Copyright Troll Gets Fed; Resumes Torrent Lawsuits After Multiple Dismissals Led To A 19-Month Pause In Filings

from the well,-you've-got-to-lose-money-to-make-money...-or-something dept

Mon, Apr 27th 2015 2:46pm — Tim Cushing

OPINION AND ORDER granting in part and denying in part 20 21 the Motions for Default Judgment. Philip Spain and Heather Dew are permanently enjoined from infringing plaintiff's copyrighted work, as outlined in the Opinion and Order, and are ordered to destroy all copies of plaintiff's motion picture "Killer Joe," as outlined in the Opinion and Order. Plaintiff is awarded damages against Phillip Spain in the amount of $6,000 and attorneys' fees and costs in the amount of $950 and damages against Heather Dew in the amount of $6,000 and attorneys' fees and costs in the amount of $950. The Clerk is directed to enter Judgment in accordance with this Opinion and Order. Signed by Chief Judge Edmund A Sargus on 03/16/2015.

With this order, Killer Joe Nevada, LLC is back in the copyright trolling business. Its last Doe lawsuit was filed August 28, 2013. Since March 16th, it has filed eight Doe lawsuits. More are likely on their way.

Who is "Killer Joe?" It's actually a what -- an apparently well-received 2011 film that just didn't make much money. A budget of $10 million only produced $3.7 million in box office receipts. Part of this is due to director William Friedkin's refusal to recut the film to earn a more box office-friendly R rating, resulting in its release being limited to 75 theaters. Another part of this is due to the general public finding other movies to spend their money on. But according to producer Nicolas Chartier, it's piracy that's killing his box office receipts, almost single-handedly.

Hurt Locker ended up winning six Oscars, but at the same time we had 8 million illegal downloads on the movie. And I was like, "Wow, you know, we barely reimbursed the movie and we had 8 million illegal downloads." Well, if everybody had given me one dollar, that would be 8 million dollars, and the movie cost 11, so we lost 80 percent of the movie to piracy. That cannot hold.

Chartier's math is so suspect it should be held without bail. Chartier is the CEO of Voltage Pictures -- an entity more well-known for its mass copyright infringement lawsuits than the movies it produces. Killer Joe is one of Chartier's babies and his legal reps spent a great deal of 2013 trying to "recoup" its losses by suing large numbers of torrenting Does.

The action commenced on April 16, 2013, with Killer Joe Nevada, LLC filing six lawsuits "targeting" 114 Does. This pace continued for a few months before coming to a halt in late August. Here are the numbers:

April 2013 - 27 lawsuits, 824 Does
May 2013 - 23 lawsuits, 875 Does
June 2013 - No lawsuits filed
July 2013 - 6 lawsuits; 152 Does
August 2013 - 1 lawsuit; 15 Does

And then… nothing.

Killer Joe may have been suing en masse and saving on its $350 filing fees by naming multiple Does to each suit, but it wasn't seeing any return on this investment. Some judges just weren't buying it.

In the Western Tennessee District Court, a judge dismissed five of its lawsuits because it failed to serve even a single defendant out of the 95 Does it sued.

On March 19, 2014, the Court ordered Plaintiff to submit a status report informing the Court about the steps that have been taken up to this point, what additional information Plaintiff requires, and what additional steps Plaintiff needs to take before it will be ready for a Rule 16(f) conference. Plaintiff’s response to the Court’s order was due within ten (10) days of the entry of the order. Plaintiff never responded to the Court’s order. Thereafter, on April 4, 2014, the Court entered an order to show cause as to why Plaintiff’s Complaints should not be dismissed without prejudice under Federal Rule of Civil Procedure 4(m). That Rule provides that “[i]f a defendant is not served within 120 days after the complaint is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against the defendant or order that service be made within a specified time.” Plaintiff filed its Complaints one year ago yesterday, and more than 120 days since the entry of the Magistrate Judge’s order granting Plaintiff’s request for discovery. However, there is no evidence that Plaintiff has successfully served any Defendant named in any of the cases before the Court. To date, no Defendant has answered or appeared to defend, and Plaintiff has failed to take any further action against any Defendant.

In an Ohio district court, four more cases were voluntarily dismissed by Killer Joe -- again because it couldn't produce any defendants or otherwise respond to the court's order to show cause.

