California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD.

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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Comcast Fights Prenda… Victory for its subscribers!

Congratulations to the Texas Millennium TGA, Inc. defendants who (with the assistance of their Comcast ISP) will never have their information shared with Prenda Law Inc., Doug McIntyre (Prenda’s local counsel), or Millennium TGA, Inc. Essentially, you have won your case because the copyright trolls will never know who you are (without great effort).

In short, as we discussed back in our “Forum Shopping” article on 5/16, Millennium TGA, Inc. made the mistake of suing the same “John Doe” defendants in Texas as they did two weeks before in DC. This wasn’t a mistake — the judge that was assigned to their DC case (referred to as “MILLENNIUM TGA I“) — Judge Wilkins — was known to be unfriendly to copyright trolls. As soon as Prenda Law Inc. figured this out, they dismissed MILLENNIUM TGA I, and using their local attorney Doug McIntyre in Texas, they filed “MILLENNIUM TGA II” [Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501)] here in the Southern District of Texas.  When the Texas judge gave the okay for Prenda to demand the names of the subscribers from their ISPs, Comcast recognized the similarities of the John Doe Defendants to the DC case just dismissed, and they refused to comply with the rubber stampped subpoena given to Millennium TGA, Inc. by the Texas judge. Millennium TGA, Inc. (through Prenda Law Inc., their attorneys) filed a lawsuit against Comcast in DC (MILLENNIUM TGA, INC. v. JOHN DOE (Case no. 1:12-mc-00150), also referred to as “MILLENNIUM III“) asking the court to force Comcast to comply with the Texas judge’s subpoena and hand over the names, addresses, and contact information for the subscribers implicated in the MILLENNIUM TGA II Texas case.

Then, after an adverse ruling by the DC court which [in its order by Judge Alan Kay, order now overturned] forced Comcast to comply with the subpoena, John Seiver (Comcast’s attorney) wrote an amazing appeal which resulted in the DC case being transferred back to Judge Wilkins — the enemy of the copyright trolls. We wrote about this in our “Comcast wins battle against Millennium TGA & Prenda. Subscribers lose.” article on 5/29.

Now, almost one month later, I am happy to share that Judge Wilkins issued the order we have been looking for all along. In his ruling this Monday, he DENIED Millennium TGA, Inc.’s motion to compel Comcast to comply with the subpoenas (and hand out the subscribers’ information). In other words, congratulations to the Cashman Law Firm, PLLC clients who have been entangled in this mess — your plaintiff attorneys Prenda Law Inc. and their local counsel Doug McIntyre will likely NEVER know who you are. In addition, congratulations on your victory in your Texas case, because without knowing who you are, they cannot name you as a defendant, and they cannot move forward against you. Score!

Food For Thought Moving Forward:
Okay, here is the silver lining. For those of you who do not have Comcast as your ISP, your Texas case is moving forward as usual. Similarly, for those of you who do not live in Texas, Judge Wilkins has ordered that Comcast turn over to Prenda Law Inc. ONLY the CITY AND STATE which is linked to your accused IP address. That way, if Prenda wishes to file a follow-up lawsuit against you, they can sue you in your home state’s federal court… or not. Here is my thinking.

Remember the “two-strike rule” in the Federal Rules of Civil Procedure (“FRCP”) Rule 41?? — a dismissal in the Texas court in a number of John Does’ cases would be the second dismissal [which is deemed to be "on the merits."] This could preclude your copyright trolls from filing suit against you a THIRD time in your home state’s federal court. See DieTrollDie’s “Two Strikes and You’re “Out!” – FRCP 41 & Copyright Trolls” article, and for more discussion on the topic, see Sophisticated Jane Doe’s “A Trolling Lawsuit Ends With Style” article here.

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Comcast wins battle against Millennium TGA & Prenda. Subscribers lose.

It is always nice when one judge reaches into another judge’s docket and removes a case from his docket.

While I cannot tell if this is exactly what happened here, all I can say is that Comcast essentially just won their “forum shopping” case against Prenda Law Inc. relating to their Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501) case in the Southern District of Texas (a.k.a. “MILLENNIUM II”). BUT before you go off celebrating, Comcast is STILL under an obligation to hand out your information. Watch out!

To recap, if you remember from my “Forum Shopping” article on 5/16, Millennium TGA, Inc. sued 939 John Doe Defendants in DC (“MILLENNIUM TGA I”). When they learned that Judge Robert Wilkins (who killed a prolific bittorrent case) was assigned to the “MILLENNIUM TGA I” case in DC, the Prenda Law Inc. attorneys for Millennium TGA, Inc. dismissed the case and then re-filed it in the Southern District of Texas (Case No. 4:11-cv-04501) (“MILLENNIUM TGA II”) suing essentially the same John Doe Defendants as they did in the “MILLENNIUM TGA I” case in DC which they voluntarily dismissed when they learned that Judge Robert Wilkins was the judge assigned to that case.  The Texas judge rubber-stamped their request to serve the ISPs with subpoenas to obtain the contact information of the 939 John Doe Defendants, and Prenda Law Inc. sent out the subpoenas to the ISPs. Comcast (one of the ISPs) saw the obvious forum shopping (actually, “judge shopping”) issue (among others) and refused to comply with the subpoenas. Prenda Law Inc. sued Comcast in DC (what I called “MILLENNIUM TGA III” in my 5/16 article).

