Congratulations to the Cashman Law Firm, PLLC clients dismissed from the Century Media, Ltd. & Baseprotect UG, Ltd. NJ cases!

Congratulations to the Cashman Law Firm, PLLC clients who have been dismissed from the BASEPROTECT UG, LTD. v. JOHN DOES 1-X (Case No. 2:11-cv-03621) and the CENTURY MEDIA, LTD. v. SWARM AND JOHN DOES 1-944 (Case No. 2:12-cv-03868) cases in the U.S. District Court for the District of New Jersey.

The politics leading to the dismissal of these cases is quite simple. Each of these cases lagged on for almost TWO YEARS with little progress being made against the hundreds of John Doe Defendants implicated in the lawsuits. After 178 documents were filed with the court in the Baseprotect case (whether they be motions to dismiss defendants who have settled, motions to quash, or administrative motions and/or hearing notes), eventually the case got stale.

On 2/26, Judge Joseph Dickson issued an ORDER TO SHOW CAUSE (which is usually indicative of a soon-to-be-dead case) as to why the court should not SEVER AND DISMISS all defendants except for John Doe 1.

In other words, Judge Dickson figured out that the John Doe Defendants in this case — the alleged co-defendants of the “same” bittorrent swarm — had download dates which were spaced so far apart that it was very unlikely that each of the hundreds of defendants participated in the “same swarm and the same time.” In other words, joinder was obviously deficient and the judge was about to break apart the case into a few hundred pieces telling plaintiff attorney Jay McDaniel that he better pay the $350 filing fee for each of the John Doe Defendants and file separate actions, or else he’s dismissing everyone except for John Doe #1.  The judge set the hearing date for 4/1.

In sum, McDaniel decided to cut his losses (which if you look at just how many people settled, you would conclude that this case was very profitable for him since its original filing on 6/23/2011), and without even waiting to attend the 4/1 hearing, he dismissed the case in its entirety.

Oh, and while he was at it, he also dismissed the Century Media, Ltd. case that same day.

Once again, congratulations to all who have been dismissed from these cases.

Read Full Post »

How to make bittorrent cases go away once and for all…

I am very excited to see that judges are starting to get involved in the discussion of whether it is proper to sue tens, hundreds, or thousands of John Doe Defendants accused of downloading copyrighted films (usually pornographic in character, and using bittorrent to do so) in one lawsuit.

Just a few days ago, I wrote about Judge Beryl Howell’s opinion in D.C. where she ruled that joinder of any number of defendants in a bittorrent lawsuit is OKAY. Her reasoning centered around the fact that the defendants are unnamed, and [ignoring the mass extortion scheme that is causing many families to hand over their life's savings to the copyright trolls] that it is more “convenient” for the court to manage one lawsuit with thousands of UNNAMED Doe Defendants rather than trying to manage thousands of lawsuits with one defendant in each lawsuit.

This evening, I read an article from Sophicticated Jane Doe’s “Fight Copyright Trolls” (kudos to Raul) entitled “Judge Marrero: Pornography may not be entitled to copyright protection.“

Quite frankly, the article is not only one of the best articles I have read yet, but it teaches and describes the issues in a very methodical order and in a way that cannot be replicated in any blog post of mine, and for this reason, I highly suggest that you read 1) that article, and 2) the actual order (which is equally a good read for those interested in the topic).

My contribution is that although this order pre-dated Judge Howell’s order, it addressed the split not only in the Southern District of New York, but it also describes the issues surrounding bittorrent copyright infringement cases in which judges have been ruling inconsistently across the federal districts. It demonstrates that the issues are heating up, and that there is a need for consistent application of the joinder rules across the federal districts.

The funny part about this order is that whether or not joinder was proper in this case — “Next Phase Distribution, Inc. v. John Does 1-27” (Case No. 1:12-cv-03755-VM [or 12 Civ. 3755 for those New York attorneys who don't like federal case law nomenclature], which is being heard by Judge Marrero in the U.S. District Court for the Southern District of New York) — the SDNY Judge Marrero decided to sever and dismiss John Does 2-27 for reasons INDEPENDENT OF THE JOINDER RULES. Read on.

Here are the three reasons [independent of joinder] which Judge Marrero used to sever and dismiss the defendants:

Reason one – “it would be impossible to manage the discovery of 27 different defendants.”

