Some Good Court Rulings Against Copyright Trolls... And One Bad Ruling

from the trololololo dept

The EFF has some news about more judges seeing through copyright trolls misuse of the court system to try to shake people down for money. In the first ruling they mention (embedded below), the judge doesn't just say that the lumping together of so many distinct individuals was improper, but also scolds the lawyers bringing the cases for clearly abusing the system:

The Court currently has three similar cases before it, all brought by the same attorney. The suits are virtually identical in their terms, but filed on behalf of different film production companies. In all three, the plaintiffs sought, and the Court granted, expedited discovery allowing the plaintiffs to subpoena information from ISPs to identify the Doe defendants. According to some of the defendants, the plaintiffs then contacted the John Does, alerting them to this lawsuit and their potential liability. Some defendants have indicated that the plaintiff has contacted them directly with harassing telephone calls, demanding $2,900 in compensation to end the litigation. When any of the defendants have filed a motion to dismiss or sever themselves from the litigation, however, the plaintiffs have immediately voluntarily dismissed them as parties to prevent the defendants from bringing their motions before the Court for resolution.

This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants' personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does. Whenever the suggestion of a ruling on the merits of the claims appears on the horizon, the plaintiffs drop the John Doe threatening to litigate the matter in order to avoid the actual cost of litigation and an actual decision on the merits.

The plaintiffs' conduct in these cases indicates an improper purpose for the suits. In addition, the joinder of unrelated defendants does not seem to be warranted by existing law or a non-frivolous extension of existing law.

Unfortunately, not all judges have recognized this abuse of the system yet. In a new ruling in the Northern District of California, a judge ruled that its not just okay to join totally separate defendants together in such a lawsuit, but it's fine to make them "jointly and severally liable" for the damages. The full ruling is embedded below. It's a "default judgment," meaning that the two defendants didn't bother to respond to the lawsuit or show up. Thus, no one presented the other side of the story. Such things happen and not responding to a lawsuit is almost always going to lead to a default judgment and trouble. But, there's simply no reason that the court should have then taken the further step of assuming that the two parties were linked and that they should be jointly and severally liable for the damages. Unfortunately, even as a default judgment, this ruling can and will be used by lawyers to suggest that joinder is proper.

Of course, the one oddity with finding the defendants to be jointly and severally liable is that it actually could act as disincentive in a small way for these lawsuits with tons of defendants. That's because only a single damages award is being put forth. So, for example, in this case, it's $20,000. But that $20,000 is due combined from the defendants. Now, imagine a suit with... say.... 5,000 defendants, and a similar $20,000 award. Then if each paid $4 they'd satisfy the judgment. Of course, that's a really minor point, because as the first judge's ruling above notes, the folks filing these lawsuits never really want to go to court with them. They just want to pressure people into paying up.

Filed Under: copyright, copyright trolls, joinder

Yet Another Judge Says No To Mass Infringement Lawsuits

from the how's-that-working-out-for-you-beryl? dept

It's seems former RIAA lobbyist Judge Beryl Howell's recent decision that it's fine to lump together a bunch of totally unrelated copyright infringement lawsuits into a single lawsuit is increasingly looking like an outlier. Two more such lawsuits have been rejected by a court, which severed all of the defendants except one in each case, as multiple other courts have done. It's nice to see that multiple courts are rejecting this highly questionable procedure, which is clearly an attempt to abuse the court system as a part of a business model.

