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Archive for the ‘District of Columbia (DC)’ Category

Congratulation to the Cashman Law Firm, PLLC defendants who will soon be dismissed from the AF Holdings, LLC v. Does 1-1,058 (Case No. 1:12-cv-00048) case filed TWO YEARS AGO in the U.S. District Court for the District of Columbia. Seeing that the appellate (circuit) court came out with a ruling this afternoon, I read the circuit court’s ruling with fervor thinking that I was about to write an article entitled “the jig is up, no more copyright trolling lawsuits.” Well, I am underwhelmed.

If you remember the Judge Beryl Howell CREATES A SPLIT in the DC Court article I wrote back in August, 2012, at the time, thousands of “John Doe” Defendants from across the U.S. were being sued in the US District Court in DC, and Judge Beryl Howell was in favor of allowing the mass bittorrent lawsuits to continue in DC, even though other district court judges [not former copyright lobbyists for the Recording Industry Association of America] (notably, Judge Wilkins, now a United States Circuit Judge) wrote opinions questioning the validity of mass bittorrent lawsuits. As a result of this, now almost two year later, we have a circuit court ruling resolving the question of whether “personal jurisdiction” and/or “joinder” are relevant questions for a court to investigate before it signs an order invoking the “machinery of the courts” to force a non-party ISP to comply with a subpoena [asking for them to turn over the private contact information of each subscriber implicated as a "John Doe"].

Judge David Tatel [writing for the U.S. Court of Appeals for the District of Columbia Circuit] wrote a few pointers that we already knew, and in my opinion, the circuit court’s ruling is two years, too late. The ruling is essentially that a court may justifiably force a plaintiff “copyright troll” to establish that it has PERSONAL JURISDICTION over the John Doe Defendants who are implicated in the lawsuit BEFORE it allows that copyright troll to obtain [through discovery] the list of names and addresses belonging to the internet subscribers. His opinion, however, resolves ABSOLUTELY NOTHING about the hundreds of smaller John Doe (e.g., v. Does 1-20) lawsuits filling the courts’ dockets across the U.S., where the “copyright troll” plaintiffs have figured out that “you sue a defendant where a defendant lives.”

Next point. When requesting the subscribers’ contact information from an ISP, the plaintiffs purpose must be to gather this information for use in THIS LAWSUIT, and not for other proceedings or other lawsuits. Good luck enforcing this one. I have no doubt that we will still see defendants dismissed from one “v. Does 1-20” lawsuit, only to be named and served in his own “v. John Doe” lawsuit. This happens every day. Also, good luck stopping a copyright troll from calling up dismissed defendants and saying, “unless you settle with us, we will name and serve you in your own lawsuit.”

Then after glossing over the “you must sue a defendant in the state in which he lives” rule, thirteen pages later, Judge Tatel discusses joinder (who can be sued together as co-defendants in a lawsuit).

I thought the joinder discussion would be juicy, but it was vague and vanilla, and it lacked explanation. The ruling was essentially that “you can only sue John Doe Defendants together in one lawsuit as long as they were part of the same bittorrent swarm.” This precludes plaintiffs who often sue defendants who did the same “crime” of downloading copyrighted films using bittorrent, but they did so days or weeks apart. In mentioning what is considered the “same bittorrent swarm,” the judge mentioned ABSOLUTELY NOTHING as to what the scope of a bittorrent swarm is, and how long one lasts — whether a swarm continues for minutes, days, or weeks at a time — and who is properly connected in a bittorrent swarm to be sued together in a lawsuit.

All I pulled from his discussion is that “if Tom and Dick were downloading at the same time, they can be sued together in a lawsuit; joinder here would be proper.” However, if Tom finished downloading and logged off five minutes before Dick logged on, would this be considered the “same transaction or occurrence” to allow the two of them to be sued together? What happens if Tom finishes downloading and logs off, and by the time Dick logged on to the bittorrent swarm, everyone who was part of that swarm [e.g., all 10 or 20 people] also logged off and new people logged on. If Dick is downloading from a completely different group of downloaders than the group who was online when Tom was downloading, but they downloaded five minutes apart, is this the same bittorrent swarm or a different bittorrent swarm? The judge provided ABSOLUTELY NO ANSWER as to the scope of a bittorrent swarm, so we are still left with uncertainty.

