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.

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MISSION ACCOMPLISHED? New York’s Split Southern District Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

View this document on Scribd

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

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

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

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

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(UPDATED) Forum Shopping by Copyright Trolls

5/17/2012 NOTE: I want to make sure the blog continues to be a source of accurate information, and so while I have no doubt that the forum shopping I speak of in this blog happens (especially with copyright trolls filing lawsuits all over the place, sometimes implicating the same defendant in different cases (as is what happened with the Millennium TGA, Inc. Texas case), it was brought to my attention that Jason Kotzker filed cases in the Southern District of New York before receiving the adverse ruling in the Eastern District. For this reason, I am changing the blog article to reflect this fact.

I received a few inquiries in the past day or so about evidence that has surfaced that Prenda Law Inc. is involved in what is known as “forum shopping.”  Forum shopping in the context of our bittorrent cases is essentially where a plaintiff attorney (“copyright troll”) receives an adverse ruling from a judge in a particular federal district. “No problem,” the troll thinks. “There are many other federal districts in the country, some of which where the judges have not heard about our pornography bittorrent lawsuits. We’ll file there instead.” (See John Steele’s war of words with Sophisticated Jane Doe in the comments section of this article, specifically page 2.)  So the troll re-files its lawsuit, sometimes shamelessly doing a “cut and paste” job, implicating literally the same IP addresses they implicated in lawsuits they filed and dismissed in other jurisdictions. More about Prenda Law Inc. and forum shopping here.

The problem is that Prenda Law Inc. isn’t the only one doing this — many, if not all of the copyright trolls are doing the same thing, and just because “other people are doing it” doesn’t make it any more ethical.

This issue becomes relevant is when a local attorney receives an adverse ruling essentially shutting down bittorrent lawsuits in a particular jurisdiction. So far, as you know, you and we have been quite successful in educating judges as to the issues in the bittorrent cases [which has resulted in many case severances and dismissals], and the more judges learn about the copyright trolls’ tactics, the quicker they’ll shut down one or more of a plaintiff attorney’s lawsuits. The question becomes — and this is where forum shopping becomes relevant – IF A JURISDICTION SHUTS DOWN A COPYRIGHT TROLL’S CASES, IN WHICH COURT DO THEY RE-FILE THE LAWSUIT?  After all, the plaintiff attorneys are under the instructions from their clients (here, the production companies) to “sue this list of IP addresses who downloaded our stuff.”  If a court in a particular jurisdiction will no longer entertain such lawsuits — and each John Doe Defendant is potentially worth THOUSANDS OF DOLLARS IN SETTLEMENTS — where do the plaintiff attorneys sue these defendants?  Right or wrong, EVEN IF THEY SUE THEM IN THE WRONG COURT, MANY DEFENDANTS STILL WILL SETTLE.  Thus temptation for the copyright troll to “stick them into another lawsuit” is no doubt too great — “after all, who tracks this stuff?”  Hence, this is where forum shopping becomes an issue.

As just one example of a court shutting down a bittorrent case making it difficult to file in that federal court again (let’s see if I am proved wrong), it was brought to my attention yesterday that Jason Kotzker filed a handful of new cases — 8 in total — which he filed in the U.S. District Court for the SOUTHERN DISTRICT of New York (FYI, this is where Mike Meier is having trouble with his cases consolidated by Judge Forrest). These cases are:

Newly filed in the New York SOUTHERN District Court – Jason Aaron Kotzker of the Kotzker Law Group
Malibu Media, LLC v. John Does 1-11 (Case No. 7:12-cv-03810 – Judge Ramos)
Malibu Media, LLC v. John Does 1-8 (Case No. 7:12-cv-03812 – Judge Seibel)
Malibu Media, LLC v. John Does 1-16 (Case No. 7:12-cv-03818 – Judge Ramos)
Malibu Media, LLC v. John Does 1-17 (Case No. 7:12-cv-03820 – Judge Karas)
Malibu Media, LLC v. John Does 1-21 (Case No. 7:12-cv-03821 – Judge Ramos)
Malibu Media, Inc. v. John Does 1-7 (Case No. 7:12-cv-03823 – Judge Karas)

The funny part about this is if you remember my “Malibu Media, LLC – Friend of Foe? Foe.” article posted on March 23rd, 2012, you’ll immediately notice that Jason Kotzker was filing in the EASTERN DISTRICT of New York. However, no more. If you remember reading (and it does become difficult after a while to keep tabs on all of this) Sophisticated Jane Doe’s article on May 2nd, 2012 entitled, “New York judge blasts trolls’ practices, recommends banning mass bittorrent lawsuits in the district,” it should make perfect sense why Jason Kotzker is no longer filing in that court.

In all fairness, Jason wrote me and noted that he was filing in the Southern District of New York before this adverse ruling, and he is correct (I have listed a few of these cases below).  That being said, I don’t think we’ll be seeing any more filings from him in the U.S. District Court for the EASTERN District of New York any time soon, lest he file and land the same judge who hits him with sanctions for filing a frivolous lawsuit.

