Prenda Tries To Weasel Out Of Case It Just Lost At The Appeals Court

from the run-away,-run-away dept

Remember last week when the DC Circuit appeals court overturned one of Prenda's few "wins" on the question of "joinder" (lumping together a bunch of unrelated people in a single lawsuit)? That was the case where a former RIAA lobbyist-turned-judge, Beryl Howell, was one of a very few judges who found such joinder appropriate. The appeals court disagreed and sent it back. And... in response, Prenda (in the form of Paul Duffy) are now trying to scamper away, by filing to voluntarily dismiss the case. This is pretty typical in the Prenda playbook. Whenever things start to look problematic, they try to dismiss the case and get away unscathed. Most of the cases where various attorneys' fees are being lumped on them involve similar cases where Prenda tried to run away, and was not allowed to do so. Some of the plaintiffs in this case may pursue fees, though with the previous awards piling up, it's unlikely they'd get much at this point. Either way, it's clear that after the appeal went against Prenda, it doesn't even want to try again at the district level.

Filed Under: beryl howell, dc circuit, joinder, paul duffy, paul hansmeier
Companies: af holdings, prenda, prenda law

Appeals Court Overturns Prenda Win From Former RIAA Lobbyist Judge

from the good-to-see dept

As we've been covering the Prenda debacle for years, there was still the one big "victory" it had, in which a DC district court judge ruled that randomly lumping together over a thousand unrelated "Does" was perfectly legitimate, something most other courts had found to be inappropriate. Of course, people quickly figured out that the judge who found in favor of this bizarre joinder ruling, had only recently been appointed to the bench, having previously been an RIAA lobbyist, and who, years earlier, had helped write the DMCA as a Congressional staffer.

That case made its way slowly through the appeals process, and earlier today, the DC Circuit appeals court overturned the ruling, highlighting a bunch of Prenda's bad behavior, but (perhaps more importantly) pointing out that the subpoenas for information on these 1,000+ Does was clearly inappropriate, first because almost none of the Does appeared to live in Washington DC, and thus were outside the court's jurisdiction. Prenda/AF Holdings complete failure to do anything even remotely close to figuring out if people might be located in DC was pretty damning here:

Federal Rules of Civil Procedure 45 and 26 set forth the relevant considerations. Rule 45(d)(3)(A) requires a district court to “quash or modify a subpoena that . . . subjects a person to undue burden.” If a subpoena compels disclosure of information that is not properly discoverable, then the burden it imposes, however slight, is necessarily undue: why require a party to produce information the requesting party has no right to obtain?

And, here, the court certainly finds the discovery attempts to be "undue," because AF Holdings/Prenda could show no good faith belief that they were going after information relevant to a lawsuit in that court.

Here, we think it quite obvious that AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district. AF Holdings concedes that under the District of Columbia’s long-arm statute, which along with the Due Process Clause governs this question... the only conceivable way that personal jurisdiction might properly be exercised over these Doe defendants is if they are residents of the District of Columbia or at least downloaded the copyrighted work in the District.... But AF Holdings has made absolutely no effort to limit its suit or its discovery efforts to those defendants who might live or have downloaded Popular Demand in the District of Columbia. Instead, it sought to subpoena Internet service providers that provide no service at all in the District. As Duffy reluctantly conceded at oral argument, AF Holdings could have no legitimate reason for objecting to the court’s quashing the subpoenas directed at these providers.... Even for those providers that do serve the District of Columbia, AF Holdings’s discovery demands were overbroad because it made no attempt to limit its inquiry to those subscribers who might actually be located in the District. It could have easily done so using what are known as geolocation services, which enable anyone to estimate the location of Internet users based on their IP addresses. Such services cost very little or are even free.

The court notes that Prenda's failure to do even the most basic things to limit discovery raises questions about its motives:

Given AF Holdings’s failure to take even these minimal steps, we cannot escape the conclusion that it sought the vast majority of this information for reasons unrelated to its pursuit of this particular lawsuit.... . Indeed, Duffy essentially admitted as much at oral argument, stating that if, as appears to be the case, 399 of Comcast’s 400 identified subscribers were found to live outside the District, “the 399 likely wouldn’t be named as defendants in this case.”

The court then checks in on the big question of "joinder" -- and whether or not it's appropriate to lump together over 1,000 totally unrelated individuals in one of these copyright trolling lawsuits. Like most courts to date, but unlike Judge Howell, the appeals court sees how problematic this is.