Imagine seizing 27 different sets of computers and dealing with 27 different sets of discovery, where each defendant held their own depositions, interrogetories, and where each defendant answered their complaint with potentially different and incompatible defenses (e.g., it wasn’t me, it was my son, it was my neighbor; I have an open wireless connection, my wifi was hacked, etc.). It would essentially be like holding 27 different trials in one trial. For this reason, the judge decided to sever and dismiss the defendants.

Reason two – “it is conceivable that several of the John Does did not actually download the copyrighted film.”

According to Mike Meier’s own admission, “roughly 30% of names turned over by ISPs are not those who actually shared or downloaded the videos.” Now while this statement can easily be taken out of context, it points to the reasonable doubt as to whether an accused infringer is actually the one who downloaded the copyrighted film. What made me stop and stare at the screen was that I was so excited that the judge explicitly stated that “an IP address does not necessarily correlate to a particular alleged infringer because several people may access the same IP address.”

There is more to this statement than the judge realizes, and while it has application to IP addresses changing and being used by multiple infringers (specifically regarding cases where the plaintiffs track THE IP ADDRESS regardless of whether it was issued to the subscriber at the time the downloads happened), in this case, it has the simple application that the subscriber is akin to the owner of a telephone landline account, and many people come in to use their phone — the account holder is not the one that makes each and every call, and for this reason, the account holder cannot be held liable for something that someone else did on their account. Back to the case.

Reason three – “if the Motion Picture is considered obscene, it may not be eligible for copyright protection.”

I cannot state more clearly that as Raul described in his article, this certainly is a clear shot across the bow that I have been sensing in many cases for quite a while now – that pornographic films are obscene, and that they do not qualify for copyright protection.

All I could say about this is that a number of attorneys and I have discussed this issue, not in the context of whether a “cheating housewife,” a “babysitter,” or any genre is copyrightable in and of itself (see the topic of “Scènes à faire”), but in the context of simply whether an obscene film is copyrightable at all.  For a long time, it wasn’t.  Then NY and some states started to allow it, and now perhaps courts will start reconsidering the topic. For an interesting write-up on the topic, see here.

In short, judges are getting tired of these pornography lawsuits, and I am getting tired of judges granting early discovery to copyright trolls without restrictions.

For this reason, I am happy that judges are starting to smarten up, and hopefully they will all start taking my advise that if they are going to grant early discovery to the copyright trolls, 1) the contact information of the accused John Does should remain private to the copyright trolls — only the CITY AND STATE of each accused Doe Defendant should be provided; 2) if contact information is to be provided, that it be “in camera” meaning that the ISPs should produce the information NOT TO THE COPYRIGHT TROLLS, BUT TO THE COURTS (so that the extortion scheme where plaintiff attorneys scare defendants into settling), and 3) the information provided on each John Doe Defendant only be permitted to be used IN THE INSTANT CASE (and not in a subsequent case where the plaintiff attorney threatens that “unless you settle now, we will ‘name’ you in a lawsuit in your home state.”

Judge Forrest (and now Judge Marrero) has put one more spin on this which is commendable — that the identity of the accused Doe Defendant be kept anonymous on the court’s docket. While this is admirable, it is not enough because defendants don’t only settle out of embarassment for being associated with a pornography case — they settle because it is cheaper to pay the plaintiff attorneys off than it is to fight them. This is a sad and broken part of the legal system, and putting the protections I outlined above would stop the copyright trolls in their tracks and would make these cases go away once and for all.

Read Full Post »

Judge Beryl Howell CREATES A SPLIT in the DC Court.

There is a balancing act in this post as to how to make it NOT deathly boring, and how do I convey the information you need to understand what you have in front of you. Here we go.

Judge Beryl Howell once again issued a scathing opinion favoring copyright trolls and ruling against John Doe Defendants, their ISPs, the EFF, and everyone in favor of making these cases go away once and for all. However, there is a twist here in her decision, so read on.

In the AF Holdings LLC v. DOES 1-1,058 case (Case No. 1:12-cv-00048-BAH, Doc. 46) in the U.S. District Court for the District of Columbia, Judge Howell wrote a 42 page opinion essentially regurgitating all of her opinions of “judicial economy,” “personal jurisdiction,” “joinder,” whether an ISP has standing to file a MOTION TO QUASH on behalf of their subscribers’ arguments, and whether a subscriber’s MOTION TO QUASH is “ripe” for adjudication.

