Over the past few days, as a response to last weeks article where plaintiff attorneys Dunlap, Grubb & Weaver dumped thousands of defendants, Judge Beryl Howell wrote a memorandum indicating which issues the US District Court for the District of Columbia court will hear, and which they will not. In short, as the various articles describe (see here, and here), the judge has opined that any arguments of jurisdiction, joinder, or first amendment defenses are not relevant until a John Doe defendant is named as a defendant in the case.
For the most part, when reading this 42 page memo, I was unimpressed. Her motivations and proclivities in favor of the plaintiff copyright holders were apparent, but her opinion was unmoving. I shrugged my shoulders and thought to myself that this was not a controversial opinion. It wasn’t until I started reading the forums in ArsTechnica.com that the users realized that the judge had some serious bias issues. Some were even of the opinion that the judge should not have heard the case in the first place because of conflicts of interest and violations of rules of recusal.
As for her opinion, plaintiff attorneys and courts for months now have been holding that a defendant does not have standing to contest jurisdiction (e.g., “Dear Court, I was sued in the District of Columbia. I live in New York. Court has no personal jurisdiction.”) until they are named in the lawsuit (e.g., John Doe #123 -> Real Name Defendant). This is the reason defendants have been unsuccessful in filing motions to quash the various subpoenas issues by the courts against the internet service providers ordering them to surrender over their subscribers’ information.
The change in this Judge’s opinion was that while many cases (e.g., the various Larry Flynt Productions cases and the Far Cry lawsuits, just to name a few) over the previous months have been severed and dismissed because of improper joinder issues (e.g., one accused defendant downloading a copyrighted file on Monday should not be joined in a lawsuit with a defendant he does not know who downloaded that same copyrighted file on a Wednesday, or “subsequent acts of copyright infringement by unrelated defendants are not sufficient to justify the joining of the defendants together in one John Doe lawsuit.”), here Judge Howell has stated that she will not even entertain a misjoinder argument from a defendant until that defendant is named as a defendant in the lawsuit.
In my opinion, the court is simply ‘kicking the can down the road’ for matters of simplicity. This opinion was nothing fantastic, and it did not affect our clients because none of them have been named in any of these lawsuits.
However, as a result of Judge Howell’s decision, articles on TorrentFreak (“BitTorrent Case Judge Is a Former RIAA Lobbyist and Pirate Chaser“) and ArsTechnica.com (“RIAA lobbyist becomes federal judge, rules on file-sharing cases“) have surfaced pointing out obvious ethical issues regarding her even sitting on the bench for these cases given her past intimate connection with copyright lobbying groups, including past employers, conflicts of interest, issues of bias, and issues of recusal which have raised a flare of users’ objections to her adjudicating these cases.
As far as my clients need to worry, this is simply an opinion by a judge (biased or not) giving the plaintiffs free reign to go after John Doe defendants and to continue to solicit exorbitant settlement fees in the amount of thousands of dollars all while the plaintiff attorneys continue to tell the judges that they are conducting “discovery.” The issues have not changed, and there is no new law with this opinion. For my clients who are defendants in these cases, this opinion simply means that the court will likely not sever the case on its own as it did in the Far Cry case, but rather, it will wait until the plaintiff attorneys begin naming defendants before they consider whether the defendants are properly joined together with the thousands of other defendants.
3 thoughts on “How Judge Beryll Howell’s Decision Affects “John Doe” Defendants.”
I’m under the personal opinion that while being involved in the creation of pro-copyright legislation may be one issue in itself, the fact that she received over five hundred thousand dollars over a five year period for lobbying in favor of the RIAA’s agenda in the government does bring reasonable doubt as to whether she can remain unbiased in this issue.
You most certainly don’t lobby for the RIAA for an average of around a hundred thousand a year for promoting the excitement of the new Justin Beiber album to congress.
But regardless of that, the main point here is that regardless of who’s side she’s on or questions into whether she’s biased, she fails to realize that the USCG has played her like a violin and she sang just the tune they wanted to hear.
As I have said before, not enough of these judges are doing their research into these tactics to realize that the only way to stop this is to stomp on it before it even gets to discovery. The moment it reaches discovery phase, the plaintiff has already won. They never have to have any intention of pursuing on an individual basis. As long as they are able to obtain someone’s name and address, that’s more than enough to start the settlement harvests. The first settlement pays for the filing fee and any efforts to discover, and anything after that is pure profit into the hands of the lawyers and the copyright holders.
Unfortunately, by the time any judges realize what happened, the given “copyright group” that’s involved has already skipped away with their bags of money and the case can be dropped against anyone who has been discovered already. They don’t have to care about chasing individuals; It was only ever about the people they can easily collect from.
Found this re the Maverick Entertainment suit (10-cv-00569) re Judge Howell’s latest decision of 4/4/2011:
The way I understand it, the judge basically reversed the 3/31 order for Time Warner to release the IP customer data to Dunlap/Etal.
I’d received the notice from Comcast earlier in March. Does this have any impact to my situation?
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