Category Archives: Elf-Man LLC

Ambiguous Cobbler Nevada, LLC Dismissal Order – Are all Texas Defendants Dismissed or Not?

An ambiguity showed up in the Cobbler Nevada TX.

For those of you involved in Keith Vogt’s Cobbler Nevada, LLC cases, a huge ambiguity showed up yesterday on the court’s docket which I needed to clarify. I actually needed to call the clerk because at first glance, it looked as if all of the Cobbler Nevada, LLC cases in the Southern District of Texas were dismissed.

To back up just a bit, Cobbler Nevada, LLC suffered a large setback when on August 10th, 2015, Judge Alfred H. Bennett CONSOLIDATED all of their Texas cases into one case (TXSD, Case No. 4:15-cv-01308). As soon as we heard this, [especially after writing the “Dallas Buyers Club, LLC is a modern-day Icarus Story” article relating to this same plaintiff attorney], champagne glasses were clinked, and cheers rose up from the homes of many Texans who were caught up in what was often the streaming and/or download of the “The Cobbler” movie using Popcorn Time.

As a general rule, consolidations are ALWAYS* a good thing for bittorrent cases because:

1) they take each of the cases and place them under the direction and control of one judge (meaning that there will be no conflicting orders where one judge allows something whereas another judge forbids it, or more specifically, where one judge gives a copyright holder free reign to do whatever he wants [granting extension after extension, ignoring procedural violations, etc.], and another judge clamps down on the copyright holder forcing him to observe the rules, eventually dismissing his defendants because he missed a deadline or violated a federal procedure or local rule, etc.), and

2) having so many defendants bunched together in one lawsuit changes the dynamic of the lawsuit from having an aggressive “copyright troll” attorney to having a more passive plaintiff attorney who tiptoes around the court, who avoids filing documents in fear that one misstep (such as the one that happened to his Dallas Buyers Club, LLC cases with Judge Hughes) might cost him his entire batch of defendants.

For a plaintiff attorney, losing 20 John Doe defendants in one case is a tolerable defeat. Losing 400 defendants who have been consolidated into one case creates a “china shop” mindset for the plaintiff attorney, where the “don’t touch it or else it might break” rule suddenly becomes relevant when handling this newly large and fragile set of defendants.

Well, as of yesterday, “Document 70” showed up on Vogt’s Cobbler Nevada, LLC consolidated case, and the document was entitled “ORDER DISMISSING DEFENDANTS.” When I reviewed the document, it purported to dismiss John Doe defendants from a number of Keith’s older cases (e.g., 4:15-cv-01322 through 4:15-cv-01333), but it also appeared to dismiss EVERY SINGLE ONE OF THE JOHN DOE DEFENDANTS FROM EVERY COBBLER NEVADA CASE FILED IN TEXAS [AND WHICH ARE CONSOLIDATED INTO THIS ONE CASE].  Essentially, ALL of the defendants from the consolidated case itself, 4:15-cv-01308, appeared to have been dismissed.

010516 CobblerNV Doc70

At first, I shouted “woo-hoo!” because the case was dead. But then, I took a second look, and the order was originally written by Keith Vogt himself in November (Document 58), and there is no way he would dismiss his entire golden goose of defendants.  Plus, the case itself wasn’t marked “closed” by the clerk [as it would be if there was a mass dismissal], so there was an ambiguity. Reading the document, I asked, “if the defendants from this consolidated case were dismissed, did this dismissal also include the many, many defendants from ALL THE OTHER TX COBBLER NEVADA, LLC CASES which were all consolidated into THIS case!?”

After calling the clerk and eventually calling Keith himself, I confirmed that the case itself is still alive, and sadly, the John Doe Defendants are still John Doe Defendants. In short, nothing has changed, move along, there is nothing to see here. Sorry to be the bearer of bad news, but if the wording of the order in such an important case tripped me up, it probably confused a few other attorneys, and for this reason, I have written this article.

