Ledge Distribution case stayed in Washington
This may have been discussed already elsewhere, but since I previously wrote a bit about this case, an update is deserved. The case is The Ledge Distribution, LLC v. Does 1-71, Case No. 2:13-cv-00330-RAJ-RSL, W.D. Wa. (See previous posts; also see RECAP Archive).
This case started out like any other, with early discovery granted. As noted in my previous post, on behalf of John Doe #64, Doe Defender Gary Marshall filed a Motion to Quash, exceeding 50 pages in length in sum (counting attachments). He received a dressing down and threat of sanctions from the court for not following a few local rules, specifically failure to provide courtesy copies and not having a proper page footer. (Note to attorneys other with cases before Judge Lasnik!) Here is the Motion To Quash, which makes the usual arguments: misjoinder, failure to pay necessary filing fees, etc.
Here is Judge Lasnik’s Order To Show Cause and slap on the wrist:
Attorney Marshall filed a grovelling apology with the court , and as expected, it was accepted and the focus went back to troll fighting.
Next, plaintiff attorney Richard Symmes filed a response, opposing the Motion To Quash. I don’t agree with the points Mr. Symmes makes, specifically:
The only way to enforce one’s copyrights against online infringement is to subpoena the identity of the subscriber whose internet was used to commit the infringement.
I find the response well written nevertheless, despite not agreeing with its content.
The back-and-forth continues, with Doe Defender Marshall weighing in one more time:
And finally, sweet success. Judge Lasnik ordered the subpoenas quashed, and stayed the case, noting:
It is one of forty-eight copyright infringement actions filed during a four month period by attorney Richard J.Symmes against approximately 2,323 individual Doe defendants.
In that list of 48 cases are several other Plaintiffs, including Riding Films. Judge Lasnik notes that ALL bittorrent cases in W.D. Wa. have been assigned to him:
All BitTorrent cases filed in the Western District of Washington have been referred to the undersigned for pretrial handling.
Judge Lasnik is catching onto the “business model” that these low-budget filmmakers (or copyright owners) have adopted: extorting settlements out of the populace. Judge Lasnik even mentions Judge Wright’s May 6th Sanctions Order against Prenda Law’s Principals.
As the full extent of this assignment has become clear, the Court admits to some concerns regarding both the appropriateness of joinder and the possibility that the judicial authority of the United States may be used to wrest improvident settlements from pro se litigants under threat of huge statutory penalties.
The full effect of Judge Lasnik’s order:
Any and all subpoenas issued in the above-captioned matter are hereby QUASHED.
To the extent plaintiff has obtained identifying information regarding one or more Doe defendants, whether through the service provider, defendant, or another source, it shall not utilize that information in any way.
Plaintiff shall, within fourteen days of the date of this Order, show cause whythe above-captioned matter should not be dismissed as to all defendants other than Doe 1for improper joinder and/or pursuant to the Court’s inherent authority to control its docket.
Plaintiff shall, within fourteen days of the date of this Order, provide additional information regarding (a) The Ledge Distribution LLC’s ownership of the copyright at issue and (b) The Ledge Distribution LLC’s direct and indirect members/owners/stakeholders. Plaintiff shall provide a copy of any and all transfer statements and/or work-for-hire contracts supporting a determination that The Ledge Distribution LLC has standing to pursue this action. Plaintiff shall also supplement the corporate disclosure statement filed in this action (Dkt. # 2) by providing the registration information for Foresight Unlimited, LLC maintained by the Secretary of State and identifying all members/owners/stakeholders of Foresight Unlimited, LLC, both direct and indirect, in the form of an organizational tree that reaches back far enough to reveal all individual members/owners/stakeholders and publicly-traded corporations.
With the exception of the actions specifically set forth in this Order, the above-captioned matter is hereby STAYED.
As attorney and Doe Defender Rob Cashman noted in a blog post: “At this point I have no indication as to whether Judge Lasnik is actively copyright-troll friendly or whether he is simply unifying the proceedings and allowing all cases to proceed.” We’re starting to find out. If there are developments in Judge Lasnik’s other cases, please bring them to my attention. This will be fun to follow.
Note: additional coverage on the action taken by Judge Lasnik at the “Troll Defense 2.0″ blog.
Answer and Counterclaims in West Coast v. Does 1-38
One of the named defendants in West Coast Productions, Inc. v. Does 1-38, Case No. 12-cv-02642, D.Col. (see previous posts) has, through counsel, answered Plaintiff’s complaint and raised counterclaims, including abuse of process, malicious prosecution, invasion of privacy, outrageous conduct, and groundless and frivolous lawsuit. Also of interest, the defendant is arguing that Plaintiff’s work is not copyrightable.
Named defendant settles in West Coast v. Does 1-38
I last mentioned West Coast Productions, Inc. v. Does 1-38, Case No. 12-cv-02642, D.Col., when I wrote that Plaintiff filed an amended complaint naming seven defendants, and the court’s imposed deadline of April 19 to serve them. On 4/26, summons were returned executed for four of the named defendants. One of those defendants has settled; a consent judgement was entered.
