Personal Jurisdiction

The life of a subpoena, and at what point you are no longer anonymous.

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motions-to-quash-faq Motion to Quash in One Page

TIMELINE: ISP SUBPOENAS AND ANONYMITY

Any “copyright troll” bittorrent-based copyright infringement lawsuit really revolves around the subpoena which moves from the court to the accused John Doe Defendants.  Tracking a subpoena can help an accused defendant understand the timelines of when they can fight, when they can settle, when they can ignore, and whether they are anonymous or not at each step.

A Subpoena is first introduced to the court for approval.

A subpoena is first introduced to the court when the plaintiff attorney files the lawsuit and asks the court for permission to obtain the identities of the various internet users accused of downloading the copyright holder’s movie or copyrighted work.

The Subpoena, once approved by the court, is sent to the ISP.

The federal judge approves the subpoena (usually by rubber stamp), and the subpoenas are then sent to the “abuse” department of the various ISPs (e.g., AT&T U-verse, COX Communications, Comcast, etc.).  These ISPs in receipt of the subpoena are ordered to hand over the accused subscriber’s information to the plaintiff attorney.  They send a notice to the account holder that a subpoena has been received, and that they are under a duty to comply with the subpoena by a certain date unless the account holder files a Motion to Quash the subpoena before the arbitrary deadline they set (usually the deadline is 30 days from the notice sent to the subscriber).

The ISP forwards the Subpoena to the accused account holder giving him a chance to file an objection with the court.

You (the account holder) receive the notice containing the subpoena, and you learn that you are implicated as a “John Doe” (an unnamed defendant) in the Copyright Holder Corporate Entity v. Does lawsuit.  Here, you learn that you can supposedly stop the ISP from handing out your information to the plaintiff attorney by filing an objection with the court, a.k.a. a “Motion to Quash.”  At this point, you are still anonymous.

The ISP complies with the Subpoena and hands over your contact information to the plaintiff attorney.

Assuming you do not file the Motion to Quash (there are many articles on this website explaining why you might not do so), the 30-day deadline set by your ISP will lapse, and your ISP will comply with the subpoena.  They turn over your information to the PLAINTIFF ATTORNEY (but not to the court or anyone else).  You are still anonymous.

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The exact moment your anonymity expires.

At this point, the life of the subpoena is over, as it has served its purpose and the plaintiff attorney is in receipt of your contact information (and whatever other information your ISP was forced to hand over to it).  At this point, you are a “John Doe” defendant in the lawsuit, and only your plaintiff attorney knows your real identity.  YOU ARE STILL ANONYMOUS at this point (as to the court and the world, as the plaintiff attorney is not going to share your information unless he decides to name and serve you as a defendant in the lawsuit).

Your anonymity expires once the plaintiff attorney realizes that he or she cannot get a settlement from you, and based on their evidence that you are the downloader of their client’s copyrighted movie, they file an amended complaint with the court with your name as a defendant, and they serve you with a copy of the complaint.  At this point, you have been “named and served,” and you are no longer anonymous.  At this point, you need to decide whether it makes more sense to stand and defend against the claims against you (consider the attorney fees issue), or to negotiate a settlement and amicably step away from the lawsuit.

NOTE: If you choose to fight, be aware of Prof. Matthew Sag’s paper entitled “Defense Against the Dark Arts of Copyright Trolling,” and the considerations surrounding using what are otherwise “valid” defenses to copyright infringement which likely DO apply to your case.

[CONTACT AN ATTORNEY: If you have a question for an attorney about your lawsuit and options on how to proceed, you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

    ISP Subpoena Timeline & Anonymity Timeline

    Florida ‘Manny Film LLC v. John Doe’ cases suffer a black eye (FLSD)

    by
    Manny Black Eye

    It appears to me as if the Manny Film geolocatoin-based bittorrent piracy lawsuits in Southern Florida have just received their first black eye.

    The Federal District Court in Florida has been grappling these past few years with the question of whether geolocation software is sufficient to identify the accused downloader. In short, federal venue rules (according to 28 U.S.C. §§ 1391(c) and 1400(a)) state (in the context of a bittorrent piracy lawsuit) that in order for a copyright holder to file a lawsuit against a John Doe Defendant, the copyright holder must assert that the accused John Doe Defendant a) lives in the federal district in which the lawsuit is filed, and b) that a substantial part of the downloading and/or uploading happened in the federal district. The purpose for this is so that the defendant is sued in the right court.

