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Posts Tagged ‘copyright troll’

ID-100157775Image courtesy of @artur84 / FreeDigitalPhotos.net

Much of the bittorrent world is saddened by the leaked news reports of the recent “Bellwether” case in the Eastern District of Pennsylvania (Malibu Media v. John Does, Case No. 5:12-cv-02088) where at least one defendant is reported to be facing close to $112,500 in damages plus attorney fees for the peer-to-peer downloads he is said to have taken part in. The plaintiff attorneys, along with Keith Lipscomb and others who have a vested interest in seeing bittorrent cases against internet users succeed are drinking champagne and celebrating their victory.

It is both my professional belief and my personal conviction that copyright trolling lawsuits are wrong, and while there is nothing illegal in suing a defendant for copyright infringement, doing so in my opinion is unlawful and morally corrupt. These lawsuits are nothing more than a STAGE SHOW to permit a behind the scenes SHAKEDOWN of accused interent users, whether or not they actually participated in the accused infringement. For G-d’s sake, the “guilty” so-called “criminal” defendant merely clicked on a link, and downloaded a title that was openly shared with thousands of other downloaders. To hit that defendant with a shock lawsuit where they face $150,000 statutory damages for a video that could have been purchased for a few bucks is a disproportionate punishment for the “crime” of downloading copyrighted films. Rather, instead of suing downloaders and letting the piracy continue, why not just end the piracy problem by issuing a DMCA take down notice to the bittorrent tracker? The alternative of sitting in bittorrent swarms and employing tracking software to track the IP addresses of who is downloading to me just seems like an abusive step to what would otherwise be a simple problem of making the torrent files go away so that unsuspecting downloaders couldn’t click on the links.

It is my conviction that copyright infringement lawsuits are wrong because it is simply immoral to shake down EVERY John Doe Defendant (yes, each one) with the threat of having to defend a lawsuit in federal court unless they cough up tens of thousands of dollars for downloads that the John Doe Defendant often did not even take part in. I have personally seen copyright trolls such as Malibu Media, LLC take large sums of money from defendants who did not do the download, but who were pressured into settling simply to avoid being named in a lawsuit. It is no secret that defending a case is sometimes significantly more expensive than settling a case.

Yet even with the pending resolution of this lawsuit, accused defendants across the U.S. in their own lawsuits should understand that this ruling will not be binding on other federal courts in other federal districts. Each federal court makes their own rules as to what constitutes copyright infringement, and what evidence is required to prove a defendant guilty when the so-called infringement happens via a bittorrent download. This is our job as attorneys — to know which districts have rules in favor of bittorrent users, and to know which districts have ruled in favor of the copyright holders. No doubt, the Eastern District of Pennsylvania will now become a favored spot to sue internet users accross the U.S. for copyright infringement.

Lastly, on a personal note, this case does not change the way a lawyer handles copyright infringement cases. At least in our Cashman Law Firm, PLLC, there is no silver-bullet approach — some defendants choose to settle, and many do not. Considerations as always involve 1) whether the download actually happened and the circumstances surrounding the accused activities, 2) the accused defendant’s willingness to fight and defend a copyright infringement lawsuit, 3) the accused defendant’s aversion to risk of having their name become public knowledge in a court proceeding, and 4) the accused defendant’s financial ability to take each of the various pathways we suggest.

In sum, not all guilty defendants settle, and not all non-guilty defendants fight.  It is simply a calculation and a risk assessment that is based on the client’s desires, the federal district in which the lawsuit is filed (taking into consideration past bittorrent cases filed in that jurisdiction), the judge who assigned to the case (taking into consideration his past rulings), and the plaintiff attorney (or more frequently, the local counsel’s) proclivity towards naming, serving, and taking defendants to trial balanced with their willingness to negotiate an amicable settlement should we decide to go that route.

Bittorrent cases [in their current form] have now been around for three (3) years, and now we have a verdict where a case has been taken to trial — by Malibu Media, LLC surprisingly enough.  When we started, there were no cases taken to trial, and now there is one.  Before the appearance in 2010 of the bittorrent cases, all we had to go on were the old Napster and Grokster cases, combined with the various lawsuits filed by the RIAA / MPAA and miscellaneous copyright infringement files dealing with the internet. Up until now we have been developing case law surrounding peer-to-peer downloads as each case matures. Now we are starting to get some clarity as to the law surrounding bittorrent use.

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houstonlawy3r:

Sometimes there are no words other than silence to best express the thoughts I have about Judge Wright’s order essentially referring John Steele and the Prenda Law Inc. gang to the IRS’ Criminal Investigation Division (CID) for all the settlements on which no taxes were paid. There is one police agency that a criminal organization does not want to be contacted by, and that is the CID.

The $81K in sanctions essentially funds the lead attorneys who spent time on this case. And, the referral to the bar associations means that the principals at Prenda Law Inc. may no longer have their law licenses shortly.

In sum, there is not much for me to comment here, except to be silent, because the judge’s order itself says all it needs to. Copyright trolling may seem profitable for the attorneys filing the lawsuits, but no money can compensate for the loss of freedom that one experiences when what was once a multi-million dollar law practice lands the principles in prison for tax evasion. This should be a lesson to all other copyright trolls out there. Judge yourselves accordingly.

Originally posted on Fight Copyright Trolls:

We have been waiting for this moment for a long time. Congratulations to everyone involved, especially Morgan and Nick.

