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Archive for the ‘Judge Facciola (DC)’ Category

I don’t know how to say this other than in my field of work, it is not often that I am shocked.  I often speak to local counsel who get excited that they are handling a “porn” case.  Just a few days ago, I called one of Steele’s (a.k.a., “Anti-Piracy Law Group”) local counsel.  When I introduced myself, he said to me (with a boyish excitement), “Aren’t you the porn lawyer?” to which I responded, “Aren’t YOU the porn lawyer?!?”

Anyway, I cannot help but to generalize these cases into “okay, one more production company suing a college kid or husband for clicking on a link and viewing copyrighted materials.”  What I often forget is that there is usually some guy behind the scenes who has trailed so far into the world of pornography that he has opened up his own company, produced some porn videos, and now is suing defendants for their download.

The motive is usually the same.  Instead of “let’s punish these pirates” as they would like you to believe, their motive is rather, “let’s hit up as many people for thousands of dollars each until we get shut down by the courts.”  In my opinion, this was the motive of the Hard Drive Productions, Inc. lawsuits.

Digressing, the epic news of the day is that the Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) case has been dismissed.  Congratulations to the Cashman Law Firm, PLLC defendants who have been released from this case.  

I don’t need to go into details about the case history — it has been riddled with controversy since they started suing internet users 2+ years ago.  As far as the legal issues were concerned, this was a typical copyright infringement lawsuit plagued with the same procedural issues that most of the other cases of its time suffered from — improper joinder (defendants were not part of the same “swarm”), and improper jurisdiction (defendants were sued in a court which did not have personal jurisdiction over them because the DC court’s reach could not decide the case against most of the defendants who were implicated in the lawsuit because they lived outside of the court’s jurisdiction).

What surprised me about the Hard Drive Productions, Inc. case was not Hard Drive Productions, Inc., but the District of Columbia judges who made a political mess of these cases.  Judge Beryl Howell came on the scene making pro-copyright troll rulings, such as 1) “you don’t need to decide jurisdiction or joinder until a defendant is named and served in a lawsuit,” 2) an ISP cannot file a motion to quash on behalf of their subscribers, and 3) accused John Doe Defendants cannot file motions to quash until they are named as defendants in the case.  Mind you, she was a copyright lobbyist before she was appointed a federal judge.

Then in February, 2012, Judge Facciola came in with a ruling in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case which I was sure was going to kill the Hard Drive Productions, Inc. case and all the other bittorrent cases in DC.  In his order, he ruled that “a defendant who does not live in the District of Columbia cannot be sued in the DC court because the DC court lacks jurisdiction over those defendants.”  However, at some point, it appears to me as if the RIAA/MPAA copyright lobby (probably by using Judge Beryl Howell as their mouthpiece) pressured Judge Facciola into giving into the copyright lobby’s pressure, and with a few contradictory rulings, he transitioned over to being Judge Beryl Howell’s sidekick in these cases.

Judge Bates also came in appearing to protect the procedural rights of the accused defendants who lived outside of DC, but once again, after what appeared to be some pressure from the RIAA/MPAA copyright lobby (once again, my educated guess is that Judge Beryl Howell was the force behind what happened), he was removed from the case which Judge Facciola took over.  Then, after some time, it appears as if Judge Bates too eventually caved in to the RIAA/MPAA copyright lobby (some refer to them as the “mafia,” or the copyright police), and on my September 27th, 2012 post, Judge Bates reversed his decision in Hard Drive Productions, Inc. case and let the “extortion” of the John Doe Defendants at the hands of John Steele and Co. (a.k.a., Steele Hansmeier PLLC, a.k.a., Prenda Law Inc., and now a.k.a., the “Anti-Piracy Law Group”) continue.

