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Posts Tagged ‘Hard Drive Productions’

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 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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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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For those bittorrent users accused of copyright infringement in Arizona, there is a new rule which you can use in your defense.

Traditionally, in order to properly sue multiple bittorrent users together in one lawsuit, they need only to participate in the “same transaction or occurrence.”  In other words, they need to do the same “crime” at the same time.  Not so in California, and NOW, not so in Arizona.  [For the California citation, see Document 26 in the Hard Drive Productions, Inc. v. Does 1-188 (Case No. 3:11-cv-01566) case in the U.S. District Court for the Northern District of California.]

In bittorrent language, when you connect to a bittorrent swarm and download copyrighted media, all of you participating in that bittorrent swarm would be sued together.  This is one of the most recent kinds of lawsuits by the more skilled plaintiff attorneys — instead of Plaintiff v. John Does 1-123 (or however many John Doe Defendants there are lumped together [and separated by the state in which they reside] in this lawsuit), smarter plaintiffs are suing participants of the swarm itself (e.g., Plaintiff v. Swarm of Nov. 3rd, 2011 [and participants thereof]).  No longer in in Arizona.

NEW RULE: Now in Arizona, in order to be sued with other John Doe Defendants, you must have either UPLOADED TO or DOWNLOADED FROM each one of the other defendants.  If not, the defendants are not properly joined and defendants can be severed and dismissed from the case for improper joinder.

TODAY in the Patrick Collins, Inc. v. John Does 1-54 (Case No. 2:11-cv-01602) case in the U.S. District Court for the District of Arizona, in U.S. District Judge G. Murray Snow’s own words:

Plaintiff alleges that the two remaining Defendants “participat[ed] in the BitTorrent swarm with other infringers” but does not claim that John Doe 6 provided data to the former John Doe 12 or vice versa. (Doc. 26 ¶ 56). …

… Plaintiff alleges no facts that these two particular Defendants shared data with each other, and provides data instead that they were logged on to BitTorrent weeks apart. “The bare fact that a Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world.” Hard Drive Prods., Inc. v. Does 1–188, 11 No. CV-11-01566, 2011 WL 3740473, at *13 (N.D. Cal. Aug. 23, 2011)

(emphasis added).

Personal Note: While this ruling is not immediately relevant if you do not live in Arizona, it is still good news because it indicates that judges are starting to understand how rules (here, the rules of “joinder”) apply in the bittorrent context.  No doubt, this order will be recognized and used in other cases in other jurisdictions as being persuasive as to how a judge should understand who can be sued together with whom.  Soon it will no longer be permitted for an enterprising plaintiff (e.g., “copyright troll”) to sue tens or hundreds of defendants in one lawsuit, lumping them together by the state in which they live (this lumping-together-by-state was the result of the dismissals last year over personal jurisdiction issues).  I look forward to other judges in other states soon to adopt this ruling.  It is a well thought-out understanding of the joinder issue.

I have pasted the link to the order below for your enjoyment.

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Today I received a bunch of what are commonly known as “scare” letters from Prenda Law Inc.  What is interesting is that all the letters I received were for the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case. While at first I thought the timing to an order by Judge Facciola was too much of a coincidence (read on), it turns out that something is going on with this case which has gotten the law firm sending out letters.  In my experience this usually coincides with a dismissal.

When I looked into it, I found what appeared to be my answer in a judge’s order in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case filed in the District of Columbia District Court, where the judge refused to allow Dunlap Grubb & Weaver, PLLC to add new accused IP addresses to the case and then get the subscribers’ contact information from their ISPs.  Even better, for the FIRST TIME, this DC judge ruled in line with the other district courts 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.  The exciting piece of this news is that DC has been notorious for allowing cases to proceed against thousands of John Does who lived outside of DC.  Any motions to quash summarily fail.

Even better, the judge who made this order was Judge Facciola, the judge in the controversial Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) case.

No doubt this has gotten the Steeles, the Hansmeiers, and the Duffys nervous because their cases are in the District of Columbia.  As far as I am concerned, this order — even though the West Coast Productions, Inc. order has nothing to do with Prenda Law Inc., I suspect it will be a death nail in all three cases – West Coast Productions, AF Holdings, and Hard Drive Productions.

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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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DISTRICT OF COLUMBIA — Everyone knows by now that DC is not a friendly jurisdiction to be sued in. Like Washington D.C., the judges do not follow one another, and each judge does what he or she feels should be policy. Two examples — Judge Beryl Howell, a copyright lobbyist turned federal judge, and Judge Bates — friendly towards downloaders (but subsequently removed by other judges from the Hard Drive Productions, Inc. case).  As far as I am concerned, this court is wrought with as much politics as Washington D.C. is in general.

So let’s go through some case updates, sorted by plaintiff attorney.

I) DUNLAP GRUBB & WEAVER, PLLC

Imperial Enterprises v. Does 1-3,545 (Case No. 1:11-cv-00529) [at one point it was Imperial Enterprises, Inc. v. Does 1-3,145] — dead. On 9/26, Judge Reggie Walton ordered the plaintiffs to name and serve or dismiss defendants or dismiss them [according to Federal Rules of Civil Procedure ("F.R.C.P."), Rule 4(m)] by 12/20/2011. Instead of naming defendants, Dunlap Grubb & Weaver, PLLC (who sends out settlement demand letters under the name “Media Law Group” or “MLG”) decided to dismiss all defendants. Case dismissed; congratulations to all Cashman Law Firm, PLLC defendants (and all others) who were Doe Defendants in this case. See order here.

