I wanted to bring your attention to a new “copyright troll” in the backyard of Steele Hansmeier, PLLC (now Prenda Law Inc.). The copyright troll is “R & D Film 1, LLC” and their plaintiff attorney is Michael Heirl and Todd Parkhurst of Hughes Socol Piers Resnick & Dym, Ltd. Their website is http://www.hsplegal.com, and surprise, surprise — they are out of Chicago, Illinois.
It appears as if they are suing over the movie title “The Divide,” directed by Xavier Gens, which was seeded over the bittorrent network as “The Divide 2011 LIMITED 720p BRip XVID AC3 BHRG” on USAbit.com [and is coincidentally still being seeded now as we speak here, so apparently neither Michael Heirl nor Todd Parkhurst have issued a DMCA takedown letters to the bittorrent websites.] The download appears to be a rip of a Blu-Ray, the size of the file is 3.8 GB, and it appears to have been downloaded 2162 times so far (so expect to have 2,000+ defendants soon for this file alone).
On another complaint, I see the torrent file is “The Divide 2011 720p BRRip x264 -MgB,” and I could only guess that in their other lawsuits, they are suing for all the other bittorrent filenames downloaded.
It appears that plaintiff attorney Michael Heirl has targeted the following ISPs: Comcast Cable, Frontier Communications, Mediacom Communications Corp., RCN Corp., SBC Internet Services, Norlight Telecommunications, Wireless Data Service Provider Corporation, and WideOpenWest. Plus, it appears as if they have not only focused on those defendants in Illinois, but they have narrowed the IP addresses down to which town allegedly housed this accused IP address. Thus, forget about motions to quash based on a lack of personal jurisdiction — they’ve nailed it.
So far, I only see 364 John Doe Defendants implicated in these lawsuits, but with 2,000+ downloads (and counting) for one file on one bittorrent website, they could easily amend their complaints to add thousands of new defendants as Dunlap Grubb & Weaver, PLLC and other plaintiff attorneys have habitually done in the past. Here are the lawsuit titles to date:
CASES FILED BY TODD S. PARKHURST & MICHAEL A. HIERL OF HUGHES SOCOL PIERS RESNICK & DYM LTD. IN THE NORTHERN DISTRICT OF ILLINOIS: R & D Film 1, LLC v. Does 1-52 (Case No. 1:12-cv-05810) R & D Film 1, LLC v. Does 1-20 (Case No. 1:12-cv-05817) R & D Film 1, LLC v. Does 1-57 (Case No. 1:12-cv-05821) R & D Film 1, LLC v. Does 1-62 (Case No. 1:12-cv-05822) R & D Film 1, LLC v. Does 1-36 (Case No. 1:12-cv-05823) R & D Film 1, LLC v. Does 1-88 (Case No. 1:12-cv-05825) R & D Film 1, LLC v. Does 1-29 (Case No. 1:12-cv-05827) R & D Film 1, LLC v. Does 1-20 (Case No. 1:12-cv-05828)
Now I have started a discussion page on the R&D FILM 1, LLC lawsuits here, and as I learn more, I will obviously post about it.
On a personal level, it is always an interesting experience defending defendants who are accused of downloading actual motion pictures (“movies”), because the attorneys for these cases are usually more self-assured than those from the porn industry. Obviously the difference between a porn copyright troll and a motion picture copyright troll is that the porn troll is usually suing because they want to 1) stop the piracy of their film and 2) it is a better business model (frowned upon by the porn industry or not) to get thousands of dollars from one internet user rather than to get hundreds of members to sign up for monthly or annual memberships at their sites.
However, with “movie” copyright trolls, they often appear to be self-righteous and have no compunctions throwing threats around because nothing of theirs stinks except for the way they have chosen to make money for their production company client (which they often share a piece of, so there are ethical implications as well [e.g., having a “stake” in the outcome of the litigation]). Looking at these attorneys, they look like older gentlemen who might not be aware of the poo they just stepped in by copying the methods of the copyright trolls. I even wonder whether they are aware of the now hundreds of lawsuits that have been filed in the courts, and specifically the many adverse rulings in the Northern District of Illinois where any copyright troll should be thinking twice before filing there. In short, what will be interesting is to see whether these copyright trolls are interested in stopping the piracy of their films, or whether they want to punish those who have not purchased a ticket at the box office.