New York Southern District Court – Jason Aaron Kotzker of the Kotzker Law Group
Malibu Media, LLC v. John Does 1-5 (Case No. 1:12-cv-02950 – Judge Oetken)
Malibu Media, LLC v. John Does 1-5 (Case No. 1:12-cv-02951 – Judge Griesa)
Malibu Media, Inc. v. John Does 1-7 (Case No. 1:12-cv-02952 – Judge Cote)
Malibu Media, Inc. v. John Does 1-4 (Case No. 1:12-cv-02953 – Judge Crotty)
Malibu Media, Inc. v. John Does 1-5 (Case No. 1:12-cv-02954 – Judge Buchwald)
Malibu Media, Inc. v. John Does 1-4 (Case No. 1:12-cv-02955 – Judge Engelmayer)
Malibu Media, Inc. v. John Does 1-4 (Case No. 1:12-cv-02960 – Judge Buchwald)
Malibu Media, LLC v. John Does 1-4 (Case No. 1:12-cv-02961 – Unassigned)
Malibu Media, Inc. v. John Does 1-4 (Case No 1:12-cv-02962 – Judge Baer)

Looking at even this list of cases all filed in the SOUTHERN DISTRICT of New York at the same time, you have to ask yourself — why did Jason Kotzker break these cases into “John Does 1-4″ cases, when he could have easily filed the lawsuit as Malibu Media, LLC v. John Does 1-42?  Are you telling me that breaking this case into 9 SEPARATE CASES resulting in 7 SEPARATE JUDGES [whereas 2 are known to rule against copyright trolls] is not forum shopping?!?  Are you kidding me??

Here is my solution.  We have learned from past experience, judges need to be educated on the issues, and sometimes from non-parties, sometimes from us attorneys whispering into their ears, and sometimes through mainstream channels via the EFF, the ACLU, through their use of amicus briefs. For this reason, I would like to see more people sending letters to the chambers of Judge Ramos [Phone: (914) 390-4290], to the chambers of Judge Karas [Phone: (914) 390-4145], and to the chambers of Judge Seibel [Phone: (914) 390-4271] and the others letting them know exactly what is going on.  Tell them what cases have been filed, and tell them which other judges have the other cases.  Speak about jurisdiction.  Speak about joinder.  Speak about the phone calls you have received from the plaintiff attorney’s so-called “collection” agents.  Now obviously calling up and ranting won’t get you anywhere.  However, calling up each Judge’s chambers and asking for their fax number, and then sending over a well written letter to the judge can certainly get some results.

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THIRD DEGREE FILMS, INC. attorney perhaps facing a THIRD DEGREE FELONY.

With a bit of legal humor, as most of you now know, Judge Robert Hinkle of the Florida Northern District Court dismissed each and every one of Terik Hashmi’s cases today.

As we discussed back in February, Judge Hinkle consolidated and froze all of Terik Hashmi’s bittorrent cases because he learned that Terik was practicing law while residing in Florida state without having a Florida state law license.

As a result of the “order to show cause” order that the judge issued [which is generally an indication that the case is imminently about to go bust], Terik Hashmi withdrew from representing his cases, and Mike Meier conveniently took over as the attorney for the plaintiffs hoping Hashmi’s Unauthorized Practice of Law misstep would be forgotten. The judge wasn’t impressed with Meier’s explanation of why the case should not be dismissed, and Terik Hashmi wrote the court an “I’m sorry” letter, reiterating Meier’s legal points as to why the case should move forward notwithstanding Terik’s error. The judge was still not impressed, and thus he ordered that each of Terik Hashmi’s cases be immediately dismissed.

It appears as if the fact that Terik Hashmi was caught practicing law without a license once before was what sealed his fate. The last time he was caught, he signed a cease-and-desist affidavit, where he “swore that he understood that holding himself out as authorized to practice law in Florida would constitute contempt of the Florida Supreme Court and a THIRD-DEGREE FELONY.” [I couldn't help but to find some dry irony in that the attorney for Third Degree Films, Inc. might be guilty of a Third Degree Felony.]

In short, the judge could have slapped Hashmi with sanctions, and he could have made his life quite a bit more miserable than it already probably is (considering the fact that he could face felony charges for these cases).

In sum, the judge dismissed the lawsuits without prejudice, meaning that if the plaintiffs wish to re-file these lawsuits, they can do so, but they’ll have to pay the filing fees to start everything from scratch. “Under these circumstances,” the judge points out, “requiring the plaintiffs to start over and do it right is not too harsh a sanction.”

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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.

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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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Maria-Elena James, Judge vs. Ira Siegel, Troll

As many of you have no doubt read on other blogs, some of the smaller cases have gone bust, others have been given permission to move forward.  At the risk of sounding repetitive, when you see a blog entry on this site, that means that something certainly relevant and of note happened in the bittorrent litigation world.