We are unconvinced. For purposes of this case, we may assume that two individuals who participate in the same swarm at the same time are part of the same series of transactions within the meaning of Rule 20(a)(2). In that circumstance, the individuals might well be actively sharing a file with one another, uploading and downloading pieces of the copyrighted work from the other members of the swarm.

But AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time. Instead, it has simply set forth snapshots of a precise moment in which each of these 1,058 Does allegedly shared the copyrighted work—snapshots that span a period of nearly five months. Two individuals who downloaded the same file five months apart are exceedingly unlikely to have had any interaction with one another whatsoever. Their only relationship is that they used the same protocol to access the same work. To paraphrase an analogy offered by amicus counsel at oral argument, two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times. They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions.... We therefore agree with those district courts that have concluded that the mere fact that two defendants accessed the same file through BitTorrent provides an insufficient basis for joinder.

It's nice to see that the court picked up on many of the amicus arguments made by EFF, ACLU, Public Knowledge and Public Citizen.

Oh, and, in case you're wondering about all the other stuff, such as the Alan Cooper forgery, the court notes those allegations, while saying they are unrelated to the issues here, but, at the very end, in sending the case back to the district court, tosses this in:

Accordingly, we vacate the district court’s order and remand for further proceedings consistent with this opinion. We leave it to the district court to determine what sanctions, if any, are warranted for AF Holdings’s use of a possible forgery in support of its claim.

Filed Under: alan cooper, beryl howell, copyright, copyright troll, john steele, joinder, jurisdiction, mark lutz, misjoinder, paul duffy, paul hansmeier
Companies: af holdings, prenda, prenda law

Voltage Pictures Continues To Use Its High Profile Films To Copyright Troll

from the sad dept

Voltage Pictures is the movie studio which famously kicked off the process of copyright trolling by "suing" thousands of people who, it claimed, had illegally downloaded its Oscar-winning movie, Hurt Locker, via Bittorrent, and whose producer, Nicolas Chartier, said that anyone who thought this was a bad plan was a moron and a thief. It recently did the same thing in Canada, and apparently can't resist still suing fans. The latest is a new lawsuit filed against 31 anonymous people for supposedly using Bittorrent to get Dallas Buyers Club, an Oscar-nominated film from the same studio. This lawsuit at least seems a bit more targeted, in that it tried to make sure the targeted IPs were actually in the jurisdiction of the court, unlike in the Hurt Locker case. These attempts at lumping a bunch of individuals for a single lawsuit has run into trouble in many (though not all) courts. Still, as a way of making sure that a lot of people will simply avoid any Voltage movie, it seems like an effective strategy. It seems like a reasonable rule to not support any company that sues its fans.

Filed Under: copyright, copyright troll, dallas buyers club, joinder, nicolas chartier
Companies: voltage pictures

Appeal Over Former RIAA Lobbyist Judge Allowing Prenda To Get Info On Over 1,000 John Does Moves Forward

from the doesn't-that-look-silly-now dept

You may recall Judge Beryl Howell, the former RIAA lobbyist who helped author the DMCA, and also went against a very large number of other judges dealing with copyright trolling lawsuits by ruling that it was perfectly fine to lump over 1,000 John Doe defendants into a single lawsuit and then get discovery on them for the purpose of shaking them down for payment. While so many other courts have ruled that such lumping together is an abuse of the legal system in misjoining unrelated parties, Howell not only stuck to her guns, but then proceeded to blame ISPs for copyright trolls, suggesting that if they just did more to crack down on infringing, trolls wouldn't be a problem.

What you may not remember is that the key case in which Howell did this happens to be a case involving... you guessed it... AF Holdings and its "law firm" Prenda Law. Oh, and the "copyright assignment" that AF Holdings is using for this case was one of those supposedly signed by... Alan Cooper. While Judge Howell may be well served to pay attention to Judge Otis Wright in California and his actual investigation into Prenda/AF Holdings/Alan Cooper, the case is out of her hands for now, as the various ISPs who have the info in this particular case have appealed Howell's ruling and the EFF, ACLU, Public Citizen and Public Knowledge have stepped in as well with additional arguments in an amicus brief.

Both briefs are well worth reading, though you might be surprised that the amicus brief is probably the more reserved of the two. The ISPs who took part include: Bright House, Cox, Verizon, AT&T and Comcast -- with most of them (Verizon and Comcast being the exceptions) not even providing service in the jurisdiction of the district court: Washington DC. Comcast joining in is interesting, given that they own NBC, but we'll leave that aside for now. To put it mildly, the ISPs think the appeals court should put an end to these kinds of cases, noting that a majority of other courts have refused to allow joinder on so many defendants, and have blocked the discovery process. It points out, of course, that these cases are almost never taken to court, but are usually just used to reveal names and then offer settlement demands. Specifically, they feel that Howell made a pretty big legal mistake, in that a showing of "good cause" is required for discovery, and Howell ignored that.

