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Archive for the ‘Virginia (VA)’ Category

Because the “ME2 Productions, Inc.” copyright infringement lawsuits appear to be the ‘third leg’ to the “September Productions, Inc.” (leg 1) and the “Cell Film Holdings, LLC” (leg 2) lawsuits, I felt compelled to write something about it.

This third leg of cases, each of which have been filed by Josh Wyde and Gary Fischman consist of four cases (and counting), each filed here in the TX Southern District Court. ME2 Productions, Inc. itself [through their local counsel across the US] has filed 112 cases so far, and each case appears to be following the same template. There are 10-20 John Doe Defendants per case, and the cases are spaced apart when filed, hoping that no proactive judge receives and consolidates all of the cases in one federal district (this has not yet happened in Texas).

ME2 CASES ARE STILL IN THEIR INFANCY IN TEXAS.

In Texas, the ME2 cases are still in their infancy, and all that has happened is that judges have rubber stamped what are called “expedited discovery” requests to allow the plaintiff attorneys to force the ISP(s) to send subpoenas to the account holders of those IP addresses where unlawful downloading is claimed to have happened.

As of writing this message, the Comcast / XFinity ISP has received three subpoenas, and has sent letters to the accused account holders (the “John Doe Defendants”) indicating that they should file an objection to the subpoena with the court before the ISP is forced to hand out the subscriber information to the plaintiff attorney.

As of now, there are three known ‘deadlines’ to file an objection (e.g., motion to quash) with the court — 3/2, 3/16 and 3/20 — corresponding to three of the four cases so far filed in Texas. I’ll update this article with the fourth date as soon as I get it.

WHAT MOVIE IS BEHIND THE ME2 CASES? AND, HOW DO THEY RELATE TO THE OTHER BITTORRENT CASES RECENTLY FILED?

More generally, ME2 Productions, Inc. is suing for copyright infringement based on the the illegal download of the Mechanic: Resurrection movie, starring Jason Statham and Jessica Alba. (NOTE: If you are considering downloading any of the Transporter movies also with Jason Statham, I wouldn’t be surprised if we see lawsuits from the production companies for those movies as well in the near future based on a trend I’ve noticed in the past. Also be on the lookout for lawsuits for the ‘Transporter’ movies as well for this same reason).

Based on my conversations with the plaintiff attorneys who are attempting to sue downloaders of the Mechanic: Resurrection title, I understand that a number of those implicated in these lawsuits may have also been implicated in the September Productions, Inc. v. Does lawsuits for the download of the Septembers of Shiraz video and possibly also the Cell Film Holdings, LLC v. Does lawsuit for the download of the “The Cell” video. For some reason, these three videos appear to be a trio, perhaps because they were shared on the piracy websites or Popcorn Time software platforms at the same time, or that there is some ‘contractual’ connection between the three movies (e.g., perhaps Voltage Pictures has signed an agreement with each of the three copyright holders giving Voltage a right to take on the movie production’s company name as they did with Dallas Buyers Club, LLC, to act and to sue on their behalf in order to ‘monetize’ and enforce the copyright rights those productions companies have from the creation of the copyrighted films).

I wrote this last paragraph very quickly, without much explanation. Do you even care if the company suing you is really Voltage Pictures, Inc. who has contacted the movie companies and said, “sign a contract with me — I’ll sue in your name and get lots of settlement money for you”? Bottom line, you are implicated as a John Doe Defendant in what looks to be a copyright troll lawsuit, Comcast is about to hand over your information to plaintiff attorneys Joshua Wyde and Gary Fischman, and you are staring down the barrel of a $150,000 copyright infringement for clicking and possibly watching a movie that may not have been any good.

WHY THESE CASES ARE BOTH SIMILAR AND SLIGHTLY DIFFERENT FROM CONVENTIONAL COPYRIGHT TROLL CASES.