As far as I am concerned, the former Steele | Hansmeier, PLLC (now Prenda Law Inc.) firm has started to copy the Patrick Collins, Inc. / K-Beech, Inc. business model (the Lipscomb & Eisenberg / Miami Dade / Florida State lawsuit model) of suing defendants in Florida under that state’s Bill of Discovery statutes, getting the judge there to rubber stamp their request to obtain defendants’ contact information from the ISPs (often without notice to the defendants), and then cold calling defendants and threatening to sue in that defendant’s home state unless they settle.  Ira Siegel’s firm has done the same thing with their Mike Meier attorney pretending to defend accused defendants and then switching sides only to start suing in federal courts of various states.  Dunlap Grubb & Weaver, PLLC has been quiet, naming some defendants and then subsequently dismissing them (presumptively when they settle or the court severs and dismisses their case for improperly suing defendants together in one lawsuit), and their big monster cases of last year have been widdling down into non-existence (bye bye Voltage Pictures, Inc. v. Does 1-5,000, etc.).  That means nothing, because now they are playing the same game as everyone else — sending thousands of “scare” letters telling defendants that if they do not settle, they will not only increase the settlement cost, but that they will “name” that defendant in a federal court in their home state.  While this is obviously not the topic of this blog entry, 1) please do not be gullible and give into their demands just because they have made up some arbitrary date and settlement amount, and 2) please do not be cocky as to think that you can outsmart them and take care of this matter on your own.  Both of these approaches have caused much angst for Doe defendants who later realized what they paid for was a second settlement.

The topic of this blog entry is not Ira Siegel or his Copyright Enforcement Group, but it is Judge Maria-Elena James of the US District Court for the Northern District of California.  Prior to John Steele abandoning his cases in Illinois, the judges there started to shut them down as fast as he filed them.  I would posit that the failing of Steele’s business model of suing hundreds of out-of-state defendants in one lawsuit should have been a lesson to Ira Siegel who has not been paying attention, and now his cases are in trouble.  California’s Judge Maria Elena James — once a friend to Ira and his methods, has started to turn a fierce eye of judgement towards his cases.  It is for this reason that I suspect a bunch of his cases are about to go bust.

Until 12/1/2011, all seemed to be good for Ira Siegel.  Sure he suffered a few setbacks, dismissed a few cases, but these – New Sensations, Inc. v. Does 1-1,474 (3:11-cv-02770) and Patrick Collins, Inc. v. Does 1-2590 (Case No. 3:11-cv-02766) – his milk and honey — were moving forward flawlessly… until Judge James figured out that Ira Siegel was filing suits against thousands of defendants, extorting settlement agreements, and all this without naming even one defendant in any of his cases.  This angered her, and she ordered Siegel in both cases (identical orders) to disclose to the court all the details he could about all the Doe defendants, along with why she should not dismiss the case because he has failed to name and serve defendants within the 120 day limit given to him in the Federal Rules of Civil Procedure, Rule 4(m) (the reason a number of Dunlap Grubb & Weaver, PLLC’s (“DGW”) cases went bust in DC).  Essentially, this should have served as a warning sign that his case is about to be dismissed, but instead of fighting back or dismissing a smaller group of defendants (a tactic which DGW did in the West Coast Productions, Inc. v. Does case which kept their case alive for many months), Ira kept silent.

One week later, by 12/7/2011, Judge James utilized simple and free programs known as “geolocation tools” to isolate the location of where a random sample of the putative defendants lived.  When she saw that none of them lived in California, she filed an orders in both cases questioning Ira’s “good faith” in filing this case in the first place.  She also indicated that had she known then what she knows now, she would have never given the order to allow Ira to subpoena the ISPs to determine who the John Doe Defendants were.  As a result, she ordered Ira to run the geolocation tools himself and dismiss everybody who did not live in California (coming soon).  She also ORDERED that Ira Siegel MAY NO LONGER SEND ANY SETTLEMENT DEMAND LETTERS.  Even better, to any Doe Defendants to whom he sent letters, he must send them a second letter telling them that they do not need to comply with his demand letter.  Lastly, she nullified any settlement reached on or after the date of her order.  Ira asked her to change her order, and on 12/8, she denied his request.  Thus, to those of you who received settlement letters, expect to get a second letter explaining everything that I have written here.

While the scope of this article is to discuss the recent acts by Judge James, I wanted to point out that on Friday, the Digital Rights Foundation filed an amicus brief with the court urging them that Ira Siegel not only knew about these issues (e.g., filing against Doe defendants knowing the court had no personal jurisdiction over them), but essentially that what he has done amounts to fraud upon the court.

You could end reading the article here, but if you would like to know Ira’s most recent set of acts (and this might actually make you upset) — for some time, he has been hiring local attorneys and has only now started suing John Doe defendants in states OUTSIDE of California — something in the past he never did.  In short, he is copying what Patrick Collins, Inc. has done for months now, and what John Steele (now, Prenda Law, Inc.) are now doing — that is, he is suing smaller groups of defendants in their home states, most recently with his Digital Sin v. Does cases that he is having Mike Meier file on his behalf.  I hate to make the comparison to something sinister, but you stamp him down in one court, and he spreads his tentacles out to other courts.  Obviously there is more to come.  I expect more news starting on Wednesday, 12/14 (or perhaps on the day(s) following this should the judge learn that he has not complied with her orders).

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