The district court’s conclusion that rules governing personal jurisdiction and venue provide no impediment to pre-Rule 26 discovery of the ISPs is legal error. A showing of “good cause,” which is required for discovery ostensibly intended to identify defendants, requires an evaluation of whether the information sought from the ISPs would be used to name and serve defendants in the forum. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352-53 & n.17 (1978) (where “the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied”). The Copyright Act and the District of Columbia’s long-arm statute limit the court’s reach to defendants who reside in the district. And the uncontroverted evidence before the district court showed that few, if any, of the targeted Internet subscribers reside in the District of Columbia—as publicly available geolocation software used by Plaintiff’s counsel in other cases confirms. The district court’s decision to defer any consideration of personal jurisdiction or venue until after the subscribers’ personal information had been disclosed to Plaintiff requires reversal.

The court’s decision to permit discovery of the ISPs before deciding whether the 1,000-plus “Does” are misjoined provides an additional basis for reversal. Plaintiff, by routinely declining to name and serve defendants after obtaining the subscribers’ personal information, virtually ensures that Rule 20’s requirements for joinder will go unaddressed if not evaluated at the outset. And as a growing majority of courts have concluded, deferring a ruling on joinder deprives the courts of filing fees and encourages a proliferation of improperly coercive lawsuits. Given the groundswell of published opinions that disagree with the lower court and have severed or dismissed non-resident “Does” or all Does except for “Doe No. 1,” deferring a ruling on joinder in a suit that seeks nationwide subscriber information also encourages forum shopping—as the record here shows persuasively.

The ISPs also, quite reasonably, point out that if mass joinder and discovery is allowed in this case, the trolls will descend on the DC Circuit courts in a mass forum shopping situation:

The record reflects that Plaintiff’s counsel’s cases have migrated across the country, with the venues selected, not by the locus of the parties or situs of harm, but based on counsel’s perceptions of which forum is most likely to authorize the greatest discovery, at the lowest cost, with the least judicial oversight.

The specter of intra-district, judge-specific shopping in Plaintiff’s counsel’s cases further underscores the problem with the lower court’s approach. The ISPs raised below Plaintiff’s counsel’s practice of filing complaints and dismissing them vel non based on the judicial assignment—only to re-file in another court. When presented with the same facts, Judge Wilkins quoted with approval Judge Huvelle’s finding: “Plaintiff’s actions a[re] akin to ‘judge shopping.’… This Court could not agree more.” ...

The ISPs respectfully submit that the district courts in this Circuit should not be the destination for 1,000-plus Doe cases that are brought primarily to compile mailing lists—not to adjudicate actual cases or controversies.

The ISPs also go through, in detail, the accusations against Team Prenda, and the claims of Alan Cooper. As it notes:

AF Holdings and its counsel owe a duty of candor to the Court, and a duty of fairness to appellants.... The serious issues concerning attorney misconduct and potentially forged documents were not identified for the court below; they necessarily affect the “good cause” analysis and provide an alternative basis for reversal to address the evidence now being considered in the pending disciplinary proceedings in the Central District of California.

The EFF/ACLU/PK/PC filing is more focused on the specific errors in Howell's ruling, concerning the "good faith" standard for discovery and the mass joinder of over 1,000 people. They also point out the jurisdiction problems of the defendants who are clearly outside the jurisdiction of a DC court -- and the fact that these cases rarely end up in actual lawsuits means that the question of proper venue will not be "cured" later. Finally, the brief argues that Howell ignored key First Amendment issues concerning revealing anonymous internet users, and the higher standard for them to be revealed. This argument wasn't made by the ISPs, so we'll focus on that one here. It points to the key Dendrite standard we've discussed many times before concerning the revealing of anonymous users. This does not mean that you cannot identify those accused of copyright infringement, but rather that you can't go on a random fishing expedition to get names, as many copyright trolls have done.

