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

US Copyright Group Drops A Bunch Of Cases... But Will It Refile?

from the waiting-game dept

There was some news last week about copyright trolls, US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver), dropping thousands of lawsuits it had filed against people for file sharing. While some are declaring victory, I'd wait and see. It may simply be setting up to refile those lawsuits in the proper venues, as the firm has done in the past. It would be nice if USCG and the various studios had realized that this was a dead end strategy, but I find that unlikely...

Filed Under: copyright, lawsuits, pre-settlement
Companies: dunlap grubb & weaver, us copyright group

Copyright Pre-Settlement Virus A Lucrative Scam

from the scammers-love-a-new-scam dept

With all of the highly questionable pre-settlement lawsuits out there demanding cash from people to avoid a lawsuit for copyright infringement, we've heard of a few different scams designed to use the same tactics: accuse someone of copyright infringement and demand cash to avoid a lawsuit... even if the operation demanding cash has nothing to do with the copyright holder. One recent example of this was a bit of malware that, once installed on a computer, would generate fake infringement warnings from the RIAA/MPAA, demanding cash settlements. TorrentFreak points us to a report from Brian Krebs who got his hands on some documents from ChronoPay, the operation that was used to handle the payments in this scam, showing just how lucrative the scam has been. The documents only cover the past two months, but in that time, 580 people paid up, handing over $283,000 to scammers. Of course, this is only marginally less legit than the standard shakedown from various lawyers who are working with the copyright holders. But, the success of these scammers' operations is almost certainly driven in part by the success and press coverage of those lawyers who are sending out those mass pre-settlement letters. People are hearing about this and thinking any such threat is legitimate, even when it's a pure scam. Of course, this means you should only expect to start receiving plenty more such scam requests, demanding you pay up to avoid a lawsuit. Kinda makes you wonder if it will make the "actual" letters sent by copyright holders less effective as people just assume they're scam letters.

Filed Under: copyright, malware, pre-settlement, scams

Judge Dumps Yet Another Mass Infringement Suit In Response To Single, Pro Se Motion To Quash

from the quashed-indeed dept

The various lawyers who have jumped on the bandwagon of mass lawsuits against people accused of sharing certain porn productions have been finding that courts are becoming more aggressive in dismissing most of the defendants due to clear abuse of the law by the lawyers to file a single case against so many defendants. We've seen a bunch of such cases have all but a single defendant dismissed. However, it looks like one judge in Illinois, Judge Milton Shadur, went beyond even that in dismissing an entire case against all 300 defendants in response to an amateur pro se motion to quash from one of the anonymous defendants. Of course, we've talked about some "kits" that have been put online for such defendants to file motions to quash and some of the folks in our comments insisted that such motions would never work. Oops.

In this particular case, brought by one of the "new breed" of P2P mass lawsuit lawyers, John Steele (who was a divorce lawyer before jumping in to these types of cases) sued 300 defendants on behalf of porn producer, CP Productions. The judge seems to think the whole thing was clearly unwarranted, and had made it clear to Steele earlier that he didn't think much of the case at all. Steele pushed forward, but once the motion to quash came in, the judge dumped the whole case, going with his initial intuition that the case never should have been brought in the first place. Ars Technica summarizes the judge's reasoning:

"Among other things, the newest motion demonstrates that there is no justification for dragging into an Illinois federal court, on a wholesale basis, a host of unnamed defendants over whom personal jurisdiction clearly does not exist and--more importantly--as to whom CP’s counsel could readily have ascertained that fact," the judge said, apparently referring to the fact the IP lookup services would have shown the lawyers that most defendants were unlikely to be Illinois residents.

In addition, the judge saw the joinder of 300 defendants as little more than a ploy for saving cash. "No predicate has been shown for thus combining 300 separate actions on the cheap," he added. "If CP had sued the 300 claimed infringers separately for their discrete infringements, the filing fees alone would have aggregated $105,000 rather than $350."

The judge also noted Steele's amazingly fast response to his own initial concerns about the case, which he said seemed to suggest that Steele already knew why the judge would be concerned and had all of his arguments ready to go. To the judge, this showed that Steele knew quite well the "obvious problems" of these types of lawsuits. Nice to see more judges realizing that these lawsuits are a massive abuse of the legal system to squeeze money out of people.