    However, in following the “bouncing ball” of the legal argument at play, the Florida federal court has realized that the plaintiff and all of its complicated geolocation software cannot prove the identity of any defendant. Not even one.

    The Manny Film plaintiff can prove an IP address was connected to a bittorrent swarm that was downloading and distributing an unlicensed copy of the copyrighted film. They can prove that the IP address can be traced to a location (e.g., the accused downloader’s house). However, there is a logical gap between knowing the location where the download happened, and knowing that the accused defendant [most frequently, the account holder] was the downloader.

    HERE’S THE KICKER… if the geolocation software cannot assert who the downloader is, how can the Manny Film LLC copyright holder assert 1) that the accused downloader was the one who was using the computer to download the copyrighted film (they have not placed him at the keyboard at the time of the download), and 2) if the Manny Film LLC copyright holder cannot bring any proof through their geolocation software — their only source of evidence — to determine who the accused downloader is, how can they competently state for the purposes of satisfying the venue requirement that the the accused downloader (whoever he or she might be) lives in the state in which the lawsuit is filed?

    “Judge, I don’t know who the downloader is, but if I did know, he would live in your district!” – Copyright Troll

    This brings me back to this nuanced argument where I was trying to frame it in the context of a Rule 12(b)(6) motion. Here is an e-mail that I wrote on November 8th, 2012 (remember, our older articles are still relevant even today):

    I don’t know how to put this more plainly, and I HATE a “silver-bullet” argument, but I fail to see the weakness in a [Federal Rules of Civil Procedure, Rule 12(b)(6)] motion for failure to state a claim where the plaintiffs only know a) that an IP address downloaded the stuff, and b) that the named defendant is the account holder. It’s a fine point [which in my mind can be hammered home in the courts] but I understand the argument to be that assuming everything in the plaintiff’s complaint to be true, there is nothing that implicates the named defendant to be the person who did the download. In other words, there is no conclusive link [perhaps I need to do more research as to how strong the link needs to be to survive a 12(b)(6) motion] between the real defendant as referenced in the complaint [or who this person should be], and the named defendant [the ISP account holder].

    Two analogies — 1) someone makes an incriminating phone call; there is no proof that the person who pays the phone bill (subscriber) made the call; 2) someone’s car does damage — [barring the negligence claim, which other attorneys here have done a wonderful job of killing] is the owner liable for torts that are committed with his car if the plaintiff cannot prove that he was in the car when it caused the damage?

    In short, an IP address is NOT a person, and proving that an IP address did the download does not prove that the subscriber was the one who did the download. 

    So, turning back to the Manny Film LLC (Case No. 9:15-cv-80290) case in the Southern District of Florida, U.S. Magistrate Judge William Matthewman references various Malibu Media LLC films lawsuit orders, and in turn orders the Manny Film LLC plaintiff to answer the same questions which killed the Malibu Media v. John Doe (Case No. 14-cv-20213) case and related cases.  In the Malibu Media, LLC 14-CV-20213 case, (just for completeness,) Judge Ungaro stated “there is nothing that links the IP address location to the identity of the person actually downloading and viewing Plaintiff’s videos, and establishing whether that person lives in this district.”

    The plaintiff has until March 31st, 2015 to do so, or else his Manny Film LLC cases filed in the U.S. District Court in the Southern District of Florida will all be in jeopardy (remember, a ruling in one case in a particular district is BINDING on other cases in that district).

    [HINDSIGHT: (2017 UPDATE, AND INTERESTING FACT:) LITTLE DID I KNOW BACK IN 2015 THAT THERE WAS A REASON WHY THE ATTORNEYS FILING THE MANNY FILM LAWSUITS WERE THE SAME ATTORNEYS FILING THE MALIBU MEDIA PORN-BASED LAWSUITS.