Specifically, in a series of cases beginning with Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756, 760-61, 342 N.J. Super. 134 (App. Div. 2001), courts have adopted a balancing standard to assess requests for early discovery to identify anonymous online speakers that protects the right to speak anonymously while at the same time ensuring that plaintiffs who have valid claims are able to pursue them. Without such a standard, abusive plaintiffs could too easily use extrajudicial means against defendants from whom they could not, in the end, obtain judicial redress. See Levy, Litigating Civil Subpoenas to Identify Anonymous Internet Speakers, 37 Litigation No. 3 (Spring 2011).

The use of BitTorrent to select and share movies is expressive and, therefore, protected by the First Amendment. Call of the Wild Movie, 770 F. Supp. 2d at 350 (“[F]ile-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.”).

Although the expressive aspect of the conduct alleged here – the posting of copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that discovery to identify the anonymous user without adequate initial evidence that individual Doe Defendants committed the alleged infringement. The weakness of AF Holdings’ assertions of personal jurisdiction and proper joinder means that First Amendment concerns weigh more strongly here in favor of quashing the subpoenas. Certainly it was not appropriate for the district court to ignore the question altogether.

It will be interesting not only to see how the appeals court deals with it... but also Prenda's argument, since they seem to be getting more and more wacky lately.

Filed Under: appeal, beryl howell, copyright trolls, discovery, joinder
Companies: aclu, af holdings, at&t, bright house, comcast, cox, eff, prenda, prenda law, public citizen, public knowledge, riaa, verizon

Porn Copyright Trolls Argue That Verizon Should Be Held In Contempt Of Court For Trying To Protect Its Users

from the privacy-schmivacy,-we're-trolling dept

Three of the bigger porn copyright trolls out there, Patrick Collins, Malibu Media and Third Degree Films, have teamed up to make a court filing arguing that Verizon should be held in contempt of court for failing to cough up the names of account holders based on the trolls' list of IP addresses. As you're probably aware by now, hundreds of thousands of people have been "sued" by copyright trolls, but not actually taken to court. The strategy is just to file a lawsuit and force ISPs to identify account holders, then bombard those account holders with threatening letters (and calls and emails) saying that they will be sued if they don't pay up (often a few thousand dollars). Verizon, like many other ISPs, has fought back against these demands for info on a variety of grounds -- including improper joinder (i.e., that the cases improperly lump together multiple people who had nothing to do with one another in an attempt to keep costs to the trolls down). These claims of improper joinder have been somewhat effective in getting a lot of these cases thrown out -- but usually those claims are raised by the account holders themselves, rather than the ISPs.

These three trolls have teamed up to argue that Verizon should shut up and hand over the names, claiming that it has no standing to object, given that it's not a party in the case. They also claim that even if Verizon can argue misjoinder, the argument is not valid (which is laughable considering how many courts have agreed that it's perfectly valid). Then they try to chop down every other argument from Verizon -- who actually has a really strong history of protecting subscribers against copyright threats. In fact, the trolls use this history against Verizon -- claiming that their victory nearly a decade ago, against the RIAA's attempt to use subpoenas to identify users without filing a lawsuit, shows that as long as they've filed lawsuits, they should have a free pass to identify the account holders named.

The really amusing part is the trolls' response to Verizon's point that the trolls have failed to show that the discovery would be used for the "proper purpose" of litigation. That's because it won't be. Everyone knows that the information will be used to try to force people into settling, and not to file lawsuits. But the trolls claim this is just dandy:

To the contrary, and as argued above, the “purpose” of the discovery is entirely proper: to obtain information identifying unknown Doe Defendants infringing Plaintiffs’ copyrights “in order to consider whether to name and serve them as defendants.”

Note the careful choice of words. They don't say that they're asking for discovery in order to actually sue, but to "consider" whether or not to sue. Meaning, of course, that they're extremely unlikely to file an actual lawsuit and are more likely to threaten account holders to demand a settlement. Hopefully the court sees through these attempts by these trolls to force discovery where it's clearly not appropriate.

Filed Under: bittorrent, contempt of court, copyright trolls, joinder, porn, privacy
Companies: malibu media, patrick collins, third degree films, verizon

Another Judge Blasts Copyright Trolls

from the swarms dept

We've been seeing more and more judges reacting negatively to copyright trolls. What's interesting is that they seem to be getting more aggressive in their statements against the trolls, and it seems clear that fewer judges are falling for their antics. The latest is from Judge Harold Baer in the Southern District of New York, who you could say is not impressed by some copyright trolling cases that have ended up in his court, coming from Media Products and Patrick Collins. He had allowed for expedited discovery, which is what copyright trolls want, but it seems quite clear that Baer regrets that decision and now seeks to reverse it. Expedited discovery basically gives the trolls what they want: it lets them subpoena ISPs to find out contact info of users based on the IP addresses they've collected. From that point on, they have no intention of ever proceeding with the actual lawsuit. They just want to start pressuring people into "settling."