…So you see why I am underwhelmed. The ruling was essentially, “personal jurisdiction, bla bla blah, joinder, blah blah blah.” I learned nothing new from this, and yet the media is jumping all over this as if it is some kind of jewel. NOTHING NEW HAPPENED HERE.

Putting all of this in perspective, if you think about only the issue that Judge Beryl Howell wanted the appellate court to answer, “whether personal jurisdiction and joinder are relevant in a discovery request to obtain information about not-yet-named ‘John Doe’ defendants who are identified merely by their accused IP addresses,” Judge Tatel did exactly what he needed to. He correctly answered, “yes, personal jurisdiction and joinder are relevant when the plaintiff attorneys ‘attempts to use the machinery of the courts to force a party to comply with its discovery demands.'”

Thus, when a copyright troll files a lawsuit against unnamed John Doe defendants, and they seek discovery to force an ISP to comply with a discovery request (e.g., a subpoena forcing them to hand over the contact information of the accused subscriber affiliated with that accused IP Address), issues such as personal jurisdiction and joinder ARE ripe for inquiry before the court grants the copyright troll permission to subpoena the ISP, forcing them to hand over the contact information of the accused “John Doe” defendants.

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Malibu Media, LLC has been one of the worst offenders in these copyright trolling cases. Instead of waiting for a full download to be complete, it has been reported to me that IMMEDIATELY UPON CLICKING ON THE BITTORRENT LINK (or in other words, as soon as an internet user “joins” the bittorrent swarm, EVEN IF NOT A BYTE OF DATA HAS BEEN DOWNLOADED), ***WHAM!*** Downloaders are tagged and are sued for copyright infringement.

To make matters worse, Malbu Media, LLC is known to sue based on what is called a “Siterip” (essentially meaning that someone ripped a large set of videos from their http://www.x-art.com paid website, and posted a huge number of them into one bittorrent file). We won’t ask 1) if they’ve known about the Siterips, why they have not filed DMCA takedown notices for those Siterips, and 2) whether they were involved in the “leaking” of the various siterips (in my opinion, it is too convenient to have “Siterip #1… Siterip #2… Sitrip #12…”). In sum, clicking on the wrong torrent file link with Malibu Media, LLC as your plaintiff production company can get you sued for 25+ titles, or “hits” as they like to call them.

Now what makes these cases particularly offensive is that unlike the traditional copyright trolls who will only ask for $3,400 and settle for whatever they can get, Malibu Media, LLC will likely ask for at least a $10,000 settlement from each defendant. You see this by looking at the case names below that there appears to be only ONE defendant in each case. The reason for this is that their attorneys will tell the defendant that he’s the only one in the case, and that they’ll amend the complaint, “name” him as a defendant, and serve him with process if he doesn’t settle.

While I am against the concept of suing downloaders for the piracy of a film, I want to note that filing ONE LAWSUIT FOR ONE DEFENDANT is the proper way to do these lawsuits (and the courts will be much more forgiving based on the many filing fees paid to the court, especially since the court will not need to deal with rote procedural issues that have plagued these cases since their inception [e.g., improper jurisdiction, improper joinder]). In sum, in a case such as this one, a defendant must answer for himself the simple questions of 1) can I fight this (the answer is likely yes considering the “snapshot” methods in which they track the IP addresses relating to the downloads, along with the likely-present issues of late copyright filing dates), and 2) how would I like to proceed based on what I know about their evidence against me (based on my own network router setup and/or downloading habits)? X-art films have a very specific style and theme to them, and they attract a very specific genre of married men, one step up from those who enjoy classy soft porn. On top of this, the Keith Lipscomb IP enforcement company representing Malibu Media, LLC as their client does research on most defendants (note their mention below as “Dr. John Doe” in one of their cases to signal to the defendant that they know he has financial resources to pay a large settlement). For these reasons, it is often a simple question of EVIDENCE in determining whether to move forward with what is usually a very good defense, or whether to use that evidence we gather in your favor while attempting to negotiate a deeply discounted settlement on your behalf.