In sum, whether this lawsuit indeed falls under “copyright troll” status or not, the plaintiff attorneys have taken great strides to mask the true nature of this lawsuit, namely, that this lawsuit will likely not go to trial for any of the defendants, because it is not economically profitable for the copyright holder (or Voltage Pictures, if this is the case) to spend the money to chase some student in Houston, TX and force a $150,000 judgment on them that the student will never and could never pay. Yet based on the documents I have seen these attorneys file in the court (sometimes even quoting this blog), they seem to want to litigate.

Whether they are paid hourly by their copyright holder clients (the production companies) or whether the simply take a commission based on a percentage of the settlement amount they elicit from the defendants (my gut feeling is that they are actually being paid hourly by their clients which gives them an incentive to spend more time filing documents in the court) they do spend significant amounts of time drafting motions, and they do spend the money to name and serve defendants, and they DO fight the case *as if* they were taking each John Doe Defendant to trial. Whether this is because they are trying to overcome the bias the federal judges in Texas have against the pornography bittorrent cases which wasted the past seven years of the court’s time or because they are trying to prove the legitimacy of bittorrent based copyright infringement lawsuits, bottom line, they are fighting these cases differently from the way other plaintiff attorneys have fought them in recent years.

So here is the solution. If you did not download the Mechanic: Resurrection movie, then fight back. Hire an attorney (me, or any other attorney) to fight your case. If you did the download, well, there are also solutions found with an attorney, but you knew this already, and it will require both sides to be reasonable to come to an amicable solution.

I did not mention this before, so I am mentioning this here since it is relevant — it is not profitable for a movie company to bring a copyright infringement lawsuit to trial. This gives us on the defense side leverage to either come to an amicable solution, or to fight back and force them to dismiss. The plaintiff attorneys Josh Wyde and Gary Fischman will fight back, but facts are facts, and justice is for the most part blind. If they cannot prove that it is more likely than not that you were the downloader of the copyrighted movie, then they cannot find you guilty for copyright infringement.

NOTE: An unintended consequence of fighting back from a purely academic perspective is that doing so forces the copyright holders to focus their set of John Doe Defendants to those downloaders to whom they can prove did the download, because each ‘misfire’ (meaning, each John Doe Defendant who did not do the download and who fights back) costs the copyright holder severely, and we have said for years that this would be the demise of the ‘copyright troll’ model if they sue without vetting their data as to which John Doe Defendants apparently did what and when. Make it too expensive to blindly name and serve (without vetting the John Doe Defendants first), and their model falls. However, fight back, and they will focus and limit their list of John Doe Defendants to those who subscribers (or their family members) who actually did the downloading, and this will only feed back into their cash stream by encouraging settlements to avoid being named and served, sued, and found liable for copyright infringement. It’s a messy problem.

KNOWN Texas Southern District Court ME2 Cases [Filed in 2017]:

ME2 Productions, Inc. v. DOES (Case No. 4:17-cv-00501)
Filed: Feb 15, 2017, Judge: TBA

ME2 Productions, Inc. v. Does 1-12 (Case No. 4:17-cv-00404)
Filed: Feb 09, 2017, Judge: TBA

ME2 Productions, Inc. v. DOES (Case No. 4:17-cv-00275)
Filed: Jan 27, 2017, Judge: TBA

ME2 Productions, Inc. v. Does (Case No. 4:17-cv-00143)
Filed: Jan 17, 2017, Judge: TBA

For an analysis of the other ME2 Productions, Inc. bittorrent-based cases filed across the US, click here.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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I am happy to share that the first round of Virginia’s Malibu Media, LLC cases have gone down in flames.

As of this afternoon, I noticed that all of the Malibu Media, LLC cases in the Eastern District of Virginia received the same designation at the end of their case names, “-CMH-TRJ,” indicating that Magistrate Judge Thomas Rawles Jones, Jr. has taken over and has consolidated ALL of the Malibu Media, LLC cases in the Eastern District of Virginia. This is very similar to what happened in the Northern District of Florida with Terik Hashmi’s cases (also all dismissed as of today), and then in the Southern District of New York with Mike Meier’s cases.