Judge Baer clearly understands what's going on here. He notes early on the very serious potential problem of IP addresses not being particularly good identifiers of who has done the actual infringement:

Particularly troubling for courts is the high probability of misidentified Doe defendants (who may be the bill-payer for the IP address but not the actual infringer) settling a case for fear of the disclosure of the allegations against them or of the high costs of litigation.

He notes that he's not ready to "wade into" the question of whether or not joinder is appropriate, especially in cases where all of the IP addresses are part of the same BitTorrent swarm, but he is clearly worried about a different kind of "swarm":

Ironically, there are swarms on both sides, for copyright locusts have descended on the federal courts, exacting low-cost settlements from embarrassed John Does and then moving on to the next District

Yes, Judge Baer seems familiar with the M.O. of these trolls, and how they've effectively been "run out of" other districts after judges realized what they were up to. In fact, he quotes a ruling in the Central District of California approvingly:

... the federal courts are not flexible enough to be shaped into "cogs in a plaintiffs copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that [Plaintiffs have] no intention of bringing to trial."

He also worries that the plaintiffs have already pressured defendants into settling, noting "that some Doe defendants have already been voluntarily dismissed at this early stage in the litigation." For that reason, he's decided that joining all the cases together at this stage is inappropriate, and has (like many other courts) severed and dismissed all but one Doe.

He then goes back to talk about his overall concerns with how copyright trolling is a troubling development, and quotes a bunch of other cases from other district courts around the country:

The Plaintiffs' tactic, if left unchecked, could turn copyright protection on its head. Congress intended to incentivize the creation of useful arts by providing a statutory right and a means of enforcement that would reward authors for their labors, hardly the Plaintiffs' strategy here.... In the BitTorrent pornography cases, settlements are for notoriously low amounts relative to the possible statutory damages, but high relative to the low value of the work and minimal costs of mass litigation. Cases are almost never prosecuted beyond sending demand letters and threatening phone calls. Severing the Doe defendants does not destroy the incentive to prosecute infringers who use peer-to-peer protocols; it merely restores the balance that Congress intended, not to mention that it ensures that courts receive the filing fees that Plaintiffs otherwise avoid.

And one final point, since he already allowed for discovery, he wants the plaintiffs to destroy the info, and if he finds out that they pursue those people anyway, it sounds like there may be trouble:

Plaintiffs shall not contact any Doe defendant who does not remain in this or a subsequently-filed case, and any pending settlement not with John Doe 1 in each named case shall immediately cease. If after 14 days Plaintiffs have not reinstituted cases against the remaining Doe defendants, Plaintiffs shall destroy whatever personal information they presently have for those defendants and shall not use the information for any purpose. Ifany Doe defendant no longer named in a case is contacted following entry ofthis Order, I encourage them to contact the Court.

Elsewhere, he orders the plaintiffs to pass along this order to all the ISPs they've subpoenaed, and to have them distribute it to all the people in question, so (hopefully) they understand to contact the court if the plaintiffs violate the order and continue to go after them.

One really good thing here: Judge Baer clearly spent time looking into these cases, and seeing just how common they are and what's happening in them. Above, we've already noted that he cited a few such cases -- but in a footnote that takes up about half the page, he goes on to name a whole bunch of them, noting that "this is but a sample" and pointing out:

It is difficult to even imagine the extraordinary amount of time federal judges have spent on these cases.

Hopefully other judges are beginning to recognize the same thing. It seems clear that more and more judges are putting these cases into the proper context, understanding what's really happening and how the copyright trolls are abusing the court system as a part of a business model, rather than for any legitimate legal reason.

Filed Under: copyright, copyright trolls, extortion, harold baer, joinder
Companies: media products, patrick collins

RIAA Lobbyist-Turned-Judge: ISPs Deserve Copyright Trolls For Not Stopping Infringement

from the activist-judges? dept

We've written about judge Beryl Howell a few times before. She's the recently-appointed judge whose immediate job prior to that was as a lobbyist for the RIAA. Before that, she worked for the Judiciary Committee and was apparently a key player in drafting the DMCA. It seems pretty damn clear that she holds a strong viewpoint on the nature of copyright law and copyright infringement -- but that hasn't stopped her from taking those cases, even when her rulings appear to be exactly the opposite of nearly every other court. For example, while most courts have been throwing out copyright trolling lawsuits for improper joinder, Judge Howell had no problem with the practice and ordered various ISPs to cough up names based solely on IP addresses.