In the MILLENNIUM TGA III case in DC (which is essentially Prenda Law Inc. suing Comcast in order to force them to comply), Magistrate Judge Kay ruled against Comcast telling them that they must comply. Comcast appealed, BUT THE JUDGE’S ORDER FORCING COMCAST TO COMPLY IS STILL VALID AND IS STILL IN EFFECT! So what exactly is going on?? What happened today??

On 3/26, Comcast noticed that Prenda Law Inc. violated the court’s “judge shopping” rules (LCvR 40.5(a)(4)) by not reporting that its new case [assigned to Magistrate Judge Kay] was substantially related to the “MILLENNIUM TGA I” case that it voluntarily dismissed when it was before Judge Wilkins.

According to the DC local rules, to prevent contrary rulings by different judges for the same issues, if two lawsuits are substantially related (here, they are essentially identical), all subsequently filed cases get assigned to the original judge.

Knowing this, on 3/26, Comcast filed a “Request For Judge Reassignment” which was ignored until this morning.

As of this morning, District Judge Ellen Segal Huvelle took the case away from Magistrate Judge Kay and reassigned it to Judge Robert Wilkins — the judge it should have gone to originally. Woohoo! Comcast’s victory is palatable at this point, because we can almost predict with certainty that he will rule in Comcast’s favor and will allow them NOT to comply with the subpoenas in the Texas MILLENNIUM TGA II case.

The problem is that all you see on the docket is a granting of the 3/26 motion for reassignment. Comcast appealed Magistrate Judge Kay’s terrible ruling against it, and Prenda Law Inc. filed a response to which Comcast responded to, but THERE WAS NEVER A RULING ON THEIR APPEAL which means that JUDGE KAY’S ORDER IS STILL IN EFFECT! COMCAST IS STILL UNDER AN OBLIGATION TO COMPLY WITH THE SUBPOENAS!

So in short, I have no doubt that Judge Wilkins will side with Comcast. However, I just don’t know if he has enough time to stop what he is doing (judges don’t only spend their days only reading these pornography-based bittorrent cases) and write an order 1) granting Comcast’s appeal and overturning Magistrate Judge Kay’s order [which is still in effect], and 2) granting Comcast’s motion for an extension of time to comply with the subpoena (which for many people, the deadline is today).

So while Comcast has essentially won the battle, they have not yet won the war. Comcast is still under the obligation to comply with the subpoenas.

View this document on Scribd

MY OPINION:
…On a personal note, I feel that it is important that Comcast subscribers take note of the CONFLICT OF INTEREST that is apparent even in cases such as this one.  Comcast has been blindly complying with Prenda Law Inc.’s subpoena requests for almost TWO YEARS now.  They have opened up their own “Subpoena Compliance” division and have hired new staff (twelve new full-time employees, if my memory serves me correct) just to comply with these subpoena requests. They have entered into private agreements where Prenda pays them a certain sum of money for each IP address lookup (~$45 per IP address, give or take), and thus COMCAST RECEIVES A FINANCIAL BENEFIT FROM COMPLYING WITH THE SUBPOENAS.  On top of that, while I have spoken to John Seiver and I believe he is a very skilled attorney (remember the work he did in bringing down the Digiprotect case almost two years ago?), I cannot help but to be suspicious that this whole lawsuit is a PUBLIC RELATIONS STUNT solely to boost the image of Comcast.  After all, I must ask you — where were they until now? Have they filed ONE motion to quash on behalf of their subscribers? Why not? After all, with all the thousands of failed motions to quash filings attempted by their subscribers, Comcast could have SUCCESSFULLY filed motions to quash on behalf of its subscribers [they had standing in each case to object, and judges were dumbfounded why they never got involved], but they never did. Why not?

I also would like to mention that Comcast was one of the first ISPs to sign on to the MPAA/RIAA’s “six strikes” program (now on hold) which will no doubt be wreaking havoc on their subscribers in the near future.  So while I applaud John Seiver and Comcast for fighting and [what will likely be] WINNING the case against Millennium TGA, Inc. and Prenda Law Inc., I still need to ask myself on behalf of my clients, where were they until now? And, “will they still “accidentally” comply and collect their fee?” I would like to remind you that this has happened before.

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“Forum Shopping” is the link between the TX & DC “Millennium TGA, Inc.” lawsuits.