Media coverage

View original 382 more words

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A number of interested readers have wondered what my opinion was about Monday’s sanctions hearing against Prenda Law Inc., Brett Gibbs, John Steele, Paul Hansmeier, and the others [Case Cite: Ingenuity 13 LLC v. John Doe, Case No. 2:12-cv-08333, in the California District Court (Case Documents "Recap'd" here)]. Quite frankly, I read the #Prenda Twitter stream throughout the day just as many of you did.

Up front, there were some pretty good articles on the event, and as far as I am concerned, there is nothing substantive that I can add to what has already been written. I advise anyone affected by the AF Holdings, LLC cases (or any of Prenda Law Inc.’s so-called “trusts”) to read the following articles:

IN ORDER OF APPEARANCE:

In sum, it is my opinion that whatever the result, there was a lesson taught — that copyright trolls are not “above the law,” so to speak. As far as the effect of Monday’s hearing, we will not know the effect until we read Judge Wright’s order (which we do not expect to see for a few days). However, as for the applicability, the ruling will apply nationwide, and no doubt every court which hears their cases will probably receive a copy of the order.

There is a lot of mention of “trusts” when it comes to the Steele|Hansmeier organization.  I have a “love-hate” relationships with trusts. They form a wonderful legal alter-ego function when it comes to protecting assets and benefiting third party beneficiaries. However, in scenarios like this, I believe they are tools to break the law and hide from responsibility. The problem here is that I’m not so sure Steele and Co. could pull off having a trust without it being broken by the courts.

From what I have read, it is my opinion that there is too much involvement in the trust by all parties, and putting it simply, keeping the classic definition and rules of a trust, I’m not sure they’ve done it in a way which could withstand scrutiny. For example, I’m not sure who the grantor is, who the grantee (receiver of assets) is, and for which beneficiary or purpose was the trust formed. Are there any documents relating to the formation of the trust?  Are there any filings anywhere relating to the trust?  Also, who is the trustee who is in charge of directing and managing the funds of the trust? I would be worried of the parties mishandling the movement of the funds (the trust assets), and this is where they may get busted for playing the trust game… not to mention that I hear that nobody has filed taxes on this income and all the members are U.S. citizens? I can’t believe no taxes have been filed or paid, because if not, the IRS would be after them for tax evasion (and I have heard nothing of the sort happening).

As far as the Hansmeier deposition that nobody gets paid and that every lawyer gratuitously works for free without receiving an income, I call BS on that statement. It appears to me that he is playing semantics with the term “income” according to the tax code, and he can get in trouble the way he has maybe misused the term. No lawyer, as wonderful as any of them might be, would work for “no income.” Even Brett Gibbs. I assume there is some foreign trust account set up for each of them into which funds get deposited on a regular basis. And, those “offshore trusts” need to pay taxes just like any other legal entity.

My sadness from Monday’s events stem from the fact that Steel/Hansmeier/Duffy clan staying out of court was a very smart move. By staying as far away from the court as possible, Judge Wright was unable to swear them in, and he was unable to take their [what would likely have been incriminating] testimony. If he sanctions them, if he orders a bench order for their arrest (not likely), or if he does something to them, from a distance [and out of jail], they can easily appeal any order the judge makes, essentially eviscerating any legal authority Judge Wright may show.

I mentioned to a few other lawyers how queasy attorneys get when a judge speaks strong words. However, we all have been watching these cases for almost THREE YEARS NOW (come June), and I have never seen a judge do any damage to a copyright troll. Even Evan Stone, the prolific copyright troll out of Dallas, Texas — for sending subpoenas out before the judge gave authorization to do so, he was only sanctioned $10,000 (essentially one day’s income for Steele, according to Alan Cooper’s testimony, or three of Evan Stone’s settlements).

At the end of the day, unless the result of this hearing is a state bar disciplinary hearing (or more seriously, a criminal investigation if there was indeed “fraud” in the legal sense), and unless some lawyers lose their licenses, there will be no deterrance from Prenda Law Inc. (or any other copyright troll) thinking twice about their actions, and copyright trolling lawsuits will grow exponentially until enough people cry out, “this must be stopped!”

UPDATE (3/14/2013):

SJD reports that Judge Wright has ordered the Steele|Hansmeier gang to appear on 3/29/2013 based on “their pecuniary interest and active, albeit clandestine participation in these cases” (emphasis added).  He continues that “Not only does [their motion not to appear] lack merit, its eleventh-hour filing exemplifies gamesmanship”  (emphasis added).  Wow.  Further, the judge expanded his inquiry to impose sanctions not only to the original masterminds of these lawsuits, but to the so-called entities who are supposed to be separate and apart from their operation (they’re not).  He called Livewire Holdings LLC, and 6881 Forensics, LLC to be present at the hearing.  Now if these entities will be represented by the same Steele / Hansmeier / Duffy / Lutz characters (Hansmeier’s deposition already pegged paralegal Lutz as the CEOs of a number of these entities), this will look very bad for them.

NOTE: A commenter referred to this article (or me) as a “buzzkill,” and that got a good laugh out of me.  If you knew how much my reporting on these blogs represented how dull I sometimes am in real life, the humor of that comment is pretty on-point.  On this note, however, if you read Judge Wright’s order carefully, again, he’s only threatening sanctions.  Even if he imposes $1 million dollars in sanctions, I cannot imagine Steele and the others would pay it.  After all, they technically don’t “own” that money that is in the various trusts (#sarcasm).

Also see:

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

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

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

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

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

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

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

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

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

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

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UPDATE (10/10/2012): “He loved her not.” All 33 cases severed and dismissed. Congratulations to all the Cashman Law Firm, PLLC clients who have been dismissed from these lawsuits.