So.  The story with this dismissal is not necessarily a Hard Drive Productions, Inc. story, but a story of the forces behind the public interest groups and lobbyists who pressure Washington to always rule in favor of the copyright holder, regardless of whether the copyright holder is a pornography company, or whether the copyright holder is involved in making B-movies.  Bottom line, these lobbyists insist that WASHINGTON MUST CONTINUE TO BE PRO-COPYRIGHT AND MUST CONTINUE TO RULE IN FAVOR OF THE COPYRIGHT HOLDERS, regardless of who the copyright holder is, or at what cost.

So as things stand in DC, there is still a split as to the rights of unnamed John Doe Defendants between the rulings of Judge Wilkins (relating to the “motion to compel” lawsuit by Prenda Law Inc. against Comcast relating to their Millennium TGA, Inc. cases [BTW, dismissed last week]) and the rulings of Judge Beryl Howell, because as you read, Judge Howell certified an interlocutory appeal to answer questions relevant to these cases, but it appears to me that someone is dragging their feet there in DC and hoping for a dismissal so that they don’t have to decide the issues.

Lastly, there is a lot of activity on Twitter as to the 28 or so defendants who have settled their case, and some anger directed at these anonymous defendants who have settled.  Quite frankly, they are not all anonymous.  What happened with these is that without warning, Prenda Law Inc. turned around and sued one of these defendants (or threatened to imminently sue these defendants) in lawsuits in their home states.  I understand that many, if not most of the defendants in the “Hard Drive Productions, Inc. v. John Doe” cases which were filed towards the end of 2011 probably settled (I’ve listed a few of the named defendants in the “At What Point Does a Copyright Troll Stop Being a Troll” article.)

In closing, people are asking me whether I think Hard Drive Productions, Inc. is dead, or whether this is just the next logical progression before a slew of defendants being named.  I must note that Hard Drive Productions, Inc. got their butts kicked quite a few times, especially with the Hard Drive Productions, Inc. v. John Doe, 3:11-cv-05634-JCS (Seth Abrahams) case and the Hard Drive Productions, Inc. v. John Doe, 4:11-cv-05630-YGR (Liuxia Wong) case, both in California.  If you look at the http://www.rfcexpress.com website, there have been ZERO filings since March, 2012.  A defendant must also understand that with the egos of these copyright troll attorneys, there is the saying, “As the ego of the attorney inflates, so does his hourly rate.

We also know there have been squabbles between Prenda Law Inc.’s local counsel and Steele, and we know that their own attorneys have been jumping ship (and in some cases even testifying against Prenda Law Inc. in their attempts to withdraw as local counsel.)  Thus, there are problems all around, so my best advise is to watch the http://www.rfcexpress.com website and see whether Hard Drive Productions, Inc. starts a flurry of lawsuits across the U.S. or not.  And remember — behind every lawsuit there is a person (joking using the term “person” to mean a human, a fictitious person (who might not exist), or an offshore entity) who needs to pay Steele’s legal fees so that he can pay for his Las Vegas lifestyle of traveling the country “not” representing his clients in these matters.

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I was floored when I saw this.  A proactive John Doe Defendant (Dan Krebs) wrote Judge Facciola asking him why he ordered copyright trolls in the Patrick Collins, Inc. v. Does 1-72 (Case No. 1:11-cv-00058) case not to contact Doe Defendants until they are named and served, but in the Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) case, the judge continues to allow John Steele and his Prenda Law Inc. gang to do whatever they want with the Doe Defendants (and consequently, Steele is sending out “scare” letters to the unnamed defendants).

While the lack of consistency between rulings from Judge Facciola is not surprising, I cannot help but to think of the words, “bias, corruption, and perhaps cronyism” when I think of his treatment of these bittorrent cases.

What floored me, however, was the “F’you” order he issued in response to Dan’s letter to the court.  In short, he stated,

“The Court notes that it will not answer this correspondence since an extra-judicial comment about matters pending before it is inappropriate.”

Or, in other words, “F’You.  Don’t tell me what I can and can’t do in my own court.  This is MY WORLD, MY PLAYGROUND, and I will play however I want to!”

My opinion:  Kudos to you, Dan.  Your letter was proactive, and you called out the judge on his inconsistent rulings.  It is my opinion that all judges should have watchdogs like you to force them to adhere to their own precedents.

