Yet Another Judge Slams Copyright Trolls; Warns That Courts Should Not Be Used To 'Bludgeon' People Into Settling
from the down-they-go dept
Reminiscent of the Righthaven cases, where once judges realized what was really happening they quickly started dumping them, it seems that we're reaching the tipping point with porn companies playing the copyright trolling game as well. More and more of the attempts to seek expedited discovery are getting rejected in sternly worded rulings from judges who recognize that the sole purpose of the lawsuit isn't to go to trial, but to get expedited discovery in order to shake people down for cash. The latest such ruling in an increasingly long line comes out of the Eastern District of NY, where judge Gary Brown issued a nice smackdown on copyright trolls. The judge first notes the ridiculousness of relying on IP addresses to identify the individuals, citing a bunch of cases, before noting that an IP address simply does not indicate the "true identity" of the defendant.In sum, although the complaints state that IP addresses are assigned to “devices” and thus by discovering the individual associated with that IP address will reveal “defendants’ true identity,” this is unlikely to be the case. Most, if not all, of the IP addresses will actually reflect a wireless router or other networking device, meaning that while the ISPs will provide the name of its subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloperThere are a number of issues specific to the claims of the plaintiff, K-Beech in this case, including its failure to register the copyrights in question, and a weak attempt at lumping in a trademark claim after this came to light. However, what becomes clear pretty quickly is that the judge isn't buying any of this, and sees that it's really just an attempt to use the courts to shake people down. It starts off with the discovery request going far beyond what's necessary to take a case to trial:
However, not all the information sought is required to advance the claim. For example, in addition to names and addresses, plaintiffs seek both the home telephone numbers and email addresses of the putative John Does... information which is clearly not required to proceed with this action. In particular, obtaining the home telephone numbers seems calculated to further plaintiffs’ settlement strategies, discussed above, rather than advancing their claims by allowing them to effect service.But the larger point is that the court recognizes these kinds of copyright trolling lawsuits as "abusive litigation tactics." While the court notes that it can and should encourage settlements, it also notes that the rules say those settlements should be "just" and it's not clear that's what's happening here:
Our federal court system provides litigants with some of the finest tools available to assist in resolving disputes; the courts should not, however, permit those tools to be used as a bludgeon.The court then goes on to agree with many other courts in noting that lumping a bunch of defendants together in the same lawsuit is improper joinder, and agrees to only allow discovery on the very first IP address named in each of the lawsuits being considered.
On the whole, there isn't that much different about this ruling from a bunch of other recent rulings, but it's another one to add to the pile, and it gets clearer and clearer every day that the courts are now aware of how trolls are abusing the system, and less and less likely to allow such abuse.
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Filed Under: copyright troll, gary brown, ip address, porn, shakedown
Companies: k-beech, righthaven
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Although it is already widely covered. The advantage of Mike's long backlog of ideas manifested itself two months ago, when TechDirt avoided the embarrassment I involuntarily caused: ArsTechnica and TorrentFreak reported about similarly worded Fla judge Schumacher's order, which he did not write (and even did not read), and later vacated. When I grow up I'll also have a luxury of allowing news to breath after pulling a cork.
That time our hopes were trumped and Schumacher's order suddenly started looking too good to be true. Just two months and even better written order became a reality.
I hope to be as optimistic as Mike ("we're reaching the tipping point with porn companies playing the copyright trolling game"). I've been reporting this tipping point starting September 2011 — with judge Zimmerman's cautious order.
Thanks for linking and going a very good job of raising awareness about this legal plague, Mike.
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(Sung to the tune of Daydream Believer)
Bear up weepy team
Oh what can it mean
To a paywall believer
And a big drama queen
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1 - bob likes his porn.
2 - he is all for the law, as long as its cheap.
3 - he is all for getting money from people simply because they do not want their name attached to porn, even if they are innocent.
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Though I now hate you since every time I hear that song I will now sing those words! ;)
For that I will now make you listen to this Bob Rivers classic parody :)
http://www.youtube.com/watch?v=oCRE9qOgbug
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Security For Costs
Where I am, the courts can (and usually do) award costs against one party, which are an amount of money intended to help defray the costs of the litigation, usually awarded to the winner. So, the loser also pays part of the winner's legal bills.
Now, there's also a rule that allows you to ask for security for costs, which is money that the plaintiff has to put up up front, to pay costs if they're awarded. This is intended to prevent people who couldn't pay costs, and who have weak claims from 'shaking down' others, knowing that they're immune to ever having to pay out. Getting security for costs requires showing that it'd be hard to get costs from the plaintiff if they lost, and that the claim isn't particularly strong (a strong claim rarely will attract an order for security for costs).
So, when these copyright trolling lawsuits come to my area, I think the /first/ line of argument would not be one about improper joinder. The first line of argument should be that the plaintiff has to put up security for costs. Point to Righthaven as an example of one of these companies not paying out when required to do so. Point to the various places these tactics have been shot down. Point to rulings like this, that talk about the abusive and predatory nature of these practices.
With them asking for millions of dollars from each defendant, and thousands of defendants, the amount required as security for costs would be itself in the millions of dollars, most likely. They can't pay, the suit dies there.
Honestly, this sort of 'lawsuit as business model' is /exactly/ the sort of thing that security for costs is intended to prevent.
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They will then drag their feet to and past the legally required line to provide service, and then dismiss the case without prejudice.
They then keep working down the lists of names they acquired and threaten a lawsuit, make up claims of negligence, and basically threaten to ruin your good name... all based on an IP address.
A few Does will try to stop the release of their information, but several Judges (including a former RIAA lobbyist) have rules Does have no standing in the case to stop the release of their information, that they can file motions once they are named... they never get named.
A few trolls have stupidly pursued named parties who have enough anger to spend the money to strike back. The trolls try to drop them from the case or claim they were never apart of the case trying to ignore their own "settlement" letters and calls made to the targets, but that doesn't always work.
The first reason these cases should fall is no one can in good faith claim that an IP address capture is 100% infallible, and despite what the "expert" reports claim they can not and do not and will never identify a specific computer only an access point to the net.
Joinder is being misused to save them lots of money, $350 for 5000 names... $1,750,000 in filing fees alone to go after each doe. And when they stand to be awarded up to $150,000 each means $750,000,000 it would seem 2 million in filing fees would be a drop in the bucket... unless of course you can't actually get all 5000 people into the same court room, can't actually prove the name of the account holder is the person who allegedly violated copyright, that your copyright is actually valid (or not filed after you captured the IP addresses). This is about using the court as the muscle to make people pay up to avoid being embarrassed. This is extortion, this is not about helping the poor stolen from studios a majority of any collected fees goes to the lawfirm and their "experts". This is about making lawyers rich by any means necessary, even if it means lying.
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Copyright judgement in Australia
http://www.theaustralian.com.au/australian-it/iinet-wins-landmark-copyright-case/story-e6f rgakx-1226334090530
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