It also voluntarily dismissed four lawsuits (against 99 Does) in Illinois. A Georgia District Court judge ordered it to withdraw subpoenas issued to ISPs, only to find out Killer Joe had apparently decided to ignore her instructions. [Emphasis in the original. Also of note, famous troll fighter Blair Chintella was the attorney bringing this fact to the judge's attention.]

Although the correspondence and e-mails do not conclusively show that subpoenas were being sent after May 28, at the least, they strongly suggest that plaintiff has yet to contact the ISPs to inform them of the Court’s decision nullifying all subpoenas except for those directed at John Doe #1. For these reasons, the Court REMINDS the plaintiff that discovery should have been discontinued and rescinded as to all defendants who were severed and dismissed. The Court DIRECTS the plaintiff to immediately contact the ISPs in each case to rescind and withdraw previously-issued subpoena for each such defendant. Further, any information that plaintiff may have obtained through these subpoenas must be returned.

The same court also called out Killer Joe for the shady logic it deployed to justify suing Does en masse.

[P]laintiff’s own evidence illustrates the unlikelihood that many of the defendants identified in this action were online and “sharing” at the same time. For example, John Doe 2 was observed to have been in the BitTorrent swarm on April 7, 2013. (Activity Log, attached to Pl.’s Compl. [1] as Ex. A.) John Doe 10, however, was observed to be participating on January 22. (Id.) Therefore, John Doe 10 needed to stay online for over two (2) months in order to be involved in the same transaction as John Doe 2. This seems implausible at best.

But now Killer Joe is back in business. All it took was one default judgment against a few defendants it actually managed to track down before the lawsuits collapsed under their own ridiculousness. It has successfully managed to wrest $13,900 from two defendants -- out of a possible pool of 1,866.

This is "success" as defined by copyright trolls. A hit rate of .107%. Only being ~$6,000 in the hole after nearly two years of "litigation." (Based on the $350 filing fee only: 57 lawsuits at $350/per is $19,950.). The lawyers still need to be paid, which means the $6,000 net loss is likely much larger… unless the lawyers are working on a contingency basis, in which case they apparently have too much free time.

Killer Joe seems to have learned something from its previous experiences. It's now targeting one Doe per lawsuit. That won't make it more successful, as it still believes it can turn an IP address into a named defendant, but at least it won't be voluntarily or involuntarily dismissing dozens of potential defendants at a time and is less likely to be called out by judges for its questionable logic and mass filing schemes.

But all the same, trolls shouldn't be fed. And these defendants allowed it to happen, when even the most minimal of defensive efforts likely would have seen Killer Joe drop the case and quite possibly stop trying to convert torrent hashes into "lost" ticket sales.

killerjoeWINS (PDF)killerjoeWINS (Text)

Killerjoe Dismissal (PDF)Killerjoe Dismissal (Text)

Judge v Killer Joe (PDF)Judge v Killer Joe (Text)

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Filed Under: copyright, copyright troll, default judgment, heather dew, killer joe, philip spain
Companies: killer joe

26 Comments

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David, 27 Apr 2015 @ 2:59pm

Serious question
Is any of this content legitimately worth pirating? Even if you don't have a lawsuit filed against you, is it really so compelling to you? If you won't spend $10 for the DVD, is it even worth wasting 102 minutes of your time watching it?

I can understand the concept of doing it if the content is only available via piracy, but this isn't the case here.
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David, 27 Apr 2015 @ 3:05pm

Re: Serious question
Side note to my comment: By his own admission, had he allowed people to stream it for only $1, he could have made $8M. But I don't think they will understand that point.
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michael, 27 Apr 2015 @ 3:09pm

Re: Re: Serious question
That's a good point. Also, since I've never heard of this movie until just now, I'd say his marketing team really sucks.
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ED, 27 Apr 2015 @ 3:33pm

TPP, nuff said.
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jupiterkansas (profile), 27 Apr 2015 @ 3:46pm

Mr. Chartier, I saw your films Killer Joe, Dallas Buyers Club, Hurt Locker, and Don Jon. They were really great.

Unfortunately, I didn't pay you a dime for them because I got them from my local library. If this pisses you off, then please sue the U.S. Goverment for lending me their copy of your movie.