As a response to the “You Have Been Shopped” article written by DieTrollDie on forum shopping, I do have some insight to add to this.  In short, there are not two Millennium TGA lawsuits in this forum shopping scandal, but three (if you are counting the “motion to compel” lawsuit in DC which is the key to understanding exactly what is going on — this is the missing link which provides the insight I am sharing).

MILLENNIUM TGA I: In short, on 12/7/2012, Millennium TGA v. Does 1-939 (Case No. 1:11-cv-02176) (hereinafter, “Millennium TGA I”) was filed in DC.  It was assigned to Judge Robert Wilkins, the DC judge who killed the “Expendables” bittorrent lawsuit — this was the Nu Image, Inc. v. Does 1-23,799 lawsuit by Dunlap Grubb & Weaver, PLLC which quickly expanded from 6,500 into 23,222 John Doe Defendants before the judge shut down the case.  It took Prenda Law Inc. a week to figure out that their judge was THE Judge Wilkins, and they quickly and voluntarily dismissed the case.

MILLENNIUM TGA II: Four days later, Prenda Law Inc. used their local counsel Doug McIntyre (the same local counsel who was almost fired because he took on the West Coast Productions, Inc. client [remember them in DC and in W.VA with their attorney Kenneth Ford who is now in jail?] in his West Coast Productions, Inc. v. Does 1-351 (Case No. 4:12-cv-00504) case which he filed without telling Prenda Law Inc. about it) and on 12/20/2012, Doug McIntyre filed the Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501) case here in the U.S. District Court for the Southern District of Texas.  This case involves pretty much identical parties, facts and claims as were alleged in the MILLENNIUM TGA I case in DC.  I suppose they thought nobody would notice their overt forum shopping, especially since they changed the name of their lawsuit.

Everything went smoothly for the plaintiff attorneys in the MILLENNIUM TGA II case in Texas …until Prenda Law Inc. served a subpoena on Comcast, who said “no.”

This is where the story gets interesting.  On 2/29/2012, Comcast objected to the subpoena by stating that 1) the court lacked personal jurisdiction over most of the IP addresses listed in the subpoena; 2) there were serious joinder issues in the lawsuit; and 3) the plaintiff was engaging in “a blatant attempt to FORUM SHOP” since they already dismissed MILLENNIUM TGA I to avoid being in front of Judge Wilkins in DC.

MILLENNIUM TGA III: As a result, Prenda Law Inc. (Millennium TGA, Inc.’s attorneys) filed a lawsuit against Comcast (it was actually a “motion to compel”) in the MILLENNIUM TGA, INC. v. JOHN DOE (Case no. 1:12-mc-00150) case in DC.

It was in this lawsuit that John Steele “surfaced” from pretending (think, “Prenda”) that he was not associated with Prenda Law Inc. since Paul Duffy allegedly took over the firm.  It is also my understanding that Prenda Law Inc. didn’t realize that John Seiver was the attorney behind the scenes on this case, and what they might not have known was that John Seiver has wreaked havoc on bittorrent cases as long as two years ago with the Digiprotect cases in New York.  Perhaps even Prenda Law Inc.’s predecessor firm Steele|Hansmeier, PLLC was not yet in existence when this happened, and John Steele was still running his divorce practice a la the Steele Law Firm, PLLC.  Either way, I suspect that they filed the motion to compel Comcast to comply with the subpoena in order to bully them, and they didn’t realize that Comcast (through John Seiver) would fight back.

Now advancing forward a bit on the timeline, Magistrate Judge Alan Kay ignored pretty much every point that Comcast brought up and he issued an order on 4/18/2012 ordering Comcast to comply with the subpoena for the MILLENNIUM TGA II Texas case.  They were ordered to reveal 351 of the subscriber identities to Prenda Law Inc.  This is, however, where it gets interesting.

John Seiver, obviously realizing that Magistrate Judge Kay made a dumb ruling, essentially called him a moron in appealing his order.  As an attorney, I would hold my tongue myself here in writing this article, especially because I am interested in seeing John Seiver and Comcast prevail, and I know that sometimes a judge can rule his court by ego rather than adhering to the law, but Magistrate Judge Kay’s ruling against Comcast was so dumb I could not contain myself.

In short, according to Comcast’s appeal, 1) the judge erred by failing to consider any of the legitimate defenses that Comcast raised on behalf of its subscribers. 2) The judge erred by failing to address the fundamental issue of whether any of the unnamed Does would be subject to personal jurisdiction (either in Texas, or in DC per the motion to compel).  3) The judge erred by failing to address the possible misjoinder of the one John Doe defendant (and the many co-conspirators) in the Texas case.  4) The judge erred by failing to realize that “conspiracy” is not a sufficient crime to allow massive discovery on the John Doe Defendants, and 5) Magistrate Judge Kay was not the proper judge to accept this case — according to DC’s own local rules (Local Rule 40.5), the case should have been immediately reassigned to Judge Robert Wilkins, the judge who was previously assigned to the MILLENNIUM TGA I case, since MILLENNIUM TGA I and MILLENNIUM TGA II had identical claims.  As of this evening, I am still waiting to hear a ruling on this appeal.