The ISPs asked her to reconsider back in April, noting how pretty much every other court has ruled otherwise. The specific case involves well known trolling firm, Prenda Law, which is connected to one of the larger jokes in the copyright trolling business: John Steele. Steele's lawsuits have been laughed out of court and he's even been told to stop filing these bogus lawsuits, where the clear purpose is to use the judicial system as a weapon to force people (innocent or guilty) to pay up.

But apparently copyright trolls have found a friend in Judge Howell, who not only is welcoming them with open arms, but seems to be using these trolling cases to further the goals of her former employer. She's released her decision on the motion to quash the subpoenas, and it's basically a 42-page screed on the evils of infringement and how ISPs should be responsible for stopping piracy (much of which has absolutely nothing to do with the case at all). The only nod towards the other side seems to be a weak acknowledgement that "the Court recognizes that other Judges on this Court have reached different conclusions with respect to the legal questions posed by the ISPs" and thus she's agreed to stay her decision until the appeals court weighs in.

But she makes sure to get her arguments in for the appeals court to read, and it certainly feels like she reverted back to "lobbyist" mode, rather than "impartial judge."

She kicks off the polemic with a grand history of the DMCA, and how the task force that was created to write the DMCA originally wanted to pin liability on ISPs for actions done by their users. And while she admits that eventually the DMCA did include such liability protection, it seems clear she would have preferred it the other way. She then highlights the important court decisions from a decade ago, against the RIAA and in favor of Verizon and Charter, that ruled that the RIAA could not demand ISPs identify users without actually filing a lawsuit against them first. This, of course, was a basic recognition of basic privacy rights, and the fact that if you are going to expose someone's private info, you ought to at least file a lawsuit against them first. But, in the world of Judge Howell, apparently this was a bad decision. She approvingly cites the dissent in one of the key cases, claiming this somehow "unraveled" the balance struck in the DMCA. Nothing, of course, is further from the truth. That's a total rewrite of reality.

She also seems to suggest -- contrary to the very law she was just citing -- that ISPs have some sort of responsibility to "deter infringing activity."

Other than barebones references from two of the four movant ISPs that these subpoenas impose “a substantial administrative burden,” the ISPs fail to present any witness or other evidentiary detail to demonstrate a burden to the Court, let alone what steps the ISPs are or could be taking to deter infringing activity on their networks to reduce any burden subpoena compliance engenders.

This is a fascinating interpretation of the law. Basically, she says that if they're going to claim that copyright trolls are showing up with tens of thousands of IP addresses, demanding they all be identified, then that means they also have to show that they've taken "steps" to "deter infringing activity on their networks." In other words, if it's burdensome to the ISPs to identify users to copyright trolls, it's their own damn fault for failing to stop infringement. Seriously.

Oh, and then she flat out misrepresents the GAO's findings from a few years ago that found that all of the entertainment industry's claims about the impact of "piracy" were complete bunk. Yet, in the world of former RIAA lobbyist Judge Howell, the GAO actually came to the opposite conclusion:

The plaintiff’s estimates regarding the amount of online infringing activity and the economic harm resulting from such activity is corroborated by a recent government report. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10- 423, INTELLECTUAL PROPERTY: OBSERVATIONS ON EFFORTS TO QUANTIFY THE ECONOMIC EFFECTS OF COUNTERFEIT AND PIRATED GOODS 23-24 (2010) (estimating that U.S. economy annually loses $58 billion, over 370,000 jobs, and $2.6 billion in tax revenue as a result of copyright infringement over the Internet) (citing Stephen E. Siwek, THE TRUE COST OF COPYRIGHT INDUSTRY PIRACY TO THE U.S. ECONOMY, Institute for Policy Innovation (IPI), IPI Center for Technology Freedom, Policy Report 189 (Oct. 2007)).

Uh, no. Go read what the GAO actually said. While the report does cite Siwek's widely discredited report of $58 billion in losses -- it does so only to say that Siwek did these studies and they claimed to show "ripple effects" beyond the immediate industry. However, most of the rest of the report highlights how those numbers, and others like them, cannot be substantiated and that most experts they spoke to found the methodology questionable. Furthermore, the report specifically calls out the reports that only try to calculate the negative impact, without even considering any possible positive impact, as being clearly misleading. That describe's Siwek's research exactly. Specifically, the GAO report noted:

Since there is an absence of data concerning these potential effects, the net effect cannot be determined with any certainty

In other words, sorry, but the Siwek claim of $58 billion is hogwash. And yet Judge Howell pretends that the GAO has blessed this number.

