Category Archives: FRCP Rule 4(m) (120 Day Rule)

Need to rehash some bittorrent concepts because they are just as relevant today as they were five years ago.

In July, 2010, this blog was started to address the at-the-time unknown problem of copyright trolling.  For years, myself and my staff wrote articles explaining the business model of copyright trolling, which at the time was an adaptation of patent trolling (where “patent trolls” would file [often frivolous] lawsuits against alleged infringers who refused to pay what appeared to be a “shakedown” of the patent holders [e.g., “pay us or else you will end up having to pay even more to defend the claims against you in a federal court”], even when the patent being asserted against the would-be infringer had absolutely nothing to do with the product the targeted company was producing).

There were common threads between patent trolls and copyright trolls, and as the cases developed, there were common themes of how a copyright troll must act to make his model of extorting the public (the bittorrent internet users) profitable.  At the time, that included questions of 1) where and how can a copyright enforcement company or lawyer sue a group of defendants (personal jurisdiction), 2) how to link non-related downloaders into a cohesive set of defendants into a cohesive set of “John Doe Defendants,” (joinder, and my controversial strategy to force a copyright troll to sue the entire bittorrent swarm when a defendant is named and served) and 3) how to avoid risking the potential settlements from hundreds or thousands of accused bittorrent users by moving forward and “naming and serving” one or more defendants.  There were also time limits they faced based on a) how long the ISPs retained the records of which IP address was leased to which account holder / subscriber, b) statute of limitations on how long a copyright holder has to file a lawsuit, and c) how long a copyright troll attorney may keep a case alive before a judge imposes the time limits described in the Federal Rules of Civil Procedure (FRCP Rule 4m, a.k.a. the “120 Day Rule”).

Then, over the years, there arose a confusion under the discussions of “net neutrality” asking questions such as whether an internet service provider (ISP) was governed under the cable act, and if so, under what title.  The reason for this was that there were allegations that various ISPs were outright sharing the contact information of its subscribers without valid court orders to do so, thus violating the privacy rights of its subscribers.

In sum, there were a lot of issues, and we tackled each one over the course of almost five years.  The goal was to educate the bittorrent user and the accused downloader about the issues so that they understand how to act, react, and in many cases, fight against a group of attorneys with questionable ethics.

The problem is that these articles — the ones that have been so helpful to tens of thousands of accused defendants — these articles have been buried by the search engines because they are simply now aging and many articles are now many years old.  An accused defendant can no longer search for a “copyright troll” on Google and find any of my older articles.  [And, enterprising attorneys (and good for them) have put up websites containing SEO-based content full of keywords in hackneyed sentences, but devoid of useful content (e.g., the “contact our law firm, we can help you with your copyright troll lawsuit issue” type of website), while what I consider to be the “useful” content (not only mine, but content written by other attorneys in their blogs, and proactive users [really, trailblazers such as “Sophisticated Jane Doe” of FightCopyrightTrolls and “DieTrollDie”] in their respective blogs) is no longer accessible by typing the name of the particular copyright troll, issue, or case that has been recently filed.

What I will be doing to remedy this as far as this blog is concerned — and I apologize up front to the thousands of you who get updated on each and every article that I or a staff member of mine writes — is that I need to rehash some of the “older” content on the educational topics that I have already covered in the blog ad nauseam.  The reason for this is that the older content explaining the legal concepts in terms of the bittorrent lawsuits (and now in terms of the DMCA letters being sent to subscribers through the ISPs) is just as relevant today as it was five years ago.  There has been little-to-no judicial or legal oversight of the copyright trolls from the attorney generals of each state and from the lawmakers (both federal and in each state), and the problem and issues surrounding “copyright trolling” is just as relevant today as it was almost five years ago.

For these reasons, I need to violate my own preference not to repeat information or content that has already been described or hashed-out in previous articles (my opinion is that one article describing a topic is enough, and writing multiple articles containing the same topic “waters down” or “cheapens” the content of a website).  The reason I now feel the need to rehash some of the older topics is to re-teach those who have not yet been victimized by the copyright trolls, as my older articles are no longer found, even by those looking for that particular topic.

ALSO.  Copyright trolls are now enjoying a seed of legitimacy by the courts, where once upon a time us defense attorneys were “winning” the cases by arguing concepts such as “an IP address does not equal a person,” or “my client had an open wireless router, it could have been anyone who downloaded this video,” the arguments themselves have also aged and are now increasingly being ignored by the courts, even though the arguments remain “an elephant in the room,” meaning, just as valid today as they were yesterday.  On the flip-side, faulty and failed arguments (e.g., “are you negligent if you let someone else use your internet connection to commit copyright infringement” [Answer: NO!]) are being reasserted by the copyright trolls, and to my utter disbelief, they are not immediately being dismissed by the judges as being a faulty argument.

Copyright trolling has not changed in the past five years, and the successful arguments defending a case do not deserve to be ignored just because they have been used successfully by defendants in older lawsuits which too are aging.  Ignoring good case law is contrary to law, as successful arguments in one jurisdiction are binding on all other judges in that federal district, and are persuasive on cases in the federal districts in other cases.  Yet, I see more and more lawlessness in judges who ignore the case law from not only other jurisdictions, but from their own jurisdiction as well (creating a “split” in the court), and they are denying a John Doe defendant’s ability to assert what was a successful argument in another court (even one binding upon them in their own jurisdiction).

