Judge Not Impressed By Reverse Class Action Attempt In Mass P2P File Sharing Case

from the fishing-expedition dept

Wed, Mar 16th 2011 3:00am — Mike Masnick

We recently wrote about an attempt by one of the growing number of mass P2P pre-settlement lawsuit lawyers, John Steele, to file a reverse of defendant class action lawsuit to try to get around the issue of misjoinder in combining a bunch of totally unrelated individuals in a single lawsuit. Typically, of course, class action lawsuits involve a class as the "plaintiff" not the defendant. It's not unheard of to have a defendant class action, but it is rare. Either way, the judge doesn't seem to be buying it. In a recent hearing the judge noted that the whole thing felt like a fishing expedition, and barred the court from issuing any subpoenas until an adversarial hearing was held. It's unclear who will represent the still anonymous "class," but hopefully the judge takes a note from another court and brings in experts like Public Citizen and the EFF.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: class action, file sharing, fishing expedition, john steele, p2p, reverse class action

44 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

JustMe (profile), 16 Mar 2011 @ 3:56am

Another win for the good guys
I think judges are realizing that these 'lawsuits' are really shakedowns.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 4:07am

Re: Another win for the good guys
i think the judges know those are shakedowns, but are giving the plaintiff the benefit of doubt, from what im reading about this case its clear that the judge is shifting the burden of proof on the plaintiff.

IMHO this is very good this should be a solid case and could be used as precedent in the future.
[ link to this | view in thread ]
xenomancer (profile), 16 Mar 2011 @ 4:32am

While I think what he is doing is reprehensible, clearly John Steele is a creative person. He just needs to detach the magnet from his moral compass and do something worthwhile with his life.
[ link to this | view in thread ]
The eejit (profile), 16 Mar 2011 @ 4:47am

Re:
Like plsy WoW.
[ link to this | view in thread ]
mike allen (profile), 16 Mar 2011 @ 4:51am

I still wonder if all "defendants" are in the courts jurisdiction. even in the same country but of course that does not matter any more. I hope John Steele has a large fine for wasting court time.
[ link to this | view in thread ]
Capitalist Lion Tamer (profile), 16 Mar 2011 @ 4:57am

P2P
One letter. One number.

How could something so small result in so many poorly formed thoughts and badly written comments?

You throw the word "lawsuit" in there and it's like somebody hosed down the comment thread with troll pheremone. I'll be back later to see how many metaphors and catchphrases are being mindlessly dry-humped to death.
[ link to this | view in thread ]
JustMe (profile), 16 Mar 2011 @ 5:12am

Re: Capitalist Lion Tamer
Hi there. Were you perhaps responding to a different thread?

There were exactly four (4) comments submitted before your post so I'd hardly call that 'so many' and I wouldn't classify that as 'hosed down.' Also, there aren't any poorly-formed thoughts or badly-written comments, except perhaps for the one posted by you.

If I'm off base here let me know, or perhaps Mike's comment response system posted this to the wrong thread (which hasn't happened for a number of years).
[ link to this | view in thread ]
Overcast (profile), 16 Mar 2011 @ 7:01am

He's not impressed because they don't pay judges like lawyers do when they bring up normal class action suits, huh?
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 7:04am

Re: Re: Capitalist Lion Tamer
.... shhhh..... wait for it....
its still early for the astroturfers to crawl out of their cage...

if we sit here quietly we might even seen the rarest of creatures... the lawyer... Steele sometimes comes down from his ivory tower and comments on these cases.

It was fun blowing him out of the water last time, and I look forward to it again.

Just sit back, and wait... I can feel the revving up their keyboards.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 7:07am

hopefully the judge takes a note from another court and brings in experts like Public Citizen and the EFF.

Two groups which seem to be content to carry the water for copyright violators.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 7:34am

Re:
or are they two groups making sure that the rights of the people are actually balanced against the demands of companies seeking to cash in without actually proving any violation of the law or real damages beyond we said so.

Its early... try harder....
[ link to this | view in thread ]
Capitalist Lion Tamer (profile), 16 Mar 2011 @ 7:37am

Re: Re: Capitalist Lion Tamer
I'll admit my second line was badly written (and unintentionally disparages the first four commenters), but the rest of it is just a glimpse into the future.

Hence the "I'll be back later..."

The barrage hasn't started yet. But I've got to believe it will.
[ link to this | view in thread ]
Capitalist Lion Tamer (profile), 16 Mar 2011 @ 7:38am

Re: Re: Re: Capitalist Lion Tamer
AC @ 7:07 am is testing the waters...

"hopefully the judge takes a note from another court and brings in experts like Public Citizen and the EFF.