“He Loves Me, He Loves Me Not.”

It appears as if us attorneys are playing a “he loves me, he loves me not” game watching Judge Klausner’s orders in the Malibu Media, LLC v. John Does 1-10 (Case No. 2:12-cv-03615) case in the California Central District Court (where copyright troll Leemore Kushner’s bittorrent swarm scam cases are). Quite frankly, it looks to me as if he is doing one of two things, but it is unclear which game he is playing.

SCENARIO 1: “HE LOVES ME NOT”

In the first scenario, Judge Klausner is against the John Does, and he is very aware of the case law that has been flourishing around the federal district courts in so many states cutting down the bittorrent lawsuits at the knees of the copyright trolls. The problem is that Judge Klausner hates a copyright infringer.

So as we discussed in the “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article on 7/12/2012, the judge consolidated all of the Malibu Media, LLC cases under his control, his decision to separate out JURISDICTION and JOINDER issues was deliberate.  In his charade where he ordered Leemore Kushner (the copyright troll) to explain to the court why the cases should not be dismissed for LACK OF PERSONAL JURISDICTION — we know Kushner sues California defendants in the California courts, so jurisdiction is likely proper — the Judge was pretending to cause her grief, but in secret, he was winking at her and telling her he supports her cause.

This order was EASY to comply with, and in just a few minutes time, Leemore Kushner filed the proper response explaining why jurisdiction was correct.

UPDATE: *AS OF THIS AFTERNOON,* Judge Klausner graciously accepted her explanation, and in doing so, he established case law indicating that “it is proper to sue a bittorrent defendant where the bittorrent defendant resides.” Now for joinder.

Now that Judge Klausner enjoyed Kushner’s explanation regarding PERSONAL JURISDICTION, today he asked her to explain to the court the JOINDER issue. Following this line of thought, she’ll provide him the usual “blah blah” swarm nonsense, and he’ll accept her explanation for that too. At that point, he’ll grant her motion for early discovery, and he’ll let the ISPs hand over subscriber information for the many defendants who are implicated in Leemore Kushner’s cases.

While Kushner would no doubt be thrilled at this victory, Judge Klausner will have also scored a victory in his own “judgy kind of way.” If he accepts her explanation regarding joinder, he will have effectively ruled that“in California, suing defendants together in a bittorrent swarm is PROPER, even when the defendants never knew each other, and none of the defendants uploaded or downloaded to the other (because the dates and times of the alleged infringement would be weeks if not months apart).” In other words, NO MORE SEVERANCE AND DISMISSALS for improper joinder. Now wouldn’t that be a nightmare?!? Watch out for Judge Klausner. EFF, consider an amicus brief here, because HE IS SEPARATING OUT THE ISSUES.

SCENARIO 2: “HE LOVES ME.” <– the MORE LIKELY SCENARIO.

As we discussed in our “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article, Judge Klausner made a silly mistake and sent an ORDER TO SHOW CAUSE why the cases should not be dismissed for lack of PERSONAL JURISDICTION. Pretending for a second that he read my article (I highly doubt this is the case) where I chided him for his error in confusing PERSONAL JURSIDICTION and JOINDER, he accepted Leemore Kushner’s explanation of why PERSONAL JURISDICTION is proper.

Now, instead of saying, “okay, proceed with the case,” behind the scenes, Judge Klausner is getting ready to kill each and every one of the cases with one stroke of the pen. So, instead of admitting to his mistake (“who cares anyway,” he might think — “I just cost the evil troll some time and money.”), after being satisfied with Kushner’s explanation, he said, “Oh yeah, and by the way — I’m accepting your personal jurisdiction argument, but I’m not letting you subpoena the ISPs until you explain to me that JOINDER is proper. Why would you sue defendants together in the same lawsuit who were NOT INVOLVED IN THE SAME TRANSACTION OR OCCURRENCE? Silly troll.” In other words, he’s covering his oversight by making Leemore Kushner (the troll) jump through hoops, whereas in the end, he’ll take one look at her boilerplate answer as to why all the defendants belong in the same lawsuit and he’ll LAUGH HER OUT OF COURT. Severance and dismissal of each of the cases. “Go sue them individually and pay the $350 filing fee for each Doe,” he’ll say. In other words, Judge Klausner could be on your side.

MY OPINION: I wrote this quick article because at this point, it is unclear what will happen, and since many people are calling into my office asking my opinion about this particular case (and the California consolidations in general), I wanted to be explicitly clear that IT CAN GO EITHER WAY. We can only wait and see what he’ll do, and based on that, you, the putative defendant, will learn whether Leemore Kushner or the Lipscomb gang will be calling you to solicit a settlement in the near future. There is really nothing else here. He is either for the trolls, or he is for the downloaders. He can bend the law in whatever direction his judicial activist mind would like to.

So what’s you’re thought? Is it “he loves me?” or “he loves me not?”

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At what point does an attorney stop being a copyright troll?

Anyone who knows me knows that John Steele [one of the original trolls from 2010] and I are not the closest of friends. In our many conversations, I have told him quite frankly that I considered him an enemy, and I have told him [and the world] what I think about his lawsuits.  We have sparred over the years over the forums, over clients, over settlements, and to date, everyone knows what I think about his copyright trolling efforts — the “grand extortion scheme” him and his local counsel have foisted over countless victims.  Together, Steele’s law firm — whether it is under the name “Steele Law Firm, PLLC,” “Steele Hansmeier, PLLC,” “Prenda Law Inc.,” (or even more recently, “Joseph Perea, P.A.” [although I have no idea if Joseph Perea is acting on his own, or whether this is a "fake" company, and he is still working under Prenda Law Inc.]) — has inflicted painful damage over the retirement accounts and savings accounts of COUNTLESS people (many of whom had NOTHING to do with the downloading or the hacking they were accused of doing).