Up front, the local counsel you will read about below — Mary Schultz, Paul Nicoletti, Jon Hoppe, Leemore Kushner, Jason Kotzker, and Patrick Cerillo — are merely paid to file and fight these cases according to the instruction of Keith Lipscomb. They are merely cogs in Lipscomb’s IP enforcement machine, and in my opinion, there is no reason for anyone to be talking to them since they likely do not have authority to do anything but gather evidence, argue the cases and move them forward.

MARCH 2013 – 19 NEW CASES

Illinois Central District Court
Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01096)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01099)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01100)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01101)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01102)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02058)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02059)

Wisconsin Eastern District Court
Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00226)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00236)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00238)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00239)

Indiana Northern District Court
Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media LLC v. Joe Doe (Case No. 2:13-cv-00085)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00162)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00163)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00164)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00165)

District Of Columbia District Court
Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00268)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00269)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00270)

FEBRUARY 2013 – 103 NEW CASES

New Jersey District Court
Patrick J. Cerillo – Attorney at Law

Malibu Media LLC v. John Doe (Case No. 2:13-cv-01179)
Malibu Media, LLC v. John Doe subscriber assigned IP address 68.32.191.163 (Case No. 2:13-cv-01176)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.142.2.132 (Case No. 2:13-cv-01178)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01180)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00214)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-01159)
Malibu Media, LLC v. John Doe subscriber assigned IP address 108.35.11.132 (Case No. 2:13-cv-01104)
Malibu Media, LLC v. John Doe subscriber assigned IP address 173.70.130.138 ( 2:13-cv-01106)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01105)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00971)
Malibu Media, LLC v. John Doe subscriber assigned IP address 173.54.255.28 (Case No. 2:13-cv-00972)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00973)

Wisconsin Eastern District Court
Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00217)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00213)

California Southern District Court
Leemore L Kushner of Kushner Law Group

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00433)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00434)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00435)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00436)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00437)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00438)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00440)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00442)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00443)

Florida Middle District Court
M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00467)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00468)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00469)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00470)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00471)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00472)

Florida Southern District Court
M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL

Malibu Media, LLC v. John Doe (Case No. 9:13-cv-80178)

Colorado District Court
Jason Aaron Kotzker of Kotzker Law Group

Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)
Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)
Malibu Media, LLC v. John Doe subscriber assigned IP address 63.225.246.31 (Case No. 1:13-cv-00423)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.212.197.251 (Case No. 1:13-cv-00425)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)

Maryland District Court
Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00352)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00353)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00354)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00356)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00357)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00358)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00359)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00363)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00366)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00350)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00351)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00355)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00360)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00361)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00362)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00364)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00365)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00506)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00507)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00508)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00509)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00510)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00511)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00517)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00518)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00512)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00513)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00514)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00515)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00516)

Illinois Central District Court
Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01072)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01073)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-02043)

Illinois Northern District Court
Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00863)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00878)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00880)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00883)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00884)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00885)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00888)
Malibu Media, LLC v. Dr John Doe (Case No. 1:13-cv-00891)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00913)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00915)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00934)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00935)

Michigan Western District Court
Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00158)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00162)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00163)

Indiana Southern District Court
Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00201)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00203)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00204)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00206)

Indiana Northern District Court
Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00055)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00071)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00072)

Colorado District Court
Jason A. Kotzker of Kotzker Law Group
Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.234.104 (Case No. 1:13-cv-00307)
Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.250.8 (Case No. 1:13-cv-00308)
Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.161.234 (Case No. 1:13-cv-00309)
Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.34.85 (Case No. 1:13-cv-00310)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00311)
Malibu Media, LLC v. John Doe subscriber assigned IP address 67.176.40.151 (Case No. 1:13-cv-00316)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.71.30.155 (Case No. 1:13-cv-00317)
Malibu Media, LLC v. John Doe subscriber assigned IP address 98.245.154.142(Case No. 1:13-cv-00318)

P.S. – For those of us who follow these cases as enthusiasts, did you notice that there was no mention of Chris Fiore in this long list of cases? Perhaps he still has his hands full with the bellwether case.

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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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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 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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These old cases keep creeping back up on us, and I am quite frankly dumbfounded that they are still alive so many months later. In the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) case in the District of Columbia, Judge Facciola brought back to life what was a stale, dormant case by answering an unanswered question of whether it would violate the Cable Act if Cablevision complied with the subpoenas and shared subscriber information with the copyright trolls.