Attached is Dan’s Letter sent to the court.

And, attached is Judge Facciola’s response.

[NOTE: Scribd is experiencing issues right now. Will update links later.]

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I am changing the tone of the blog. The plaintiffs are changing their strategies and so must we. While I am happy advising my clients, not all of you are my clients, and I don’t want those who are not my client to be left without the tools to understand their rights as a defendant.  I’m changing my tone to give named defendants (the number of whom are growing) ammunition to protect themselves and to catch the plaintiff copyright trolls in their missteps.  I call this strategy the “pro-joinder” strategy.

We have always told our clients that a plaintiff cannot sue a defendant for the same thing in two separate federal lawsuits. Yet certain plaintiffs are forgetting that this rule exists, and they are suing a defendant in one lawsuit in one federal court, and then they are “naming” that same defendant in a second lawsuit in another federal court (usually in a different state). In my opinion, blindsiding a defendant with his own personal lawsuit in which he is named can backfire on the plaintiff, and here is how.

There is a rule that if a plaintiff pursues two federal cases against the same party involving the same controversy at the same time, one of the two identical pending cases should be dismissed. (This is true in MANY districts: Colorado River, 424 U.S. at 817; Missouri v. Prudential Health Care Plain, Inc., 259 F.3d 949, 953054 (8th Cir.2001); Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.1993); Zerilli v. Evening News Ass’n, 628 F.2d 217,222 (D.C.Cir.1980); Walton v. Eaton Corp., 563 F.2d 66,70 (3d Cir.1977).)

There is also what is known as the “first-to-file” rule, which states that when two related cases are pending in two federal courts, the court where the suit was last filed [where the defendant was named] cannot hear the case if the issues substantially overlap. (See Employers Ins. of Wausau v. Fox Entm’t Group, 522 F.3d 271, 274-275 (2d Cir.2008); Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir.2005); Cadle Co. v. Whataburger, Inc., 174 F.3d 599, 603 (5th Cir.1999).)

Now as soon as you object to the second “named” case from being filed, I have NO DOUBT that your plaintiff will counter with, “well, so-and-so defendant was never named in the first case, and so he was never a party to that action.” True. You were likely not a party in the first case (you were a “John Doe,” or a “putative defendant”).  However, the plaintiff’s own “scare” letters might suggest otherwise [read them and snicker], because quite frankly, they should have been more careful when they decided to blast the scare letters out to all of you.  However, this isn’t the strategy. Keep reading.

As a response to the plaintiffs response to the court, I would certainly then point out that in the plaintiff’s OWN COMPLAINT in the first lawsuit, he listed your accused IP address as one of the many defendants in the swarm, and he stated in his complaint that “joinder is proper” combining all of these defendants in one lawsuit “…since they all participated in the same bittorrent swarm.” Based on this information (and using the plaintiff’s own filings as exhibits in your motion), I would ask the judge to dismiss the second case against you personally and order the plaintiff to name you in the first mass bittorrent case with all of the other tens or hundreds of defendants (and good luck to the plaintiff litigating that one).  Alternatively — and here is the strategy — I would consider joining all of the John Doe Defendants from the first lawsuit as co-defendants in the lawsuit where you were named. Here’s the logic:

If the plaintiff stated in his complaint that joinder was proper there in the first lawsuit, then this is what is known in evidence as an “admission,” and the plaintiff cannot turn around and object when you want to join those same defendants in the second lawsuit against you personally.  I also want to point out that if you hold that joinder was proper in the first case, then federal joinder rules actually require that you join all relevant parties [e.g., those other John Doe defendants who were "properly joined" in the first lawsuit] as co-defendants in the [second] lawsuit, or else it [the second lawsuit] cannot go forward.