The big elephant in the room has always been “open wi-fi”. Yet guilty or not, people still pay up, and John Steele profits.

The concerning thing about John Steele is that even he refers to himself as a copyright troll, and he appears to be proud of it.  However, while the classic definition of a “troll” is an enterprising attorney who has taken advantage of the legal system (or a loophole or a weakness in it) for his client’s material benefit, I understand a “copyright troll” term in the bittorrent lawsuit context to more commonly mean “an attorney or a company who sues many internet users for the purpose of extorting multi-thousand dollar settlements from the accused, regardless of whether or not they are guilty, AND who has NO INTENTION OF MOVING FORWARD AGAINST ANY OF THOSE DEFENDANTS IN THE FORESEEABLE FUTURE.” In short, a copyright troll is someone who sues a lot of people and demands settlements through robocalls, “scare” letters, and threatening phone calls, but who has NO INTENT to move forward against those individuals should they decide not to settle.

The problem is that I’m not so sure that definition still holds, because John Steele, along with his threateningly growing number of local counsel across the U.S. are naming defendants.

RECAP: Initially, John Steele sued hundreds and thousands of defendants at a time, most of whom did not live in the state in which they were sued. Those were the older cases, most of which have all gone bust because the courts lacked PERSONAL JURISDICTION over the defendants. That was where we saw the “Congratulations to the Cashman Law Firm, PLLC clients who were SEVERED AND DISMISSED from [whatever] lawsuit” posts in 2010-early 2012. Then Steele smartened up. He (though his local attorneys) started filing SMALLER CASES where in many cases, the defendants lived in the states in which they were sued. Hence JURISDICTION WAS PROPER. However, even there, John Steele was still a copyright troll.

But, eventually people caught on that JOHN STEELE WAS NOT “NAMING” ANYONE AS A DEFENDANT, and no doubt his cases lost any credibility the might have had. Even judges started calling his cases a grand extortion scheme, and even in the news today, SOME JUDGES are shutting down his cases IMMEDIATELY before you — the accused bittorrent user — learned that you are sued. In other words, their initial “MOTION FOR EARLY DISCOVERY” to send subpoenas to the ISPs to learn the identities of the IP addresses / John Doe Defendants are here-and-there beind DENIED. But even here, John Steele is still a copyright troll.

Where John Steele loses the status of “copyright troll” is when he starts going after individual defendants in the courtroom. Once he files a First Time Videos, LLC v. James Swarez (a fictitional name), and James is now dragged into a lawsuit kicking and screaming and is forced to hire an attorney to file an “answer” with the court, and then James needs to give up his computer to some sleazy digital forensics experts hired by the attorneys (or he can hire his own), and he has to actually fight a real copyright case on the merits of whether or not he actually downloaded the copyrighted works he was accused of downloading in the lawsuit, well, at this point, John Steele is no longer a copyright troll, but rather, John Steele becomes merely a predatory attorney who is suing someone on behalf of his client for the violation of his client’s “copyright rights.”

Now the shift that is important to note is that in the olden days, John Steele did not name anybody. He never did, and for a while, many thought he never would (except perhaps one here or there just to prove to the courts or the world that he could and would name defendants).

However, the new strategy is that he *is* naming defendants. In fact, below is a list of defendants (for their own privacy [so that their names do not show up on search engines following this post -- because PACER court documents often don't get indexed on the search engines, but my posts do], I have edited out their last names, except for a few notorious cases) who have been named in their lawsuits (and this list is a crude list, some of which are state cases, and I even know of a few cases which are not on here):

DEFENDANTS NAMED IN ALABAMA
Lightspeed Media Corporation v. Dewey W., 05-CV-2012-900893 (Dewey W.)

DEFENDANTS NAMED IN ARIZONA
First Time Videos, LLC v. Gary P., 2:12-cv-01488-ROS (Gary P.)
Lightspeed Media Corporation v. Adam Sekora, CV2012-053194 (Adam Sekora)

DEFENDANTS NAMED IN CALIFORNIA
AF Holdings LLC v. John Doe, 2:11-cv-03076-LKK-KJN (Francisco R.)
AF Holdings LLC v. John Doe, 3:11-cv-05633-JSC (Vu C.)
AF Holdings, LLC v. John Doe, 3:12-cv-02049-EDL (Josh H.)
AF Holdings, LLC v. John Doe, 5:12-cv-02048-HRL (John B.)
Boy Racer Inc. v. John Doe, 4:11-cv-06634-DMR (Daniel C.)
Boy Racer, Inc. v. John Doe, 1:11-cv-01935-LJO-SKO (Anthony N.)
Boy Racer, Inc. v. John Doe, 3:11-cv-05628-JCS (Samuel T.)
Boy Racer, Inc. v. Philip W., 2:11-cv-03072-MCE-KJN (Philip W.)
Hard Drive Productions, Inc. v. John Doe, 2:11-cv-03074-KJM-CKD (Jeff G.)
Hard Drive Productions, Inc. v. John Doe, 2:11-cv-03075-JAM-JFM (Kenneth S.)
Hard Drive Productions, Inc. v. John Doe, 3:11-cv-05634-JCS (Seth Abrahams)
Hard Drive Productions, Inc. v. John Doe, 4:11-cv-03826-DMR (Soukha P.)
Hard Drive Productions, Inc. v. John Doe, 4:11-cv-05630-YGR (Liuxia Wong)
Hard Drive Productions, Inc. v. John Doe, 5:11-cv-05631-PSG (Isaac K.)
Lightspeed Media Corporation v. Reza S., 37-2012-00100384-CU-BC-CTL (Reza S.)
Millennium TGA, Inc. v. John Doe, 2:11-cv-03080-MCE-KJN (Joe V.)
Millennium TGA, Inc. v. John Doe, 3:12-cv-00792-MMA (Tyree P.)
Pink Lotus Entertainment, LLC v. John Doe and Steve P., 2:11-cv-03073-WBS-KJN (Steve P.)
Pink Lotus Entertainment, LLC v. John Doe, 2:11-cv-03077-JAM-KJN (Jason A.)
Lightspeed Media Corporation v. Myron H., 12-CV-0952 (Myron H.)