Plaintiff has valid and enforceable rights in the original copyrighted work registered with the United States Copyright Office, Reg. No. PA 1-665-237. Defendant confirms that he unlawfully copied plaintiff’s copyrighted work, but that he has now deleted all versions from all computers in his possession, custody or control. Defendant consents to this Consent Judgment as a settlement of disputed claims in this case. Defendant [REDACTED] is PERMANENTLY ENJOINED from directly, contributorily or indirectly infringing Plaintiff’s rights in the copyrighted work.
Regarding the other named defendants: one answer was due 5/2 but hasn’t, and two of them must answer by 5/13.
Objector ISPs and Doe Defendant add some “Flava” to lawsuit
Flava Works, Inc. v. John Does 1-293, case no. 1:12-cv-07869, N.D. Ill., has been an interesting and controversial case from the very day it was filed.
First, a quick review of where we’ve been:
It started when Flava filed their complaint, alleging that BitTorrent users infringed its copyrighted pornographic work “Thugboy V11″. When Flava entered their Motion for Discovery, it was accompanied by a Declaration from none other than the Flava Works CEO and Webmaster himself: Phillip Bleicher. The declaration revealed that Flava relied on VUZE software in combination with other proprietary software to monitor the BitTorrent swarm.
After their Motion for Discovery was granted, Flava sent incredibly broad subpoenas to ISPs, demanding personal and privileged information, including bank account information, payment information, and credit card information. ISPs Suddenlink Communications and Comcast Cable entered appearances shortly after in objection to the subpoenas.
What has happened since then?
First, Flava Works entered motions to compel ISPs Suddenlink and Comcast to comply with the subpoenas. From those motions, we learn that Flava is no longer seeking payment information, such as bank and credit card info, for the ISP subscribers:
Flava withdraws its request for the Media Access Control address, credit card and other payment information.
We also learn that Flava is battling at least one of the ISPs over cost.
On February 21, 2013, counsel for Flava objected to reimbursing Comcast “$90.00 for each positive IP address identification and $60.00 for each negative IP address identification” but left the issue open for discussions [...] Flava is only willing to pay $30 per subscriber.
The Motion to Compel Comcast, in its entirety:
Comcast is fighting the Motion to Compel, and on 04/09, entered a a memorandum in opposition to the motion to compel. The memorandum makes a number of legal points: that they haven’t received a valid court order, improper joinder of defendants by Plaintiff, and unfair litigation tactics. In addition, Comcast accuses Flava of using “shakedown” tactics:
Flava should not be allowed to profit from unfair litigation tactics whereby Flava uses the offices of the Court as an inexpensive means to gain Doe defendants’ personal information and coerce “settlements” from them. As shown by the extra-territorial sweep of its subpoena, Flava has no interest in actually litigating its claims against the Doe defendants…
The memorandum in entirety:
Flava has more than the ISPs to battle in this case. One Doe – who apparently is a subscriber of an ISP that complied with the subpoenas – is fighting back. On 03/28, the Doe defendant entered, through counsel, a motion for protective order and dismissal of Plaintiff’s complaint. The Motion argues lack of personal jurisdiction, improper joinder, improper use of VUZE software, and raises privacy issues.
The basis for this motion is that DOE IP address 173.17.92.42, who is a resident of Northern California, hereby moves that this Court to dismiss this complaint and to issue a protective order so that defendants can use “DOE 173.17.92.42” to avoid the potential damage of his/her name associated with the pornography industry. Further, this Court should dismiss the entire complaint with prejudice since the means of obtaining the IP addresses exceeded the terms of the license agreement between Vuze and Flava Works, Inc. Defendant further seeks a protective order to protect his/her identity through these proceedings.
Perhaps most intriguing is the arugment and allegation that Flava misused VUZE software to monitor the BitTorrent swarm:
In short, Flava Works, Inc. has breached the terms of the Vuze license agreement by collecting personal information from Bittorrent Swarms and using this information in a business commercial use. Given Flava’s breach of their Vuze license agreement, it would be inequitable for this court to enforce an action for infringement when the party alleging the infringement itself exceeds the scope of its copyright license used to monitor the Bittorrent swarms.
Here is the Motion in full. Note that the VUZE terms of service and an opinion from Judge Otis Wright are attached as exhibits.
It looks like Flava has an uphill battle with this case.
Does mount defense in Washington
In the Western District of Washington, enter Doe defender Gary Marshall, who on Tuesday filed a declaration in three low-budget film copyright trolling lawsuits on behalf of 10 John Doe defendants, identified only by their IP Addresses.
Gary Marshall’s law firm has a focus on technology and internet litigation. He also writes a law blog and has recently focused on revenge porn.
West Coast Productions names and serves in Colorado
Sanjin Mutic of Mile High Law Office, LLC filed at least two suits for West Coast Productions in October 2012 in Colorado District Court.
One of these cases is getting interesting: West Coast Productions, Inc. v. Does 1-38, Case No. 12-cv-02642.
