter, “Millennium TGA I”) was filed in DC.  It was assigned to Judge Robert Wilkins, the DC judge who killed the “Expendables” bittorrent lawsuit — this was the Nu Image, Inc. v. Does 1-23,799 lawsuit by Dunlap Grubb & Weaver, PLLC which quickly expanded from 6,500 into 23,222 John Doe Defendants before the judge shut down the case.  It took Prenda Law Inc. a week to figure out that their judge was THE Judge Wilkins, and they quickly and voluntarily dismissed the case.

MILLENNIUM TGA II: Four days later, Prenda Law Inc. used their local counsel Doug McIntyre (the same local counsel who was almost fired because he took on the West Coast Productions, Inc. client [remember them in DC and in W.VA with their attorney Kenneth Ford who is now in jail?] in his West Coast Productions, Inc. v. Does 1-351 (Case No. 4:12-cv-00504) case which he filed without telling Prenda Law Inc. about it) and on 12/20/2012, Doug McIntyre filed the Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501) case here in the U.S. District Court for the Southern District of Texas.  This case involves pretty much identical parties, facts and claims as were alleged in the MILLENNIUM TGA I case in DC.  I suppose they thought nobody would notice their overt forum shopping, especially since they changed the name of their lawsuit.

Everything went smoothly for the plaintiff attorneys in the MILLENNIUM TGA II case in Texas …until Prenda Law Inc. served a subpoena on Comcast, who said “no.”

This is where the story gets interesting.  On 2/29/2012, Comcast objected to the subpoena by stating that 1) the court lacked personal jurisdiction over most of the IP addresses listed in the subpoena; 2) there were serious joinder issues in the lawsuit; and 3) the plaintiff was engaging in “a blatant attempt to FORUM SHOP” since they already dismissed MILLENNIUM TGA I to avoid being in front of Judge Wilkins in DC.

MILLENNIUM TGA III: As a result, Prenda Law Inc. (Millennium TGA, Inc.’s attorneys) filed a lawsuit against Comcast (it was actually a “motion to compel”) in the MILLENNIUM TGA, INC. v. JOHN DOE (Case no. 1:12-mc-00150) case in DC.

It was in this lawsuit that John Steele “surfaced” from pretending (think, “Prenda”) that he was not associated with Prenda Law Inc. since Paul Duffy allegedly took over the firm.  It is also my understanding that Prenda Law Inc. didn’t realize that John Seiver was the attorney behind the scenes on this case, and what they might not have known was that John Seiver has wreaked havoc on bittorrent cases as long as two years ago with the Digiprotect cases in New York.  Perhaps even Prenda Law Inc.’s predecessor firm Steele|Hansmeier, PLLC was not yet in existence when this happened, and John Steele was still running his divorce practice a la the Steele Law Firm, PLLC.  Either way, I suspect that they filed the motion to compel Comcast to comply with the subpoena in order to bully them, and they didn’t realize that Comcast (through John Seiver) would fight back.

Now advancing forward a bit on the timeline, Magistrate Judge Alan Kay ignored pretty much every point that Comcast brought up and he issued an order on 4/18/2012 ordering Comcast to comply with the subpoena for the MILLENNIUM TGA II Texas case.  They were ordered to reveal 351 of the subscriber identities to Prenda Law Inc.  This is, however, where it gets interesting.

John Seiver, obviously realizing that Magistrate Judge Kay made a dumb ruling, essentially called him a moron in appealing his order.  As an attorney, I would hold my tongue myself here in writing this article, especially because I am interested in seeing John Seiver and Comcast prevail, and I know that sometimes a judge can rule his court by ego rather than adhering to the law, but Magistrate Judge Kay’s ruling against Comcast was so dumb I could not contain myself.

In short, according to Comcast’s appeal, 1) the judge erred by failing to consider any of the legitimate defenses that Comcast raised on behalf of its subscribers. 2) The judge erred by failing to address the fundamental issue of whether any of the unnamed Does would be subject to personal jurisdiction (either in Texas, or in DC per the motion to compel).  3) The judge erred by failing to address the possible misjoinder of the one John Doe defendant (and the many co-conspirators) in the Texas case.  4) The judge erred by failing to realize that “conspiracy” is not a sufficient crime to allow massive discovery on the John Doe Defendants, and 5) Magistrate Judge Kay was not the proper judge to accept this case — according to DC’s own local rules (Local Rule 40.5), the case should have been immediately reassigned to Judge Robert Wilkins, the judge who was previously assigned to the MILLENNIUM TGA I case, since MILLENNIUM TGA I and MILLENNIUM TGA II had identical claims.  As of this evening, I am still waiting to hear a ruling on this appeal.

Now for those of you still in Prenda Law Inc.’s MILLENNIUM TGA II (Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501)) case here in the U.S. District Court for the Southern District of Texas, if you are a Comcast subscriber, as you can see, there are unresolved questions in the MILLENNIUM TGA III DC case, and your status is uncertain.  Thus, my contribution to the FORUM SHOPPING article by DieTrollDie today is that the DC MILLENNIUM TGA III case holds the key to understanding what is currently going on in the MILLENNIUM TGA II case here in Texas.  Now as for everyone else (e.g., non-Comcast clients who are in the MILLENNIUM TGA II Texas case), understand now that the MILLENNIUM TGA III [motion to compel] DC case directly impacts your Texas case.  Obviously this is something we are watching for our clients.

If you are interested in reading this entertaining appeal by Comcast in order to understand the entire story and its implications, I have attached a copy of Comcast’s motion below.

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