Judge Calls Copyright Troll's Bluff

from the well,-this-could-be-interesting dept

We've pointed out many times that copyright trolls never seem to have any interest, whatsoever, in having a case actually go to trial. The whole point of copyright trolling is just to use the power of the judicial system to scare people into settling and just paying. A number of judges have called them out on this in tossing out the lawsuits and preventing the trolls from going through with discovery to learn the identify of account holders based on IP addresses. However, a district court judge in Pennsylvania has decided to call a troll's bluff and more or less are forcing them to actually go through with a trial, something that so far every copyright troll has avoided. Judge Michael Baylson recounts the basic trolling strategy, noting that the plaintiff in this case, Malibu Media, admits that its entire goal is to get the contact info of people for the purpose of sending them demand letters. They even admit that if they don't hear back, they drop the case.

If the John Doe defendant refuses to settle, or Plaintiff has been unable to serve the complaint within the 120 days required under Rule 4(m) of the Federal Rules of Civil Procedure, subject to any extension granted by the court, with whatever information is provided by the ISP, Plaintiff dismisses the complaint against that defendant without prejudice to Plaintiff’s ability to commence a subsequent action against that defendant. In this fashion, Plaintiff has initiated hundreds of lawsuits in various district courts throughout the country, but has not yet proceeded to trial in any case.

The judge talks about a small group of (anonymous) defendants who have fought the case. He goes through a similar analysis as other judges about whether or not the joinder of so many defendants makes sense, and whether or not the process of never following through to trial makes sense. Like many other judges, he's concerned:

...the joinder of multiple John Doe defendants could very well lead to litigation abuses. The purpose of the joinder rules is to promote efficiency, not to use federal district courts as small claims collection agencies, by putting economic pressure on individuals who do not have substantive liability.

However, rather than just dismantling the cases and blocking discovery, Judge Baylson has decided to hold a "bellwether" trial involving just the five users who challenged the subpoena, to test the claims of the troll, Malibu Media -- and then notes that if it sees Malibu Media continue to act like other trolls, "picking off" individuals for confidential settlements, "the Court may draw an inference that Plaintiff is not serious about proving its claims, or is unable to do so."

The bellwether trial, then, will test Malibu's claims in court and see how well they do in front of a judge... for the first time for this type of copyright troll:

...the Court assumes that Plaintiff will welcome this opportunity to prove its claims...

That said, the court notes that it may seem unfair to "punish" the people who fought back and put all the others on hold, but notes that, given the circumstances, this makes the most sense:

The Court also acknowledges that the five John Does who will be defendants in the Bellwether trial are, in a sense, being penalized for filing motions challenging the third-party subpoenas presently at issue, given that all proceedings against the remaining John Does will be stayed until further order of the Court. In the Court’s view, however, under the present circumstances, this is the fairest and most efficient means of resolving these actions. These defendants have objected to Plaintiff’s strategy and two of them have filed declarations asserting that Plaintiff’s claims are false. A Bellwether trial is the best means of testing the viability of Plaintiff’s claims, as well as Plaintiff’s sincerity in pursuing them.

And, of course, he notes that should Malibu's case fail, they'll have some remedies as well:

In the event Plaintiff’s allegations cannot be sustained, the five John Does will have adequate remedies to recover most, if not all, of these litigation expenses and/or damages from Plaintiff, such as a Rule 54 motion for costs, a lawsuit for abuse of civil process, a Rule 11 motion for sanctions, and a motion to recover excessive costs under 28 USC § 1927. More fundamentally, as mentioned above, because this is a copyright case, a successful defense will likely result in an award of attorney’s fees to any John Doe who prevails...

In other words, these defendants really will need to prove that Malibu's evidence is weak, but if they succeed, the copyright trolling strategy could be in trouble. This case suddenly becomes a key one in the whole copyright trolling area -- and as such, I imagine that we'll see some interesting folks take an interest in the case. We'll certainly be watching it closely.

Filed Under: bellweather case, copyright, copyright trolling
Companies: malibu media