“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.

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    Canal Street Films… MORE AND MORE TROLLS…

    MOVIE PRODUCTION COMPANY RELEASING B-RATED FILMS

    I would think that when someone creates and copyrights a film, the purpose of creating that film is to attract viewers to purchase tickets to view that film either in the theaters, or by selling DVDs of that film.  If part of their strategy is to hire new copyright trolls to sue downloaders rather than to sell movie tickets, there is a problem in their model.

    It boggles my mind that more and more, I am seeing B-rated film companies release garbage films that nobody would watch, and instead of promoting their film to attract viewers, somehow those films are “leaked” onto the internet, only to see the production companies then sue internet users for $150K for each internet user who downloaded their films.

    INNOCENT INFRINGEMENT LOOKING FOR A YOUNG MR. ROGERS?

    Earlier this week, my kids were watching Mr. Rogers’ Neighborhood on PBS, where Fred Rogers was quite a bit older than I remember him being when I was younger. To show them the “Mr. Rogers” I remembered, I searched around and found an older version where his hair was black and he was quite a bit younger.   The video was obviously copyrighted, but it was also uploaded and online for all to see.  Was I wrong for playing this video for my kids?  Or, should I have contacted the Rogers’ Foundation and acquired a license to purchase a copy of this video [noting that there is likely nowhere to purchase this black-and-white video]?

    COPYRIGHT LAWS NEED TO BE UPDATED

    My point is that the copyright laws as they apply to individuals needs to be changed.  Production companies should make quality videos THAT SELL TICKETS (and DVDs) rather than trying to cash in on the end user that happened to view that video online without permission.  

    As I mention in my policy letter to lawmakers, if a production company really wanted to police their own copyrights, they are already given a legal remedy, and that remedy is to file a DMCA takedown notice with the website owner — and the unlicensed (“pirated”) video is quickly and effectively taken down by the website owner, or else the website owner can be found liable for copyright infringement himself.

    DMCA TAKEDOWN LETTERS

    If the Rogers Foundation wanted to stop me and my kids from viewing a 1968 version of Mr. Rogers, then they could have easily sent a one-page takedown request to YouTube.com where that and many other similar videos are hosted.  There is no reason for them to come after me, my kids, or any of the other thousand viewers, unless stopping “piracy” for copyright trolls is not the their real intent.

    NEW COPYRIGHT TROLLS / CANAL STREET FILMS

    Back to the lawsuits and the new copyright trolls I am discussing in this article.  One new copyright troll is Canal Street Films, Inc. (link) who is suing 117 John Doe Defendants in two lawsuits in Washington for the download of their “Scary or Die (2012)” horror film.  The attorney suing for Canal Street Films is David Allen Lowe of Lowe Gram Jones, PLLC (link). The Canal Street Films lawsuits include:

    CASE FILED BY DAVID LOWE IN THE WASHINGTON EASTERN DISTRICT COURT:
    Canal Street Films Inc v. Does 1 – 13  (Case No. 2:13-cv-03001)

    CASE FILED BY DAVID LOWE IN THE WASHINGTON WESTERN DISTRICT COURT:
    Canal Street Films, Inc. v. Does 1-104 (Case No. 2:13-cv-00007)

    010613 Scary or Die

    NEW COPYRIGHT TROLLS / KINTOP PICTURES

    Also suing in the Washington Western District Court are new copyright trolls Kintop Pictures, Inc. and their attorney, Richard J. Symmes of the Frontier Law Group.  It appears that each Kintop Pictures lawsuit was for the download of the title, “Tucker & Dale v. Evil (2010)” film (link).  

    The strange thing about these six Kintop Pictures cases is that they were all filed at the same time in December 2012. With ZERO explanation, just a few days ago, the Kintop Pictures were correspondingly ALL DISMISSED.  

    I wonder if Kintop Pictures or their attorney grew a conscience, or whether they just needed to get their copyright paperwork in order before they reared their ugly head and started suing defendants again.  

    Nevertheless, because Kintop Pictures sued internet users directly using the “bittorrent swarm joinder theory,” I am listing their cases in this site.