In the meantime, I hope your suing spree gets you a lot more fans.
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Anonymous Coward, 27 Apr 2015 @ 3:50pm

Re: Serious question
As with games, you can't know whether it is worth it until you've already plunked down an investment in it, and likely watched some or all of it.

In both cases, previews (or demos, for games) may reduce or enhance the number of sales made. With games, letting the players actually look at the game beforehand is well known for reducing purchases. Buyer's remorse.
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That One Guy (profile), 27 Apr 2015 @ 4:12pm

"I blew my foot off, but it's your fault I'm bleeding!"
A budget of $10 million only produced $3.7 million in box office receipts. Part of this is due to director William Friedkin's refusal to recut the film to earn a more box office-friendly R rating, resulting in its release being limited to 75 theaters.

Having the film available in only a handful of theaters, it's hardly a surprise that it barely made any money. If it's not possible for the vast majority of people to watch it, it shouldn't be surprising that not many did.

Making the matter more ridiculous, if his '8 million' number is to be believed, if even a fourth of those people would have gone to watch it had it been available to watch, they almost certainly would have made back the costs. Yet the director's stubbornness on his 'artistic vision' for the film pretty much ensured that only a handful of people would see it, tanking the possibility for it to make much money.
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sophisticatedjanedoe (profile), 27 Apr 2015 @ 4:36pm

Tim, this is a very good research and an excellent summary, yet IMO you missed one interesting development involving this "plaintiff" — Leaverson v Killer Joe Nevada appeal pending in the 8th Circuit (see DieTrollDie's post).

What's interesting about this appeal is that the Darren Griffin fraud is brought up, and this issue will hopefully get more deserved traction.

(For those who are not aware, in 2012/2013 Guardaley/Voltage filed around 200 declarations signed by some Darren Griffin, a person who most certainly never existed — on behalf of a fake "Crystal Bay Corporation." This is a Prenda grade shit...)
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Capitalist Lion Tamer (profile), 27 Apr 2015 @ 5:00pm

Re:
Should have left it to the pros. ;)
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Anon E. Mous (profile), 27 Apr 2015 @ 5:40pm

I have said this before and I will say it again :

It never has been about protection of ones copyrighted work, it is revenue generation under the guise of copyright enforcement. Plain and simple
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retrogamer (profile), 27 Apr 2015 @ 5:41pm

Re: Serious question
I don't want to get into the specifics too much, but there are certain downloading methods that allow you to automate the entire process, if you are generally a fan of a certain release group/content type (hint: the news). You have a lot of people who are just movie completests, who end up downloading more than they would ever watch. I imagine they account for a lot of this. I used download a lot of obscure horror and independent movies this way before copyright trolling ever got started, but Archive.org and file lockers have more or less made that obsolete and are risk free for *legal, public domain* content.
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That One Guy (profile), 27 Apr 2015 @ 5:42pm

Re:
If Prenda can get away with forging someone's signatures for legal documents(Cooper in their case), then as disgusting as it may seem, I just don't see a judge handing out more than some minor wrist-slaps against Voltage for their imaginary signer. That said, if they are indeed found guilty on that, and don't manage to wriggle out of it somehow, would certainly be satisfying to see them put through the wringer for it.
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retrogamer (profile), 27 Apr 2015 @ 7:14pm

Re: Re: Re: Serious question
There are a lot of restrictions on advertising NC-17 or unrated movies, that's mostly why you've never heard of it. That's where the expression "Hard R" comes from, the process of getting a film through with an R rating so it can get major distribution. The death of the grindhouses and drive-ins is the main reason you don't see X rated movies now, no one will advertise or distribute them and they just can't make money.
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ddpalmer, 28 Apr 2015 @ 12:32am

Re: "I blew my foot off, but it's your fault I'm bleeding!"
I understand your point.

But unless the pirated version is from someone recording it on their camera in a theater, the film is on DVD. Meaning it IS available for everyone to watch.
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That One Guy (profile), 28 Apr 2015 @ 6:02am

Re: Re: "I blew my foot off, but it's your fault I'm bleeding!"
To an extent perhaps. If they didn't want to cut enough of the film to drop it down to an R, that means the final rating ended up being 'higher' than that, and I don't know many major stores that will carry a movie higher than R-rated ones.