In short, the best way for a judge to take down these smaller cases is to consolidate them, and then have them all stand or fall together. As of this moment, in VA they are:

Virginia Eastern District Court – David / Wayne O’Bryan of O’Bryan Law Firm
Malibu Media, LLC v. Does (Case no. 1:12-cv-00159-CMH-TRJ)
Malibu Media, LLC v. John Does 1-26 (Case no. 1:12-cv-00160-CMH-TRJ)
Malibu Media, LLC v. John Does 1-26 (Case no. 1:12-cv-00161-CMH-TRJ)
Malibu Media, LLC v. Does (Case no. 1:12-cv-00162-CMH-TRJ)
Malibu Media, LLC v. John Does 1-15 (Case no. 1:12-cv-00163-CMH-TRJ)
Malibu Media, LLC v. Does (Case no. 1:12-cv-00164-CMH-TRJ)
Malibu Media, LLC v. John Does 1-27 (Case no. 1:12-cv-00165-CMH-TRJ)
Malibu Media, LLC v. John Does 1-8 (Case no. 1:12-cv-00166-CMH-TRJ)

Here in short, these cases have fallen. The judge has indicated that all of these cases suffer from improper joinder, and thus ALL Does other than Doe #1 in each case are severed and dismissed from the case. Now there are only eight defendants in Virginia.

Of course, this is terrible news for the eight defendants, and no doubt the plaintiff attorneys will try to scare the b’jeebies out of these defendants, but really, if they are readers of this blog, they should know that the plaintiffs are still probably looking for settlements (although my guess is that they’ll try to punish these eight Doe Defendants, and these eight defendants should make any attempt to settle VERY PUBLIC AND VISIBLE so that the judge sees what they do with them [or, to them]).

On a completely separate note, this is VERY EXCITING news for all of those who have been SEVERED AND DISMISSED from their cases. I have seen some local attorneys jump into the courts naming defendants, but here, Malibu Media’s local attorney Wayne O’Bryan [in my opinion] seems to be a bit on the sluggish side. I would be floored if I started seeing him name anyone. It would simply take too much effort for him, and I’m not sure he’s that hungry to go after everyone as other local counsel would.

So in short, congratulations to the Cashman Law Firm, PLLC clients, and to all those who have been dismissed from the case. The judge’s order can be found below for your viewing enjoyment.

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There seems to be a new production company who has decided that it is a better business model for them to start suing internet users (e.g., copyright trolling) rather than selling their cheap flicks on the internet one by one. The company name is Malibu Media, LLC, and while the actual “film” allegedly downloaded probably varies from case-to-case, it appears as if “Tiffany Teenagers in Love” seems to be the primary title they are using in their lawsuits.

What surprises me is that while this is a new “troll” (using the term loosely,) the local counsel they are using suggests to me that the same entity [behind the Patrick Collins, Inc., K-Beech, Inc., NuCorp, Inc., Raw Films, Ltd., Zero Tolerance, etc. cases] is also behind this case. In other words, this is simply a new client climbing on the bandwagon looking to cash in on the ongoing mass extortion scheme. The rules, however, have not changed.

Pasted below is a list of the cases, separated by the court in which the case was filed in, and who the local counsel is. I have dealt with each one of these guys before, so as far as I am concerned, this is just one more troll to add to the list of companies who are suing defendants.  I have included the newer filings of Raw Films, Ltd. to show that these are the same attorneys.