Why join all John Doe Defendants from your first case as co-defendants (you are not the plaintiff here, you are still on their side as a co-defendant) in the second case in which you are named? Because if a John Doe Defendant (the term is properly a “joint tortfeasor”) wasn’t joined in this second lawsuit, well then, his rights might be adversely affected by the outcome of the case of which he did not have a say in the testimony or evidence that lead to the outcome of it. Also, if a defendant was indeed properly joined in the first lawsuit with the bittorrent swarm and he is found guilty of copyright infringement, do you think he wants to pay the entire judgement of $150,000 for each alleged act of infringement on his own? Or, would it be in his best interest to spread out the judgement so that everyone else who was part of the bittorrent swarm pay their “fair share” of the judgement?

Obviously this is probably something that your attorney should be discussing with you, as there are considerations in whether and how to fight this strategy [most important of which is whether the judge believes that joinder is proper (based on his own former rulings)].  Get a pro-defendant judge, and this argument may not work [but then you would likely get a ruling stating that joinder is not proper in the first case].  But, get a judge like Judge Facciola or Judge Beryl Howell (who are hell-bent on asserting that joinder IS proper for bittorrent cases where there are multiple defendants), then you have a very strong argument.

All this being said, now you know about one strategy of many that you can use to defend yourself.  This is obviously not legal advice, but still, do your research and when you prove to yourself that this strategy could hurt bittorrent cases across the U.S., and consider having your attorney join all other defendants from the first lawsuit.  If you are smart enough to do this on your own, then bless you, because you are a pioneer and your efforts should be rewarded.

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I read Judge Facciola’s rulings all day long. It appears to me that in his eyes, internet users are copyright infringers. The internet is a place of crime and deceit. And, copyright holders – even when they are pornography production companies – deserve to shake down and harm internet users who prey on their copyrighted materials.

He has been happy for months that people are being extorted, but now he is no longer happy because people are fighting back. No doubt he has “seen the light” shining forth from the Indiana Southern District Court, and he wants to prove that the internet users are guilty and that they deserve to be punished.

With all this narrative, I am painting a prophetic picture of what I expect the Malibu Media, LLC v. John Does 1-7 (Case No. 1:12-cv-01119 [12-1119 (EGS/JMF)]) DC case to look like. It is a grim picture, but here it goes.

EVERY DEFENDANT WILL BE NAMED IN THE CASE.

Watch these Indiana dockets and you’ll understand what I expect that the DC case will look like…

Malibu Media, LLC v. John Does 1-29 (INSD; Case No. 1:12-cv-00845)

