Congratulations to our client, one of ninety-nine defendants who have have been dismissed from the Lightspeed Media Corporation lawsuit (Civil Action No. 1:10-cv-05604).
This is an ongoing lawsuit with Mr. John Steele at the helm, where aggressive attempts to solicit and collect settlement offers for the alleged downloading of copyrighted materials via the bittorrent protocol.
The guilt of the defendants were not at issue in this case. We did not even get the chance to defend the copyright portion of the lawsuit itself. As with the other cases, defendants were improperly sued in courts which did not have personal jurisdiction over them.
This is a victory for now, but as always, there remains the threat that the plaintiff will sue each defendant either individually or in a class in a federal court having personal jurisdiction over each of the defendants sued. Of course, this would mean that the plaintiffs would need to hire local counsel in the relevant jurisdiction to file and serve each of the defendants, pay the filing fees for each defendant, and properly prosecute each lawsuit.
Considering the amount of defendants sued, this can be a costly proposition for the plaintiff client, but Mr. Steele has promised that this is the route he will take. Then again, this was the same promise that DGW’s notorious Evan Stone made when dismissing his clients in the Far Cry lawsuit.
Here in the Cashman Law Firm’s Federal Computer Crimes blog, we have been addressing a number of issues with regard to federal copyright law and its application to lawsuits dealing with the illegal downloading of movies and songs using the bittorrent protocol.
In our article entitled, “20th Century Fox v. small screenwriter. Suing for copyright infringement appears to be cheaper than advertising.” I mentioned that if the defendant (McIlvaine) is found guilty, she will likely need to file for bankruptcy to discharge her judgment because it is unlikely that if 20th Century Fox prevails in getting their $12 Million in copyright violation damages, McIlvaine will be able to pay it. As a response to my posting, a reader posited that “debts incurred for causing willful and malicious injuries are not dischargeable in bankruptcy,” referring to 11 U.S.C. s.523(a)(6).
The old Supreme Court case describing this issue was Tinker v. Colwell, 193 U.S. 473 (1904). However since that case, the law has been modified and in Kawaauhau v. Geiger, 118 S. Ct. 974 (1998), the Court limited the meaning of “willful and malicious injuries” to intentional torts, e.g., a doctor prescribing the wrong medication causing the patient’s infection to spread and ultimately to have the foot amputated. Thus, since copyright infringement is not one of the intentional torts, the rule preventing discharge for “willful and malicious injuries” would not include copyright infringement.
[Obviously this is not meant to constitute legal advice and one doing research on this topic should consult an attorney before proceeding. If I were to represent McIlvaine in her copyright lawsuit in New York, I would obviously update the case law with more recent cases of that district to confirm and strengthen what I have written above.]