I want to be clear that this order is not written to the John Doe Defendants filing motions to quash, but to the ISPs who filed motions to quash on behalf of their subscribers.  To put it into context, this order is written to the ISPs telling them why they must comply with the subpoenas requesting their subscribers’ information.  However, her opinion has clear implications as to what a John Doe Defendant needs to be aware of if he decides to file a motion to quash in her court.

Restating her opinion of these cases, Judge Howell believes the following:

1) Copyright trolls have a right to sue defendants for sharing content over the bittorrent network.

PERSONAL JURISDICTION
2) “Personal jurisdiction” over a John Doe Defendant is IRRELEVANT before that defendant is “named and served” as a defendant in a lawsuit.

3) The proper place for a NAMED defendant to assert a lack of personal jurisdiction is in a responsive pleading (e.g., the “answer”) under a FRCP Rule 12(b)(2) motion.

4) A motion to quash by an unnamed defendant is NOT the proper place to assert improper jurisdiction.

JOINDER
5) “Joinder” — the question of whether the various John Doe Defendants are properly sued together (e.g., based on the “bittorrent swarm” theory) is IRRELEVANT before those defendants are “named and served” as defendants in a lawsuit.

6) Only NAMED defendants (not ISPs, not John Doe Defendants) may assert improper joinder.

7) A motion to quash by an unnamed defendant is NOT the proper place to assert improper joinder.

“JUDICIAL ECONOMY” (CONVENIENCE OF THE COURT)
8) It is more economical to deal with 1,000+ defendants in one lawsuit rather than dealing with the identical issues in 1,000 lawsuits.

Now essentially, as much as Paul Duffy, John Steele, and everyone at Prenda Law Inc. are overly excited about their wonderful order, there is not much that is new in this order that we didn’t know from Judge Howell’s previous orders.

Her breakdown of WHY MOTIONS TO QUASH DO NOT WORK, however, was astounding.

In her opinion, she states that NOWHERE IN THE FEDERAL RULES OF CIVIL PROCEDURE DOES IT SAY THAT A THIRD-PARTY MAY FILE A MOTION TO QUASH BASED ON IMPROPER JURISDICTION OR IMPROPER JOINDER.

Her words: “The plaintiff is correct that lack of personal jurisdiction and misjoinder are not delineated under Federal Rule of Civil Procedure ["FRCP" Rule] 45 as bases to quash a subpoena issued to a third-party [e.g., an ISP]. Indeed, third-parties cannot assert these defenses as a basis to dismiss the underlying action because, if either of these flaws did exist in the underlying action, they must be raised, and may be waived, by named defendants.  See FRCP Rule 12(b)(2) (lack of jurisdiction must be asserted in a responsive pleading [e.g., in the "answer"]); FRCP Rule 21 (“Misjoinder of parties is not a ground for dismissing an action…)” (emphasis added)

You can find a link to the actual order here.

MY OPINION:
This ruling is just another one of Judge Howell’s many opinions essentially saying the same thing.  The issues that inherently plague these cases (“jurisdiction,” “joinder,”) are unimportant to her, because as far as she is concerned, the copyright trolls have done everything properly according to the letter of the law.  Further, as far as she is concerned, there is no need for these smaller “John Doe 1-5″ cases that we see Lipscomb & Eisenberg filing on behalf of Malibu Media, LLC, Patrick Collins, Inc., K-Beech, Inc., and the like.  Rather, just sue hundreds or thousands IN ONE CASE in HER DC COURT and she’ll let it go on indefinitely while the copyright trolls extort thousands of dollars from each defendant.

Further, as I have said before, JUDGE HOWELL (A FORMER COPYRIGHT LOBBYIST) DOES NOT CARE IF COPYRIGHT TROLLS EXTORT MONEY FROM JOHN DOE DEFENDANTS.  She even clearly states it here:

“At this stage, the plaintiff is attempting to identify those infringing… That the plaintiff chooses, after obtaining identifying information, to pursue settlement or to drop its claims altogether is of no consequence to the Court.“

MOVING FORWARD FROM THIS CASE:
Luckily, however, Judge Howell is just one judge in one small federal court, and her opinions ARE NOT BINDING on other federal courts outside D.C.  And, even in D.C., we have a clearly an opposing opinion by Judge Wilkins, who has killed a number of bittorrent cases.  In short, Judge Howell has created a CLEAR SPLIT IN THE D.C. COURT which she has certified for interlocutory appeal.