Now for those of you still in Prenda Law Inc.’s MILLENNIUM TGA II (Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501)) case here in the U.S. District Court for the Southern District of Texas, if you are a Comcast subscriber, as you can see, there are unresolved questions in the MILLENNIUM TGA III DC case, and your status is uncertain.  Thus, my contribution to the FORUM SHOPPING article by DieTrollDie today is that the DC MILLENNIUM TGA III case holds the key to understanding what is currently going on in the MILLENNIUM TGA II case here in Texas.  Now as for everyone else (e.g., non-Comcast clients who are in the MILLENNIUM TGA II Texas case), understand now that the MILLENNIUM TGA III [motion to compel] DC case directly impacts your Texas case.  Obviously this is something we are watching for our clients.

If you are interested in reading this entertaining appeal by Comcast in order to understand the entire story and its implications, I have attached a copy of Comcast’s motion below.

View this document on Scribd

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New Arizona Rule: You are only properly joined with those you upload to or download from.

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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New York Judge consolidates and freezes SMALLER BITTORRENT CASES for plaintiff attorney.

Within the same breath of learning that Copyright Enforcement Group’s (“CEG”) attorney Mike Meier will be taking over Terik Hashmi’s Northern District of Florida bittorrent cases, in a twist of comedic tragedy for plaintiff attorney Mike Meier, I learned that FIVE of his Southern District of New York cases have been joined together, and “additional cases [perhaps all of his other bittorrent cases] may also be “deemed related” and transferred [to this judge] in the near term.” (emphasis added).

In other words, riddle me this:

Question: “How do you kill many small bittorrent cases, when each case only has just a handful of defendants?”

Answer: You BUNCH THEM TOGETHER into one case and you kill them all at the same time.

The following cases (so far) have now been joined (and are now consolidated under Case No. 1:11-cv-09705 in the U.S. District Court for the Southern District of New York):

THIRD DEGREE FILMS, INC. v. DOES 1 – 217 (1:11-cv-07564-JGK, or “11 Civ. 7564″);
DIGITAL SIN, INC. v. DOES 1 – 179 (1:11-cv-08172, or “11 Civ. 8172″);
MEDIA PRODUCTIONS, INC. v. DOES 1-55 (1:11-cv-09550, or “11 Civ. 9550″);
THIRD DEGREE FILMS, INC. v. DOES 1 – 216 (1:11-cv-09618, or “11 Civ. 9618″);
ZERO TOLERANCE ENTERTAINMENT, INC. v. DOES 1 – 56 (1:11-cv-09703, or “11 Civ. 9703″)

In District Judge Katherine B. Forrest’s order, she states:

“it is hereby ORDERED that the parties shall cease all discovery-related activity in the above-captioned cases until otherwise ordered by this Court.”

In other words, if your ISP has not yet handed out your information, I strongly suggest that you send them a copy of this order and stop them from handing out your information. If you are a defendant in this case, I would hold off until their next status conference before doing anything, which is scheduled for March 12th, 2012, 3pm.

Once again, other plaintiff attorneys should sit up and take notice.

As for Mike Meier, well, if his New York cases go bust, at least he now has Terik Hashmi’s cases to fight in Florida. At least they are merged together under Case No. 4:11-cv-00570 (FLND) and are under an order to show cause by March 9, 2012 why they should not be dismissed. With Mike Meier taking over Terik’s cases and a letter to the court throwing Terik under the bus, perhaps those Florida cases may survive.

In the meantime, it looks like Lady Justice has a sense of humor. Perhaps Mike’s cases got “infected” as soon as he agreed to take over Terik’s FL cases. At the very least, it’s poetic justice.

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Florida Judge consolidates and freezes ALL SMALLER BITTORRENT CASES for plaintiff attorney.

*I AM POSTING THIS ENTRY UNEDITED BECAUSE OF THE IMPORTANCE OF ITS CONTENT. I WILL EDIT, ADD LINKS, AND WILL CLEAN UP LATER*

If you were a plaintiff attorney suing thousands of defendants, what would you do if the judge figured out that you were not allowed to practice law?

Terik Hashmi, owner of the Transnational Law Group, LLC just received a note from U.S. District Judge Robert Hinkle essentially freezing each and every one of his 28 cases filed against John Doe Defendants, at first glance because he was not licensed to practice law in the state where he lives.

In short, in order for an attorney to gain admission to practice as an attorney in a federal court, the court requires that you be licensed to practice law and be in good standing in the state in which you are licensed. Without delving too deeply into this, on Terik Hashmi’s letterhead, it says, “PRACTICE LIMITED TO FEDERAL COPYRIGHT PROTECTION AND ENFORCEMENT LAW,” which essentially says, “I’m not licensed in this state and this state’s bar, but I’m not practicing any state law,” which is usually a way out of being charged with the unauthorized practice of law (“UPL”), or practicing law without a license.