DEFENDANTS NAMED IN ILLINOIS
First Time Videos LLC v. John Doe, 1:11-cv-08334 (Arthur S.)
First Time Videos LLC v. John Doe, 1:11-cv-08335 (Arthur H.)
First Time Videos LLC v. John Doe, 1:11-cv-08336 (Christopher P.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08333 (Jason S.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08337 (Jamie P.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08339 (Gerald G.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08340 (Edward N.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08341 (Erik S.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08342 (Stilan P.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08343 (Hyung K.)
Hard Drive Productions, Inc. v. John Doe, 1:12-cv-01053-MMM-JAG (Matt R.)
Hard Drive Productions, Inc. v. John Doe, 1:12-cv-01104 (Robert R.)
Pink Lotus Entertainment, LLC v. John Doe, 1:11-cv-08338 (Klint C.)
Lightspeed Media Corporation v. Lucas S.,2012L000927 (Lucas S.)
Lightspeed Media Corporation v. Michael A., 2012L000530 (Michael A.)
Lightspeed Media Corporation v. Ronald T., 2012L000531 (Ronald T.)
Lightspeed Media Corporation v. Tom B., 2012L95 (Tom B.)

DEFENDANTS NAMED IN NEVADA
Lightspeed Media Corporation v. Adam G., CI12-2625 (Adam G.)

DEFENDANTS NAMED IN TEXAS
First Time Videos, LLC & AF Holdings, LLC v. John Doe, 4:12-cv-00535 (Tingwei & Chinatsu L.)
Lightspeed Media Corporation v. Austin C., C-133,846 (Austin C.)
Pacific Century International, LTD v. John Doe, 4:12-cv-00536 (Stephen C.)
Lightspeed Media Corporation v. W.T., Inc., CV2012-053230(W.T., Inc.)

In sum, as you can see, John Steele (through Prenda Law Inc. and his local counsel) are naming defendants, and one-by-one, they are hiring new counsel in a number of states to file against individuals. Now does this mean that John Steele is no longer a copyright troll? Maybe, maybe not. The point is that he is taking the “next step,” and he is forcing more and more individuals into litigation.  This is a concerning trend.

MY OPINION: Will he come after you? Quite frankly, with the tens of thousands of individuals he has sued, this small list is only a sliver of the huge pool of defendants who have been sued (NOT “NAMED”), who have been dismissed, and who are somewhere in between. The point though, is that while once upon a time John Steele did not name defendants, now he does.

On a personal note, I am saddened by writing this post, and as much as I always love to write the “we won!” articles (and THERE ARE SO MANY OF THOSE OUT THERE that don’t make it onto this blog), a defendant that calls my office needs to understand that there IS a risk that they might be named as a defendant at some point in the future. As we have said before, it is important that both current defendants AND DISMISSED DEFENDANTS should keep an eye out for Prenda Law Inc. filings in their state. The way they can do this is by going to the http://www.rfcexpress.com website, and watching what is going on in their state. Until a Prenda Law Inc. client (e.g., Hard Drive Productions, AF Holdings, First Time Videos, LLC) files against a John Doe or against a named defendant in a particular state, it is safe to assume they are not yet there and quite frankly, in my opinion, the risk of getting “named” is quite low. But then again, you need to be vigilant even after a dismissal, and for this reason, I have written this blog post.  This simply was not the case just a few months ago.

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This post is not going to be one of your favorites, because not all my posts are going to similar to my “Malibu Media Goes Down in Flames” article (or the many other positive ones I have written to date).

In short, when a judge consolidates a copyright troll’s set of cases, that is generally a really good thing. In the “olden days” (meaning, two years ago), lawsuits used to have literally THOUSANDS of John Doe Defendants in each case. The problem was that when those monster cases would fall, they would make a huge thump sound and thousands of defendants would go free with one judge’s order.

As we predicted many months ago, the newer lawsuits would be smaller with fewer John Doe Defendants in each case. That way, if a “Malibu Media, LLC v. Does 1-10” case went bust, there would be twenty other cases still standing. Plaintiff attorneys quickly figured this out and started to sue just a few defendants in each lawsuit.

Similarly, in the older cases, plaintiffs would clump together defendants from all over the country and they would sue them in the WRONG STATE. Obviously the rule the copyright trolls overlooked at the time is that “in order to sue a defendant, you need to sue a defendant where the DEFENDANT resides,” not in the court which is closest to the plaintiff attorney’s Chicago office. This was the issue of PERSONAL JURISDICTION (or more accurately, “improper jurisdiction”), where the plaintiffs would sue defendants in the wrong courts. However, more and more, we see with the Malibu Media, LLC bittorrent cases and the copyright infringement cases from other plaintiff attorneys (e.g., Jason Kotzker, Mike Meier, etc.), they are purposefully suing defendants in the CORRECT STATES so jurisdiction in most cases IS proper.