What this means is that D.C. now has two opposing sets of case law, each which says the law is something opposite from what the other says it is.  For this reason, Judge Howell has authorized an immediate interlocutory appeal to a higher court so that these issues of jurisdiction, joinder, and the other issues discussed in the case (not discussed here) can be decided once and for all by a higher court.

Read Full Post »

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.

Read Full Post »

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.

View this document on Scribd

Read Full Post »

UPDATE 3: More of Mike Meier bittorrent cases consolidated.

*** UPDATE (3/13, 11:45am CST): I might need to backpedal a bit here. I received word from an attorney who had ears in yesterday’s hearing that Judge Forrest is not going to bust these cases as I thought she would. The reason for the consolidations is to treat them as one larger case so that the rulings in each of the cases will be consistent throughout his many cases. I am editing yesterday’s blog posts with cross-outs (example) and underlines (example) so you can see where I am changing the tone of the blog post from overly optimistic to slightly somber. I will obviously post about the judge’s order [UPDATE 3/14: HERE - see comments below for commentary] once it becomes available. ***

*** UPDATE (3/12): As we initially discussed last week, *new cases* have been handed over to Judge Forrest so that she can adjudicate the smaller bittorrent cases together. I have added them to the list below. They are not yet listed as part of the “consolidated” case list (in Case No. 1:11-cv-09705), but if you look at the case dockets for each case, the notations that Judge Forrest is now handling them should tip you off that these cases too are now in trouble are now under her scrutiny. ***

New Cases Now Handled By Judge Forrest:

Combat Zone Corp. v. Does 1-63 (Case No. 1:11-cv-09688)
Digital Sin, Inc. v. Does 1 – 179 (Case No. 1:11-cv-08172)
Media Products, Inc. v. Does 1-55 (Case No. 1:11-cv-09550)
Media Products, Inc. v. Does 1-36 (Case No. 1:12-cv-00129)
Media Products, Inc. v. Does 1-142 (Case No. 1:12-cv-01099)
Next Phase Distribution, Inc. v. Does 1-138 (Case No. 1:11-cv-09706)
Patrick Collins, Inc. v. Does 1-115 (Case No. 1:11-cv-09705)
SBO Pictures, Inc. v. Does 1-92 (Case No. 1:11-cv-07999)
SBO Pictures, Inc. v. Does 1-154 (Case No. 1:12-cv-01169)
Third Degree Films, Inc. v. Does 1-216 (Case No. 1:11-cv-09618)
Third Degree Films, Inc. v. Does 1-217 (Case No. 1:11-cv-07564)
Zero Tolerance Entertainment, Inc. v. Does 1-56 (Case No. 1:11-cv-09703)

This is obviously relatively good news for the roughly 1,200+ John Doe Defendants who can now breathe a bit more easily knowing that their plaintiff attorney’s cases are in trouble because 1) we now know that the judge is VERY aware of the MANY cases pending against the many Doe Defendants, and 2) rulings across the board will now be consistent — you will no longer have one judge letting one bittorrent case move forward, and another judge dismissing his bittorrent case for lack of joinder or improper jurisdiction. You can read about the judge’s order regarding the original consolidated cases in our “New York Judge consolidates and freezes SMALLER BITTORRENT CASES for plaintiff attorney” article. No doubt similar orders will in time be written for these additional cases.

On a related note, Judge Forrest is not the only New York District Judge who has figured out what is going on with these copyright infringement (“copyright troll”) cases.

Judge Colleen McMahon (no doubt these judges talk to each other about their cases) has issued an order in two cases (so far; response due 3/30) demanding that Mike Meier tell the court why his cases should not be dismissed due to the inherent joinder issues in his cases (e.g., how bittorrent users can be sued together under the theory that they committed the “same crime at the same time” theory [when according to the plaintiff's complaint, the bittorrent users committed the illegal act of downloading and/or seeding the copyrighted materials sometimes weeks if not months apart]).

What I enjoyed most in the order was that Judge McMahon accused Mike Meier of [essentially] CHEATING the court out of the $350 fees for each of the 138 defendants (e.g., theft from the court of $47,950) who, according to the judge’s opinion should have been sued in SEPARATE cases. In addition, she states that the “misjoinder has resulted in an undercounting of the number of cases filed in this court and a concomitant distortion of the size of the court’s docket.” To make matters laughable, in response to a request from Mike Meier regarding one of the cases, she wrote, “[u]ntil I have decided whether joinder of these 139 defendants is proper-which I very much doubt-there will be no discovery. Motion denied. Get to work on responding to any order to show cause.”