Looking a bit deeper, when Terik signs his name, he signs it as “Terik Hashmi, JD, LLM (OH, FL/ND)” suggesting that he is licensed in the State of Ohio and in the U.S. District Court for the Northern District of Florida (the court that issued this ruling).

Taking a look at the Ohio Bar’s website he appears to be licensed as an attorney and in good standing. Apparently he was sanctioned three (3) times during the years 2000-2001, 2002-2003, and 2004-2005 for failing to comply with the continuing legal education (“CLE”) requirements [he just had to pay fines for this], but other than these, I see nothing that indicates that he is not licensed as an attorney in Ohio.

The problem is that it would NOT be the unauthorized practice of law if he lived in ANOTHER STATE and he was filing cases in the Northern District of Florida Federal Court as he has been. However, because Mr. Hashmi RESIDES IN the State of Florida (meaning he appears to be running his law practice while being in the physical borders of Florida — hence the “limited to federal practice” notation on his letterhead), the judge is suggesting that he is in violation of the Florida State Bar unauthorized practice of law statutes (and probably as a result will be in violation of his Ohio state bar’s ethics rules as well).

For this reason, all of his 28 cases [for the time being] have been merged into Case No. 4:11-cv-00570 and are FROZEN. Lastly, quoting from the judge’s order, “Mr. Hashmi must show cause by March 9, 2012, why these cases should not be dismissed on the ground that he has no authority to practice law in Florida or in this court.”

What this means to you is that as things stand, “…Mr. Hashmi must not attempt to settle any of these cases, must not accept any payment in settlement of any of these cases, and must not take any other action in any of these cases.” In other words, for the time being, Terik Hashmi’s cases (listed below) are DEAD.

THIRD DEGREE FILMS, INC. v. DOES 1-259 (Case No. 4:11-cv-00570)
THIRD DEGREE FILMS, INC. v. DOES 1-375 (Case No. 4:11-cv-00572)
DIGITAL SIN, INC. v. DOES 1-208 (Case No. 4:11-cv-00583)
DIGITAL SIN, INC. v. DOES 1-145 (Case No. 4:11-cv-00584)
DIGITAL SIN, INC. v. DOES 1-167 (Case No. 4:11-cv-00586)
NEXT PHASE DISTRIBUTION, INC. v. DOES 1-126 (Case No. 4:12-cv-00006)
PATRICK COLLINS, INC. v. DOES 1-85 (Case No. 4:12-cv-00007)
ZERO TOLERANCE ENTERTAINMENT, INC. v. DOES 1-52 (Case No. 4:12-cv-00008)
MEDIA PRODUCTS, INC. v. DOES 1-34 (Case No. 4:12-cv-00024)
SBO PICTURES, INC. v. DOES 1-92 (Case No. 4:12-cv-00025)
SBO PICTURES, INC. v. DOES 1-97 (Case No. 4:12-cv-00026)
METRO INTERACTIVE, LLC v. DOES 1-56 (Case No. 4:12-cv-00043)
EVASIVE ANGLES ENTERTAINMENT v. DOES 1-97 (Case No. 1:11-cv-00241)
ELEGANT ANGEL, INC. v. DOES 1-87 (Case No. 1:11-cv-00243)
ELEGANT ANGEL, INC. v. DOES 1-115 (Case No. 1:11-cv-00245)
ELEGANT ANGEL, INC. v. DOES 1-85 (Case No. 1:11-cv-00246)
ELEGANT ANGEL, INC. v. DOES 1-77 (Case No. 1:11-cv-00247)
MEDIA PRODUCTS, INC. v. DOES 1-175 (Case No. 1:11-cv-00248)
DIGITAL SIN, INC. v. DOES 1-150 (Case No. 1:11-cv-00280)
DIGITAL SIN, INC. v. DOES 1-131 (Case No. 1:11-cv-00281)
EXQUISITE MULTIMEDIA, INC. v. DOES 1-178 (Case No. 1:12-cv-00002)
MEDIA PRODUCTS, INC. v. DOES 1-43 (Case No. 1:12-cv-00003)
NEXT PHASE DISTRIBUTION, INC. v. DOES 1-93 (Case No. 1:12-cv-00004)
PATRICK COLLINS, INC. v. DOES 1-159 (Case No. 1:12-cv-00018)
THIRD DEGREE FILMS, INC. v. DOES 1-195 (Case No. 1:12-cv-00019)
MEDIA PRODUCTS, INC. v. DOES 1-168 (Case No. 1:12-cv-00020)
SBO PICTURES, INC. v. DOES 1-98 (Case No. 1:12-cv-00021)

On a personal note, do I really think this is the end of these cases? No, and this is merely because I am still floored that these cases are still around almost TWO YEARS no after they first started to appear. Plaintiff attorneys have come and gone, but the cases still appear to continue [for the most part] unhindered by the various Judges. Obviously many of them have smartened up the the mass extortion scheme being perpetrated on now a hundred or so thousand John Doe defendants, but the fact that the “Plaintiff v. John Doe 1-25″ or “Plaintiff v. John Doe 1-250″ cases are still around in the first place suggest that the attorney generals and the U.S. attorney generals are doing ABSOLUTELY NOTHING to make these cases go away as they did with the Trevor Law Group automobile repair shop extortion scheme cases (look them up) a few years back in the Northern District of California.