In mostly every bittorrent case, there is still the issue of JOINDER which we have written about too many times to list. In short, in order to properly join together MULTIPLE DEFENDANTS in the same lawsuits, those defendants needed to have done the SAME CRIME AT THE SAME TIME. The actual legal terminology is the “same transaction or occurrence.” In the bittorrent world, that essentially means that the bittorrent users (now John Doe defendants) needed to have taken part in downloading and uploading copyrighted Malibu Media’s movies in the same bittorrent SWARM. While this argument of improper joinder does not become relevant until a defendant is “named” as a defendant (meaning, served with paperwork which means they are no longer a John Doe, but their real name has been listed in an “amended complaint” in the case’s docket), it is still a problem with pretty much EVERY bittorrent case today (with exception of the various lawsuits by Kevin Harrison and Paul Lesko in his 4Twenty lawsuits where they sometimes sue the swarm rather than specific John Doe Defendants). However, it is not relevant to this discussion, but it was still worth noting.

The problem many copyright trolls are now facing in the courts is that NOW THAT THEY HAVE CHANGED THEIR LAWSUITS TO SUE SMALLER NUMBERS OF DEFENDANTS, they usually “forget” to inform the court of RELATED LAWSUITS that they have also filed against other bittorrent users (this violates a number of federal courts’ local rules which could jeopardize their many cases). The result of the plaintiff attorneys not telling the courts of the HUGE NUMBER OF LAWSUITS IN EACH COURT (you can look them up on http://www.rfcexpress.com just to see a few examples) is that each case gets assigned to a different judge (copyright trolls love this and actually rely on this when forum shopping), and each judge interprets the law as he understands it. In short, not linking the case together results in some bittorrent cases being dismissed by some judges in one court, and in some bittorrent cases (against other John Doe Defendants) being allowed to proceed by other judges in that same court. In short, not informing the court of related lawsuits results in INCONSISTENT RULINGS by different judges in the same district court. This is called a SPLIT in the court’s decisions (even though the term “split” usually indicates judges from one jurisdiction (e.g., Southern District of New York) ruling one way, and judges from another jurisdiction (e.g., Central District of California) ruling another way.

The wonderful result we have seen from the torrent of lawsuits that have flooded the dockets of many federal courts across the U.S. is that judges have begun to CONSOLIDATE CASES and give one ruling that affects ALL OF THEM. In other words, no more inconsistent rulings.

As exciting as this might be, for a while, we thought that when a judge consolidates cases, it is for the purpose of shutting them all down together (“the bigger they are, the harder they fall”). This has happened to a few attorneys’ cases already, and A CONSOLIDATION USED TO MEAN THE DEATH OF ALL THAT PLAINTIFF ATTORNEYS’ CASES. However, this is no longer the case.

As we learned in the Southern District of New York when Judge Forrest clumped together all of Mike Meier’s bittorrent cases, we thought this was the end of them once and for all. WRONG. Now, months later, we understand now that Judge Forrest consolidated the cases merely so that she can MANAGE THEM TO AVOID INCONSISTENT RULINGS. To our shock and horror, Judge Forrest had no interest in killing Meier’s cases.

Now comes Leemore Kushner‘s new bittorrent cases in the Central District of California, all from the Malibu Media, LLC (a.k.a. the “X-Art.com”) plaintiff. Following the copyright troll strategies of Jason Kotzker, Chris Fiore, Adam Silverstein, and Mike Meier, Leemore Kushner (see http://www.kushnerlawgroup.com [great website, by the way; almost as good as Kevin Harrison's website]) filed a whole bunch of cases in the California Central District Court. However, she failed to tell the court that all of her cases were all related.

As soon as Judge Klausner took over the case, he noticed Malibu Media, LLC’s other cases, most of them filed by Leemore Kushner (and three by Adam Silverstein):

CASES FILED BY LEEMORE KUSHNER OF KUSHNER LAW GROUP IN THE CENTRAL DISTRICT OF CALIFORNIA
Malibu Media LLC v. John Does (Case No. 8:12-cv-00647)
Malibu Media LLC v. John Does (Case No. 8:12-cv-00649)
Malibu Media LLC v. John Does (Case No. 8:12-cv-00650)
Malibu Media LLC v. John Does (Case No. 8:12-cv-00651)
Malibu Media LLC v. John Does (Case No. 8:12-cv-00652)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03614)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03615)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03617)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03619)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03620)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03621)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03622)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03623)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04649)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04650)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04651)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04652)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04653)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04654)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04656)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04657)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04658)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04660)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04661)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04662)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-05592)
Malibu Media LLC v. John Does (Case No. 2:12-cv-05593)
Malibu Media LLC v. John Does (Case No. 2:12-cv-05594)
Malibu Media LLC v. John Does (Case No. 2:12-cv-05595), and

CASES FILED BY ADAM M. SILVERSTEIN OF CAVALLUZZI & CALLALLUZZI IN THE CENTRAL DISTRICT OF CALIFORNIA
Malibu Media LLC v. John Does (Case No. 2:12-cv-01642)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-01647)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-01675)

Seeing all of these cases, no doubt the issues of copyright trolling, extortion, clogging up the court’s docket, and whether Kushner actually intends to take these defendants to trial or not was on his mind… or was it? I’m not so sure. Judge Klausner consolidated his cases with an ORDER TO SHOW CAUSE why these cases should not be dismissed for… LACK OF PERSONAL JURISDICTION??