The ruling goes on to defend its position, but basically says that there is no burden on the ISPs and if there is one, it's their fault. It also says that there is no issue of improper joinder to consider until after everyone's identified (at which point it won't matter, since that's all the copyright trolls want, so they can then shift to demanding cash from them). The whole thing, once again, raises significant questions about why a judge who had such a vested stake in pushing for an extreme maximalist view of copyright now gets to judge cases where key decisions are made about the interpretation of copyright law.

Filed Under: beryl howell, copyright trolls, dmca, isps, joinder, liability
Companies: riaa

Court Says BitTorrent Users Connected To The Same Swarm Are Not Involved In Any 'Conspiracy'

from the good-ruling dept

Almost exactly a year ago, we saw yet another trick come out of the copyright troll's bag. To justify the increasingly failed attempts to sue a ton of people in a single lawsuit, there was a claim that all of the people connected to a single BitTorrent swarm represented a conspiracy to infringe on copyrights together. As we said at the time, this seemed like an incredibly weak argument, and it appears that at least one court agrees. A judge in Illinois has rejected that argument pretty soundly:

Moreover, it appears that the claims of civil conspiracy themselves are unfounded, because the plaintiffs have not pleaded the existence of an agreement among the alleged conspirators... Additionally, based on what has been pleaded, it does not appear plausible that plaintiffs could plead the existence of a conspiracy. Consequently, the court finds that the complaints’ allegations of civil conspiracy are only unjustified attempts to bolster the obtaining of irrelevant discovery about non-parties.

The court also notes (as many more are doing) that it's quite clear that this lawsuit was filed not to litigate the actual issues, but to uncover the identities of those they identified to try to threaten them into "negotiating a settlement."

It's good to see both of these things. Courts recognizing that these arguments are huge stretches of legal theory just to justify a bogus joinder argument is a huge step forward. On top of that, the fact that more and more judges seem well aware of the true intention of copyright trolls in using the court system as a part of their business model, rather than for a legitimate judicial reason, means that fewer and fewer courts will be willing to accept such an abuse of the court system.

Filed Under: conspiracy, copyright, copyright trolls, joinder

Court Says That Outing Closeted Gays Through Mass Infringement Lawsuits Not A Big Deal

from the disagree dept

We already, briefly, touched on the recent district court ruling in Massachussetts, in one of Liberty Media's mass infringement cases, covering the tangential legal question of whether or not porn can even be covered by copyright, but the actual legal issues raised in the case are pretty interesting as well.

Marc Randazza, Liberty Media's lawyer on these cases, and I disagree over whether lumping together a bunch of unrelated individuals is proper "joinder." Randazza has argued that many other mass infringement lawyers do this wrong, but his decision to focus on those in a single swarm makes it a more effective argument. In this case, the court certainly bought Marc's argument, and became one of a small number of courts not to throw out most of the Does sued. Though I find it a little disingenuous in that the judge notes a few other cases that have allowed the joinder to stand... but leaves out the many, many cases where all but one of the Does was dismissed from the suit.

One of my issues with this kind of joinder is that the defendants are all unique and may have very different arguments and defenses. It seems inappropriate to lump them all together. The court rejects that, saying that defendants can raise their separate defense later in the case, but that the basic questions of law are identical across the cases.

The bigger issue to me is a different point raised by the defendants in this and many other cases involving gay pornography. For better or worse, one of the fears of many (including myself) is that such cases work even better as a "shakedown" game, because defendants who either are in the closet or are not gay and fear being sued for downloading gay porn are more likely to just pay up to avoid the embarrassment. I raised this issue with Randazza directly, who argues that my argument is actually homophobic, suggesting that there is something wrong with being gay. To be clear: I don't think there's anything at all wrong with being gay, and, in fact, think that those who are gay should be proud and comfortable with that fact. But, I also think one's sexual orientation and preferences are a personal and private matter -- and that bringing them out through a legal process, as part of an effort to put pressure on someone to pay up, is highly questionable (and morally dubious). If someone has made the decision not to "out" themselves, that's their decision.

