UPDATE (10/10/2012): “He loved her not.” All 33 cases severed and dismissed. Congratulations to all the Cashman Law Firm, PLLC clients who have been dismissed from these lawsuits.
“He Loves Me, He Loves Me Not.”
It appears as if us attorneys are playing a “he loves me, he loves me not” game watching Judge Klausner’s orders in the Malibu Media, LLC v. John Does 1-10 (Case No. 2:12-cv-03615) case in the California Central District Court (where copyright troll Leemore Kushner’s bittorrent swarm scam cases are). Quite frankly, it looks to me as if he is doing one of two things, but it is unclear which game he is playing.
SCENARIO 1: “HE LOVES ME NOT”
In the first scenario, Judge Klausner is against the John Does, and he is very aware of the case law that has been flourishing around the federal district courts in so many states cutting down the bittorrent lawsuits at the knees of the copyright trolls. The problem is that Judge Klausner hates a copyright infringer.
So as we discussed in the “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article on 7/12/2012, the judge consolidated all of the Malibu Media, LLC cases under his control, his decision to separate out JURISDICTION and JOINDER issues was deliberate. In his charade where he ordered Leemore Kushner (the copyright troll) to explain to the court why the cases should not be dismissed for LACK OF PERSONAL JURISDICTION — we know Kushner sues California defendants in the California courts, so jurisdiction is likely proper — the Judge was pretending to cause her grief, but in secret, he was winking at her and telling her he supports her cause.
This order was EASY to comply with, and in just a few minutes time, Leemore Kushner filed the proper response explaining why jurisdiction was correct.
UPDATE: *AS OF THIS AFTERNOON,* Judge Klausner graciously accepted her explanation, and in doing so, he established case law indicating that “it is proper to sue a bittorrent defendant where the bittorrent defendant resides.” Now for joinder.
Now that Judge Klausner enjoyed Kushner’s explanation regarding PERSONAL JURISDICTION, today he asked her to explain to the court the JOINDER issue. Following this line of thought, she’ll provide him the usual “blah blah” swarm nonsense, and he’ll accept her explanation for that too. At that point, he’ll grant her motion for early discovery, and he’ll let the ISPs hand over subscriber information for the many defendants who are implicated in Leemore Kushner’s cases.
While Kushner would no doubt be thrilled at this victory, Judge Klausner will have also scored a victory in his own “judgy kind of way.” If he accepts her explanation regarding joinder, he will have effectively ruled that“in California, suing defendants together in a bittorrent swarm is PROPER, even when the defendants never knew each other, and none of the defendants uploaded or downloaded to the other (because the dates and times of the alleged infringement would be weeks if not months apart).” In other words, NO MORE SEVERANCE AND DISMISSALS for improper joinder. Now wouldn’t that be a nightmare?!? Watch out for Judge Klausner. EFF, consider an amicus brief here, because HE IS SEPARATING OUT THE ISSUES.
SCENARIO 2: “HE LOVES ME.” <– the MORE LIKELY SCENARIO.
As we discussed in our “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article, Judge Klausner made a silly mistake and sent an ORDER TO SHOW CAUSE why the cases should not be dismissed for lack of PERSONAL JURISDICTION. Pretending for a second that he read my article (I highly doubt this is the case) where I chided him for his error in confusing PERSONAL JURISDICTION and JOINDER, he accepted Leemore Kushner’s explanation of why PERSONAL JURISDICTION is proper.
Now, instead of saying, “okay, proceed with the case,” behind the scenes, Judge Klausner is getting ready to kill each and every one of the cases with one stroke of the pen. So, instead of admitting to his mistake (“who cares anyway,” he might think — “I just cost the evil troll some time and money.”), after being satisfied with Kushner’s explanation, he said, “Oh yeah, and by the way — I’m accepting your personal jurisdiction argument, but I’m not letting you subpoena the ISPs until you explain to me that JOINDER is proper. Why would you sue defendants together in the same lawsuit who were NOT INVOLVED IN THE SAME TRANSACTION OR OCCURRENCE? Silly troll.” In other words, he’s covering his oversight by making Leemore Kushner (the troll) jump through hoops, whereas in the end, he’ll take one look at her boilerplate answer as to why all the defendants belong in the same lawsuit and he’ll LAUGH HER OUT OF COURT. Severance and dismissal of each of the cases. “Go sue them individually and pay the $350 filing fee for each Doe,” he’ll say. In other words, Judge Klausner could be on your side.
MY OPINION: I wrote this quick article because at this point, it is unclear what will happen, and since many people are calling into my office asking my opinion about this particular case (and the California consolidations in general), I wanted to be explicitly clear that IT CAN GO EITHER WAY. We can only wait and see what he’ll do, and based on that, you, the putative defendant, will learn whether Leemore Kushner or the Lipscomb gang will be calling you to solicit a settlement in the near future. There is really nothing else here. He is either for the trolls, or he is for the downloaders. He can bend the law in whatever direction his judicial activist mind would like to.