Filed Under: copyright, john steele, pre-settlement, quash
Companies: cp productions

Expendables Producers Begin Process Of Shaking Down Thousands For Cash

from the how-to-piss-off-fans dept

As was widely expected, the producers of the big budget Hollywood movie, The Expendables have joined the coalition of the clueless with the producers of Hurt Locker in deciding to shakedown some of the movie's fans. Once again, using law firm Dunlap, Grubb & Weaver under the name US Copyright Group (whose existing lawsuits of this nature haven't gone too well so far), a lawsuit lumping together 6,500 unnamed people accused of file sharing has been launched. As with the previous lawsuits, the intent here is just to suss out names attached to the IP addresses, at which point they'll be sent misleading and threatening letters, which suggest they pay up to have the lawsuits against them dropped. Of course, as with previous such lawsuits, I'm sure there will be a quick back and forth as someone points out that lumping all of these defendants into a single case is not proper, and it'll depend on whether or not the judge is reasonable to see if the case will actually move forward.

Still, it kind of makes you wonder what the producers of The Expendables are thinking. The studio, called Nu Image, is pretty much deciding to purposely piss off a large group of fans, just at a time when they're apparently working on a sequel. Nothing in this action will make any of those people more interested in paying money to see any more movies from Nu Image in the future. In fact, about the only thing it will do is give a large group of people an excuse not to pay to see Nu Image movies. And for what? To get a tiny group of folks who downloaded the movie to pay a few thousand dollars -- a large chunk of which just goes to the lawyers? That's not exactly a brilliant business strategy.

Filed Under: expendables, pre-settlement
Companies: dunlap grubb & weaver, nu image, us copyright group

Judge Not Amused By ACS:Law Stunts; Forcing Cases To Continue

from the be-fair-warned-us-copyright-group dept

The saga of ACS:Law and its mass P2P user shakedown campaign continues. Despite claiming to have shut down completely in an attempt to avoid any possible sanctions for its disastrous strategy, the judge is forcing the cases to continue, saying that ACS:Law and its partner MediaCAT cannot just drop the cases in an attempt to "avoid public scrutiny." The judge clearly sees the shakedown scam for what it is:

I cannot imagine a system better designed to create disincentives to test the issues in court.... Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?

The judge appears to have also slammed ACS:Law and Andrew Crossley for claiming that one reason for dropping the cases were that necessary documents were in storage and they didn't want to retrieve them. The judge saw through that excuse:

"If true, it is extraordinary," said the ruling. "A party who keeps key documents which are cited in the particulars of claim in storage is not a party anxious to progress their claim in court."

Once again, those firms in the US copying this strategy should probably take note of what's happening over in the UK.

Filed Under: copyright, pre-settlement, uk
Companies: acs:law, mediacat

With ACS:Law And MediaCAT Shutting Down, What Does It Mean For US Copyright Group?

from the brothers-in-arms dept

ACS:Law wasn't the first law firm to try the "send tons of 'pre-settlement' letters to people we accuse of file sharing in hopes they just pay up," business model. In fact, ACS:Law got all of its initial paperwork from another law firm, Davenport Lyons, who was trying to get out of that business. However, ACS:Law was the firm that really got much of the attention over the past few years. Just about a year ago, that business model finally jumped to the US, initially from an outfit called US Copyright Group, which was really an operation run by a tiny DC law firm called Dunlap, Grubb and Weaver along with an online monitoring company. However, with the latest news that ACS:Law and its online monitoring company MediaCAT have completely gone out of business -- perhaps in a weak attempt to avoid sanctions for their disastrous attempt to finally bring some cases to court, it makes me wonder if this is a precursor of things to come for US Copyright Group/DGW. It certainly looks like DGW has been a bit more careful with its strategy than ACS:Law (where it really seemed like Andrew Crossley got in way over his head), but it certainly should be a warning sign to all those law firms who think this sort of shakedown play is easy money.