Unfortunately, the court doesn't buy this argument, and says that the names of defendants should be made public, rather than allowing them to remain anonymous. In fact, the court suggests there's no evidence that Liberty Media intends to use this info to pressure people into paying up:

Unnumbered Doe suggests that Liberty Media sought the public identities of Does 1-38 to coerce pretrial settlements. Unnumbered Doe’s Mot. 7 (“While we cannot know for certain how the Plaintiff intends to proceed . . . the likely course of action is to contact each of the individuals and demand a monetary payment for settlement of the claims in question.”). This allegation is not supported in the motion papers or by Liberty Media’s actions to date. It is purely speculative and not grounds for allowing the moving defendants to proceed anonymously.

I find this part to be the most questionable, seeing as Liberty Media, in the past, has actually been quite active in trying to get people to "settle" to avoid lawsuits -- including its infamous pay us before we even accuse you plan.

Still, the most troubling idea is that the court seems to think that outing someone who does not want to be outed is "mere embarrassment."

Unnumbered Doe further argues that the anonymity of Does 1-38 should be protected because the disclosure of their identities in conjunction with this lawsuit, which involves homosexual pornography, may cause reputational harm and intrusion upon their privacy. Id. Unnumbered Doe asserts that being named as a party to this action amounts to “a public accusation” that the defendants downloaded and viewed homosexual pornography. Id. Doe 15 similarly argues that their public identification in the lawsuit will expose the defendants to “intrusive public scorn.” Doe 15’s Mot. 3.

The potential embarrassment to Does 1-38 of being associated with allegations of infringing hardcore pornography does not constitute an exceptional circumstance that would warrant allowing the defendants to proceed anonymously. As the Superior Court of Massachusetts stated, “mere embarrassment [is] not sufficient to override the strong public interest in disclosure.” Roe, 2011 WL 2342737, at *1. Thus, the potential embarrassment or social stigma that Does 1-38 may face once their identities are released in connection with this lawsuit is not grounds for allowing them to proceed anonymously.

Now, personally, I don't think such a revelation should even be considered "embarrassing," at all. But, I'm not in a position to talk. And, from what we've seen of folks -- especially younger people -- who have had such info exposed against their will to family and friends who might not be accepting, the idea that this is a "mere embarrassment" doesn't seem accurate at all. Such revelations have resulted in suicides. That's not mere embarrassment. Even if we all agree that no one should be embarrassed about their sexual orientation, or even their interest in pornography, to make that decision on those individuals' behalf just seems questionable to me, and fraught with potential trouble.

Filed Under: copyright, embarrassment, gay porn, joinder, outing, porn, shakedown
Companies: liberty media

Mass Infringement Lawyer Complains About Too Many People Challenging His Lawsuits

from the costing-money dept

Last week TorrentFreak had a post about a filing in one of many porn-related mass infringement lawsuits by a lawyer representing K-Beech. TorrentFreak's post focused on the fact that the lawyer, James White, admitted that it was dropping certain types of people from its lawsuits, such as undercover cops, military personnel and politicians. That certainly reflects the double standard we've seen elsewhere.

But other parts of the same filing may be even more interesting. Xbiz picked up on the part where White whines about all the defendants he sued filing identical "kit" motions in response to getting sued... because it's too expensive for White to respond to each one. Most of these are motions to sever, noting that it was improper to join so many totally and completely unrelated defendants into a single case. So far, most of the courts presented with such cases have agreed to dump most of the defendants as unrelated, but White makes it out like this is some crazy concept because the defendants dare to file boilerplate/copy-and-paste documents:

Most of these motions, however, are filed by pro se litigants and cut and pasted from BitTorrent defense kits or otherwise copied...

[....] These motions are expensive to defend against. Indeed, many such motions intentionally raise issues that have absolutely nothing to do with the subject matter before the court or matter which no court has ever held justify the motion. Consequently, Plaintiff has to spend substantial resources arguing against irrelevancies and abstractions.

It kind of makes you wonder how anyone doing what White is doing could file such a thing with a straight face. His entire legal campaign depends on making his legal efforts "expensive to defend against," to try to pressure people into settling up rather than fighting. In fact, White seems to try to twist this abuse of the court system to force settlement in his own favor, claiming that the court should want more settlements, and thus it should encourage random joinder, because it makes White's costs lower, meaning he can allow lower settlement deals:

Increasing the costs associated with this litigation by forcing Plaintiffs to file individual suits would only increase the settlement demands and make settlements less probable.

If I understand this logic properly, it suggests that the courts should prefer more mass shakedown lawsuits, because it'll mean more settlements rather than court. But, of course, that leaves out the idea that many of the defendants might just be innocent.

Filed Under: copyright, infringement, joinder, lawsuits