If it was available on DVD, it was likely only through direct sale, or small, niche shops, and making things worse for them, I imagine the number of people who would be willing to pay full price for a DVD copy of a movie that they've never heard of is likely fairly small.
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bureau13 (profile), 28 Apr 2015 @ 6:42am

I hate the argument that, because someone downloaded a pirated copy of a movie, they clearly would have put on pants, drove to the theater and plunked down $20 or whatever to watch it had the pirated version not been available. How does this hold water for anyone? Most certainly, the majority of those people would not have done so. The key is how to reach those people downloading it for free, but the studios are too married to the old school ways to see the answer, even though they practically stated it themselves.
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Anonymous MovieLover, 28 Apr 2015 @ 6:53am

Most people may have never heard of it, but it has already become a cult classic. However, Piracy is not one of it's big problems - it's biggest problem was graphic violence, interesting sexual innuendo, and an NC-17 rating. But it's also got Matthew McConaghey, Emile Hirsch, Juno Temple, and some of the craziest ideas about murder for hire - it's one of the funniest dark comedies of all time..just in case someone would like to actually try and check it out...:-)
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WDS (profile), 28 Apr 2015 @ 7:41am

Re: "I blew my foot off, but it's your fault I'm bleeding!"
The 8 million number was in relation to "Hurt Locker", not "Killer Joe". That doesn't change the logic of your argument, that if you don't make it available people can't watch it.
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WDS (profile), 28 Apr 2015 @ 7:50am

Re:
And I might check it out if Chartier hadn't started the speculative invoicing scheme. As it is now though, I refuse to do anything that might resemble supporting his work. Even though it will not change the amount of money he will receive, "Dallas Buyers Club" in now on (or was recently) a premium movie channel that I subscribe to, and I still won't watch it.
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WDS (profile), 28 Apr 2015 @ 8:03am

Re: Re:
Tim,

I hope your comment is merely a shout out to DTD & SJD for the work that they do, and not an actual intent to leave it to them. We need as many voices shouting about this BS as we can get.
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Capitalist Lion Tamer (profile), 28 Apr 2015 @ 8:38am

Re: Re: Re:
Just a very respectful shout out. I'm sure it's because of them that many of the documents I accessed through PACER had already been archived via RECAP. Not only are they fighting the good fight, but they're keeping others following the same trails from racking up PACER fees.
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jupiterkansas (profile), 28 Apr 2015 @ 9:46am

Re: Re: Re: "I blew my foot off, but it's your fault I'm bleeding!"
Killer Joe happened to be a popular stageplay, so there is an audience for it. The fact that stores won't sell NC-17 movies is a bigger censorship issue and I praise the (very good) director for not buckling to market pressure.

I can understand why a producer would be upset by that since the producer's job is to watch the bottom line, but blaming the director for the movie's failure, esp. since the director apparently has final say, is a crappy thing to do.
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John Fenderson (profile), 28 Apr 2015 @ 10:14am

Re: Re: Re: Re: "I blew my foot off, but it's your fault I'm bleeding!"
"The fact that stores won't sell NC-17 movies is a bigger censorship issue and I praise the (very good) director for not buckling to market pressure."

I agree completely. It's too bad that this particular movie is from Voltage, though. That means that I cannot support the director by buying.. ahem... licensing the movie.
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That Anonymous Coward (profile), 28 Apr 2015 @ 10:17am

Perhaps had they made the dreck available for $1 they could have avoided the whole piracy thing.

The law is broken & is being used to reap rewards far in excess of the nonsensical $150,000.

Had the title been available for $1 one wonders how much the piracy rate would have dropped. It will never be zero, they need to stop chasing that goal, it can not be reached. We must be honest about the real problems, stop believing the fairy tales, and remove the rewards that are fueling this cottage industry of "extortion" (find a better word for me to use, none fit).
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WDS (profile), 28 Apr 2015 @ 1:39pm

Profit Calculations
I'm not sure we can say the only income they had was from these two default judgements. On the cases where they were allowed to serve the ISP and got a response, were their any single ip dismissals that would indicate someone who settled based on the threat letters.
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WDS (profile), 28 Apr 2015 @ 1:40pm

Re: Profit Calculations
When you see their, think there.
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