    COMMON THREAD: GUARDALEY. GUARDALEY WAS NOT ONLY THE FORENSIC COMPANY BEHIND THE MALIBU MEDIA, LLC LAWSUITS, BUT IT IS NOW COMING OUT THAT THEY WERE ALSO BEHIND OF THE MAINSTREAM MOVIE LAWSUITS FILED ACROSS THE U.S., LIKELY — EVEN THE MANNY FILM LAWSUITS I WROTE ABOUT HERE.]

    —
    FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at [email protected], or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

    CONTACT FORM: Alternatively, sometimes people just like to contact me using one of these forms.  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.

      shalta book now cta

      —

      Also see: “Manny Film LLC bittorrent lawsuits are really a story of defense attorney betrayal.” (3/13/2015)

      OTHER AFFECTED MANNY FILM LLC CASES:

      In the U.S. District Court for the Southern District of Florida (FLSD)
      Plaintiff Attorney: M. Keith Lipscomb of Lipscomb Eisenberg & Baker PLLC

      Manny Film LLC v. John Doe (Case No. 0:15-cv-60454)
      Manny Film LLC v. John Doe, subscriber assigned IP address 98.242.175.83 (Case No. 0:15-cv-60455)
      Manny Film LLC v. John Doe, subscriber assigned IP address 98.249.236.20 (Case No. 0:15-cv-60456)
      Manny Film LLC v. John Doe, subscriber assigned IP address 98.242.147.5 (Case No. 1:15-cv-20923)
      Manny Film LLC v. John Doe, subscriber assigned IP address 76.26.2.226 (Case No. 9:15-cv-80306)
      Manny Film LLC v. John Doe (Case No. 9:15-cv-80307)
      Manny Film LLC v. John Doe (Case No. 1:15-cv-20924)
      Manny Film LLC v. John Doe (Case No. 9:15-cv-80301)
      Manny Film LLC v. John Doe (Case No. 9:15-cv-80302)
      Manny Film LLC v. John Doe, subscriber assigned IP address 76.110.177.255 (Case No. 9:15-cv-80303)
      Manny Film LLC v. John Doe, subscriber assigned IP address 75.74.122.227 (Case No. 1:15-cv-20920)
      Manny Film LLC v. John Doe, subscriber assigned IP address 76.110.203.201 (Case No. 1:15-cv-20921)
      Manny Film LLC v. John Doe, subscriber assigned IP address 66.176.226.21 (Case No. 0:15-cv-60444)
      Manny Film LLC v. John Doe, subscriber assigned IP address 66.176.99.53 (Case No. 0:15-cv-60445)
      Manny Film LLC v. John Doe, subscriber assigned IP address 66.229.140.101 (Case No. 0:15-cv-60446)
      Manny Film LLC v. John Doe (Case No. 0:15-cv-60447)
      Manny Film LLC v. John Doe (Case No. 1:15-cv-20905)
      Manny Film LLC v. John Doe (Case No. 9:15-cv-80298)
      Manny Film LLC v. John Doe (Case No. 0:15-cv-60448)
      Manny Film LLC v. John Doe (Case No. 1:15-cv-20907)
      Manny Film LLC v. John Doe (Case No. 9:15-cv-80297)
      Manny Film LLC v. John Doe (Case No. 0:15-cv-60453)
      Manny Film LLC v. John Doe (Case No. 0:15-cv-60438)
      Manny Film LLC v. John Doe (Case No. 0:15-cv-60440)
      Manny Film LLC v. John Doe (Case No. 0:15-cv-60441)
      Manny Film LLC v. John Doe (Case No. 0:15-cv-60442)
      Manny Film LLC v. John Doe, subscriber assigned IP address 174.61.56.69 (Case No. 1:15-cv-20894)
      Manny Film LLC v. John Doe, subscriber assigned IP address 174.61.157.43 (Case No. 1:15-cv-20895)
      Manny Film LLC v. John Doe (Case No. 1:15-cv-20896)
      Manny Film LLC v. John Doe (Case No. 1:15-cv-20899)

      In the U.S. District Court for the Middle District of Florida (FLMD)
      Plaintiff Attorney: Daniel F. Tamaroff & David F. Tamaroff of Tamaroff & Tamaroff