California Central District Court – Adam M. Silverstein of Cavalluzzi & Cavalluzzi

Malibu Media LLC v. John Does 1-10 (Case no. 2:12-cv-01647)
Malibu Media LLC v. John Does 1-10 (Case no. 2:12-cv-01675)
Raw Films, Ltd. v. John Does 1-10 (Case no. 2:12-cv-01653)

Virginia Eastern District Court – David / Wayne O’Bryan of O’Bryan Law Firm

Malibu Media, LLC v. John Does 1-26 (Case no. 1:12-cv-00160)
Malibu Media, LLC v. John Does 1-26 (Case no. 1:12-cv-00161)
Malibu Media, LLC v. John Does 1-15 (Case no. 1:12-cv-00163)
Malibu Media, LLC v. John Does 1-27 (Case no. 1:12-cv-00165)
Malibu Media, LLC v. John Does 1-08 (Case no. 1:12-cv-00166)

California Southern District Court – Adam M. Silverstein of Cavalluzzi & Cavalluzzi

Malibu Media, LLC. v. John Does 1-13 (Case no. 3:12-cv-00358)
Malibu Media, LLC v. John Does 1-25 (Case no. 3:12-cv-00362)
Malibu Media, LLC. v. John Does 1-15 (Case no. 3:12-cv-00369)
Raw Films, Ltd. v. John Does 1-11 (Case no. 3:12-cv-00368)

Colorado District Court – Jason Aaron Kotzker of Kotzker Law Group

Malibu Media, LLC v. John Does 1-29 (Case no. 1:12-cv-00397)
Malibu Media, LLC v. John Does 1-16 (Case no. 1:12-cv-00399)
Malibu Media, LLC v. John Does 1-30 (Case no. 1:12-cv-00402)
Malibu Media, LLC v. John Does 1-10 (Case no. 1:12-cv-00405)
Malibu Media, LLC v. John Does 1-27 (Case no. 1:12-cv-00406)
Malibu Media, LLC v. John Does 1-18 (Case no. 1:12-cv-00407)
Malibu Media, LLC v. John Does 1-15 (Case no. 1:12-cv-00408)
Malibu Media, LLC v. John Does 1-27 (Case no. 1:12-cv-00409)

District Of Columbia District Court – Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC

Malibu Media LLC v. John Does 1-5 (Case no. 1:12-cv-00233)
Malibu Media LLC v. John Does 1-16 (Case no. 1:12-cv-00235)
Malibu Media LLC v. John Does 1-11 (Case no. 1:12-cv-00237)
Raw Films, Ltd. v. John Does 1-3 (Case no. 1:12-cv-00234)
Raw Films, Ltd. v. John Does 1-19 (Case no. 1:12-cv-00236)

Pennsylvania Eastern District Court – Christopher P. Fiore of Fiore & Barber LLC

Malibu Media LLC v. John Does 1-15 (Case no. 2:12-cv-00664)
Malibu Media LLC v. John Does 1-17 (Case no. 2:12-cv-00665)
Malibu Media LLC v. John Does 1-10 (Case no. 2:12-cv-00666)
Malibu Media LLC v. John Does 1-11 (Case no. 2:12-cv-00667)
Malibu Media LLC v. John Does 1-22 (Case no. 2:12-cv-00668)

On a personal note (obviously not legal advice, as each plaintiff above handles cases differently, and each person’s situation is different): We have seen these attorneys before in other cases. If you receive a copy of a subpoena from your ISP indicating that you have been implicated as a John Doe Defendant in any one of these cases, you’ll probably be instructed in the letter to file a motion to quash. As you know from my MANY articles on this blog, you know my opinion that such motions have been a waste of time for defendants (e.g., plaintiff attorney will claim that because you are not yet “named” as a defendant, you have no “standing” to file such a motion, etc., etc., etc.). More likely than not, you will not receive a letter from your ISP, and one of their creditor-like “bulldogs” will begin calling you and threatening to name you as a defendant unless you settled your case against them. They will make up odd numbers on the spot as to how much their “client” will settle for, but remember, these guys and gals (who often do not even sound sober and are probably sitting in a cubicle somewhere reading you a script) are not attorneys and likely do not have authority to settle your case. If you have spoken to me, you know my opinion is that 1) they shouldn’t even be calling you in the first place, and 2) you should not be discussing your case with them.

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