10/15/2012 46 Summons Issued as to DERICK BROOKS, DAN COROIAN, JEREMY COTTON, KEVIN DEMPSEY, CONNIE FELONGCO, NEVILLE FERNANDES, JAY GARRETT, JIM GENDRON, CLARISSA HENDERSHOT, ANDREW LEIGHTNER, SIWEI LI, CHRIS MINOR, DANIEL PITTMAN, K.P., KENNETH REESE, JERRY RICHEY, CARL RUDY, LUCIAN SAVULESCU, LUCAS SHULTZ, TERESA STEPHENSON. (JD) (Entered: 10/15/2012)
10/11/2012 45 Proposed Summons submitted for issuance by the clerk as to TERESA STEPHENSON. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 44 Proposed Summons submitted for issuance by the clerk as to SIWEI LI. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 43 Proposed Summons submitted for issuance by the clerk as to NEVILLE FERNANDES. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 42 Proposed Summons submitted for issuance by the clerk as to LUCIAN SAVULESCU. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 41 Proposed Summons submitted for issuance by the clerk as to LUCAS SHULTZ. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 40 Proposed Summons submitted for issuance by the clerk as to K.P. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 39 Proposed Summons submitted for issuance by the clerk as to KEVIN DEMPSEY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 38 Proposed Summons submitted for issuance by the clerk as to KENNETH REESE. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 37 Proposed Summons submitted for issuance by the clerk as to JIM GENDRON. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 36 Proposed Summons submitted for issuance by the clerk as to JERRY RICHEY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 35 Proposed Summons submitted for issuance by the clerk as to JEREMY COTTON. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 34 Proposed Summons submitted for issuance by the clerk as to JAY GARRETT. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 33 Proposed Summons submitted for issuance by the clerk as to DERICK BROOKS. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 32 Proposed Summons submitted for issuance by the clerk as to DANIEL PITTMAN. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 31 Proposed Summons submitted for issuance by the clerk as to DAN COROIAN. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 30 Proposed Summons submitted for issuance by the clerk as to CONNIE FELONGCO. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 29 Proposed Summons submitted for issuance by the clerk as to CLARISSA HENDERSHOT. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 28 Proposed Summons submitted for issuance by the clerk as to CHRIS MINOR. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 27 Proposed Summons submitted for issuance by the clerk as to CARL RUDY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 26 Proposed Summons submitted for issuance by the clerk as to ANDREW LEIGHTNER. (Nicoletti, Paul) (Entered: 10/11/2012)
9/27/2012 25 AMENDED COMPLAINT against DERICK BROOKS, DAN COROIAN, JEREMY COTTON, KEVIN DEMPSEY, JOHN DOE #14, JOHN DOE #16, JOHN DOE #17, JOHN DOE #20, JOHN DOE #23, JOHN DOE #24, JOHN DOE #29, CONNIE FELONGCO, NEVILLE FERNANDES, JAY GARRETT, JIM GENDRON, CLARISSA HENDERSHOT, ANDREW LEIGHTNER, SIWEI LI, CHRIS MINOR, DANIEL PITTMAN, K.P., KENNETH REESE, JERRY RICHEY, CARL RUDY, LUCIAN SAVULESCU, LUCAS SHULTZ, TERESA STEPHENSON, filed by MALIBU MEDIA, LLC. (Attachments: # 1 Exhibit A – IP Address List, # 2 Exhibit B – Copyright Website Screen Shot, # 3 Exhibit C – BitTorrent Vocabulary)(Nicoletti, Paul) (Entered: 09/27/2012)

Malibu Media, LLC v. John Does 1-7 (INSD; 1:12-cv-00842)

10/15/2012 24 Summons Issued as to JAMES HELFERICH, JEREMIAH MCKINNEY, STEPHEN MCSWEENEY, ERNEST NURULLAEVA, CHARLIE TOLLEY. (JD) (Entered: 10/15/2012)
10/11/2012 23 Proposed Summons submitted for issuance by the clerk as to STEPHEN MCSWEENEY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 22 Proposed Summons submitted for issuance by the clerk as to JEREMIAH MCKINNEY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 21 Proposed Summons submitted for issuance by the clerk as to JAMES HELFERICH. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 20 Proposed Summons submitted for issuance by the clerk as to ERNEST NURULLAEVA. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 19 Proposed Summons submitted for issuance by the clerk as to CHARLIE TOLLEY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/3/2012 18 AMENDED COMPLAINT against JOHN DOES 1-7, filed by MALIBU MEDIA, LLC. (Attachments: # 1 Exhibit A – IP Address List, # 2 Exhibit B – Copyright Website Screen Shots, # 3 Exhibit C – Title List, # 4 Exhibit D – BitTorrent Vocabulary)(Nicoletti, Paul) (Entered: 10/03/2012)

Malibu Media, LLC v. John Does 1-23 (INSD; Case No. 1:12-cv-00841)