    CASES FILED BY RICHARD SYMMES IN THE WASHINGTON WESTERN DISTRICT COURT:

    Kintop Pictures v. Does 1-78 (Case No. 2:12-cv-02162) [DISMISSED]
    Kintop Pictures v. Does 1-26 (Case No. 2:12-cv-02159) [DISMISSED]
    Kintop Pictures v. Does 1-37 (Case No. 2:12-cv-02161) [DISMISSED]
    Kintop Pictures v. Does 1-40 (Case No. 2:12-cv-02163) [DISMISSED]
    Kintop Pictures v. Does 1-79 (Case No. 2:12-cv-02164) [DISMISSED]
    Kintop Pictures v. Does 1-70 (Case No. 2:12-cv-02165) [DISMISSED]

    PAUL LESKO / PHE INC. / PURZEL VIDEO GMBH

    Then in the Missouri Eastern District Court, Paul Lesko is still at it filing copyright infringement lawsuits on behalf of his new clients, PHE, Inc. and Purzel Video GMBH, both for the download of pornography titles.  The lawsuits are:

    CASES FILED BY PAUL LESKO IN THE MISSOURI EASTERN DISTRICT COURT:
    Purzel Video GMBH v. Does 1-91 (Case No. 4:12-cv-02292)
    PHE, Inc. v. Does 1-96                      (Case No. 4:12-cv-02296)

    PAUL LESKO FIASCO WITH HIS ALMA MATER

    On a side note, I hear that there was some controversy as to whether Lesko was pressured by the president of his alma mater to stop representing porn companies in copyright infringement actions, but apparently the attempts fell on deaf ears.  

    On 12/11/2012, Lesko filed a lawsuit in the Missouri Eastern District Court on behalf of his new client, “Purzel Video GMBH” for the download of their porn video, “Chubby Teens 1.”  

    Then on 12/12/2012, he filed another lawsuit on behalf of PHE, Inc. (the “Adam & Eve” adult sex toy company) for the download of “Buffy the Vampire Slayer XXX: A Parody.”  

    I wrote about PHE, Inc. here in my “Nice try, PHE, Inc. – a failed copyright troll” article.  In short, Lesko is still at it despite his alma mater’s attempts to stop him.

    NEW COPYRIGHT TROLLS / STUDIO WEST PRODUCTIONS INC.

    Lastly, in my own neck of the woods, I saw two cases filed against 400+ defendants by new copyright troll Studio West Productions, Inc.  The lawsuit is for the download of the film, “In the Name of the King: Two Worlds (2011)” (link).

    Even though the copyright troll attorney is John W. Raggio of the Raggio Law Firm, P.C. in Dallas (5 hours away from the court), after some research, it occurred to me that Raggio is merely local counsel to Dunlap Grubb & Weaver, PLLC (now, Dunlap Weaver, PLLC).  

    I am frankly surprised that they are still suing defendants, as they are one of the older copyright trolls out there, but they lost most of their litigation power when their attorney Nicholas Kurtz and a number of their paralegals left the firm after an internal shake-up early last year.

    CASES FILED BY JOHN RAGGIO (A.K.A. DUNLAP WEAVER, PLLC) IN THE SOUTHERN DISTRICT OF TEXAS:
    Studio West Productions Inc. v. Does 1-237 (Case No. 4:12-cv-03690)
    Studio West Productions Inc. v. Does 1-205 (Case No. 4:12-cv-03691)

    All I have to say about these two cases is that they are in my back yard, so I will be happy to be there at the hearings and report things as they evolve.

    IN SUM

    As for all the other cases out there, I am still watching out for them, and if I see anything of interest, I will be happy to share what I find.  Obviously if anyone has any updates or questions about these cases, you know where to find me.


    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.

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      “Nice try, PHE, Inc. – a failed copyright troll.”

      buffyIn a laughable attempt at a new copyright troll attempting to join the “me too” copyright infringement lawsuits that have been filed across the U.S., copyright troll attorney Sanjin Mutic [of the Mile High Law Office LLC; also on the board of the Triskele Foundation (thanks to SJD who did a good write-up on this)] stepped foot into the Colorado District Court without checking whether other more prolific copyright trolls (e.g., Jason Kotzker) have made a mess of cases in those courts already.  Within days of filing his “PHE, Inc. v. Does 1-105 (Case No. 1:12-cv-03342)” lawsuit against 105 defendants, U.S. District Judge William Martinez killed the lawsuit by severing and dismissing defendants 2-105.