Do I think Terik Hashmi is finished? Probably not. I am sure he’ll find a way to overcome this obstacle, but again, I say this only because I’m a bit dark and jaded from the fact that plaintiff attorneys still have their law licenses and are still filing lawsuits long after their cases have been shown to be what they are.

For now, we should enjoy our victory and not get overly confident that these cases cannot reappear in the near future. Congratulations to all.

Most importantly, THIS IS THE FIRST TIME A JUDGE HAS TAKEN DOWN ALL OF THE SMALLER “JOHN DOE” LAWSUITS AT ONCE. Other plaintiff attorneys should sit up and take notice.

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What to do about these smaller Doe bittorrent cases?

The bittorrent cases are speeding up, both in number of cases filed, and in the issues relating to the cases. Judges are smartening up to what is going on, and I am seeing the smaller “Does 1-23” cases ripped to shreds in the courts. But, because they are so small, the activities in each case are falling below the radar.

These smaller cases are now filed in the multiple courts across the country — the correct courts — with the John Doe Defendants often living in the states in which they are sued. Thus, there are no more motion to quash issues, and there are no more “wrong jurisdiction” arguments.

However, while NEARLY ALL the smaller lawsuits still have “improper joinder” issues (meaning, suing Does together in the same lawsuit who did not participate in the same swarm; thus, they did not take part in the same transaction at the same time), THE CASES ARE SIMPLY NOT GOING TO TRIAL and thus defendants are not getting the chance to contest improper joinder.

The problem with these smaller cases is that 1) the settlement amounts are elevated, and 2) the risk of being named as a defendant goes through the roof because all that is required to name defendants in these smaller cases is that the plaintiff merely needs to amend the complaint against a particular Doe (thus the case will change from Patrick Collins, Inc. v. Does 1-30 to Patrick Collins v. “Elliot Hendel” and Does 1-29 [this name is merely fictitious]), and then someone comes knocking at Elliot’s home and serves him a copy of the complaint. At that point if he has not already done so [and he should have hired an attorney immediately upon having notice from his ISP that he was one of the Does in this case], he has to hire an attorney to respond within 20 days with his answer and his counterclaims, or he will default (which means the court can enter a default judgment against him for the full $150,000).

However, the BIG SECRET is that for the most part, these defendants do NOT get named as defendants, and they remain anonymous as far as what is visible from the court’s eyes. Instead, the plaintiff attorneys scare the b’jeebies out of them and cause them in some cases to sign [in many cases] an “I’m guilty, I’m sorry, I’ll never do it again” settlement agreement. The end result is that they end up paying significantly more than they would have if they merely called an attorney and had that attorney negotiate on their behalf. To make matters worse, defendants do not realize that there are really three-tiers of settlement prices (not two) — 1) the plaintiff attorney’s asking price (the “pay us $X by this date or else we’ll name you as a defendant in this case” amount), 2) defendant-negotiated price, and 3) attorney-negotiated price.

When the defendant tries to negotiate his settlement on his own, the likelihood is that he will probably say something incriminating about his case. (For example, not knowing the case law, he may say, “it wasn’t me; it was probably my son — he uses the internet all the time; I keep telling him not to watch that porn,” or “I let my neighbor / son / guest / roommate use my internet,” or “I didn’t realize it was illegal to download — I thought it was only illegal to upload!” etc.) The result is that the plaintiff says, “thank you for telling me you are guilty; the offer is now off the table and I will see you in court <click>,” only to call back shortly afterwards and, in the graces of his heart, he will offer a new settlement amount which is nearly double the asking price of the original settlement amount.

It is not only important to have an attorney negotiate your settlement amount 1) because he can, and 2) he won’t incriminate you while you would likely incriminate yourself, but also, the attorney knows the case law [which is not so obvious], and he knows what to put into a settlement agreement so that the settling defendant does not later get sued for the same claim, attorney fees, etc. It kills me to see so many people turn around and try to settle on their own without reading what they are agreeing to. What burns me more is when attorneys don’t read the contracts they have their clients agree to.

…In short, the plaintiff attorney mops up the floor with the defendants, and many of the defendants (if not most of them) turn over and lay dead while they capitulate and settle their cases. Had they lawyered-up, they would have known how to protect themselves. Better yet, their lawyer would have stepped in their shoes and the plaintiff attorneys would not have even been allowed to contact the defendants in the first place. No letters, no scare tactics; no threats.