Two groups which seem to be content to carry the water for copyright violators."
[ link to this | view in thread ]
Sean T Henry (profile), 16 Mar 2011 @ 7:47am

Re: Another win for the good guys
I hope so.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 7:54am

Re: Re:
Chicken and the egg problem here: You cannot legally prove violation (get a conviction or judgement against) without knowing who you are going after. ISPs work hard to shield their users, making it incredibly difficult to even get information to go forward with a lawsuit.

I actually hope the plaintiff loses this suit, because it will be just another reason why there need to be clear rules to stop end users from being able to hide behind ISPs and service providers.
[ link to this | view in thread ]
The eejit (profile), 16 Mar 2011 @ 8:08am

Re: Re: Re:
So you'd like to lose your capacity to be anonymous on Techdirt? Good to know.
[ link to this | view in thread ]
Sean T Henry (profile), 16 Mar 2011 @ 8:09am

Re: Re: Re:
I agree with you in the respect that I hope the plaintiff loses, but we only agree because you misread who the plaintiff is. The defendants are the "class" and I'm thinking that you thought they were the plaintiff.

"it will be just another reason why there need to be clear rules to stop end users from being able to hide behind ISPs and service providers."

You also have this wrong it shows why there is a need for more rules to protect users information at the ISP level.
[ link to this | view in thread ]
milrtime83 (profile), 16 Mar 2011 @ 8:26am

If they want to call it a class action lawsuit, I hope the result are about the same. Something along the lines of a $10 "reverse" gift certificate that you promise to buy services from that company and may or may not ever use.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 8:32am

Re: Re: Re:
Funny with all of the cases they have done, gotten the information for the number of convictions is... 0?

And they claim they can prove the person using an IP address is the violator, ignoring the factual evidence that this information can be spoofed easily.

Rather than take these people to court to defend their precious IP, they offer them settlements to avoid having their methods exposed to the light of day. Because they want to do you the favor of not connecting your name to porn, based merely on some numbers on a spreadsheet.

But then you probably believe that every copy destroys a physical item, that no one shares anything for free, and they are making money and should be forced to pay hundreds of thousands.

And I hope the plaintiff loses as well.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 8:51am

Re: Re: Re:
IP address is proof of nothing when it comes to actual responsibility for the act.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 8:54am

Re: Re: Re:
can any of the information ("evidence") they collect from the ISP be used to identify the infringing user?

the only thing an ISP will be able to give up is the account owner. unless there is a camera monitoring who is sitting in front of the PC, this information is useless.

there is absolutely no way to identify who committed the crime without a confession.

http://www.eff.org/deeplinks/2008/06/laser-printers-found-guilty-making-available-cri me

there are too many ways for this information to be faked/spoofed/whatever.

Why should any of this burden be on the account owner? ...An account owner that may be a 80 year old woman who doesn't even own a computer.

http://www.afterdawn.com/news/article.cfm/2006/02/05/riaa_sues_woman_that_has_no_comp uter

The industry must adapt or die.

They do not have a right to make a buck. They can only try.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 9:24am

Re: Re: Re: Re:
because the lawyers seek to create the standard that if it is your account, anything done on it is your fault no matter if it was done with your knowledge or without.

If someone steals your car and robs a bank, it is never expected that you should face charges of robbing the bank. They will investigate to make sure you truly are uninvolved, but they will not walk up and demand you repay the amount stolen from the bank to avoid being charged, mostly because they would be laughed out of court.

These lawyers want everyone to presume that every IP address is like a Social Security Number, uniquely assigned to a person for life and always points to only that person.
This is the problem with identity theft, the person victimized is left to deal with a system that assumes they did it because that number can not possibly be used by someone else.

In the case of Uwe Bolle and the rest of the stable of USCG clients, they are trying to claim losses because of downloading, not because Uwe makes horrible films no one wants to see. They see this as a golden way to make a bunch of money they feel entitled to, and turn loser of a movie into a win.

One wonders what is worse, your name associated with porn or a Uwe film. Both are pretty embarrassing.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 9:39am

Re: Re: Re: Re: Capitalist Lion Tamer
which do you recommend?
rolled up newspaper or spray bottle?
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 9:46am

Good news...

https://www.eff.org/files/filenode/openmind_v_does/openmind-amicus-filed.pdf
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 10:17am

Re: Re: Re: Re: Re: Capitalist Lion Tamer
Rattling plastic bags throws a scare into 'em sometimes.
[ link to this | view in thread ]
btr1701 (profile), 16 Mar 2011 @ 10:41am

Re: Re: Another win for the good guys
> from what im reading about this case its
> clear that the judge is shifting the burden
> of proof on the plaintiff.