      This lawsuit would have been PHE, Inc.’s first attempt to extort thousands of dollars from each defendant who would have been accused of downloading “Buffy the Vampire Slayer XXX: A Parody.”

      It should be noted that PHE, Inc. also appears to be the same entity that runs the “Adam & Eve Adult Sex Toy Store” (you can scroll to the bottom of the page to see the connection between them). Why a company as reputable as “Adam and Eve” would venture to produce parody pornography and open themselves up to lawsuits by the Buffy copyright holders is beyond me.

      The judge’s opinion speaks for itself:

      “This case is part of an ‘outbreak of similar litigation…around the country in which copyright holders have attempted to assert claims against multiple unknown defendants by joining them, in often large numbers, into a single action.'”

      My favorite part:

      “Our federal court system provides litigants with some of the finest tools available to assist in resolving disputes; the courts should not, however, permit those tools to be used as a bludgeon.”

      Nice try, PHE, Inc.

      P.S. – I thought it was funny that Paul Lesko of Simmons and Browder, LLC was also trying a PHE, Inc. case in the Missouri Eastern District Court.  That case is the PHE, Inc. v. Does 1-96 (Case No. 4:12-cv-02296) case.  

      P.P.S. – Sanjin Mutic is an interesting copyright troll himself.  He is the attorney for the West Coast Productions, Inc. Colorado cases, specifically, West Coast Productions, Inc. v. Does 1-38 (Case No. 1:12-cv-02642 with Judge Heagarty) and West Coast Productions, Inc. v. Does 1-37 (Case No. 1:12-cv-02644 with Judge Watanabe).   The Triskele Foundation of which he is on the board of directors is focused on helping high school drop-outs; perhaps he helps them find jobs in the lucrative billion-dollar industry in which he thrives.  NOTE TO SELF: Was this comment offensive? Or is there just an inconsistency between someone who “helps high-school drop-outs” and who (at the same time) advocates for the porn industry?

      UPDATE: 1/7/2013 – Techdirt article: “Company Behind Adam & Eve Discovers Quickly That Courts Are Now Hip To Copyright Trolling.”


      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.

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        Why California Malibu Media Case Consolidations are Bad.

        malibu-media-case-consolidations

        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.

        case-consolidations-malibu-media
        Gamopy / Pixabay

        This post is not going to be one of your favorites, because not all my posts are going to similar to my “Malibu Media Goes Down in Flames” article (or the many other positive ones I have written to date).

        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.

        As we predicted many months ago, the newer lawsuits would be smaller with fewer John Doe Defendants in each case. That way, if a “Malibu Media, LLC v. Does 1-10” case went bust, there would be twenty other cases still standing. Plaintiff attorneys quickly figured this out and started to sue just a few defendants in each lawsuit.

        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).

        However, more and more, we see with the Malibu Media, LLC bittorrent cases and the copyright infringement cases from other plaintiff attorneys (e.g., Jason Kotzker, Mike Meier, etc.), they are purposefully suing defendants in the CORRECT STATES so jurisdiction in most cases IS proper.

        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 that each 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.

        [This is called a SPLIT in the court’s decisions (even though the term “split” usually indicates judges from one jurisdiction (e.g., Southern District of New York) ruling one way, and judges from another jurisdiction (e.g., Central District of California) ruling another way.]

        Case Consolidations Give Consistent Rulings

        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 few attorneys’ 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.

        As we learned in the Southern District of New York when Judge Forrest clumped together all of Mike Meier’s bittorrent cases, we thought these case consolidations were the end of Mike Meier’s lawsuits once and for all. WRONG. Now, months later, we understand now that Judge Forrest consolidated the cases merely so that she can MANAGE THEM TO AVOID INCONSISTENT RULINGS. To our shock and horror, Judge Forrest had no interest in killing Meier’s cases.

        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.

        However, I suspect Malibu Media knows this as well which is why the game for them is to 1) sue John Doe Defendants, 2) settle as many as they can, 3) “name” those who do not settle, 4) settle those who are named for a higher amount, 5) go for a default judgement ($750 + ~$2K attorney fees, or $30K + attorney fees, but I’ve never seen a $150K default judgement), or dismiss those who are named, 6) re-file individually against those who did not settle, 7) settle with higher stakes, and 8) rinse and repeat.

        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.

        You can see his order here.


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