First, some history.
The suit was filed on 10/05/12. Five days later, attorney Mutic filed a motion for discovery and memorandum in support of it.
Shortly thereafter, the case was referred to Magistrate Judge Mix and a scheduling conference was set. The motion for discovery was referred to the new Judge.
One month later, on 11/27/12, the case was reassigned to Magistrate Judge Hegarty, and the motion for discovery and memorandum were referred to him the next day, accordingly. On that very same day, he granted discovery (in part), allowing West Coast to obtain the ISP subscriber identities, but warning that “improper” use of the subscriber information could result in sanctions.
Finally, the Court emphasizes that Plaintiff may only use the information disclosed in response to the subpoenas or the purpose of protecting and enforcing its rights as set forth in its Complaint [docket #1]. The Court cautions Plaintiff that improper use of this information may result in sanctions.
This is the order in full:
One week later, apparently wanting to further keep the trolls under a watchful eye, Magistrate Judge Hegarty, in a minute order, imposed monthly status reports on the Plaintiff:
MINUTE ORDER: Plaintiff shall file a status report within five (5) days of the date of this order, then on the tenth day of each month thereafter, informing the Court of the status of service in this case. By Magistrate Judge Michael E. Hegarty on 12/7/2012. (mehcd) (Entered: 12/07/2012)
As one would expect, Plaintiff began filing the monthly status updates.
On 01/11/13, attorney Mutic filed a Motion for Clarification of its order granting discovery, because one of the ISPs, Cablevision, decided not to respond to the subpoena for subscriber information:
Note that attorney Mutic signed the motion.
Just three days later, 01/14/13, Paul Lesko filed a notice of appearance with the court on behalf of West Coast. This was not a substition of counsel; Mutic remained. However, after this appearance, Lesko has apparently filed all Plaintiff documents with the court. There is no evidence of involvement by Mutic.
That same day, the court granted the Motion for Clarification and issued an amended order granting discovery, which contained the clarifying information that Cablevision had asked for.
On 1/25/13, Paul Lesko asked the court for a 90-day extension to name and serve the defendants. The court only gave him 30 days.
The Court finds the Plaintiff has not demonstrated good cause for a lengthy 90-day extension. However, the Court finds good cause to grant a 30-day extension of the deadline within which Plaintiff may serve Defendants pursuant to Rule 4(m). Therefore, Plaintiff shall serve all Defendants in this case pursuant to Rule 4(m) on or before March 4, 2013. By Magistrate Judge Michael E. Hegarty on 01/25/13. (alvsl) (Entered: 01/25/2013)
On 02/19/13, the first John Doe defendant was dismissed. Additional defendants were dismissed over time.
The initial deadline to name and serve came along, and on the very same day of the deadline, March 4, Lesko filed a motion for extension of time. The court responded by moving the deadline out one month, to April 4.
One day before the deadline, April 3, Lesko asked, once again, for more time to name and serve the defendants. On 04/05/13, the court gave Plaintiff an additional 14 days:
… the Court finds good cause to grant a 14-day extension of the deadline within which Plaintiff may serve the Defendants Plaintiff names in the amended pleading pursuant to Rule 4(m). Therefore, Plaintiff shall serve all Defendants in this case pursuant to Rule 4 (m) on or before April 19, 2013.
Perhaps sensing that the court wasn’t going to grant further extensions, on April 5, West Coast filed an amended complaint against seven named defendants, and on 04/08/13, 21-day summons were issued by the clerk to each of the defendants. This is the amended complaint:
With defendants being served, this will continue to be an interesting case to watch.
Safety Point, Picture Perfect & Voltage cases severed in N.D. Ohio
Safety Point Productions, LLC et al v. Does 1-14, Case No. 1:12-cv-02812-JG in N.D. Ohio, a case I’ve mentioned previously, has been severed sua sponte by Judge Gwin. The story was additionally picked up by The Hollywood Reporter. Note that this order applies to four cases: 1:12-cv-2812, 1:12-cv-2820; 1:12-cv-2831; and 1:12-cv-2894.
My favorite part of the order:
Courts have been troubled by what amounts to be a new business model employed by production companies “misusing the subpoena powers of the court, seeking the identities of the Doe defendants solely to facilitate demand letters and coerce settlement, rather than ultimately serve process and litigate the claims.” This unseemly practice is made worse by the frequent practice of joining hundreds or thousands of defendants in a suit, saving plaintiffs tens of thousands of dollars in filing fees. It is in this environment where courts must take every caution to ensure that the keys to the doors of discovery are not blithely given to parties with other intentions.
Regardless of the dubious practices of others, Plaintiffs may have legitimate claims which deserve litigation. Nevertheless, unnamed Defendants are improperly joined, and in order to continue with their actions, Plaintiffs will need to paythe requisite filing fee per suit. Otherwise, Plaintiff has saved over $67,500 by consolidating its claims into four separate actions. If Plaintiffs seek to use the powers of this Court to vindicate its rights, it must pay the requisite fees like every
other Plaintiff.
Here is the order:
