Last week, Siemens Product Lifecycle Management Software Inc filed a complaint in the Southern District of NY against 100 unknown John Doe defendants for allegedly pirating their software.
Each defendant is known to Plaintiff only by the Internet Protocol (“IP”) address assigned to that Defendant by his or her ISP…
It’s not clear how Siemens harvested the IPs. Is this a file-sharing lawsuit, or is the software “phoning-home” to Siemens and allowing them to determine if users are using pirated installations?
This will be an interesting case to watch. It’s a bit different than the other mass-Doe suits I’ve written about, in that it involves software rather than video, and it’s been filed in a district not known for these type of lawsuits.
An fantastic article published yesterday in Business Week, written by Claire Suddath, has revealed some very interesting things about the former relationship between Hard Drive Productions and Prenda Law – or perhaps the relationship between John Steele and Paul Pilcher. Suddath’s article is a must-read.
Recall that Paul Pilcher runs Hard Drive Productions, the porn company that sued thousands of John Does. Hard Drive was Plaintiff in the somewhat famous case in DC, Hard Drive Productions v. Does 1-1495. Some defendants fought back against Hard Drive, and one even filed a separate lawsuit against them, (though it was later dismissed).
I previously wrote that Hard Drive may be exposed for several reasons, one being the controversy surrounding the infringement and publication dates of Amateur Allure – MaeLyn, the allegedly infringed work in HDP v. Does 1-1495:
… according to the copyright filing (reg. no. PA0001750487) for the video in this case, Amateur Allure – MaeLyn, the very first infringement occurred on the day of publication, 2011-05-27. What a coincidence!
From Suddath’s article, we learn that Paul Pilcher was feeling a bit uncomfortable, is aware of the California proceedings, and feeling exposed:
“…he started to wonder what his lawyers were up to. “I got very uncomfortable feelings from them,” he says.”
“The prospect of thousands of other people doing the same, or worse, terrifies Pilcher, although his Hard Drive Productions stopped working with Prenda last fall. “If these guys fold, I don’t know if I’ll have people coming out of the woodwork to sue or countersue,” he says.”
Hard Drive filed their last case over a year ago, in March of 2012. According to Suddath’s article, Pilcher made almost $200,000 from the 65 lawsuit litigation spree.
Among the many things I find interesting about the copyright trolling lawsuits are the anonymous motions filed by John Doe defendants or non-party intervenors. We’ve seen several examples of the non-party anonymous motion in various suits, and the courts have taken different approaches to them.
DieTrollDie has had some success with his “Torpedo” declarations, which make it clear that he’s a non-party to the litigation.
In some cases, anonymous Propria motions have been entered on behalf of *all* Doe defendants, and it’s not clear if the Doe “defendant” is an actual party to the litigation or an anonymous intervenor taking the stance of a Doe. If an anonymous motion comes prior to ISP subpoenas, it’s very likely to be a non-party intervenor.
In Battle Force LLC v. John Does 1-39, Case No. 1:12-cv-06539-JBS-KMW, D.NJ, an anonymous declaration was entered in Propria Persona, shortly after the Plaintiff entered a motion for discovery. The motion makes it clear that the intervenor is a non-party. The intervenor did NOT apply to the court for permission to intervene, nor did they apply for permission to proceed anonymously. Here’s the anonymous declaration. Note that it was entered on 11/08/12.
Plaintiff followed almost immediately with a motion to strike the anonymous declaration, calling the intervenor’s filing “unreliable” because it was anonymous, and raising lack of standing.
The court sat on this case for months without ruling on Plaintiff’s motion for discovery or the anonymous declaration. Finally, a few weeks ago – mid May, more than six months later – the court took action.
First, the court struck the anonymous declaration, stating:
The Court has not considered the anonymous declaration filed by the John Doe as part of its consideration of Plaintiff’s motion for leave to seek expedited discovery.
The footnotes explain:
“The author of the anonymous filing, John Doe, has entered his signature as “John Doe” and has “failed to provide a real name, address or telephone number.”
“The Court notes that “[t]he identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity, and further notes that John Doe has not sought the permission of the Court to file document anonymously.”
That the intervenor’s declaration was stricken from the record is almost irrelevant in this case, though, because the court decided to sever the case anyways!
Consequently, the request to conduct expedited discovery as to John Does 2-39 is hereby denied without prejudice.
The court grants Battle Force permission to conduct discovery on John Doe 1, but is very cautious, and recognizes that an IP address does not necessarily identify an infringer.
However, when looking to the privacy interests of the subscriber, the Court also recognizes that Plaintiff’s request to conduct expedited discovery, by serving subpoenas on ISPs to obtain the identity of the account holder of the allegedly infringing IP address,may not actually reveal the alleged infringer.
The court also mentions that they will consider a motion to quash and/or protective order from the ISP subscriber, and additionally hints that they will consider a motion from the ISP, too.
Here’s the order:
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.
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.
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.
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 188.8.131.52, 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 184.108.40.206” 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.