So yes, for now the Texas Cobbler Nevada, LLC cases still lives, and the next court date for this case (which affects every TX Cobbler Nevada, LLC John Doe Defendant) will be on 2/10/2016 at 10am in Courtroom 704 in Houston, TX.  If anything relevant happens at the hearing or in the meantime, I’ll be sure to let you know.

Known Cobbler Nevada, LLC cases in the TXSD:
Cobbler Nevada, LLC v. Does 1-22 (Case No. 4:15-cv-02060)
Cobbler Nevada, LLC v. Does 1-23 (Case No. 4:15-cv-02061)
Cobbler Nevada, LLC v. Does 1-27 (Case No. 4:15-cv-02046)
Cobbler Nevada, LLC v. Does 1-11 (Case No. 4:15-cv-02053)
Cobbler Nevada, LLC v. Does 1-27 (Case No. 4:15-cv-02047)
Cobbler Nevada, LLC v. Does 1-26 (Case No. 4:15-cv-02045)
Cobbler Nevada, LLC v. Does 1-24 (Case No. 4:15-cv-02062)
Cobbler Nevada, LLC v. Does 1-21 (Case No. 4:15-cv-02059)
Cobbler Nevada, LLC v. Does 1-28 (Case No. 4:15-cv-02048)
Cobbler Nevada, LLC v. Does 1-29 (Case No. 4:15-cv-02050)
Cobbler Nevada, LLC v. Does 1-25 (Case No. 4:15-cv-02043)
Cobbler Nevada, LLC v. Does 1-20 (Case No. 4:15-cv-02058)
Cobbler Nevada, LLC v. Does 1-24 (Case No. 4:15-cv-02041)
Cobbler Nevada, LLC v. Does 1-10 (Case No. 4:15-cv-02051)
Cobbler Nevada, LLC v. Does 1-14 (Case No. 4:15-cv-02055)
Cobbler Nevada, LLC v. Does 1-25 (Case No. 4:15-cv-02044)
Cobbler Nevada, LLC v. Does 1-14 (Case No. 4:15-cv-02057)
Cobbler Nevada, LLC v. Does 1-25 (Case No. 4:15-cv-01332)
Cobbler Nevada, LLC v. Does 1-15 (Case No. 4:15-cv-01322)
Cobbler Nevada, LLC v. Does 1-26 (Case No. 4:15-cv-01333)
Cobbler Nevada, LLC v. Does 1-15 (Case No. 4:15-cv-01323)
Cobbler Nevada, LLC v. Does 1-17 (Case No. 4:15-cv-01327)
Cobbler Nevada, LLC v. Does 1-16 (Case No. 4:15-cv-01324)
Cobbler Nevada, LLC v. Does 1-16 (Case No. 4:15-cv-01325)
Cobbler Nevada, LLC v. Does 1-20 (Case No. 4:15-cv-01328)
Cobbler Nevada, LLC v. Does 1-12 (Case No. 4:15-cv-01308)

Dallas Buyers Club, LLC cases in the TXSD (also affected):
Dallas Buyers Club, LLC v. Does 1-19 (Case No. 4:15-cv-00050)
Dallas Buyers Club, LLC v. Does 1-13 (Case No. 4:15-cv-00049)
Dallas Buyers Club, LLC v. Does 1-12 (Case No. 4:15-cv-00047)
Dallas Buyers Club, LLC v. Does 1-7 (Case No. 4:15-cv-00044)
Dallas Buyers Club, LLC v. Does 1-11 (Case No. 4:15-cv-00046)
Dallas Buyers Club, LLC v. Does 1-18 (Case No. 4:14-cv-03389)
Dallas Buyers Club, LLC v. Does 1-10 (Case No. 4:14-cv-03387)
Dallas Buyers Club, LLC v. Does 1-14 (Case No. 4:14-cv-03388)
Dallas Buyers Club, LLC v. Does 1-19 (Case No. 4:14-cv-03393)
Dallas Buyers Club, LLC v. Does 1-25 (Case No. 4:14-cv-03394)

*NOTE: I mentioned above that case consolidations are ALWAYS a good thing for mass bittorrent copyright infringement lawsuits having multiple John Doe Defendants.  Nothing is always the case, and one can usually find strong exceptions to the rule.

