Month: May 2012

Comcast wins battle against Millennium TGA & Prenda. Subscribers lose.

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It is always nice when one judge reaches into another judge’s docket and removes a case from his docket.

While I cannot tell if this is exactly what happened here, all I can say is that Comcast essentially just won their “forum shopping” case against Prenda Law Inc. relating to their Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501) case in the Southern District of Texas (a.k.a. “MILLENNIUM II”). BUT before you go off celebrating, Comcast is STILL under an obligation to hand out your information. Watch out!

To recap, if you remember from my “Forum Shopping” article on 5/16, Millennium TGA, Inc. sued 939 John Doe Defendants in DC (“MILLENNIUM TGA I”). When they learned that Judge Robert Wilkins (who killed a prolific bittorrent case) was assigned to the “MILLENNIUM TGA I” case in DC, the Prenda Law Inc. attorneys for Millennium TGA, Inc. dismissed the case and then re-filed it in the Southern District of Texas (Case No. 4:11-cv-04501) (“MILLENNIUM TGA II”) suing essentially the same John Doe Defendants as they did in the “MILLENNIUM TGA I” case in DC which they voluntarily dismissed when they learned that Judge Robert Wilkins was the judge assigned to that case.  The Texas judge rubber-stamped their request to serve the ISPs with subpoenas to obtain the contact information of the 939 John Doe Defendants, and Prenda Law Inc. sent out the subpoenas to the ISPs. Comcast (one of the ISPs) saw the obvious forum shopping (actually, “judge shopping”) issue (among others) and refused to comply with the subpoenas. Prenda Law Inc. sued Comcast in DC (what I called “MILLENNIUM TGA III” in my 5/16 article).

In the MILLENNIUM TGA III case in DC (which is essentially Prenda Law Inc. suing Comcast in order to force them to comply), Magistrate Judge Kay ruled against Comcast telling them that they must comply. Comcast appealed, BUT THE JUDGE’S ORDER FORCING COMCAST TO COMPLY IS STILL VALID AND IS STILL IN EFFECT! So what exactly is going on?? What happened today??

On 3/26, Comcast noticed that Prenda Law Inc. violated the court’s “judge shopping” rules (LCvR 40.5(a)(4)) by not reporting that its new case [assigned to Magistrate Judge Kay] was substantially related to the “MILLENNIUM TGA I” case that it voluntarily dismissed when it was before Judge Wilkins.

According to the DC local rules, to prevent contrary rulings by different judges for the same issues, if two lawsuits are substantially related (here, they are essentially identical), all subsequently filed cases get assigned to the original judge.

Knowing this, on 3/26, Comcast filed a “Request For Judge Reassignment” which was ignored until this morning.

As of this morning, District Judge Ellen Segal Huvelle took the case away from Magistrate Judge Kay and reassigned it to Judge Robert Wilkins — the judge it should have gone to originally. Woohoo! Comcast’s victory is palatable at this point, because we can almost predict with certainty that he will rule in Comcast’s favor and will allow them NOT to comply with the subpoenas in the Texas MILLENNIUM TGA II case.

The problem is that all you see on the docket is a granting of the 3/26 motion for reassignment. Comcast appealed Magistrate Judge Kay’s terrible ruling against it, and Prenda Law Inc. filed a response to which Comcast responded to, but THERE WAS NEVER A RULING ON THEIR APPEAL which means that JUDGE KAY’S ORDER IS STILL IN EFFECT! COMCAST IS STILL UNDER AN OBLIGATION TO COMPLY WITH THE SUBPOENAS!

So in short, I have no doubt that Judge Wilkins will side with Comcast. However, I just don’t know if he has enough time to stop what he is doing (judges don’t only spend their days only reading these pornography-based bittorrent cases) and write an order 1) granting Comcast’s appeal and overturning Magistrate Judge Kay’s order [which is still in effect], and 2) granting Comcast’s motion for an extension of time to comply with the subpoena (which for many people, the deadline is today).

So while Comcast has essentially won the battle, they have not yet won the war. Comcast is still under the obligation to comply with the subpoenas.