Not sure what that means. The burden of proof in a civil case is *always* on the plaintiff.
[ link to this | view in thread ]
btr1701 (profile), 16 Mar 2011 @ 10:47am

Re: Re: Re:
> ISPs work hard to shield their users, making
> it incredibly difficult to even get information
> to go forward with a lawsuit.

That's how most companies behave with respect to their clients and customers. Why should Big Copy be given an end-run around confidentiality laws that no other industry has?

Oh, I forgot. Copyright! The word that trumps everything these days.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 12:08pm

Re:
There is also this case
http://archive.recapthelaw.org/ilnd/250083/

The judge is allowing discovery on ONE doe for now
[ link to this | view in thread ]
Judge Gweeto, 16 Mar 2011 @ 2:08pm

Pay me or it never happened
Unless the judges get a cut of the profits, I don't see this going anywhere. Only money can buy judges. If they're not getting paid extra, it's not worth their time.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 2:58pm

Do you really believe that all of these judges are on the take? Come on...Really?
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 8:27pm

Re: Re: Re: Re: Re: Re: Capitalist Lion Tamer
The trolls seem to have given up much to soon this time.
Maybe Steele was to busy reading the filings to get back to us today.

Oh well... it was fun eviscerating them while it lasted.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2011 @ 8:39pm

Re: Re:
Oh I hope that Doe #1 was a client of Cox, that would be so fitting. As the EFF pointed out Cox offers no service in Illinois making that court the improper venue.
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2011 @ 8:17am

So how long do the ISPs retain Ip logs?
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2011 @ 10:43am

Wow...

Listen to what Steele says

Steele, however, says that the EFF has an agenda with its role in porn BitTorrent suits that's not very transparent.

"They have a moneymaking business that is operated by attorneys, and many [porn BitTorrent] defendants end up choosing one of the attorneys involved in EFF suits," he said. "I know for a fact that one of the attorneys has lined up 40 defendants, and he is earning hand over fist in legal fees."

Link here: http://www.xbiz.com/news/legal/131798
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2011 @ 11:15am

Re: Re: Re:
Doe #1 in the Open Mind Class Action is a Verizon Online subscriber, from California.

Not sure if Verizon offers FIOS/DSL in Illinois
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2011 @ 5:32pm

Re: Re: Re: Re:
Oh please oh please oh please....
sometimes you have to hope bad things happen to bad people.
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2011 @ 5:42pm

Re:
"I have a moneymaking business that is operated by an attorney, and many [porn BitTorrent] defendants end up choosing to ignore my shakedown letters after reading about the EFF suits," he said. "I know for a fact that one of the attorneys has lined up 40 defendants, and he is earning hand over fist in legal fees, and I am terrified they will counter-sue me and I'll have to cover their legal costs for my shakedown attempts."

There I fixed it for him.

xbiz truly is amazing, they report only the sunshine and puppys version of the events and provide coverage for most of the propaganda the extortion mills churn out trying to terrify people into settling.

It is always a crazed judge stopping them after the EFF fills their head with lies to help the pirates. It never is "well my case was built with tissue paper and some elmers glue and somehow they tore through what I wanted the law to be and explained how the law really works".

Oh Mr Steele... wouldn't you rather have a nice cheating spouse case right about now instead of trying to find that 1 magic thing that ACS:Law, USCG, Stone, LMH, and the others haven't been able to find to make these cases work?
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2011 @ 3:02pm

Re:
It depends on the ISP, it varies from 6 months to 18 months, so I have heard.
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2011 @ 3:03pm

Re: Re:
He doesn't stay in one forum long does he? He has jumped from Ars to here, to Abovethelaw.
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2011 @ 7:43pm

Re: Re: Re:
No he more than likely is still looking for a forum with people just willing to accept what he says as truth and not challenge him.
[ link to this | view in thread ]
mike allen (profile), 20 Mar 2011 @ 1:25am

Re: Re: Re: Re:
surely the question here should, does a court in Illinois have jurisdiction over an alleged act in California? Being a Brit I am not sure on this one.
[ link to this | view in thread ]
Anonymous Coward, 20 Mar 2011 @ 7:26am

The answer is no it does not have jurisdiction
[ link to this | view in thread ]
Anonymous Coward, 30 Mar 2011 @ 1:08pm

Judge Stays Discovery in Openmind Case

https://www.eff.org/deeplinks/2011/03/judge-stays-discovery-openmind-v-does
[ link to this | view in thread ]
Anonymous Coward, 2 Apr 2011 @ 9:12am

http://boothsweet.com/news/another-one-bittorrents-the-dust/
[ link to this | view in thread ]