Cablevision’s argument resembled a failed argument which I posted on my blog in May, 2011 for literally a day before puling it from the website.

[FOR PURPOSES OF CLARITY, I was writing two years ago about whether you can sue an ISP based on the Cable Act.  Then, I was referring to subsection (f) of the statute; here, Cablevision is referring to subsection (c) of the statute, asserting that the "checklist" of requirements under the Cable Act was not met and thus the subpoena was defective and they didn't have to comply.]

More than two years ago, I wrote an article entitled “How an attorney can sue an ISP for disclosing a subscriber’s information“. In that article, I stated that a John Doe Defendant could possibly sue his ISP for violating the Cable Communications Policy Act of 1984 (better known as the “Cable Act”). Shortly after writing the article, however, I did further research into the matter and I found that there was a significant amount of case law which held that this statute DID NOT APPLY TO ISPs. Apparently, however, I am not the only attorney who stumbled upon this statute.

In the Openmind Solutions, Inc. v. Does 1-565 case, Cablevision asserted that according to the Cable Act (47 U.S.C. §551(c)(2)(B)), they would violate the statute if they complied with the subpoena issued to it (which makes me wonder why they have been complying in other cases since). On Friday, Judge Facciola disagreed simply because regardless of what the Cable Act says, the Federal Rules of Civil Procedure (“FRCP”) simply gives the court the power to force the ISPs to comply with the subpoenas, and the Cable Act is irrelevant to the issue. (Personal note: A judge can’t throw away a statute that conflicts with the rules! They must address the law and explain why it DOES or DOES NOT apply to the circumstances. They can’t ignore it and pretend the statute is not there!)

In short, the last time I took a look at this argument, I came to the conclusion that it was a very muddy issue. Anyone who wants to have a crack at this, please feel free to comment. I’m merely posting this article so that you understand what argument Cablevision was trying to assert, and why Judge Facciola ruled against it.

Once again, I feel that Judge Facciola didn’t properly address the issue of whether the Cable Act applied to copyright infringement statutes (and particularly to these bittorrent cases where his court has been ruling that John Doe defendants do not have standing to file motions to quash until they are “named” as defendants). In my opinion, Cablevision brought before the court the Cable Act statute, specifically, “47 USC §551 – Protection of subscriber privacy,” subsection “(c) Disclosure of personally identifiable information.” I keep asking myself, “how in the world does this NOT apply to our cases?!? (and if this does not apply, what statute does apply?)” EVEN THE CABLEVISION ISP ITSELF (a cable company) THOUGHT IT APPLIED TO THEM!

In sum, Cablevision brought before the court an issue – “how can I comply with the Federal Rules of Civil Procedure when this statute prohibits me from doing so?” At the very least, Judge Facciola should have ruled on whether the statute applies to these cases because instead, he said, “assuming it does apply, here’s why your argument is wrong.” My question is immediately, “assuming it does apply?!?WHAT?!? WHAT ABOUT ALL THESE OTHER PARTS OF THE STATUTE? DO THEY APPLY TO ISPs TOO?

As a result of this ruling, Judge Facciola has reopened a copyright troll case that until now was pretty much in a coma.  As far as this Openmind Solutions, Inc. case is concerned, expect now to start getting subpoenas from Prenda Law Inc. because once again, Judge Facciola has sided with the copyright trolls and has let the extortion scheme continue.

…And as far as the Cable Act and 47 USC § 551? Judge Facciola has just opened up a can of worms.

[For those of you who want to read the statute on your own, it can be found at http://www.law.cornell.edu/uscode/text/47/551 ]

As far as the two documents which caused this mess, the original motion requesting that the judge rule on Cablevision’s motion applying the Cable Act to bittorrent lawsuits can be found here.

And, Judge Facciola’s ruling (the subject of this article) can be found here.

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This morning I woke up to news that the Third World Media, LLC v. Does 1-4,171 (DC; Case No. 1:11-cv-00059) plaintiff voluntarily dismissed all 4,000+ defendants. “That was disappointing,” I thought. What a waste of a case.