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MY OPINION:
…On a personal note, I feel that it is important that Comcast subscribers take note of the CONFLICT OF INTEREST that is apparent even in cases such as this one.  Comcast has been blindly complying with Prenda Law Inc.’s subpoena requests for almost TWO YEARS now.  They have opened up their own “Subpoena Compliance” division and have hired new staff (twelve new full-time employees, if my memory serves me correct) just to comply with these subpoena requests. They have entered into private agreements where Prenda pays them a certain sum of money for each IP address lookup (~$45 per IP address, give or take), and thus COMCAST RECEIVES A FINANCIAL BENEFIT FROM COMPLYING WITH THE SUBPOENAS.  On top of that, while I have spoken to John Seiver and I believe he is a very skilled attorney (remember the work he did in bringing down the Digiprotect case almost two years ago?), I cannot help but to be suspicious that this whole lawsuit is a PUBLIC RELATIONS STUNT solely to boost the image of Comcast.  After all, I must ask you — where were they until now? Have they filed ONE motion to quash on behalf of their subscribers? Why not? After all, with all the thousands of failed motions to quash filings attempted by their subscribers, Comcast could have SUCCESSFULLY filed motions to quash on behalf of its subscribers [they had standing in each case to object, and judges were dumbfounded why they never got involved], but they never did. Why not?

I also would like to mention that Comcast was one of the first ISPs to sign on to the MPAA/RIAA’s “six strikes” program (now on hold) which will no doubt be wreaking havoc on their subscribers in the near future.  So while I applaud John Seiver and Comcast for fighting and [what will likely be] WINNING the case against Millennium TGA, Inc. and Prenda Law Inc., I still need to ask myself on behalf of my clients, where were they until now? And, “will they still “accidentally” comply and collect their fee?” I would like to remind you that this has happened before.

DGW finds troll-friendly judge in their THIRD WORLD MEDIA, LLC case.

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I am getting phone calls about “scare” letters that plaintiff attorneys Dunlap Grubb & Weaver, PLLC have been sending out using the name “Media Law Group” on their letterhead.  Again, this is Dunlap Grubb & Weaver, PLLC (particularly in this case, Ellis Bennett).

There is no overly exciting news here — the case for which these letters are now being sent out is “Third World Media, LLC v. Does 1-4,536” (Case No. 1:11-cv-00059) filed on 1/10/2011 in the U.S. District Court for the District of Columbia.  The number of the Doe Defendants has changed, as the case name used to be “Third World Media, LLC v. Does 1-4,171.”  Quite frankly, this is just another “me too” production company trying to make a few bucks shaking down people who allegedly downloaded their adult films.

What is noteworthy in this case is how it was literally ignored by Judge Richard Roberts for almost 10 months before it was thrown over his shoulder on 11/15/2011 to Magistrate Judge Deborah Robinson for her to deal with it.  During this time, Judge Roberts never replied to any of the motions, and he completely ignored the plaintiff attorney’s request to serve subpoenas on the ISPs in order to gain access to the John Doe Defendant’s contact information.

However, as soon as Judge Robinson took over the case, no doubt champagne bottles were brought out and the bubbly started flowing.  “Cheers!” probably came from the halls of Dunlap Grubb & Weaver, PLLC’s office.  Why? They found themselves a patsy judge.

Immediately after receiving the case, Judge Robinson not only rubber-stamped the order essentially handing 4,000 subscribers into the hands of Dunlap Grubb & Weaver, PLLC (one of the original copyright trolls from the mega cases of 2010 and 2011), but she gave them more leeway than I have ever seen a judge give a copyright troll.  I have seen orders giving plaintiffs 120 days (in accordance with Rule 4(m) of the Federal Rules of Civil Procedure, which gives a plaintiffs 120 days to name and serve or dismiss [John Doe] defendants), however, in her order, she gave them 270 DAYS!

Quite frankly, I’m not one to call a judge corrupt, or to claim that a judge is in the pocket of one party or another, but giving a copyright troll 270 days (where the rules allow for a MAXIMUM of 120 days) seems fishy to me.

But then, it doesn’t stop there.  Immediately after her 11/29/2011 order giving the plaintiff attorneys carte blanche for the next 9 MONTHS (FYI, that’s until the end of August, 2012), on 12/6/2011 the plaintiff attorneys amended their complaint adding new defendants (consequently adding 110 pages of IP addresses to the docket).

The funny thing, however, is that none of us have heard a PEEP from defendants, which indicates to me that the ISPs they targeted have given them a hard time and have not released the contact information of the accused Doe Defendants… until now.

As of this week, a number of defendants have started calling our office about this case.  Apparently the ISPs have begun complying with the subpoenas.  Let the games begin!