Filed Under: file sharing, joinder, lawsuits

Judge Says Mass Suing People For Infringement Is Perfectly Fine And Even 'Benefits' Defendants

from the uh-what? dept

While a bunch of courts have rejected attempts by various law firms and movie producers to join together thousands of totally unrelated people in charges of copyright infringement of various movies, one judge has now said that it's perfectly fine to join all those defendants together. In fact, Judge Beryl Howell directly suggests that the defendants are better off this way:

"Given the administrative burden of simply obtaining sufficient identifying information to properly name and serve alleged infringers, it is highly unlikely that the plaintiffs could protect their copyrights in a cost-effective manner. Indeed, Time Warner urges the Court to sever the defendants for this very reason. Time Warner asserts that, if joinder were disallowed, its burden of complying with subpoenas would be diminished because the plaintiffs would not be able to proceed against all of the putative defendants individually At this procedural juncture, the plaintiffs have met the requirements of permissive joinder under Rule 20(a)(2). The putative defendants are not prejudiced but likely benefited by joinder, and severance would debilitate the plaintiffs' efforts to protect their copyrighted materials and seek redress from the putative defendants who have allegedly engaged in infringing activity."

I find this reasoning to be odd, and I'm sure there will be an appeal on this point. The purpose of accurately suing individuals in the proper jurisdiction, rather than lumping together totally unrelated people, is not about what's easiest for the copyright holder. It's about basic fairness and due process. As discussed, each of the defendants may have totally different defenses. Some, surely, did infringe, and it's fine if they face the legal consequences of what they've done. Others, certainly, did not infringe. Still others may have additional defense depending on the details. Joining them all together is completely unfair to the defendants who have no actual connection. The judge doesn't seem to think it'll be a problem if each defendant presents a separate defense, but it's hard to see how that's fair to the defendants.

The judge here seems to mistakenly believe that the purpose behind these rules is to figure out what is easiest for the copyright holder. But that's simply not the case. Furthermore, the court ignores the key point: which is that these lawsuits have never been about actually suing people for copyright infringement. It's always been about abusing the court system as a part of a business model, using the threat of a lawsuit as a way to get people to pay up. It's a classic shakedown, and it's disturbing that a court would think that's a reasonable setup.

The court also rejects the jurisdictional question, even though it was pointed out that it seems quite likely most of the people being sued have no connection to the region covered by the court. The judge's reasoning here is also questionable, basically saying that since you can't be sure where the person is, it's fine to charge them all in whichever district court. This seems wrong to me, but assuming we accept it, it seems like this argument could easily be flipped. If it's true that IP addresses cannot adequately locate a user, isn't it equally true that the IP address alone does not adequately identify a user? Thus, by this judge's own argument, the IP address should not be accurate evidence for the sake of such a lawsuit.

Finally, there's an interesting discussion on the First Amendment rights of the users. To be honest, I found this claim to be pretty uncompelling in the first place. While I'm a huge supporter of the First Amendment, as well as the First Amendment's protections for privacy, that doesn't mean that you can hide behind it completely. If there is actual evidence of law breaking, then such protections no longer apply. Where I have questions is whether or not such evidence really has been presented. As mentioned above, even the judge seems to note that IP addresses are not really identifiers. Still, the ruling does get interesting in that the judge actually does state, flat out, that "file-sharing does involves aspects of expressive communication." This is interesting because in our debates about the the domain seizures, we've had critics in the comments insist this is simply not true. That said, the court does say that the First Amendment protections here are "minimal." Still, the court does recognize a key point:

Nevertheless, file-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants' anonymity by compelling the production of these defendants' identifying information.

I'm happy to see the judge get this point correct. I'm not necessarily convinced that the plaintiffs really do provide enough evidence to get over this barrier, but I think it's fair to say that if there is enough evidence, that it's reasonable to expect someone to be identified. So this part of the ruling actually does make sense to me (even if I'm not convinced that the evidence really is enough to overcome the hurdle).

No matter what, it's quite likely this case will be appealed. I'm hopeful that an appeals court will reverse on the issue of joinder, but hopefully uphold the key point that there is a First Amendment issue, and certain hurdles need to be met to remove anonymity.

