West Coast Productions. Rule 4(m) order. To name or dismiss? Plaintiffs choose to dismiss!

On July 12th, 2011, we were all in dismay as to how Judge Kollar-Kotelly allowed the West Coast Productions v. Does 1-5,829 (1:11-cv-00057-CKK) case (in the US District Court for the District of Columbia) to stay alive, especially after imposing a hard deadline enforcing FRCP Rule 4(m) on the plaintiff attorneys which came and went with no comment, no order, essentially leaving us all wondering whether an order of hers actually was something to be taken seriously or not.

Well, today I would like to congratulate many of our clients at the Cashman Law Firm, PLLC on their dismissal from the case. Up front, this is not a complete dismissal, as a number of our clients are still putative defendants in this case.

That being said, as we know, Judge Kollar-Kotelly’s latest order still stands. BY AUGUST 15TH, 2011, PLAINTIFFS MUST NAME AND SERVE (or dismiss) ALL OTHER DEFENDANTS OR ELSE THE CASE WILL BE DISMISSED.

There was no indication as to why they did this today rather than in the next few weeks. My only guess (which is a weak one at best) is that when either the judge or the plaintiffs finally dismiss the case in its entirety, it might look better for the plaintiffs — in terms of preventing FRCP Rule 11 sanctions (should the court or any attorneys bring this up) for filing a frivolous lawsuit and not even naming one defendant after all these months — that the final dismissal be of just a handful of defendants rather than thousands of pages of IP addresses. That would certainly look bad.

I have attached a copy of the dismissal letter below for your viewing pleasure. To those of you who have been dismissed who are not our clients, please allow me to congratulate you on your victory.

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HOW TO BEST READ THE ARTICLES ON THIS SITE.

This site is dedicated to educating the internet user accused of copyright infringement via the peer-to-peer (P2P) software (a.k.a. “bittorrent”).  Most likely, you received a letter from your ISP in the mail along with a subpoena, where you are identified as a “John Doe” defendant in a lawsuit.  Alternatively, you have been contacted by the plaintiff attorney demanding that you pay a settlement “or else you will be named and served in a lawsuit against you.”  Most of these cases are filed in a federal court, thus an attorney licensed in any state can represent you.

Prior to setting up an appointment with a Cashman Law Firm, PLLC attorney, to properly educate you about the issues to be discussed on our phone consultation, it is best to read the articles as the cases have unfolded, from bottom-up. Please read these pages in the following order: [1][2][3][4]

You will find a copy of these instructions on the right sidebar of each page. –>

Judge Alsup takes over “New Sensations, Inc.” case

I was reviewing the various New Sensations, Inc v. Does cases in the US District Court for the Northern District of California, and one of them caught my attention.

In the New Sensations, Inc v. Does 1-1745 (3:10-cv-05863-WHA) case, I noticed that Judge William Alsup has taken over this case. This can only be good news for you and bad news for your plaintiff attorney, Ira Siegel. In short, Judge Alsup has the reputation for being known as “Mr. Rocket Docket”. Why? Historically, he has no patience for plaintiffs who sue and then sit around for months and months doing nothing (while they pressure defendants to settle). I have seen already a few cases where he gets tired of a case and on his own, he dismisses them for lack of prosecution. No doubt, if Mr. Siegel is paying attention, he’ll be paying attention to this case over the others or else he’ll have the case snatched from him.

To date, the other New Sensations, Inc v. Does cases in the US District Court for the Northern District of California are as follows:

New Sensations, Inc v. Does 1-1745 (3:10-cv-05863-WHA)
New Sensations, Inc v. Does 1-1474 (3:11-cv-02770-MEJ)
New Sensations, Inc v. Does 2-1768 (4:11-cv-02835-CW) <– severed from New Sensations, Inc v. Does 1-1768 (5:10-cv-05864-PSG) by Judge Paul S. Grewal.