In short, here are a large number of cases, and if Judge Klausner was against these copyright trolling / extortion-based lawsuits, he would have asked Leemore Kushner to explain to the court why these cases should not be dismissed for any of the other INHERENT FLAWS in these bittorrent cases, but NOT PERSONAL JURISDICTION. The reason I say this is because IF THERE IS ONE THING MALIBU MEDIA, LLC GOT RIGHT IN THEIR LAWSUITS,IT IS PERSONAL JURISDICTION. You could be damn sure that is Leemore Kushner sued someone in California, then THEY LIVE IN CALIFORNIA. If Jason Kotzker sued someone in Colorado, then THEY LIVE IN COLORADO. The plaintiff attorneys have too much common sense from the mistakes of the past two years to sue people in the wrong jurisdiction.

For this reason, I am sad to say that I am not jumping up and down for joy about the fact that all these cases were consolidated because I do not think they are going bust just yet. Anyone that speaks to me knows that I believe these cases have some really bad flaws which, if taken to trial, would cause Malibu Media, LLC to LOSE EVERY TIME. However, I suspect Malibu Media knows this as well which is why the game for them is to 1) sue John Doe Defendants, 2) settle as many as they can, 3) “name” those who do not settle, 4) settle those who are named for a higher amount, 5) go for a default judgement ($750 + ~$2K attorney fees, or $30K + attorney fees, but I’ve never seen a $150K default judgement), or dismiss those who are named, 6) re-file individually against those who did not settle, 7) settle with higher stakes, and 8) rinse and repeat.

In short, I’m not so optimistic about this one, and neither should you be. Until we see the words “improper joinder,” “scheme,” or “extortion” come out of this judge’s mouth, it looks to me as if we have a troll-friendly judge who just wants to manage these cases.

You can see his order here.

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It is very easy to put up a banner claiming “MISSION ACCOMPLISHED — NO MORE BITTORRENT CASES IN SOUTHERN DISTRICT OF NEW YORK,” but reality is not that simple. A judge can give a ruling, and it can be a darned good ruling which is binding on all other judges in that federal district (similarly, that ruling is persuasive for judges in other federal districts). One such case is the case written up by Sophisticated Jane Doe in her “The Domino Effect: Trolls are not welcome in the Southern District of New York anymore” article posted just moments ago. I do not need to re-write this up — she did a wonderful job, and there is no reason to duplicate her efforts.

That being said, this case does merit some discussion. The name of the case is Digital Sins, Inc., v. John Does 1-245 (Case No. 1:11-cv-08170, or 11 Civ. 8170) [misspelled], filed in the U.S. District Court for the SOUTHERN DISTRICT of New York (remember our blog post about forum shopping there?). I am happy to share that the case is now SEVERED AND DISMISSED. Obviously, congratulations to the Cashman Law Firm, PLLC clients who were part of that case. This ruling is WONDERFUL for you.

As far as I am concerned, this ruling was the order I was waiting for back in March when I reported that all of copyright troll Mike Meier’s New York cases were consolidated by Judge Forrest. Similarly, you’ll see what I thought would happen in my “New York Judge consolidates and freezes SMALLER BITTORRENT CASES for plaintiff attorney” article earlier that month. Well in short, my opinion with hindsight was that all this was a dud, and Judge Forrest merely consolidated the cases to rein in Mike Meier so that she can control him and his cases so that they all had uniform outcomes. This was obviously a step in the right direction, but it did not dispose of the cases in their entirety. Perhaps because Judge Forrest had experience with copyright cases in the past, she thought she should be the one to preside over them. However, in my opinion, she just made them more orderly; she didn’t rule on the underlying issues plaguing each of Mike Meier’s cases.

Here comes Judge Colleen McMahon of the same Southern District as Judge Forrest, and she (like Judge Forrest) has my respect. In her ruling on Tuesday, she took the opportunity to take a John Doe ruling, and turn it into NEW LAW FOR NEW YORK COURTS (obviously I am referring to the federal courts). What impressed me was that not only was she aware of Judge Forrest’s activities, she changed the law by dissenting with them.

“Judges Forrest and Nathan, have decided to allow these actions to go forward on a theory that permissive joinder was proper.  I most respectfully disagree with their conclusion.” (p.4)

Further, she ruled that if Mike Meier wanted to sue these 244 defendants, he may do so in separate lawsuits, AND HE MUST PAY THE $350 FILING FEE FOR EACH LAWSUIT (that’s $85,400 in filing fees that Digital Sin, Inc. will have to pay if they want to go after the dismissed defendants).

“They are dismissed because the plaintiff has not paid the filing fee that is statutorily required to bring these 244 separate lawsuits.” (p.4)

What made this case blogworthy (and you’ll notice, I rarely post about the run-of-the-mill dismissals that happen every day in various jurisdictions when their rulings teach nothing new) was that Judge McMahon suggested TWO STRATEGIES to John Doe Defendants that she believes would successfully refute the plaintiff attorney’s geolocation evidence as proof that the court has personal jurisdiction over the accused IP addresses.

Firstly, she suggests that the John Doe defendants not living in the jurisdictional confines of the court simply file a SWORN DECLARATION that they live somewhere else.