So what’s you’re thought? Is it “he loves me?” or “he loves me not?”
9 thoughts on ““He loves me,” “he loves me not.” It can go either way in the Central District of California consolidations.”
Rob, I’d love your thoughts on the following idea:
Rather than it be ABC Video Corp. v. John Does 1-10287, why shouldn’t ABC Video Corp. sue John Doe 1, individually and on behalf of all similarly situated defendants. ABC then gets discovery as to Doe 1 (choosing a sophisticated Doe 1 who will hire an attorney), takes a deposition, names him/her, and then certify a nationwide class. Then, get class discovery as to identity of all downloaders, and craft a nationwide settlement.
Defendants are all identified, judgments will be enforceable in all 50 states, and the system is far more efficient.
I agree with you that trolling is a shady business model. But, at the end of the day, there really are folks violating copyright who should be held accountable, don’t you agree? לֹא, תִּגְנֹבוּ
Jay, it’s always a pleasure seeing your name on a post, and please forgive my brief answer. The difficulty with your suggestion is the “on behalf of all similarly situated defendants” portion of your statement. Some attorneys (e.g., John Steele) tried to do a “reverse class action” suit in the Southern District of IL (if I remember correctly; the case was Openmind Solutions, Inc. v. Does 1-XXXX), and the XXXX was some number in the low thousands. The problem with that case was that no judge would certify a lawsuit against many downloaders when they are anything but similarly situated. There has been case law relating to “similarly situated” as far as guilt (not that they were all accused of connecting to a bittorrent swarm), meaning some claimed they were not home, others had a roommate who did it, others had open wi-fi, and others claimed they were simply hacked. My experience is that some of my clients did it, many deny it, and even more actually have proof that they didn’t do it. The attorneys don’t care about evidence, and this is why I am so cynical about these cases. Copyright is one thing; predatory attorneys are another.
Jay Wolman, are you high? This sounds like the kind of scam John Steele would come up with. What recourse do innocent victims have? Out of the 10,286 other who are not named, what basis is there for any claim? They tried a reverse class action and it went down in flames.
“Then, get class discovery as to identity of all downloaders, and craft a nationwide settlement.” Question for you…Based on what proof? You still have IP address != person defect.
Yes Jay, you seem to have left out an essential step between accusations and settlement – prove the case.
I realize I am among lawyers here and this is impolite, but having been dragged into the copyright trolling scam and as a result having to learn about legal procedure, I have been shocked by how little regard attorneys and courts have for facts and reality, and there seems to be a certain tendency to assume that just because some lawyer files a case that makes some accusation, or makes a claim in a legal filing, it is true by default.
Tolerance for attorneys blatantly lying to the court is astounding. Take for example some of John Steele’s cases that were filed when the work that had allegedly been infringed did not have a copyright registration, but Steele claimed a registration in his filings and asked for an award of statutory damages (which requires the registration, as per 17 USC § 412). The courts did not bother verify whether the work had been registered, they just took his word for it, and cases that were based on utterly fraudulent statements were allowed to proceed! To an outside observer it is shocking that things like basic, fundamental claims that the case is based on are not scrutinized as a matter of course, to weed out frivolous cases, but in reality everyone is lazy and just assumes lawyers are telling the truth unless their claims are explicitly challenged by opposition papers. I have read many, many statements in copyright trolls’ filings, especially dealing with technical issues, that are simple incorrect. Not open to debate at all, they simple say things that are not true.
This has been a disappointment to see and in the end it seems like the whole legal system is lacking in proactive skepticism and a regard for the truth. Everyone seems happy to play the game where the cleverest arguer gets lots of bonus points even if their argument is made of lies; I realize that in practice, this often is a successful strategy as convincing a jury is what matters, even if everything you tell them is made up, but it is nevertheless disappointing to see just how deeply and thoroughly this attitude permeates the legal system.
When I see your proposal of “Why not make some accusations … then settle!?” I see the lack of regard for justice that lead to copyright trolling becoming the scourge it is today, and in fact the legal system is rigged so that many lawyers in many areas of practice make a living by making accusations and extracting a settlement without having to go through the hard work of proving their cases.
You’ve gotta love that all four of us are lawyers having an intellectual discussion of copyright troll tactics. 😉 No sweat. It couldn’t have happened on a more appropriate page about diametrically opposite ways an attorney can see the same circumstances.
Any update on this development? PACER shows the last entry on July 31… what is the next step for either parties?
GG, we are still waiting for the judge’s decision. Kushner has filed her response and has requested that the judge allow her to send subpoenas to the ISPs, however, the judge has not indicated whether he has accepted her arguments or not. We’ll see hopefully soon.
It turned out he loves us 🙂