      Manny Film LLC v. John Doe (Case No. 3:15-cv-00262)
      Manny Film LLC v. John Doe (Case No.3:15-cv-00263 )
      Manny Film LLC v. John Doe (Case No. 3:15-cv-00265)
      Manny Film LLC v. John Doe (Case No. 3:15-cv-00266)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00366)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00368)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00370)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00371)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00373)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00374)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00377)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00378)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00380)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00381)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00382)
      Manny Film LLC v. John Doe (Case No. 3:15-cv-00264)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00365)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00367)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00369)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00372)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00375)
      Manny Film LLC v. John Doe (Case No. 6:15-cv-00379)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00506)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00507)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00508)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00509)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00510)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00495)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00496)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00497)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00498)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00499)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00500)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00501)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00502)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-00145)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00503)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00504)
      Manny Film LLC v. John Doe (Case No. 8:15-cv-00505)

      In the U.S. District Court of New Jersey (NJD)
      Plaintiff Jordan Rushie sometimes misspelled on the court record as, “Jordan Rusie of Flynn Wirkus Young PC”

      Manny Film LLC v. Doe (Case No. 1:15-cv-01497)
      Manny Film LLC v. Doe (Case No. 1:15-cv-01498)
      Manny Film LLC v. Doe (Case No. 1:15-cv-01529)
      Manny Film LLC v. Doe (Case No. 1:15-cv-01530)
      Manny Film LLC v. Doe (Case No. 1:15-cv-01531)
      Manny Film LLC v. Doe (Case No. 1:15-cv-01533)
      Manny Film LLC v. Doe (Case No. 1:15-cv-01534)
      Manny Film LLC v. Doe (Case No. 1:15-cv-01539)
      Manny Film LLC v. Doe (Case No. 1:15-cv-01564)
      Manny Film LLC v. Doe (Case No. 1:15-cv-01565)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01482)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01483)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01484)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01487)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01488)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01495)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01503)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01504)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01517)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01518)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01520)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01521)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01522)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01523)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01528)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01532)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01535)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01536)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01537)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01538)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01540)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01541)
      Manny Film LLC v. Doe (Case No. 2:15-cv-01542)
      Manny Film LLC v. Doe (Case No. 3:15-cv-01489)
      Manny Film LLC v. Doe (Case No. 3:15-cv-01490)
      Manny Film LLC v. Doe (Case No. 3:15-cv-01545)
      Manny Film LLC v. Doe (Case No. 3:15-cv-01552)
      Manny Film LLC v. Doe (Case No. 3:15-cv-01553)
      Manny Film LLC v. Doe (Case No. 3:15-cv-01554)
      Manny Film LLC v. Doe (Case No. 3:15-cv-01557)

      In the U.S. District Court for the Eastern District of Pennsylvania (PAED)
      Plaintiff Attorney: Christopher P. Fiore of Fiore & Barber LLC

      Manny Film LLC v. John Doe (Case No. 2:15-cv-01157)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01156)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01158)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01159)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01163)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01164)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01165)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01166)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01167)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01168)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01170)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01171)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01172)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01173)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01174)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01175)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01176)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01178)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01179)
      Manny Film LLC v. John Doe (Case No. 2:15-cv-01180)

      In the U.S. District Court for the Northern District of Ohio (OHND)
      Plaintiff Attorney: Yousef Faroniya

      Manny Film, LLC v. Doe (Case No. 1:15-cv-00465)
      Manny Film, LLC v. Doe (Case No. 1:15-cv-00466)
      Manny Film, LLC v. Doe (Case No. 1:15-cv-00467)
      Manny Film, LLC v. Doe (Case No. 3:15-cv-00463)
      Manny Film, LLC v. Doe (Case No. 3:15-cv-00464)
      Manny Film, LLC v. Doe (Case No. 3:15-cv-00461)
      Manny Film, LLC v. Doe (Case No. 3:15-cv-00462)
      Manny Film, LLC v. Doe (Case No. 1:15-cv-00451)
      Manny Film, LLC v. Doe (Case No. 1:15-cv-00460)
      Manny Film, LLC v. Doe (Case No. 1:15-cv-00444)

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

      by

      Every few years it is important to rehash some older bittorrent concepts which are still relevant to today’s copyright infringement lawsuits.