“John Doe 148 could have overcome [the geolocation data evidence provided by the plaintiff] by averring [e.g., in a sworn decaration] that he was a citizen and resident of some state other than New York — even New Jersey or Connecticut, portions of which are located within the geographic area that is covered by the geolocation data.” (emphasis added, p.5)

Secondly, she said that since plaintiff attorneys are getting the personal jurisdiction right (e.g., filing lawsuits against Californians in California, against Texans in Texas, etc.), defendants could start asserting the “WRONG VENUE” argument (essentially saying, “Court, yes, I live in New York.  But I was sued in Long Island and I live in Buffalo.  It would be an extreme hardship for me to travel down to Long Island every time I need to show up for a hearing there to defend my case.”).  The actual verbiage suggested by the Court is that “…plaintiff has failed to plead facts rom which a reasonable trier of fact could conclude that this Court has personal jurisdiction over this John Doe, or that venue is properly laid in this district.”  (emphasis added).

Next, this ruling is VERY EXCITING because it puts handcuffs on Mike Meier should he wish to file against any of the severed and dismissed defendants in a follow-up case.  Those rules are:

1) When an ISP complies with a subpoena request, it may not share the telephone number or e-mail address of the subscriber with the plaintiff attorney.

2) Assuming the ISP does not file a motion to quash (it obviously may AND SHOULD do so on behalf of its subscribers [my opinion]), the ISP shall share the subscriber’s information WITH THE COURT ONLY (not directly to the plaintiff as is usually done), and the court will disclose the information to the plaintiff attorney.  (I’m not sure the benefit of this — they still get the contact information of the John Doe Defendants this way).

3) The plaintiff may use the information disclosed ONLY FOR THE PURPOSE OF LITIGATING THAT CASE (so the plaintiff may no longer use the threat of future litigation if they do not immediately settle to extort a settlement.  This was a tactic used by many plaintiff attorneys (most notoriously, Prenda Law Inc. who admitted that they dismissed the case so that they can go after the John Doe Defendants [extorting settlements] without the court’s involvement).

Lastly — and her timing is quite interesting as we just finished writing about forum shopping in bittorrent cases — she warned Mike Meier not to engage in “judge shopping.”

“Lest plaintiff’s counsel think he can simply put cases against the severed and dismissed John Doe defendants into the wheel for assignment to yet another judge, I remind him of Local Civil Rule 1.6(a) [which requires the plaintiff attorney to bring the existence of potentially related cases to the attention of the Court].” 

For your reading pleasure, I have pasted a copy of the order below.  For my own opinion on the topics discussed by the judge, I have pasted them below the judge’s order.

MY OPINION:  There is more here that I did not write about, namely that the judge believes that all the bittorrent cases currently being held by Judge Forrest and Judge Nathan should be assigned over to her so that she can dispose of them once and for all.  She also went into other judge’s rulings which duplicate content in other articles on the blog.  However, once again, we have another wonderful ruling.  However, moving forward, perhaps I am a bit jaded, but I don’t foresee Judge Forrest or Judge Nathan tomorrow assigning over all their bittorrent cases to this judge.  There is now a disagreement in the New York courts (as there are in many jurisdictions) as to how to handle these cases.  I would love to jump up and down, wave a banner and declare “MISSION ACCOMPLISHED — NO MORE BITTORRENT CASES IN SOUTHERN DISTRICT OF NEW YORK,” but quite frankly this is not reality.

More likely than not, plaintiff attorneys such as Mike Meier, Jason Kotzker, and any other copyright troll who wants to file in New York will continue to file there.  As you can see in my forum shopping article (which should more properly be called “Judge Shopping”), an attorney can in ONE DAY file  9 SEPARATE CASES and receive 7 SEPARATE JUDGES, as was the case with Kotzker’s recent filings.

In addition, while the SWORN DECLARATION argument and the VENUE arguments are both easy solutions to disprove the plaintiff’s prima facia case for personal jurisdiction (meaning, the bare minimum a court will require in order to accept the fact that it has personal jurisdiction over the defendants in the case), a John Doe Defendant hoping to hide his identity from the plaintiff attorney and quash a subpoena should not be excited by these solutions.  1) For the sworn declaration, they’ll necessarily be giving up their true location (they cannot lie that they live in Connecticut when they live in California), and we all know that Mike Meier is only ONE local attorney to a larger IP monetization group (“The Copyright Enforcement Group”) which has other attorneys in other states, and who continues to recruit new hungry would-be copyright trolls.  So even if they succeed in getting their case dismissed here, guess who will be filing against them in their home state’s federal court?  2) A John Doe Defendant who asserts the “correct state, wrong venue” argue just made a big blunder — he admitted that personal jurisdiction is proper in that state.  Rules for venue are based on a number of factors, NOT ONLY WHERE THE DEFENDANT LIVES.  Similarly, no doubt the plaintiff will respond in a wrongful venue argument in a motion to quash that “John Doe filed this motion to quash asserting wrongful venue (which by the way is not a valid ground to quash a subpoena; jurisdiction IS), but he is not a party to the action [yet] and thus he has no standing to file this motion to quash.”  Remember this?  Lastly and realistically, the proper time a defendant CAN AND SHOULD use this wrongful venue argument is in his ANSWER (which means he was already NAMED as a defendant in the case).  Too late.  There are better issues to kill a case at this point than complaining that the court is too much of a drive.

[DISCLAIMER: I've given many opinions here which is not to be taken as legal advice.  Each defendant has different needs and different circumstances, and for this reason, the legal advice I give for one of my clients may not be appropriate (or may even be harmful) to another client who's circumstances are different.  Also, obviously no attorney-client relationship is formed until you sign a retainer and become a client.]

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