Cases involved:

Patrick Collins, Inc., d/b/a Elegant Angel v. John Does 1-139 (Case No. 1:12-cv-01098)
Media Products, Inc. v. Does 1-59 (Case No. 1:12-cv-00125)

I don’t know about you, but when a judge accuses you of stealing $47,950 from the court, wouldn’t you worry that your cases won’t win? I expect to see more of these in the coming days and weeks with his other cases. More significantly, I’d be surprised if I saw any more filings from Mike Meier in the Southern District of New York. The last thing a copyright troll wants is a judge as an enemy who aggressively goes after his cases.

Read Full Post »

West Coast Productions, Inc. Case is DEAD.

With the flick of a wrist and the power a pen, the West Coast Productions, Inc. v. Does 1-5,829 case is dead.

I don’t know whether I should be saying congratulations to the Cashman Law Firm, PLLC clients who are now dismissed from the case, whether I should be writing an obituary on what was one of the longest-lasting monster bittorrent cases, or whether I should be skeptical and cautious at such a simple and eloquent end to such a violent case.

This case had everything wrong with it. Improper joinder, improper jurisdiction, even the content it accused internet users of downloading was distasteful. “I don’t like ugly biker chicks, I’d never download their films,” a Doe Defendant once told me.

On top of everything wrong with it, this case had baggage, namely West Virginia’s West Coast Productions, Inc. lawsuits with Kenneth Ford at the helm, all of which went bust last year.

But it wasn’t jurisdiction or joinder which caused to downfall of this case; it was failing to name and serve defendants within the 120 day limits as dictated by the Federal Rules of Civil Procedure, Rule 4(m). Judge Kollar-Kotelly, realizing that the plaintiff attorneys were using the courts to extract settlement agreements, decided to implement and enforce this rule forcing the case to shut down.

The last stab to the case was a September 1st, 2011 deadline where the plaintiff attorneys were ordered to name and serve defendants, and to report to the court by the end of today who they have named and served.

I was sure that they would at least name the John Doe Defendants who lived in the District of Columbia, and they would in turn ask the court for more time. But instead, they named NOBODY. They merely packed up their bags, closed up shop, and dismissed the case.

What does this mean? Could it mean that the plaintiff attorneys do not have the resources, the time, the patience, or the energy to take clients to trial? Or, did West Coast Productions, Inc. say “enough is enough; we’ve made enough money in settlements — let’s close up shop.” It cannot be that easy.

Here is my take. Before they sue each and every one of the defendants in smaller groups in the correct courts — a tactic that Steele Hansmeier, PLLC and other plaintiff attorneys have caught onto — they had to kill the big bad monster of a case. After all, it would be bad to sue the same defendant in two cases at the same time for the same alleged act of infringement.

So for now, those of you who were defendants in this case, you are no longer defendants, and I congratulate you on your victory. I would whip out the champagne bottles and celebrate, but be very aware that there is one more West Coast Productions, Inc. v. Does case lurking in this same DC court. West Coast Productions, Inc. (1:11-cv-00055), our case’s little brother is still alive and well. While Judge Kollar-Kotelly has taken the sword to slay the extortion machine that was our West Coast Productions, Inc. case, so far, Magistrate Judge John Facciola has been merely pushing paper on the other West Coast Productions, Inc. case.  Really, nothing of substance has been going on there.

What about the letters and the phone calls you all have been receiving?  Should you ignore them?  Probably not.  For the most part, the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC have your contact information, and they plan to use it.  Expect multiple “scare” letters saying, “we plan to sue you unless you pay us $3,500 (or more) by XYZ date.”  Then expect to get additional letters for higher amounts.  As far as whether this is a bluff or not, it is best to be prudent and to watch where they are suing in order to determine where they have hired local counsel.  For example, if you are watching the copyright cases on RFC Express (
http://www.rfcexpress.com
), and you see that one of Dunlap Grubb & Weaver’s cases — whether West Coast Productions, Maverick Entertainment Group, Call of the Wild, etc. etc. — has been filed in your home court, that should be a red flag that you might be sued yourself.  Lawyering up (e.g., hiring an attorney) at this point if you have not already done so, or even proactively settling might be a wise option.  However, if you see no lawsuits of theirs in your state, my opinion is that there is no need to feed their war chest with your settlement dollars.

I have attached the dismissal letter below for your viewing pleasure. Simple. Voilà!

View this document on Scribd

Read Full Post »

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.

Read Full Post »