      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.

        shalta book now cta

        Prenda Appellate Saga Comes To An End

        by

        Congratulation to the Cashman Law Firm, PLLC defendants who will soon be dismissed from the AF Holdings, LLC v. Does 1-1,058 (Case No. 1:12-cv-00048) case filed TWO YEARS AGO in the U.S. District Court for the District of Columbia. Seeing that the appellate (circuit) court came out with a ruling this afternoon, I read the circuit court’s ruling with fervor thinking that I was about to write an article entitled “the jig is up, no more copyright trolling lawsuits.” Well, I am underwhelmed.

        If you remember the Judge Beryl Howell CREATES A SPLIT in the DC Court article I wrote back in August, 2012, at the time, thousands of “John Doe” Defendants from across the U.S. were being sued in the US District Court in DC, and Judge Beryl Howell was in favor of allowing the mass bittorrent lawsuits to continue in DC, even though other district court judges [not former copyright lobbyists for the Recording Industry Association of America] (notably, Judge Wilkins, now a United States Circuit Judge) wrote opinions questioning the validity of mass bittorrent lawsuits. As a result of this, now almost two year later, we have a circuit court ruling resolving the question of whether “personal jurisdiction” and/or “joinder” are relevant questions for a court to investigate before it signs an order invoking the “machinery of the courts” to force a non-party ISP to comply with a subpoena [asking for them to turn over the private contact information of each subscriber implicated as a “John Doe”].

        Judge David Tatel [writing for the U.S. Court of Appeals for the District of Columbia Circuit] wrote a few pointers that we already knew, and in my opinion, the circuit court’s ruling is two years, too late. The ruling is essentially that a court may justifiably force a plaintiff “copyright troll” to establish that it has PERSONAL JURISDICTION over the John Doe Defendants who are implicated in the lawsuit BEFORE it allows that copyright troll to obtain [through discovery] the list of names and addresses belonging to the internet subscribers. His opinion, however, resolves ABSOLUTELY NOTHING about the hundreds of smaller John Doe (e.g., v. Does 1-20) lawsuits filling the courts’ dockets across the U.S., where the “copyright troll” plaintiffs have figured out that “you sue a defendant where a defendant lives.”

        Next point. When requesting the subscribers’ contact information from an ISP, the plaintiffs purpose must be to gather this information for use in THIS LAWSUIT, and not for other proceedings or other lawsuits. Good luck enforcing this one. I have no doubt that we will still see defendants dismissed from one “v. Does 1-20” lawsuit, only to be named and served in his own “v. John Doe” lawsuit. This happens every day. Also, good luck stopping a copyright troll from calling up dismissed defendants and saying, “unless you settle with us, we will name and serve you in your own lawsuit.”

        Then after glossing over the “you must sue a defendant in the state in which he lives” rule, thirteen pages later, Judge Tatel discusses joinder (who can be sued together as co-defendants in a lawsuit).

        I thought the joinder discussion would be juicy, but it was vague and vanilla, and it lacked explanation. The ruling was essentially that “you can only sue John Doe Defendants together in one lawsuit as long as they were part of the same bittorrent swarm.” This precludes plaintiffs who often sue defendants who did the same “crime” of downloading copyrighted films using bittorrent, but they did so days or weeks apart. In mentioning what is considered the “same bittorrent swarm,” the judge mentioned ABSOLUTELY NOTHING as to what the scope of a bittorrent swarm is, and how long one lasts — whether a swarm continues for minutes, days, or weeks at a time — and who is properly connected in a bittorrent swarm to be sued together in a lawsuit.

        All I pulled from his discussion is that “if Tom and Dick were downloading at the same time, they can be sued together in a lawsuit; joinder here would be proper.” However, if Tom finished downloading and logged off five minutes before Dick logged on, would this be considered the “same transaction or occurrence” to allow the two of them to be sued together? What happens if Tom finishes downloading and logs off, and by the time Dick logged on to the bittorrent swarm, everyone who was part of that swarm [e.g., all 10 or 20 people] also logged off and new people logged on. If Dick is downloading from a completely different group of downloaders than the group who was online when Tom was downloading, but they downloaded five minutes apart, is this the same bittorrent swarm or a different bittorrent swarm? The judge provided ABSOLUTELY NO ANSWER as to the scope of a bittorrent swarm, so we are still left with uncertainty.