In sum, judges are allowing plaintiff copyright holders to sue larger number of defendants each week, even though nothing has changed making this new trend permissible (in my opinion, whether 200 defendants were sued by a plaintiff attorney in one lawsuit or in ten cases [having 20 defendants in each case] filed in the same week still means that 200 defendants were sued; it does not matter that the plaintiff made the cases “appear” to be smaller, especially if they are implicating the same bittorrent swarm in each of the ten cases).

Remember, the underlying copyright troll business model of “shakedown, extort thousands of dollars from each defendant, but avoid moving forward against anyone [but pretend that you are prepared to move to trial]” is still the same as it was five years ago.  It should not matter whether the content of the lawsuit is a Hollywood movie or an adult film.

[2017 UPDATE: Carl Crowell has created a new entity called RIGHTS ENFORCEMENT which has reverse-engineered CEG-TEK’s proprietary DMCA copyright infringement notice system.  Many of you have visited CEG-TEK links thinking that RIGHTS ENFORCEMENT was CEG-TEK, but really they are an ‘evil twin’ competitor.  Since the two entities operate almost the same way, e.g., sending DMCA copyright infringement notices to the subscriber directly via the ISP, this article is also relevant to RIGHTS ENFORCEMENT.]


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.

Congratulations to the Cashman Law Firm, PLLC defendants dismissed from the Nu Image, Inc. v. Does 1-3,932 (FLMD) case.

Congratulations to the Cashman Law Firm, PLLC clients and former defendants who were dismissed from the Nu Image, Inc. v. Does 1-3,932 (Case No. 2:11-cv-00545) case in the Middle District of Florida.

We’ve known that this case has been “dead” since December, when the court denied the plaintiff’s request for an extension of time to name and serve defendants. I was surprised that they did not instantly dismiss the case months ago, but it lagged on with almost no activity.

I suppose the timing of this case is fortuitous for those following the Prenda Law Inc. scandals, because the judge in this case is US District Judge John E. Steele, having no relation to John Steele of Prenda Law Inc.

A few months ago, I referred to this case as an “abandoned, dead floating ship.” Even then I had no idea that the timing of the death of this case by Judge John Steele would coincide so nicely with Judge Wright’s hearing just the day beforehand.

For those that want to know what actually happened here, the politics were very simple. Copyright troll attorney Jeffrey Weaver of Dunlap, Grubb, & Weaver, PLLC (now “Dunlap Weaver, PLLC sans former partner Grubb”) took this case after his main attorney Nicholas Kurtz left the firm leaving the oldest copyright troll without teeth to go after defendants. Nu Image, Inc. came in wanting to sue, and so Jeffrey Weaver took the case. Almost 300 documents, 79 weeks, and 2 days later, the case is dead.

Congratulations again to all 3,932 defendants who have been dismissed from the case.

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Link to the dismissal order.


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.

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

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!

AF Holdings, LLC v. Does 1-1,140 — Dismissed, but according to the plaintiff’s plan.

On Friday I wrote a scathing review of the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case dismissal, but I did not post it.  In short, congratulations to the Cashman Law Firm, PLLC clients (and all the others implicated in this case) who have been dismissed from the case.

The difficulty I am facing is that while being dismissed is the goal of any John Doe defendant in a bittorrent case, in my opinion, I am uncomfortable with the way the dismissal happened. 

As many of you know, there was new precedent set by Judge Facciola’s ruling in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case, and as a result, Judge Reggie Walton gave the plaintiffs until March 9th, 2012 to start naming or dismissing defendants.  In short, instead of admitting improper jurisdiction, yet another D.C. judge opted to invoke the Federal Rules of Civil Procedure, Rule 4(m) which gives plaintiffs 120 days to either name or dismiss defendants.  Understanding that the Prenda Law Inc. plaintiff attorneys had no interest in continuing the lawsuit against individual Doe defendants, they dismissed the case.

Now while it is always nice when opposing counsel opts to kill a case rather than move forward against defendants, Prenda Law Inc.’s local counsel revealed more than he probably should have to the court.  In a move which probably angered Paul Duffy and his superiors, Tim Anderson wrote the following paragraph:

Plaintiff acknowledges the Court’s busy docket; Plaintiff is currently engaged in settlement negotiations with a substantial number of putative Doe Defendants.  Rather than prematurely initiate litigation against individuals who may ultimately wish to resolve Plaintiff’s claims via settlement — and thus needlessly burden the Court — Plaintiff believes that dismissing the claims against the remaining non-settling Doe Defendants in this action without prejudice in lieu of filing actions against non-settling individuals strikes a favorable balance between preserving Court resources and safeguarding its intellectual property rights.

In other words, “Court, we are dismissing the case so that you do not need to waste your time looking over us watching what we are doing.  We would prefer not to have you watch us anyway because you will force us to do something we don’t want to do (e.g., “name” defendants), which would make our extortion scheme much more costly to us and thus we wouldn’t be able to sustain our operation if we had to actually go after defendants.  So thanks to you, since we now have all the names we need from the ISPs of the putative Doe Defendants, we will continue to call and harass those who haven’t settled without having you worry about what we are doing.”

In short, I would have liked to see the judge issue an order indicating that since they have dismissed the case, they are no longer permitted to use the names they acquired from the subpoenas and collect settlements from putative defendants.  The legal system is not a tool to discover private information about internet subscribers only to dismiss the case and continue their extortion scheme offline.

For this reason, I suspect that you understand why I am not so happy with this case dismissal.  Getting your names only to dismiss the action was simply part of their plan all along.

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