10/12/2012 38 Summons Issued as to GIANCARLO DI MIZIO JR, KRISTINE EIKENBERG, CAMERON GAFF, R.M., SEAN MANGYIK, ANDREW MCCOY, TOBY REEVES, HAOJIE WANG, DANIEL WATT. (CKM) (Entered: 10/12/2012)
10/11/2012 37 Proposed Summons submitted for issuance by the clerk as to TOBY REEVES. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 36 Proposed Summons submitted for issuance by the clerk as to SEAN MANGYIK. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 35 Proposed Summons submitted for issuance by the clerk as to R.M. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 34 Proposed Summons submitted for issuance by the clerk as to KRISTINE EIKENBERG. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 33 Proposed Summons submitted for issuance by the clerk as to HAOJIE WANG. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 32 Proposed Summons submitted for issuance by the clerk as to GIANCARLO DI MIZIO JR. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 31 Proposed Summons submitted for issuance by the clerk as to DANIEL WATT. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 30 Proposed Summons submitted for issuance by the clerk as to CAMERON GAFF. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 29 Proposed Summons submitted for issuance by the clerk as to ANDREW MCCOY. (Nicoletti, Paul) (Entered: 10/11/2012)
9/27/2012 28 SECOND AMENDED COMPLAINT against JOHN DOES 1-23, filed by MALIBU MEDIA, LLC. (Attachments: # 1 Exhibit A – IP Address List, # 2 Exhibit B – Copyright Website Screen Shots, # 3 Exhibit C – Title List, # 4 Exhibit D – BitTorrent Vocabulary)(Nicoletti, Paul) Modified on 10/10/2012 (PGS). (Entered: 09/27/2012)

Malibu Media, LLC v. John Does 1-8 (INSD; Case No. 1:12-cv-00840)

10/18/2012 30 Summons Issued as to RYAN OURS. (PG) (Entered: 10/18/2012)
10/18/2012 29 Summons Issued as to PAUL ALLOR. (PG) (Entered: 10/18/2012)
10/18/2012 28 Summons Issued as to JAMES DUMAS. (PG) (Entered: 10/18/2012)
10/18/2012 27 Summons Issued as to HECTOR HERNANDEZ. (PG) (Entered: 10/18/2012)
10/18/2012 26 Summons Issued as to BRIAN LACEY. (PG) (Entered: 10/18/2012)
10/17/2012 25 ORDER granting Pltf’s 24 Motion for Extension of Time to effectuate service on Defts to 11/15/2012. Signed by Magistrate Judge Mark J. Dinsmore on 10/17/2012. (SWM) (Entered: 10/18/2012)
10/16/2012 24 First MOTION for Extension of Time to to Effectuate Service on Defendants , filed by Plaintiff MALIBU MEDIA, LLC. (Attachments: # 1 Text of Proposed Order)(Nicoletti, Paul) (Entered: 10/16/2012)
10/11/2012 22 Proposed Summons submitted for issuance by the clerk as to RYAN OURS. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 21 Proposed Summons submitted for issuance by the clerk as to PAUL ALLOR. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 20 Proposed Summons submitted for issuance by the clerk as to JAMES DUMAS. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 19 Proposed Summons submitted for issuance by the clerk as to HECTOR HERNANDEZ. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 18 Proposed Summons submitted for issuance by the clerk as to BRIAN LACEY. (Nicoletti, Paul) (Entered: 10/11/2012)
9/26/2012 14 AMENDED COMPLAINT against JOHN DOES 1-8, filed by MALIBU MEDIA, LLC. (Attachments: # 1 Exhibit A – I.P Address List, # 2 Exhibit B – Copyright Website Screen Shot, # 3 Exhibit C – BitTorrent Vocabulary)(Nicoletti, Paul) (Entered: 09/26/2012)

And a younger case… Can you guess what will happen next?

Malibu Media LLC v. John Does 1-9 (INSD; Case No. 1:12-cv-01115)

10/18/2012 23 AMENDED COMPLAINT against KEVIN ETTER, NICHOLAS SHELTON, AARON REYES, HO YEUNG, DAVID WYATT, LEAH JUSTICE, filed by MALIBU MEDIA, LLC. (Attachments: # 1 Exhibit A – IP Address List, # 2 Exhibit B – Copyright Website Screen Shots, # 3 Exhibit C – Title List, # 4 Exhibit D – BitTorrent Vocabulary)(Nicoletti, Paul) (Entered: 10/18/2012)

This is obviously no doubt upsetting for the named defendants, but it has been explained to me that the logic of the Indiana courts is that they do not want to allow Paul Nicoletti to run the typical copyright troll extortion scheme of “unless you settle with us, we will name you in the lawsuit.” Rather, the court has asked the plaintiffs to name the defendants outright so that they could properly defend themselves rather than playing the “motion to quash” game that happens in all the other courts.