        …So you see why I am underwhelmed. The ruling was essentially, “personal jurisdiction, bla bla blah, joinder, blah blah blah.” I learned nothing new from this, and yet the media is jumping all over this as if it is some kind of jewel. NOTHING NEW HAPPENED HERE.

        Putting all of this in perspective, if you think about only the issue that Judge Beryl Howell wanted the appellate court to answer, “whether personal jurisdiction and joinder are relevant in a discovery request to obtain information about not-yet-named ‘John Doe’ defendants who are identified merely by their accused IP addresses,” Judge Tatel did exactly what he needed to. He correctly answered, “yes, personal jurisdiction and joinder are relevant when the plaintiff attorneys ‘attempts to use the machinery of the courts to force a party to comply with its discovery demands.'”

        Thus, when a copyright troll files a lawsuit against unnamed John Doe defendants, and they seek discovery to force an ISP to comply with a discovery request (e.g., a subpoena forcing them to hand over the contact information of the accused subscriber affiliated with that accused IP Address), issues such as personal jurisdiction and joinder ARE ripe for inquiry before the court grants the copyright troll permission to subpoena the ISP, forcing them to hand over the contact information of the accused “John Doe” defendants.

        —
        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.

          shalta boook now cta

          “GOING TO TRIAL: BAD!”

          by

          “GOING TO TRIAL: BAD!”

          I was watching the DC Malibu Media, LLC case which was assigned to Judge Facciola, and on 9/25, there was an order which concerned me. In view of PA Judge Baylson’s order forcing Malibu Media to name and serve defendants, or else, this order became relevant.

          We all know that Judge Facciola is against the internet downloader. He is also stubbornly in favor of copyright trolls, pornography production companies, and the protection of copyright rights for obscene materials. This is why his order in the Malibu Media, LLC v. John Does 1-7 (Case No. 1:12-cv-01119 [12-1119 (EGS/JMF)]) case in DC was controversial.

          In stark opposition to my “GOING TO TRIAL: GOOD!” article that I posted just moments ago, it appears as if Judge Facciola has figured out a way to TRAP internet users into being named as defendants, and to embarrass them and force them to fight their cases.

          In Facciola’s 9/25 order, the judge allowed Malibu Media, LLC to send subpoena notices to the ISPs. He allowed them to even get all they wanted regarding the contact information of the suspected John Doe Defendants. Here’s the catch — Facciola ordered that MALIBU MEDIA, LLC MAY NOT SETTLE ANY CASES WITH JOHN DOE DEFENDANTS BEFORE NAMING THEM FIRST.

          “4. Plaintiff may not engage in any settlement discussions with any persons identified by the ISPs in response to the subpoenas.”

          We all know that Malibu Media sues people in the states in which they live, and thus personal jurisdiction and venue is usually proper in their cases. In addition, we know that Malibu Media’s business model is to call defendants and scare them into settling for thousands of dollars at a time. We also know that the lawsuits implicate the defendants for ONE film only, but when defendants call up to settle, they are forced to settle ALL ALLEGED CLAIMS AGAINST THEM (which can sometimes be 15 “hits”, 25 “hits” — or more recently, I’m hearing numbers in the 40’s — which can amount to settlements in the TENS OF THOUSANDS). This means that even if a defendant SUCCEEDS in fighting their case, Malibu Media, LLC can still turn around and sue them again, and again, and again (bad odds for a downloader interested in x-art’s content).

          So now, settlement is NOT an option for Malibu, as their hands are tied by the judge’s order (and whether they’ll comply on the back-end is a dangerous proposition that could get them in trouble if a Doe who settles reports that settlement to the court). Or will it with Judge Facciola as the judge?

          Here is my advise with this case. For the putative defendants, your option is not to settle your case, but simply to make yourself someone the plaintiffs do not want to name and serve. In other words, have your attorney contact Malibu Media with evidence of your innocence. I suspect that if we persuade them that you have a good defense, they will decide to name and serve OTHER DEFENDANTS (and not you).

          So in sum, I expect that Judge Facciola will have his way, and John Doe Defendants will necessarily have their reputations tarnished by being named in a pornography lawsuit. To those defendants who ARE named, my only advice is to have your attorney put up a good fight. Quite frankly, at this point, some of these copyright trolls deserve one.