For example, the judge which consolidated all of the cases in a district under his or her control might mishandle the case (as we saw with the Malibu Media, LLC bellwether cases from 2013 where the judge forced cases into what ended up being a “show trial,” because the defendants selected for trial already came to an arrangement with the plaintiff), or, as we saw a few years ago in DC, the judge can be biased towards one side or another, or she could even be a former lobbyist for the MPAA as we saw with the Judge Beryl Howell rulings from 2011-2012.  Similar-minded judges from other districts more recently have been causing problems as well.  So, no, case consolidations are NOT ALWAYS a good thing.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

“Swarm joinder theory” & “Judicial Economy” ruling refuted.

Add Missouri to the list of states unfriendly to copyright trolls. And, congratulations to the Cashman Law Firm, PLLC clients who have been severed and dismissed from the Purzel Video GMBH v. Does 1-91 (Case No. 4:12-cv-02292) lawsuit!

Now what was exciting about this Purzel Video GMBH case ruling was U.S. District Judge Audrery Fleissig’s 1) refutation of the “judicial economy” justification for joinder, and 2) her clarification of the relationship between bittorrent users for joinder purposes (and similarly, what she left open for future rulings by referring to bittorrent transfers as mere “pieces”).

Courts in other federal jurisdictions which allow multiple defendants to be sued together in bittorrent cases (pro-joinder jurisdictions) allow joinder of non-related defendants based on the fact that it is easier to have one “John Doe 1-500” case with five hundred (500) defendants in it rather than to have five hundred “single John Doe” lawsuits. The defendants in these cases are all accused of violating the same copyright laws; the defendants are all accused of using bittorrent to download the same title; the courts are all deciding the same issues for each defendant — whether the court has “personal jurisdiction” over each defendant (whether the plaintiffs sued defendants in the wrong state, depriving that federal court of personal jurisdiction over each John Doe Defendant), and whether the defendants are properly joined together as co-defendants in the same lawsuit.

I suspect that Judge Flessig caught on to the extortion scheme, and she made her ruling with the understanding that everything in the above justifications for “judicial economy” is true… if the plaintiffs are running a settlement extortion scheme. However, if the plaintiffs indeed intend in good faith to move forward with their case “on the merits,” then as the judge points out, the “judicial economy” approach falls apart.

The rule now in Missouri federal courts (binding on other Missouri cases, persuasive in non-Missouri cases) is that suing multiple defendants in a “John Doe 1-X” lawsuit is improper because of the prejudice to the co-defendants and the confusion that will result *if* the plaintiffs actually have a good faith intent on pursuing their claims (e.g., if they are “not” running a settlement extortion scheme).

For example, a rule in federal courts is that every named defendant needs to be provided copies of all documents for the case in which they are accused. The judge points out that it would prejudice Defendant #2 if he started receiving motions and rulings relating to the depositions and interrogatories for Defendant #1. Multiply the confusion that would occur if there are ten defendants, or one hundred defendants, and so on. Similarly, each defendant will end up having his own lawyer. If the lawyer for Defendant #1 makes a motion and the court orders his client to a case management hearing, Defendant #2 will receive a copy of this order and may think that he has to attend the hearing.

This gets even more burdensome as soon as defendants are named and discovery begins to take place. Judge Fleissig points out that every defendant has the right to attend the depositions of the other co-defendants. Imagine the chaos that would ensue if every John Doe Defendant crowds into a small office to hear the other defendants’ depositions. My own addition — imagine if all the accused defendants and each of their lawyers try to crowd into one small courtroom for a hearing.

Lastly, we all know that the justifications for joinder in a federal lawsuit is the “same transaction or occurrence” standard. In other words, courts have ruled that defendants can be joined together in one lawsuit if they were participating in the same bittorrent swarm at the same time — this is known as the “swarm joinder theory” asserted by the plaintiffs in every bittorrent lawsuit complaint.