Voltage Pictures, Inc. v. Does 1-24,582
, a.k.a., “the Hurt Locker case” (Case No. 1:10-cv-00873) [at one point it was Voltage Pictures, Inc. v. Does 1-5,000]dead. This one was actually funny. On 11/4, Judge Beryl Howell got tired of this case being on her docket. So she gave Dunlap Grubb & Weaver, PLLC (“DGW”) until 12/5 (extended to 12/12) to name and serve defendants or to dismiss them (again, the judge invoked F.R.C.P. Rule 4(m) to wipe what became a stale case off her docket).  However, DGW missed the deadline, and instead of having the judge dismiss the case, they dismissed it themselves to save themselves the embarrassment of having yet another case dismissed for them failing to move forward against defendants.

Regarding this plaintiff attorney, I received word that they were gearing up to sue individual defendants in their home states. This is nothing new as they have already started “naming” defendants for their older dismissed cases. More recently, I received word that they are hiring local attorneys and following the Patrick Collins, Inc. model of stating to dismissed defendants, “we have hired XYZ attorney in your state — unless you settle with us, we will name you in a lawsuit in your state.” The problem here is I have reason to believe they’ll follow up with the lawsuits.

There are some other “conspiracy” issues regarding this plaintiff, namely that they sent subpoena letters demanding names and contact information for various John Doe Defendants *AFTER* dismissing their IP addresses and releasing them from the case. This was written up by Torrentfreak.com, and you can read up about it here.  (NOTE: After the ISPs refused to hand over subscriber information, they added the IP address back into the lawsuit — something I don’t think they were allowed to do — but these Doe Defendants have since been dismissed as well and now they are receiving “scare” letters now as we speak.)

II) STEELE | HANSMEIER, PLLC (NOW PRENDA LAW INC.)

As we know, a few months back, Steele Hansmeier, PLLC (now Prenda Law Inc.) ventured into the DC District doing some “forum shopping” with their Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) and their AF Holdings, Inc. v. Does 1-1,140 (Case No. 1:11-cv-01274) cases — having been essentially locked out of their own Illinois jurisdiction, they were looking for a few favorable rulings based on DC’s “plaintiff-friendly” reputation in the bittorrent cases of the past year (they have since found a happier home filing suits in the Florida / Miami Dade state courts). In these cases was the first appearance of Paul Duffy who has since taken over Steele’s position in the firm (yes, it appears as if he is out).

AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) has survived scrutiny without a hiccup as Prenda has been “pretending” to search and see which defendants lived in DC. To make their searches appear valid, they immediately started dismissing a bunch of defendants a few at a time (“NOTICE of Voluntary Dismissal re Does 1-8,” “…Does 9-15,” “…Does 16-35,” “…Does 36-65″ — what I do not understand is, “Hasn’t Judge Reggie Walton figured out their game yet?” After all, it appears to me as if none of the defendants [so far] live in DC. And, they filed the complaint in JULY 2011! Did it REALLY take them 5 MONTHS to figure out that the first 65 defendants did not live in DC? I could have done this in just a few minutes using known geolocation tools). In short, Judge Reggie Walton is allowing this to move forward for now, but he is not stupid. My prediction is that he is going to bust this case using FRCP 4(m) any time now.

Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) is the case that is filled with controversy. It was in this case where Judge Bates figured out that most of the defendants did not live within the jurisdiction of the DC court. He invited Doe Defendants to file motions to quash and promised that he would keep their information sealed and private. My first inclination when I saw this was “watch out! — DC does not keep sealed documents as private — as soon as they deny the motions to quash, they expose the defendants’ information when denying the motions.”  Then a few days later, as we wrote about here, whether for political reasons or from pressure from the other judges, Judge Bates was removed from the Hard Drive Productions, Inc. v. Does case and he was replaced by Judge Facciola, someone who in my estimation was not friendly towards bittorrent defendants. For weeks, we saw nothing from him — no indication as to whether he would honor Judge Bates’ offer to submit motions to quash anonymously, or whether he would summarily deny them. I suspected he would deny them in line with DC’s past strong stance AGAINST motions to quash.

Well, I am sad to share that Judge Facciola ended up being exactly who I thought he was. In his 12/21 ruling, he reversed everything Judge Bates was trying to do when he wrote in his order that “I will not consider any motion unless it is publicly filed.” In other words, unless you use your real information in your motion to quash (e.g., your real name, address, phone number, etc. — the exact information the plaintiff attorneys are looking for in order to start sending you “scare” letters and calling you with the effect of scaring you into a settlement), Facciola’s court will not consider your sealed motions to quash as Bates promised they would.  It need not be said that when you file a motion to quash, everybody can see it as the filing is a public document. However, Judge Facciola does not care about your privacy interests, nor does he care if plaintiff attorneys receive your private information, because according to him, “[i]ndividuals who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information.” (emphasis added) I wonder when the last time an ISP allowed a subscriber to open an account without the subscriber’s personal information.

In sum, expect this case to move forward like all the others. We appear to have a copyright-troll friendly judge here, so please prepare yourselves to have your private information handed out to your plaintiff attorneys by your ISPs; until now, I expect that they haven’t done so. I would love to give you good news here, but so far there is no indication this is going away any time soon — at least not until Prenda Law Inc. gets its payday.

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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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