The music industry is now coming after internet subscribers.

NOTE: The above video (NSFW) is from 2006.  While it (and many others) were made to address the Napster lawsuit (which was a lawsuit against a COMPANY), they apply more than ever now (where the plaintiffs are suing individual bittorrent users).

Lurking in the midsts of our bittorrent lawsuits has been a silent party who has been watching everything we have been doing in the pornography lawsuits and the “B-Rated” movie cases. This silent party is the RIAA, the MPAA, and the record labels who started all of these lawsuits years before the John Steeles, the Dunlap Grubb & Weavers, and before the Mike Meiers of the world got involved, grew their copyright troll legs, and started suing John Doe groups of internet subscribers. I used to refer to the record labels as the “sleeping giants,” because their lawsuits got really quiet after they scored their million dollar judgments (now reduced) against defendants such as Jammie Thomas-Rasset and Joel Tenenbaum.

However, one case at a time, I’ve been seeing the record labels rear their ugly heads again. The record labels have now started suing John Doe Defendants in EXACTLY the same way as the copyright trolls have been for the past two years.  In a way, you could thank the porn industry for repaving the way for the music industry to prey on its fans.  The record labels appear to be using the same tactics — file for early discovery against a set of IP addresses, contact and harass the John Doe Defendants en masse, and scare each one (or their parents) into settling for thousands of dollars for each download (and unlike the John Steeles of the world, the music industry has actually have brought defendants to trial, are well funded, and have achieved million-dollar verdicts).  The threat as we have heard ad nauseam is that if the accused downloader doesn’t settle the plaintiff’s claims of copyright infringement against him or her, they will “name” them as a defendant in a copyright infringement lawsuit.

One such record label troll is “Century Media Ltd.” who is suing on behalf of their “Iced Earth” band (think  Jon Schaffer and Greg Seymour) for the download of their 2011 heavy metal album “Dystopia.”  The interesting thing about the lawsuit, however, is that Century Media has retained copyright troll Jay McDaniel of the McDaniel Law Firm in New Jersey to sue defendants, and it is unclear to me why.  Jay McDaniel runs what I call a “settlement factory,” where he spends his time fighting motions to quash in court, and while not in court, he has his staff attorneys contact defendants attempting to convince them to settle.

CASES FILED BY JAY R. MCDANIEL OFMCDANIEL LAW FIRM PC IN THE DISTRICT OF NEW JERSEY:

Century Media Ltd. v. Swarm Does 1-2,192 (Case No. 2:12-cv-03867)
Century Media Ltd. v. Swarm Does 1-944 (Case No. 2:12-cv-03868)
Century Media Ltd. v. Swarm Does 1-225 (Case No. 2:12-cv-03869)
Century Media Ltd. v. Swarm Does 1-214 (Case No. 2:12-cv-03870)
Century Media Ltd. v. Swarm Does 1-77 (Case No. 2:12-cv-03911)
Century Media Ltd. v. Swarm Does 1-3,811 (Case No. 2:12-cv-03912)

I count almost 7,500 Doe Defendants in these NJ cases alone, and more are being filed as we speak. And, as far as I can see, the plaintiff attorneys are setting the subpoena deadlines far into the future, so we will not be hearing more about these until after October 1st, 2012 (this appears to be Comcast’s deadline before they hand out subscriber information for these cases).

Now while we try our best to keep a professional tone in these cases, I think the following video properly describe the mentality of those suing defendants today:

On a personal note, while I respect the interests of the artists and the musicians who deserve to have their copyrighted media sold to willing consumers and fans at reasonable prices (and it would be nice if the record labels properly compensated the artists and musicians for their work), I choose to represent the so-called “pirates” as well (many of whom have actually downloaded what they have been accused of and would happily do so again). It is my opinion as an attorney that it is a misuse of the copyright laws to sue defendants for $150,000 per title (statutory damages for willful copyright infringement) when the actual damages suffered by the record labels and the production companies are at best a small fraction of this statutory amount.

So… Has the sleeping giant woken up from its slumber?  Will we see more?  Or is Century Media Ltd. merely an overly ambitious record label who thought it would be better for business to assault its’ fans rather than to devise ethical means to convince them to buy their music album?

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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.

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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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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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