Filed Under: copyright, joinder, lawsuits, pre-settlement

More Mass Porn Copyright Infringement Lawsuits Get Dumped

from the not-looking-so-good dept

In the middle of December, we wrote about a judge in West Virginia tossing out all but one of the defendants in one of the many, many "mass" copyright infringement lawsuits that were filed in 2010. The same judge has also done the same with another of the lawsuits, dropping 7,097 defendants. This one involved the movie Batman XXX: A Porn Parody, from Axel Braun Productions. When you think about it, of course, it's rather amusing that such a lawsuit was filed over this movie, since it very clearly relies on fair use to defend using Batman. To then get upset about alleged infringement of your own work is somewhat ironic. However, it appears that Axel Braun is not backing down. His response after all of those subpoenas were quashed:

"Heads will roll. I said it once, and I'll say it again, Fuck 'em all. I didn't get into this fight thinking it was going to be an easy one, but I can assure you that I am not quitting."

Well, okay, then, but you may go broke trying. Of course, as one of our commenters astutely pointed out, under the Copyright Act, filing against all of these defendants in a single lawsuit is actually a really bad idea for those suing, since the Copyright Act says that statutory damages are per work and not per infringement. Thus, if you have 7,000 defendants accused of sharing a single file in a single lawsuit, it likely would mean a single statutory damages award, split between them all.

In the meantime, in another one of these lawsuits -- again, involving a movie that relies on fair use to exist -- Time Warner Cable has refused to reveal more than 10 names per month. The lawyer, Evan Stone, who's been filing a lot of these mass lawsuits lately, is pissed off about this, but apparently the client, Larry Flynt Publishing, has decided not to push the issue, since it has separate business dealings with TWC. Of course, I also do wonder if the public campaign to request Larry Flynt reconsider these lawsuits, in the form of an open letter to Larry Flynt, had an impact as well...

Filed Under: copyright, joinder, lawsuits
Companies: axel braun productions, larry flynt publishing, time warner cable

Court Shoots Down Mass Porn Copyright Infringement Lawsuits

from the slowly-but-surely dept

Over the last 9 months or so, we've seen a whole bunch of mass copyright shakedown firms pop up -- quite frequently focusing on using claims of infringement over porn movies to try to get people to pay up to avoid being taken to court (and, more specifically, being taken to court for your porn habits). Thankfully, it looks like judges are starting to recognize the problems with these lawsuits. We've already noted that the US trailblazer for these types of lawsuits, US Copyright Group had to drop most of the defendants in a couple of its lawsuits, and it's not clear if the firm will really file the new lawsuits it's promised.

The key to making this all economical, of course, is for the shakedown factory to sue a whole bunch of defendants at once, to try to force the ISPs to hand over names as cheaply as possible. However, in a group of lawsuits filed over some porn films, a judge has said that the copyright holder improperly joined together so many defendants. Rather than dismiss the cases outright, the court has simply said that joining all the cases together in one case is improper, and narrowed the cases down to a single defendant each -- meaning that the subpoenas for the thousands of other defendants were all quashed. All of the court orders are effectively the same, so I'll just include one after the jump in this post.

However, the reasoning is pretty simple. Basically, it makes no sense to lump together hundreds or thousands of people who had nothing to do with each other, just because each of them may have done the same thing. The court notes various case law examples that say that just because a group of people all did the same thing, it does not mean you get to sue them all in the same lawsuit. Part of this is because each defendant may have a totally different defense, noting that one defendant may be an innocent parent, another might have a roommate who used his or her computer, while others may have actually infringed. Thus, it makes no sense to lump them all together. Hopefully, other courts dealing with similar lawsuits follow these rulings as an example.

Filed Under: copyright, joinder, mass filings, porn

US Copyright Group Says BitTorrent's Architecture Explains Why It's Ok To Lump 5,000 Defendants Into One Lawsuit

from the they-could-all-be-sharing! dept

US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver) is the group that famously has sued thousands of people not to actually take anyone to court, but in an attempt to find out who they are so it can send them "pre-settlement" letters, demanding payment of thousands of dollars to get them to drop a potential lawsuit. Of course, for this "business model" to work, it can't actually get involved in costly lawsuits or even go to the trouble of spending the fees involved in filing lots of separate lawsuits in the location where the defendants actually live. So it lumped them all together into a single lawsuit in DC. Lots of folks quickly pointed out that this seems to violate the law, and the judge in one of the cases has asked USCG to explain why she shouldn't dump all but one of the defendants from the suit.