In plaintiff attorney Paul Lesko’s cases, it is interesting to note that he was trying to extend the definition of a bittorrent swarm to span 18 weeks — from August 5th, 2012 to December 5th, 2012. This would obviously include internet users who never uploaded or downloaded from each other, and it would place them together as being part of the same transaction [big ongoing swarm] or occurrence [the “happening” of the swarm, for as long as “it” stays “alive”].

This secondary swarm theory has no official name, but it could be described as the “temporal swarm theory,” which asserts that defendants who participate in a bittorrent swarm can be sued with all other defendants who ever uploaded or downloaded to that swarm (as opposed to a more legitimate “snapshot swarm theory” which joins bittorrent users together in a lawsuit based on who is uploading and downloads to whom at a particular point in time).

However, Judge Fleissig rejected both the “swarm joinder theory” and the “temporal swarm theory” (“snapshot swarms” were not discussed) because in both cases, the bittorrent users did not download and upload from EACH OF ALL the other bittorrent users in that swarm. In other words, a bittorrent swarm consists of many small “transactions and occurrences” between multiple users, and the judge essentially ruled that association with a “bittorrent swarm” does not properly connect [for joinder purposes] one defendant with another defendant from whom or to whom he did not specifically download or upload.

Food for thought for future Missouri federal cases: I want to also mention that Judge Fleissig refers to the accused bittorrent users as merely transferring “pieces” of the copyrighted files to each other rather than the entire copyrighted title [to be found liable for copyright infringement (under the “substantial similarity” prong), courts have ruled that the entire copyrighted file needs to be transferred; not merely “pieces” of it].

I would love to interpret her words as meaning that ‘because no user transfers a complete copyrighted file to any other user (only data bits and “pieces” of the copyrighted file that the downloader’s bittorrent software pieces together into a file), no user can be found liable for copyright infringement,’ but I do not think this is what she was referring to.

Rather, by mentioning bittorrent transfers from one user to another user as mere “pieces” of a copyrighted file, Judge Fleissig leaves open the question (perhaps to be elaborated in a future ruling) whether transferring bits and “pieces” of a copyrighted file (but not the entire file) can constitute copyright infringement.

NOTE: This ruling directly affects as binding upon the following Missouri bittorrent cases* (sorted by filing date):

reFX Audio Software Inc. v. Does 1-39 (Case No. 4:13-cv-00895)
Georgia Film Fund Four, LLC v. Does 1-75 (Case No. 4:13-cv-00832)
The Bicycle Peddler, LLC v. Does 1-28 (Case No. 4:13-cv-00583)
Elf-Man, LLC v. Does 1-17 (Case No. 4:13-cv-00576)
The Thompsons Film, LLC v. Does 1-23 (Case No. 4:13-cv-00577)
PHE, Inc. v. Does 1-27 (Case No. 4:13-cv-00480)
Purzel Video GMBH v. Does 1-32 (Case No. 4:13-cv-00449)
Purzel Video GMBH v. Does 1-67 (Case No. 4:13-cv-00450)
Riding Films, Inc. v. John Does 1-11 (Case No. 4:13-cv-00430)
Bayou Pictures, LLC v. John Does 1-11 (Case No. 4:13-cv-00433)
The Good Doctor, LLC v. John Does 1-36 (Case No. 4:13-cv-00434)
Maxcon Productions, Inc. v. Does 1-88 (Case No. 4:13-cv-00428)
reFX Audio Software Inc. v. Does 1-97 (Case No. 4:13-cv-00409)
reFX Audio Software Inc. v. Does 1-53 (Case No. 4:13-cv-00408)
Breaking Glass Pictures, LLC v. Does 1-188 (Case No. 4:13-cv-00388)
Vision Films, Inc. v. Does 1-10 (Case No. 4:13-cv-00290)
Vision Films, Inc. v. Does 1-30 (Case No. 4:13-cv-00020)

*some of these may have already been dismissed on other grounds.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.