I also want to point out that now the burden is on Malibu Media, LLC and Paul Nicoletti to make DAMN SURE that the defendants they sue actually did the downloading.

I must note that this is not the case with Judge Facciola in DC. It has been explained to me that he is hell bent on punishing defendants rather than stopping the extortion scheme that has been going on there unhindered for over two years now.

On a personal note, this is obviously not the scenario I would like to see happen, but I do think the DC case will end up looking exactly like these Indiana cases. Thus, I wanted defendants to be prepared for this because as soon as you are named and served, you have a certain number of days to respond and file your answer. There are obviously some maneuvers we can do to stop the clock, but you’ll be under the gun on this one so be prepared to act as soon as you’re served. It looks like this is going to happen.

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This morning, the following appeared on the Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741-JDB-JMF) DC docket:

10/18/2012 58 NOTICE of Voluntary Dismissal by HARD DRIVE PRODUCTIONS, INC. (Duffy, Paul) (Entered: 10/18/2012)

I want to point out that this is NOT a dismissal of the case. If you look at the dismissal document, you’ll see that only one IP address was released [-- someone paid Steele off and settled their case].

The status of the case is that Judge Facciola is still presiding over this case, and the last thing he did was DENY Prenda Law Inc.’s request to suppress EFF’s AMICUS BRIEF. Thus, EFF’s brief is still on the docket, and the brief should be read and considered by the judge (although knowing Judge Facciola, he’ll probably ignore it and let the case continue).

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“GOING TO TRIAL: BAD!”

I was watching the DC Malibu Media, LLC case which was assigned to Judge Facciola, and on 9/25, there was an order which concerned me. In view of PA Judge Baylson’s order forcing Malibu Media to name and serve defendants, or else, this order became relevant.

We all know that Judge Facciola is against the internet downloader. He is also stubbornly in favor of copyright trolls, pornography production companies, and the protection of copyright rights for obscene materials. This is why his order in the Malibu Media, LLC v. John Does 1-7 (Case No. 1:12-cv-01119 [12-1119 (EGS/JMF)]) case in DC was controversial.

In stark opposition to my “GOING TO TRIAL: GOOD!” article that I posted just moments ago, it appears as if Judge Facciola has figured out a way to TRAP internet users into being named as defendants, and to embarrass them and force them to fight their cases.

In Facciola’s 9/25 order, the judge allowed Malibu Media, LLC to send subpoena notices to the ISPs. He allowed them to even get all they wanted regarding the contact information of the suspected John Doe Defendants. Here’s the catch — Facciola ordered that MALIBU MEDIA, LLC MAY NOT SETTLE ANY CASES WITH JOHN DOE DEFENDANTS BEFORE NAMING THEM FIRST.

“4. Plaintiff may not engage in any settlement discussions with any persons identified by the ISPs in response to the subpoenas.”

We all know that Malibu Media sues people in the states in which they live, and thus personal jurisdiction and venue is usually proper in their cases. In addition, we know that Malibu Media’s business model is to call defendants and scare them into settling for thousands of dollars at a time. We also know that the lawsuits implicate the defendants for ONE film only, but when defendants call up to settle, they are forced to settle ALL ALLEGED CLAIMS AGAINST THEM (which can sometimes be 15 “hits”, 25 “hits” — or more recently, I’m hearing numbers in the 40’s — which can amount to settlements in the TENS OF THOUSANDS). This means that even if a defendant SUCCEEDS in fighting their case, Malibu Media, LLC can still turn around and sue them again, and again, and again (bad odds for a downloader interested in x-art’s content).

So now, settlement is NOT an option for Malibu, as their hands are tied by the judge’s order (and whether they’ll comply on the back-end is a dangerous proposition that could get them in trouble if a Doe who settles reports that settlement to the court). Or will it with Judge Facciola as the judge?