THREsq is reporting on USCG's response, where it tries to defend lumping all of the defendants into one giant case through the somewhat amusing claim that, due to the way BitTorrent works, all the defendants are linked because (who knows!?!) all of the defendants may have actually shared bits of the file with each other! Seriously.

Under the BitTorrent protocol, the initial file-provider intentionally elects to share or upload a file via a BitTorrent network.... This is called "seeding." ... Other users ("peers") on the network connect to the seeder to download.... As additional peers request the same file, each additional user becomes a part of the network (or "swarm") from where the file can be downloaded, which means that such additional user's computer is connected not only to the seeder/uploader but also to other peer/downloaders.... Unlike the older P2P protocols, each new file downloader is receiving a different piece of the data from each user who has already downloaded that piece of data, all of which pieces together comprise the whole.... This means that every "node" or peer user who has a copy of the infringing copyrighted material on such a network--or even a portion of a copy--can also be a source of download for that infringing file, potentially both copying and distributing the infringing work simultaneously....

This distributed nature leads to a rapid viral spreading of a file through peer users, all of whom are both uploading and downloading portions of the file simultaneously.... As more peers join the swarm, the likelihood of a successful download increases... Because of the nature of the BitTorrent protocols, any peer that has downloaded a file prior to the time a subsequent peer downloads the same file is automatically a possible, and even likely, source of the file for the subsequent peer.... Essentially, because of the nature of the swarm downloads as described above, every infringer is simultaneously stealing copyrighted material through collaboration from many other infringers, through a number of ISPs, in numerous jurisdictions around the country.

Of course, no one charged anyone with theft here, so it's a bit odd to see USCG claim that "stealing" happened. If that were the case, why not go to the police? But, more importantly, USCG is trying to argue that because BitTorrent involves little bits shared via a swarm, that it makes sense to link all the lawsuits since they may have been together in a swarm.

I can't see how that actually makes any sense. Each of the actions were done independently, and there's no evidence presented that these all were actually a part of the same swarm.

On top of that, I do wonder if calling out some of the specifics of how BitTorrent works could actually do harm to any case that actually goes to court (as if that will ever happen). Some have pointed out that with the way BitTorrent is set up, that anyone doing the sharing is contributing such a minimal part to the whole (something USCG seems to be admitting here), that users have a stronger (though, certainly not concrete) fair use claim, in that the amount they share/receive is tiny and not a large portion of the file.

Either way, this response seems pretty weak, and hopefully the judge agrees.

Filed Under: bittorrent, copyright, joinder, linkage, misjoinder
Companies: us copyright group

Judge In US Copyright Group Case Seems Skeptical Of Lumping All Those Lawsuits Into One

from the convince-me dept

Following the filing from the EFF, Public Citizen and the ACLU questioning US Copyright Group's (really law firm Dunlap, Grubb and Weaver) decision to lump together thousands upon thousands of copyright infringement lawsuits into a single lawsuit, it sounds like the judge in the case is quite skeptical of the strategy. She's demanding that US Copyright Group explain in writing why she shouldn't throw out all but one of the John Doe defendants for "misjoinder."

A brief entry in the official court docket lays out the order. "MINUTE ORDER requiring Plaintiff to show cause in writing no later than June 21, 2010 why Doe Defendants 2 through 2000 should not be dismissed for misjoinder under Federal Rule of Civil Procedure 20," wrote the judge in The Steam Experiment case. The same order was repeated in a separate case targeting 4,577 users alleged to have shared the film Far Cry.

Considering that USCG has been making the argument that ISPs who don't hand over the names of the accused are guilty of inducing infringement, I can't wait to see the legal response. In the meantime, though, it's good that the judge appears to be aware that this strategy is highly questionable.

Filed Under: copyright, joinder, lawsuits, misjoinder
Companies: us copyright group