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Posts Tagged ‘1:11-cv-01741’

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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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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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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Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) has been a controversial case from the beginning.  Judge Bates immediately noticed the faults with the case and he stayed the subpoenas.  Magistrate Judge Facciola (who has since taken over the case) is now facing scrutiny for every step he makes — not only in this case, but also in the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case.  In short, Judge Bates told putative defendants that they could file their motions under seal (meaning the defendants’ identities would remain anonymous), the Doe Defendants relied upon Bates’ order and following his instructions, they filed their motions under seal, and Judge Facciola reversed Judge Bates’ order.  [Facciola's order essentially stated that motions to quash that were filed under seal will be filed publicly on February 1, 2012, revealing the anonymous defendants' identities to the world (and consequently to Prenda Law Inc., where we all now know what they will do with these).] Based on the volume of calls that must be coming into Judge Facciola’s chambers [(202) 354-3130], he is no doubt now stepping on eggshells based on the hundreds of defendants who are actively tracking this case and I’m sure he does not like it.  No judge would.

To make matters worse for the Judge Facciola, the Electronic Frontier Foundation (“EFF”) filed for its attorney to appear in the case and file an amicus brief, (a “letter to the court informing them of the law and the issues,”) on behalf of the various Doe Defendants.  The attorney also requested that the judge “stay” the case (which essentially means to put the case on hold until the issues are resolved).  In short, if EFF is successful, all of the motions to quash which tomorrow are set to become public will be kept private.  At the very least, Judge Facciola will be educated as to the issues surrounding this case (first amendment issues, personal jurisdiction, improper joinder), and perhaps it will inspire him to sever and/or dismiss it [and its sister AF Holdings case].

My favorite part about EFF getting involved in the case is the technology-based declaration which every bittorrent user accused in these cases should be aware of.  While the technology-based arguments of non-infringement may be over the head of Judge Facciola, they no doubt in my opinion provide enough information to kill any bittorrent case, if any Doe Defendant is named.

To hit the nail on the coffin, so to speak, the EFF asked the court to take judicial notice of (meaning, to recognize and hopefully adopt the opinions of) other bittorrent cases which you have been reading about since this blog started back in 2010.  You can read the orders of the other cases in a neatly filed package here.

While this motion as far as I’m concerned should be a “one-two knockout punch” for this case, we must also realize that the character of the judge and his leanings (dare I say bias) also play a factor in whether he’ll allow this motion to move forward.  DC has never been a defendant-friendly state as we saw with the Dunlap Grubb & Weaver, PLLC lawsuits last year, and they have historically been known to disclose the identities of Doe Defendants who filed motions to quash filed under seal when they reject them.  This is why I am both optimistic that EFF has gotten involved, but I am also very cautious when it comes to how Judge Facciola will react to yesterday’s motion which is a clear affront to his previous order.  Again, no judge likes it when someone openly disagrees with his order.

[P.S. - Here is the link to Prenda Law Inc.'s response requesting that the court not allow EFF to intercede in the case based on their "anti-intellectual property" nature.  Other websites covered the topic just fine (see, SJD's article here).]

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Like most of you, we here at the Cashman Law Firm, PLLC have been watching the Hard Drive Productions, Inc. v. Does 1-1,495 (1:11-cv-01741) case in the US District Court for the District of Columbia.

To our surprise and against the 1+ year trend of the DC Court, earlier this month, Judge Bates went against the trend to remain silent about the validity of these cases and inquired about whether or not John Doe Defendants in the case actually lived in DC. In short, we understand that if the judge came to the conclusion that this is yet one more of John Steele’s mass bittorrent cases (but filed in DC as a result of forum shopping), then the judge would have likely come to the conclusion that the DC court did not have jurisdiction to try the case. As a result, he would have likely SEVERED AND DISMISSED the case, giving Steele|Hansmeier, PLLC (now Prenda Law, Inc., a story in itself) the opportunity to file against defendants in their home states. As you have read in previous posts, as a result of such a dismissal, Steele would have three years from the alleged date of infringement to file these lawsuits in defendants’ home states.

What no doubt concerned Steele (and what caused an overflow of conversations on the various bittorrent forums) is that six days ago, Judge Bates took the extra step and invited Doe Defendants to file motions to quash with the Clerk’s office, stating that they would be put under seal (meaning, hidden from view).

However, in spite of the judge’s invitation, I have not been advising people as to whether they should or should not file the motion to quash — and in fact I have been overly cautious about his invitation to do so — because historically, the District of Columbia Court has typically UNSEALED motions to quash when they deny them, leaving all the formerly sealed motions unsealed and naked for everyone to see.

The DC court has historically been AGAINST accused internet downloaders. Yes, we have certainly had our fair share of victories, but then again, many of the original cases are still alive (and because of this, plaintiffs have added perhaps thousands of new defendants to various DC cases, hence the new subpoena letters for older cases). I do not see why Judge Bates would be bold enough to go against former judges’ orders for essentially identical cases [See, Stare decisis (Anglo-Latin pronunciation: /ˈstɛəri dɨˈsaɪsɨs]) is a legal principle by which judges are obliged to respect the precedents established by prior decisions.], and the fact that Judge Bates was willing to go against Judge Beryl Howell and the others made me optimistic, but still cautious.

As much as this invitation to file appeared to signal a victory for the accused internet users, for whatever reason — political pressure, angry judges, etc. — today Judge Bates has essentially stepped down presiding over the case and he has handed the case over to Judge Facciola. This magistrate judge has seen bittorrent cases before, and in my opinion this could be a sad moment for the accused Does. To be clear, I understand that this transfer might not have been done with the permission or consent of Judge Bates. In fact, his order explicitly states, “Consent of the District Judge [him] is not necessary.” So perhaps we can piece together what has happened behind closed doors.

While it remains my opinion that this case suffers from issues of improper jurisdiction and improper joinder, Judge Bates is no longer making the decisions as to whether the case will be dismissed or not. Similarly, it is no longer clear whether it is in Does’ best interests to file the motions to quash, or whether they will suffer the same fate as all the other motions to quash filed in the DC court over the past year.

As for what defendants should do — I would probably wait and see what Judge Facciola does. Will he continue in Bates’ footsteps and kill the case? Or will he deny the motions to quash and move forward? We can only wait and see.

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