Here is my advise with this case. For the putative defendants, your option is not to settle your case, but simply to make yourself someone the plaintiffs do not want to name and serve. In other words, have your attorney contact Malibu Media with evidence of your innocence. I suspect that if we persuade them that you have a good defense, they will decide to name and serve OTHER DEFENDANTS (and not you).

So in sum, I expect that Judge Facciola will have his way, and John Doe Defendants will necessarily have their reputations tarnished by being named in a pornography lawsuit. To those defendants who ARE named, my only advice is to have your attorney put up a good fight. Quite frankly, at this point, some of these copyright trolls deserve one.

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I have always known that “crabs crammed in a crate grab crabs trying to escape,” and this is no doubt true for judges in DC.

In our November 16, 2011 article entitled, “Judge Bates “removed” from Hard Drive Productions, Inc. v. Does 1-1,495 (Case No.1:11-cv-01741) DC case,” we wrote about how Judge Bates courageously called the copyright troll extortion scheme for what it is, and he halted all subpoena requests for John Doe Defendants. However, it was apparent to us at the Cashman Law Firm, PLLC that as soon as he did so, the other judges (“crabs“) grabbed at him and stopped him from killing the case. If you remember from our post, Judge Bates was immediately removed from the case and Judge Facciola replaced him (almost as if there was a DC conspiracy to promote copyright enforcement efforts by porn production companies such as Hard Drive Productions, Inc.).

As of yesterday, Judge Bates caved in and wrote a scathing order describing in detail how and why Hard Drive Productions, Inc. should be allowed to force the ISPs to hand over the subscriber information for the John Does implicated in this case. In addition, siding with Judge Facciola and Judge Beryl Howell, Judge Bates agreed that internet subscribers have no expectation of privacy for the account information they provide to their ISP.  I wonder if the same thing holds true for my electricity bill.

What I found most offensive, however, was that Judge Bates initially promised John Doe Defendants that if they filed motions to quash anonymously, that they would remain anonymous (even if later denied). We have been advising internet users for almost a year now to be VERY WARY regarding Judge Bates’ promise because he could always go back on his word and unseal the motions to quash thus revealing the identities of those who filed them [and making the John Doe Defendants who filed these motions to quash targets for Prenda Law Inc.'s bloodthirsty desire for revenge (image)]. And I am hurting when I write this (because I hate it when I end up being right, especially when I fight against well-meaning individuals who think they are doing the right thing by following the instructions on the subpoena letters they receive from their ISPs and they file motions to quash), but as we suspected, it turns out that Judge Bates lied to us, and in yesterday’s order, he stated that “all sealed motions to quash will be ordered unsealed.”

In my opinion, I must point out that I have a respect for Judges, and I must believe that most of them (including Judge Bates) are good. In the legal system, just as there are copyright troll attorneys who abuse the legal system, these same “bad apples” plague the legal system because many of these bad apples sit on the bench and render one bad decision after another. Many people have called me “dark and jaded” for my opinions about these cases, and while I am not one to subscribe to a conspiracy theory, I do smell conspiracy here.

Looking over the order many times, I cannot shake the feeling that Judge Bates’ order smells as if it was written by Judge Beryl Howell. If you compare the terminologies used by each of the judges in the past, terms such as “putative defendants” was a term that Judge Howell uses, not Judge Bates, just as the Call of the Wild v. Does case referenced incessantly in the order was Judge Beryl Howell’s. In sum, “crabs grabbing crabs” applies here — it is my opinion that Judge Bates tried to crawl out of the “crab cage” and call this case for what it is; the other “crabs” merely clawed at him until he fell back in line with the others. Welcome to the DC court.

I do not have anything else to say about this case other than that ISPs will start handing out the subscribers’ information, and John Steele and the Prenda Law Inc. gang will start sending out “scare” letters, harassing John Doe Defendants, and will scare too many into settling before they retain someone like me to represent them (or anyone else who fights these cases).

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