Filed Under: pre-settlement, uk, us
Companies: acs:law, dunlap grubb & weaver, mediacat, us copyright group

Mass P2P Porn Lawyer Tries Filing A Class Action Lawsuit... In Reverse

from the against-the-class? dept

Wow. We've noted that the various lawyers who have jumped on the mass copyright infringement shakedown bandwagon (mostly for clients in the porn business) have been running into some serious problems on the issue of "joinder" -- tying all of those defendants into a single group. You're only supposed to be able to do that if they were all involved together in breaking the law. So far, the courts haven't been buying it for the most part. However, it appears one of the lawyers involved in these cases, John Steele, is trying a bit of a novel strategy: a class action lawsuit in reverse.

Normally, a class action lawsuit involves a "class" of related people as the plaintiffs. Steele is arguing that you can lump all of the defendants into a class as well:

This Court has personal jurisdiction over the Class because the putative named class representative Defendants are residents of Illinois. This Court has in personam jurisdiction over absent class members because due process is satisfied by providing them with best practicable notice, an opportunity to opt-out, and adequate representation. In addition, the Court may exercise personal jurisdiction over individual Defendants because their infringing activity should have reasonably been anticipated to violate the Copyright Act in this jurisdiction. Therefore, due process is satisfied because any person engaged in such activity could reasonably anticipate being haled into this jurisdiction where he or she violated the Copyright Act.

Now, there have been a few examples of such defendant class action lawsuits in the past, but they're very rare, and usually require a pretty damn good reason. I'd be surprised if the judge grants it here. As in other cases like this, judges have pointed out that the mass group of defendants sued are not really comparable, as they each may have extremely different defenses, and were not really connected to each other in any way at all.

On a totally separate note, what is it with the lawyers bringing these mass P2P porn cases all having names out of some bad novel? Evan Stone. John Steele. Ken Ford. Is there some rule that you need a forceful, single syllable last name to be one of these lawyers?

Filed Under: class action, defendant class action, file sharing, john steele, p2p, pre-settlement, reverse class action

Just Under 100,000 Sued In Mass Copyright Infringement Suits Since Start Of 2010

from the out-of-control-yet?-Mass-Copyright-Infrigment-Suits-Filed-Against-Nearly-100,000 dept

We've been covering the mass copyright infringement lawsuits being filed in the US over the past year or so. Most of them aren't designed with the idea of actually taking anyone to court, but mainly to threaten people into "settling" (i.e., paying up) to avoid the lawsuit. A "concerned citizen" hoping to remain anonymous has taken the time to put together an amazingly detailed spreadsheet cataloging all of these lawsuits. He claims that he will continue to keep it updated. One stunning point from the data? Between January 1, 2010 and now, 99,924 "John Does" have been sued in this manner. If I don't hurry up and publish this post, I imagine we'll have already passed 100,000.

While many of the John Doe cases have been dismissed, the spreadsheet shows that 70,914 have not yet been dismissed, so there are plenty to go. When 100,000 people are getting sued anonymously by just a few firms, at what point do the courts and politicians realize that something is broken with the law?

Filed Under: copyright, lawsuits, pre-settlement

New Twist On Mass Pre-Settlement Copyright Shakedown Letters: Porn Company Asks Downloaders To Confess... And Pay

from the yeah,-good-luck dept

We've been covering how tons of porn companies have jumped on the bandwagon with these mass pre-settlement shakedown operations, in which they threaten thousands of people for the possibility that they might have infringed on their copyrights, and ask them to pay up to avoid a lawsuit. Over the last few weeks, TorrentFreak has been following how Liberty Media has been gearing up for just such a plan, with a few twists. First, there was the really bizarre lawsuit and settlement, where some guy was sued and settled in just a few days, giving Liberty Media the ability to claim he settled for $250,000, while the fine print suggested that he's paying a lot less (if anything). Then, the company started suing intermediaries, like Paypal and Hotfile.

But the latest move appears to be an attempt to turn this whole circus into a way to sign up more users. That's because the studio is now offering an "amnesty program," for people who 'fess up to downloading its movies. But unlike typical "amnesty" programs, you have to pay $1,000. Yes, the studio is asking people to effectively voluntarily agree to pay $1,000 so that they won't sue them, on the off-chance that there's actually evidence pointing to them (and that it can actually successfully sue a bunch of users -- which has proven problematic for others). But, here's the kicker: for those who do pay up, you get a one-year "paid membership" to the company's websites. In other words, it's a shakedown-turned-marketing plan.

Filed Under: copyright, pre-settlement
Companies: liberty media