UPDATED 2020 SUMMARY: Case consolidations (until this post) happened when a federal judge lumped together different cases which all suffered from the same flaws, e.g., improper jurisdiction, improper joinder, etc. and they dismissed them all in one order. This was a good thing! However, when a troll-friendly judge consolidated a plaintiff attorneys case to keep the cases alive — to manage the dockets in order to avoid inconsistent rulings — while these types of case consolidations were good for the court (and for justice), it was a bad thing for the defendants accused in those copyright infringement cases.
In short, when a judge consolidates a copyright troll’s cases, those case consolidations are usually a good thing. In the “olden days” (meaning, two years ago), lawsuits used to have literally THOUSANDS of John Doe Defendants in each case. The problem was that when those monster cases would fall, they would make a huge thump sound and thousands of defendants would go free with one judge’s order.
Personal Jurisdiction (“Improper Location of Lawsuit”)
Similarly, in the older cases, plaintiffs would clump together defendants from all over the country and they would sue them in the WRONG STATE.
Obviously the rule the copyright trolls overlooked at the time is that “in order to sue a defendant, you need to sue a defendant where the DEFENDANT resides,” not in the court which is closest to the plaintiff attorney’s Chicago office. This was the issue of PERSONAL JURISDICTION (or more accurately, “improper jurisdiction”), where the plaintiffs would sue defendants in the wrong courts.
However, the end result of suing people from across the US in one federal court is usually are case consolidations by the judges (resulting in a follow-up order dismissing the cases).
Thus, by suing defendants where they live, Malibu Media has successfully avoided case consolidations for improper jurisdiction.
Joinder (“Suing the Wrong Defendants Together”)
In mostly every bittorrent case, there is still the issue of JOINDER which we have written about too many times to list. In short, in order to properly join together MULTIPLE DEFENDANTS in the same lawsuits, those defendants needed to have done the SAME CRIME AT THE SAME TIME. The actual legal terminology is the “same transaction or occurrence.”
In the bittorrent world, that essentially means that the bittorrent users (now John Doe defendants) needed to have taken part in downloading and uploading copyrighted Malibu Media’s movies in the same bittorrent SWARM.
Case consolidations have killed large sets of copyright infringement lawsuits where each of a plaintiff attorney’s cases are plagued with the same inherent flaws: they sue groups of John Doe Defendants for activities they participated in at unrelated dates and times.
While this argument of improper joinder does not become relevant until a defendant is “named” as a defendant (meaning, served with paperwork which means they are no longer a John Doe, but their real name has been listed in an “amended complaint” in the case’s docket), it is still a problem with pretty much EVERY bittorrent case today (with exception of the various lawsuits by Kevin Harrison and Paul Lesko in his 4Twenty lawsuits where they sometimes sue the swarm rather than specific John Doe Defendants). However, it is not relevant to this discussion of case consolidations, but it was still worth noting.
The Problem With The Smaller “John Doe” Lawsuits – Different CASE LAW in the same court.
The problem many copyright trolls are now facing in the courts is that NOW THAT THEY HAVE CHANGED THEIR LAWSUITS TO SUE SMALLER NUMBERS OF DEFENDANTS, they usually “forget” to inform the court of RELATED LAWSUITS that they have also filed against other bittorrent users (this violates a number of federal courts’ local rules which could jeopardize their many cases).
Different Judges Give Inconsistent Rulings
The result of the plaintiff attorneys not telling the courts of the HUGE NUMBER OF LAWSUITS IN EACH COURT(you can look them up on http://www.rfcexpress.com just to see a few examples) is thateach case gets assigned to a different judge (copyright trolls love this and actually rely on this when forum shopping), and each judge interprets the law as he understands it.
In short, not linking the case together results in some bittorrent cases being dismissed by some judges in one court, and in some bittorrent cases (against other John Doe Defendants) being allowed to proceed by other judges in that same court. In short, not informing the court of related lawsuits results in INCONSISTENT RULINGS by different judges in the same district court.
Case consolidations are the easiest way to avoid inconsistent rulings.
The wonderful result we have seen from the torrent of lawsuits that have flooded the dockets of many federal courts across the U.S. is that judges have begun to CONSOLIDATE CASES and give one ruling that affects ALL OF THEM. In other words, no more inconsistent rulings.
As exciting as the idea of case consolidations might be, for a while, we thought that when a judge consolidates cases, it is for the purpose of shutting them all down together (“the bigger they are, the harder they fall”). Such case consolidations have happened to a fewattorneys’cases already, and CASE CONSOLIDATIONS USED TO MEAN THE DEATH OF ALL THAT PLAINTIFF ATTORNEYS’ CASES. However, this is no longer the case with today’s case consolidations.