What got me thinking is that it was NOT the DC court (or their copyright-troll-friendly rulings) which prompted this dismissal, as I have a lot to say about Judge Facciola and his recent slew of rulings in a number of copyright infringement cases (more on that in another blog entry).  As far as I am concerned, this dismissal had other reasons which caused it.

Now obviously I’m very happy when a case like this goes bust, but it didn’t go bust. The plaintiff (and their copyright troll attorneys at Dunlap Grubb & Weaver, PLLC) simply lost interest and dismissed the case. I’ve been seeing this a few times over the past two weeks, specifically here in Texas with copyright troll Doug McIntryre dismissing his West Coast Productions, Inc. v. Does 1-351 (Case No. 4:12-cv-00504) case here in the Southern District of Texas — some copyright trolls are simply losing interest in their cases and giving up and dismissing all defendants.

Now I can obviously give an educated guess as to why this is. Local attorneys who work for copyright trolls don’t get paid by the copyright trolls.  As much as I villianize the local attorneys here on the blogs, local attorneys who file lawsuits on behalf of copyright trolls usually get cheated by their copyright troll bosses. I have heard many stories of clearly oblivious local attorneys making statements such as “well, nobody is settling my cases,” when I regretfully know the opposite is true. I once read a motion by a prolific copyright troll who wrote, “there is no honor among thieves” (referring to the bittorrent users who he was suing in his cases). Quite frankly, it is my opinion that this is probably the case between the copyright “trolls” themselves.

Then again, I have heard stories that the copyright trolls themselves often have trouble with the production companies (their clients, the porn companies) who have retained them to sue John Doe Defendants in the various lawsuits. I have often heard stories that behind each of the lawsuits is a imbecilic man with a short temper and a small brain who screams and yells at the copyright trolls to sue everybody on the planet. The problem is that these clients don’t want to pay the legal bills or commissions that they legitimately owe to the copyright trolls, as if they expect them to work for free.  Again, “there is no honor among thieves.”

And then again, (I have to note this,) I believe that there are instances where the copyright troll lawyers cheat their clients as well, binding them to settlement agreements and accepting money from defendants for infringements of their copyrighted works WITHOUT EVER TELLING THEIR CLIENT that this money was received.  The strategy: Sue on behalf of one production company, accuse the defendant of also infringing another production company’s copyrighted works, collect settlements for both infringements.  So I believe it goes both ways.  Production companies (clients) cheat their attorneys out of commissions and fees, and the attorneys accept settlements and never tell the production companies about it.  Again, “there is no honor among thieves.”

In short, while I do not know the politics of why a plaintiff attorney drops a case without explanation such as what you see here, it is my expectation that the reason for both of these cases is that there is conflict between the copyright troll attorneys, and the production companies in which they represent. Whether it is that the copyright troll attorneys are asking for too much money from the production companies (greed), or whether it is that the production companies who are not paying the copyright trolls, I don’t know or care. As far as I am concerned, my clients are being dismissed from the cases against them, and conflict between copyright troll attorneys who sue defendants and their clients can only be good for the world.

Side thought: As far as the copyright trolls cheating the local attorneys who they hire to file lawsuits on their behalf? While it frustrates me when I hear stories about the copyright troll bosses cheating their local counsel, part of me also thinks that there is also justice in the world. At the end of the day, these local counsel made a conscious decision to try to profit off of extorting thousands of dollars from each internet user (legal or not, we’ll see), and even if an internet user did download the title(s) he or she was accused of, there is no reason for them to pay thousands of dollars (often their life savings, or more accurately, their parents’ life savings) for what often ends up being a porn video where they could have purchased the DVD title for $34.99.  Obviously the distinction here is “actual damages” ($34.99) versus “statutory damages” (up to $150,000 for each infringement), and quite frankly, it is the copyright law that is broken [or that is being misapplied to downloaders], and not the lawsuits themselves which are inherently blind, or at least they are supposed to be — purposefully ignoring bias from certain DC judges.  That being said, only a piece of work would capitalize on this misapplication of the law and extort thousands of dollars from a defendant.  I really think the courts (and the law) needs to make a distinction as to who is a “pirate” and who is really just an innocent infringer.

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