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.
[scribd id=95193567 key=key-1gpc1im3wgk2rn1blkgh mode=list]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.
When I wrote about Comcast fighting Prenda in a past post, John Steele chimed in and stated they had payment agreements with all the ISPs. In the recent Hearing (http://dl.dropbox.com/u/81004257/Hearing_02084%28PA%295-14-2012.mp3) for Malibu Media v. John Does 1-14, 2:12-cv-02084, Eastern District PA, Troll Christopher Fiore, tells the court that fees for services (obtaining subscriber information) were hashed out way in advance. It does feel like Comcast (and I assume most of the other ISPs) are trying to play both sides.
DTD 🙂
Per your suspicions, Rob, Comcast knows at the highest levels that its policy regarding its customers’ best interests is conflicted. I have it on good authority, first-person advice tendered at the highest level. Why even bother putting on a good face when corporate inertia on this issue betrays it?
Now, if Comcast actually stood behind its claimed policy of protecting customers against illicit shakedowns, that really would be something worth crowing about. I know for a fact it would keep a couple dozen high-revenue-producing subscribers in my circles from bolting.
Multiply that by a hundred thousand customers-plus immorally stung by Prenda and its ilk who would praise Comcast to the heavens, stemming the tide of deserters taking their $2,000+/year to other ISPs. We’re talking about saving big money for Comcast and earning scads more from a new crop of confident customers, a lot more than a pathetic $45 per IP lookup.
Does all this blah blah blah have anything to do with the Internet? It’s just a series of tubes anyway.
Hope you are already aware of the developments:
Judge Wilkins rules: denies Prenda’s motion to compel, only allowing Prenda to get location (state and city) of each accused subscriber: Pyrrhic victory: this information is openly available via geolocation tools.