Everything being said, one thing that most don’t even bother to find out is who exactly their plaintiff attorneys are. In more cases than not, the plaintiff attorney is merely a guy in a room with a laptop and a phone. Sometimes there is a second lawyer guy in the room making phone calls scaring the defendants into settling — a two-man show. …Do you really think this one or two-man show actually has the ability to sue more than just a few defendants, and if you defendants lawyered-up, do you think the plaintiff attorneys would have the time to name each and every one of you? AND if they named each and every one of you (which is literally impossible because to serve each one of you with service of process would be nearly impossible to track and there are bound to be significant errors), do you think they would have time to respond to each and every one our discovery requests?

As your attorney, when I defend you, I have a duty to properly protect your interests. That means that us attorneys must establish evidence that calls into question their so-called experts’ methods in collecting IP addresses (see here for just a taste). We need to call into question their methods of suing multiple Does in one lawsuit. We need to fight them procedurally with motions to dismiss, motions for summary judgement, and in some cases, motions for sanctions.

Do you think that the one-man show attorney and their underlying plaintiff (too often, the porn production company) can handle the hours of deposition time that EACH OF YOU DEFENDANT would be entitled to? What about their so-called experts? Do you think they have the time to answer all our in-person depositions for each defendant? What about our interrogatories? What about our other discovery motions? Do you really think the one-man show — the attorney guy in the room with a laptop — has the time to spend going after each one of you when he can instead go after the unrepresented defendants who roll over and settle their cases?

To make these cases merely insulting, these plaintiff attorneys have been hiring no-name local-counsel attorneys to file their cases on their behalf (no disrespect to any of them; I understand they are doing it solely so that they can make a commission off of those who settle). As far as I understand, the local counsel often know absolutely NOTHING about these cases, but they talk a big game and then sheepishly refer you to someone else — an “in-house” negotiator, or the attorney behind the curtain — so that they can “close” the deal for them and scare you into settling. If you actually had us attorneys defend your cases rather than merely have us settle them, do you really think the BIG-8 ATTORNEYS (listed below) would have the time and the patience to babysit these local counsel when they ask for assistance after we file our own motions for discovery?

Thus, a client in these smaller Does 1-20 (or 1-50, or 1-80) cases does not need to settle, especially if they do not live in the jurisdiction in which they are sued. This is true regardless of whether the plaintiff attorney is Dunlap Grubb & Weaver (Nicholas Kurtz or Ellis Bennett), Steele Hansmeier (John Steele or Mark Lutz), Gill Sperlein, Ira Siegel, Keith Lipscomb, or even Marc Randazza.

We do know how to defend these smaller cases.

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Judge rules that it is improper to sue bittorrent swarms in the same lawsuit.

There is an interesting case coming out of the U.S. District Court for the Northern District of California — the court where most of John Steele’s newer and smaller Does 1-40 cases are showing up. In severing and dismissing all defendants (except Doe #1) in the Pacific Century International Ltd., v. Does 1-101 (4:11-cv-02533-DMR) case, Judge Donna Ryu held that it is improper to sue bittorrent users from different swarms in the same copyright infringement lawsuit, even if they all downloaded the same copyrighted work (e.g., the same movie).

In her decision, Judge Ryu made the distinction that each swarm has bittorrent users downloading a particular .torrent file, but the files themselves might not be similar enough for the plaintiff to join together all of the John Doe Defendants from the various swarms into one lawsuit claiming that all the John Doe Defendants downloaded “the same copyrighted work”.

For example, in one swarm, bittorrent users might download a low quality version of a pirated movie (e.g., perhaps from a “CAM” — an individual who takes a camrecorder into a theater and video tapes the film). Similarly, the bittorrent users of another swarm might be downloading a higher quality version of that same pirated movie, (e.g., a leaked high DVD quality version of a movie shared with movie screeners).

While each of these users who download copies of the copyrighted work — whether low quality or high quality — would likely be found guilty of copyright infringement [should any of the plaintiff attorneys decide to take these cases to trial rather sending out "scare" letters, making threatening phone calls, and in some cases naming defendants for the sole purpose of eliciting settlements], Judge Ryu ruled that it is improper to join the first swarm of bittorrent users (e.g., the low quality film downloaders) with the second swarm of bittorrent users (e.g., those downloading the leaked DVD version of that same work) BECAUSE the first swarm of downloaders WOULD NEVER INTERACT with the second swarm of downloaders. Thus, plaintiffs who join the John Doe Defendants of multiple swarms into one lawsuit claiming that each defendant necessarily participated in the SAME TRANSACTION OR OCCURRENCE is a faulty argument. Swarm #1 will never take part in the same transaction or occurrence as Swarm #2, and thus the judge ruled that it is improper to join defendants of the two swarms into one lawsuit.

This ruling flies in the face of almost every plaintiff attorney’s claim that each John Doe Defendant is properly joined with all the other defendants in that same lawsuit. Moving forward, should judges in other cases and in other jurisdictions adopt this judge’s opinion, following this opinion, the rule would be “ALL LAWSUITS THAT SUE DEFENDANTS OF DIFFERENT BITTORRENT SWARMS IN THE SAME LAWSUIT SHOULD BE SEVERED AND DISMISSED.”