Now comes Leemore Kushner‘s new bittorrent cases in the Central District of California, all from the Malibu Media, LLC (a.k.a. the “X-Art.com”) plaintiff. Following the copyright troll strategies of Jason Kotzker, Chris Fiore, Adam Silverstein, and Mike Meier, Leemore Kushner (see http://www.kushnerlawgroup.com [great website, by the way; almost as good as Kevin Harrison’s website]) filed a whole bunch of cases in the California Central District Court. However, she failed to tell the court that all of her cases were all related (oops).
As soon as Judge Klausner took over the case, he noticed Malibu Media, LLC’s other cases, most of them filed by Leemore Kushner (and three by Adam Silverstein):
CASES FILED BY LEEMORE KUSHNER OF KUSHNER LAW GROUP IN THE CENTRAL DISTRICT OF CALIFORNIA Malibu Media LLC v. John Does (Case No. 8:12-cv-00647) Malibu Media LLC v. John Does (Case No. 8:12-cv-00649) Malibu Media LLC v. John Does (Case No. 8:12-cv-00650) Malibu Media LLC v. John Does (Case No. 8:12-cv-00651) Malibu Media LLC v. John Does (Case No. 8:12-cv-00652) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03614) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03615) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03617) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03619) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03620) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03621) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03622) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03623) Malibu Media LLC v. John Does (Case No. 2:12-cv-04649) Malibu Media LLC v. John Does (Case No. 2:12-cv-04650) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04651) Malibu Media LLC v. John Does (Case No. 2:12-cv-04652) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04653) Malibu Media LLC v. John Does (Case No. 2:12-cv-04654) Malibu Media LLC v. John Does (Case No. 2:12-cv-04656) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04657) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04658) Malibu Media LLC v. John Does (Case No. 2:12-cv-04660) Malibu Media LLC v. John Does (Case No. 2:12-cv-04661) Malibu Media LLC v. John Does (Case No. 2:12-cv-04662) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-05592) Malibu Media LLC v. John Does (Case No. 2:12-cv-05593) Malibu Media LLC v. John Does (Case No. 2:12-cv-05594) Malibu Media LLC v. John Does (Case No. 2:12-cv-05595), and
CASES FILED BY ADAM M. SILVERSTEIN OF CAVALLUZZI & CALLALLUZZI IN THE CENTRAL DISTRICT OF CALIFORNIA Malibu Media LLC v. John Does (Case No. 2:12-cv-01642) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-01647) Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-01675)
Seeing all of these cases, no doubt the issues of copyright trolling, extortion, clogging up the court’s docket, and whether Kushner actually intends to take these defendants to trial or not was on his mind… or was it? I’m not so sure. Judge Klausner ordererd case consolidations of Kushner’s cases with an ORDER TO SHOW CAUSE why these cases should not be dismissed for… LACK OF PERSONAL JURISDICTION?? [different topic, their jurisdiction was fine. Keep reading.]
In short, here are a large number of cases, and if Judge Klausner was against these copyright trolling / extortion-based lawsuits, he would have asked Leemore Kushner to explain to the court why these cases should not be dismissed for any of the other INHERENT FLAWS in these bittorrent cases, but NOT PERSONAL JURISDICTION.
Malibu Media, LLC just solved the Personal Jurisdiction problem.
The reason I say this is because IF THERE IS ONE THING MALIBU MEDIA, LLC GOT RIGHT IN THEIR LAWSUITS, IT IS PERSONAL JURISDICTION. You could be damn sure that is Leemore Kushner sued someone in California, then THEY LIVE IN CALIFORNIA. If Jason Kotzker sued someone in Colorado, then THEY LIVE IN COLORADO. The plaintiff attorneys have too much common sense from the mistakes of the past two years to sue people in the wrong jurisdiction.
In summary: I am not happy about the case consolidations.
For this reason, I am sad to say that I am not jumping up and down for joy about the fact that all these case consolidations took place, because I do not think they are going bust just yet. Anyone that speaks to me knows that I believe these cases have some really bad flaws which, if taken to trial, would cause Malibu Media, LLC to LOSE EVERY TIME.
In short, I’m not so optimistic about the Malibu Media case consolidations, and neither should you be. Until we see the words “improper joinder,” “scheme,” or “extortion” come out of this judge’s mouth when discussing case consolidations, it looks to me as if we have a troll-friendly judge who just wants to manage these cases.