Judge rules that it is improper to sue bittorrent swarms in the same lawsuit.

There is an interesting case coming out of the U.S. District Court for the Northern District of California — the court where most of John Steele’s newer and smaller Does 1-40 cases are showing up. In severing and dismissing all defendants (except Doe #1) in the Pacific Century International Ltd., v. Does 1-101 (4:11-cv-02533-DMR) case, Judge Donna Ryu held that it is improper to sue bittorrent users from different swarms in the same copyright infringement lawsuit, even if they all downloaded the same copyrighted work (e.g., the same movie).

In her decision, Judge Ryu made the distinction that each swarm has bittorrent users downloading a particular .torrent file, but the files themselves might not be similar enough for the plaintiff to join together all of the John Doe Defendants from the various swarms into one lawsuit claiming that all the John Doe Defendants downloaded “the same copyrighted work”.

For example, in one swarm, bittorrent users might download a low quality version of a pirated movie (e.g., perhaps from a “CAM” — an individual who takes a camrecorder into a theater and video tapes the film). Similarly, the bittorrent users of another swarm might be downloading a higher quality version of that same pirated movie, (e.g., a leaked high DVD quality version of a movie shared with movie screeners).

While each of these users who download copies of the copyrighted work — whether low quality or high quality — would likely be found guilty of copyright infringement [should any of the plaintiff attorneys decide to take these cases to trial rather sending out “scare” letters, making threatening phone calls, and in some cases naming defendants for the sole purpose of eliciting settlements], Judge Ryu ruled that it is improper to join the first swarm of bittorrent users (e.g., the low quality film downloaders) with the second swarm of bittorrent users (e.g., those downloading the leaked DVD version of that same work) BECAUSE the first swarm of downloaders WOULD NEVER INTERACT with the second swarm of downloaders. Thus, plaintiffs who join the John Doe Defendants of multiple swarms into one lawsuit claiming that each defendant necessarily participated in the SAME TRANSACTION OR OCCURRENCE is a faulty argument. Swarm #1 will never take part in the same transaction or occurrence as Swarm #2, and thus the judge ruled that it is improper to join defendants of the two swarms into one lawsuit.

This ruling flies in the face of almost every plaintiff attorney’s claim that each John Doe Defendant is properly joined with all the other defendants in that same lawsuit. Moving forward, should judges in other cases and in other jurisdictions adopt this judge’s opinion, following this opinion, the rule would be “ALL LAWSUITS THAT SUE DEFENDANTS OF DIFFERENT BITTORRENT SWARMS IN THE SAME LAWSUIT SHOULD BE SEVERED AND DISMISSED.”

How does this change the playing field? As we already know, John Steele, Ira Siegel, and the other plaintiff attorneys have already started suing smaller numbers of John Doe Defendants. Seeing a “Plaintiff v. Does 1-40” or “Plaintiff v. Does 1-60” (or even smaller) has become commonplace in bittorrent lawsuits. However, these smaller lawsuits have been made smaller in order to 1) fix the inherent issues of jurisdiction (e.g., suing defendants in the wrong court), and 2) to keep the case under the radar of the judges (after all, a lawsuit suing fifty defendants (Does 1-50) will incur far less attention than a lawsuit suing five thousand defendants (Does 1-5,000). Thus, in the new trend of these lawsuits, California defendants are now being sued in the California courts, Illinois defendants are being sued in the Illinois courts, and so on. Until the plaintiff attorneys begin suing defendants swarm-by-swarm (where a swarm is merely a snapshot of users uploading and downloading at a particular time), these smaller lawsuits also suffer the inherent flaw of “improper joinder,” and thus in time, they too will be severed and dismissed.

As a disclaimer, obviously this case is still alive as to John Doe #1 who remains a defendant in the case. In addition, there have been additional filings where the plaintiff attorney appears to be trying to convince the judge to change her mind on this matter.

I have attached a copy of the order below for your viewing and reading pleasure.

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