How does this change the playing field? As we already know, John Steele, Ira Siegel, and the other plaintiff attorneys have already started suing smaller numbers of John Doe Defendants. Seeing a “Plaintiff v. Does 1-40″ or “Plaintiff v. Does 1-60″ (or even smaller) has become commonplace in bittorrent lawsuits. However, these smaller lawsuits have been made smaller in order to 1) fix the inherent issues of jurisdiction (e.g., suing defendants in the wrong court), and 2) to keep the case under the radar of the judges (after all, a lawsuit suing fifty defendants (Does 1-50) will incur far less attention than a lawsuit suing five thousand defendants (Does 1-5,000). Thus, in the new trend of these lawsuits, California defendants are now being sued in the California courts, Illinois defendants are being sued in the Illinois courts, and so on. Until the plaintiff attorneys begin suing defendants swarm-by-swarm (where a swarm is merely a snapshot of users uploading and downloading at a particular time), these smaller lawsuits also suffer the inherent flaw of “improper joinder,” and thus in time, they too will be severed and dismissed.

As a disclaimer, obviously this case is still alive as to John Doe #1 who remains a defendant in the case. In addition, there have been additional filings where the plaintiff attorney appears to be trying to convince the judge to change her mind on this matter.

I have attached a copy of the order below for your viewing and reading pleasure.

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How Judge Beryll Howell’s Decision Affects “John Doe” Defendants.

Over the past few days, as a response to last weeks article where plaintiff attorneys Dunlap, Grubb & Weaver dumped thousands of defendants, Judge Beryl Howell wrote a memorandum indicating which issues the US District Court for the District of Columbia court will hear, and which they will not. In short, as the various articles describe (see here, and here), the judge has opined that any arguments of jurisdiction, joinder, or first amendment defenses are not relevant until a John Doe defendant is named as a defendant in the case.

For the most part, when reading this 42 page memo, I was unimpressed. Her motivations and proclivities in favor of the plaintiff copyright holders were apparent, but her opinion was unmoving. I shrugged my shoulders and thought to myself that this was not a controversial opinion. It wasn’t until I started reading the forums in ArsTechnica.com that the users realized that the judge had some serious bias issues. Some were even of the opinion that the judge should not have heard the case in the first place because of conflicts of interest and violations of rules of recusal.

As for her opinion, plaintiff attorneys and courts for months now have been holding that a defendant does not have standing to contest jurisdiction (e.g., “Dear Court, I was sued in the District of Columbia. I live in New York. Court has no personal jurisdiction.”) until they are named in the lawsuit (e.g., John Doe #123 -> Real Name Defendant). This is the reason defendants have been unsuccessful in filing motions to quash the various subpoenas issues by the courts against the internet service providers ordering them to surrender over their subscribers’ information.

The change in this Judge’s opinion was that while many cases (e.g., the various Larry Flynt Productions cases and the Far Cry lawsuits, just to name a few) over the previous months have been severed and dismissed because of improper joinder issues (e.g., one accused defendant downloading a copyrighted file on Monday should not be joined in a lawsuit with a defendant he does not know who downloaded that same copyrighted file on a Wednesday, or “subsequent acts of copyright infringement by unrelated defendants are not sufficient to justify the joining of the defendants together in one John Doe lawsuit.”), here Judge Howell has stated that she will not even entertain a misjoinder argument from a defendant until that defendant is named as a defendant in the lawsuit.

In my opinion, the court is simply ‘kicking the can down the road’ for matters of simplicity. This opinion was nothing fantastic, and it did not affect our clients because none of them have been named in any of these lawsuits.

However, as a result of Judge Howell’s decision, articles on TorrentFreak (“BitTorrent Case Judge Is a Former RIAA Lobbyist and Pirate Chaser“) and ArsTechnica.com (“RIAA lobbyist becomes federal judge, rules on file-sharing cases“) have surfaced pointing out obvious ethical issues regarding her even sitting on the bench for these cases given her past intimate connection with copyright lobbying groups, including past employers, conflicts of interest, issues of bias, and issues of recusal which have raised a flare of users’ objections to her adjudicating these cases.

As far as my clients need to worry, this is simply an opinion by a judge (biased or not) giving the plaintiffs free reign to go after John Doe defendants and to continue to solicit exorbitant settlement fees in the amount of thousands of dollars all while the plaintiff attorneys continue to tell the judges that they are conducting “discovery.” The issues have not changed, and there is no new law with this opinion. For my clients who are defendants in these cases, this opinion simply means that the court will likely not sever the case on its own as it did in the Far Cry case, but rather, it will wait until the plaintiff attorneys begin naming defendants before they consider whether the defendants are properly joined together with the thousands of other defendants.

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