Illinois copyright attorneys suffer first loss in their home court.

Congratulations to our clients and to all defendants in the “CP Productions, Inc. v. Does 1-300” case (1:10-cv-06255), dismissed in the US District Court for the Northern District of Illinois. While at first glance this case appears to be a no-name media company attempting to enforce their copyrights using the mass tort copyright infringement “John Doe” model, there *is* real significance to this case.

This is one of the first cases in the US District Court for the Northern District of Illinois to have been dismissed. It was dismissed by Judge Milton I. Shadur, a Senior United States District Judge. More importantly, this is John Steele’s (of the Steele Law Firm LLC — now Steele Hansmeier, LLC) home court where a majority of his other cases have been filed. Have you heard any of his other cases filed there (just to name a few)?

Millenium TGA, Inc. v. Does 1-100 (1:10-cv-05603)
Lightspeed Media Corporation v. Does 1-100 (1:10-cv-05604)
Hard Drive Productions, Inc. v. Does 1-1000 (1:10-cv-05606)
First Time Videos LLC v. Does 1-500 (1:10-cv-06254)
Future Blue, Inc. v. Does 1 – 300 (1:10-cv-06256)
MGCIP, LLC v. Does 1-316 (1:10-cv-06677)
MCGIP, LLC v. Does 1-1,164 (1:10-cv-07675) [no misspelling there]
Achte/Neunte Boll Kino Beteiligungs GMBH & Co KG v. Novello (1:11-cv-00898)
Achte/Neunte Boll Kino Beteiligungs GMBH & Co KG v. Famula (1:11-cv-00903)

As you can see, a lot is riding on these cases, and one dismissal creates a ripple effect which will likely affect the others. This is what happened in Evan Stone’s Larry Flynt Productions (LFP Internet Group, LLC) cases and related cases which were all dismissed in the US District Court for the Northern District of Texas all at once. Here, the judge’s order (which you can either find online or you can e-mail me) was quite explicit in his reasons for dismissing the case. No doubt the other judges for the cases I listed above will take notice of this dismissal.

For more information on the case, Ars Technica website had a nice write-up on it in their “Random defendant outlawyers P2P attorney, gets lawsuit tossed” article. The 99 comments (as of the posting of this article) are also very telling and informative.

News articles claim that attorneys are filing copyright infringement actions against individual defendants for illegal downloads. Should I be scared?

Considering the recent articles online leaked by the attorneys of the Hurt Locker and the Far Cry cases in that they plan on filing against dismissed defendants in their home states, I have been asked whether my opinion regarding the eventual outcome of the cases still in existence has been altered by what is, in my opinion, a public relations media blitz in response to the fall of the Larry Flynt Productions (LFP Internet Group, LLC) lawsuits and similar related suits in the Texas and West Virginia courts.

In short, the mass John Doe copyright download cases have been falling like dominoes — one after the other — and there are too many of them to note. However, as a reaction to these failed cases, there have been a number of “scare” articles leaked to the internet claiming outright lies such as “we were successful in obtaining hundred-thousand dollar judgments against multiple torrent users last year.” This is simply not true. I check the records and filings of many (if not most) of the copyright lawsuits on a regular basis. I have seen many cases get dismissed; I have seen many cases get severed leaving only one John Doe defendant — but I have never seen a judgment against an individual John Doe torrent downloader from these lawsuits.

Of course I must point out that there are a few example cases made by the Recording Industry Association of America (“RIAA”) which I wrote about a few months ago where one woman was handed a $1.5 million dollar judgment for seeding (sharing) over twenty .mp3 music files. In addition, there were the Napster, Grokster, and related cases which lost a few years back. However, as for media companies getting judgments against individual John Doe defendants in these mass copyright infringement lawsuits? I have not seen even one.

However, as per the plaintiff attorneys in these copyright cases, it has always been their position that they intend to go after individuals in their home states. However, if you read my most recent article (towards the bottom), you will see the obstacles they face in going after every one of the individuals dismissed in their previous lawsuits. I have quoted the relevant portion below.

“Now what does this mean for our firm’s clients? In short, all defendants were dismissed and severed. What this means is that if the plaintiff attorneys wish to continue the lawsuit, they will have to file against each of the six thousand defendants individually. They will need to draft complaints specific to each defendant alleging infringement of their client’s copyrights — each one is extremely time consuming. They will have to get admitted (pro hac vice) in the local court in which each defendant lives, or they will have to find local counsel in each state each defendant lives and they will have to hire that local counsel to file the paperwork on their behalf. They will have to learn and follow the local court rules, they will have to pay the filing fees for each defendant (~$350) they sue, and they will have to properly serve each defendant.

Then us attorneys will begin defending the cases, and we will begin conducting discovery and making them attend depositions, answer interrogatories, and prove their case. I would think this would be difficult for them to do with just a few defendants. I can imagine this would be nearly impossible to do with 6,000+ defendants.

But, I’m sure if asked, they will probably post some news article expressing their determination to go after each and every defendant, and I wish them well.” (Emphasis added.)

As a side note the defendants in the above quoted article were not severed, they were outright dismissed. This has ramifications for the plaintiff attorneys and it will affect how they are able to proceed in suing defendants individually.

Lastly, regarding the blitz of articles many of you have been referring to (on arstechnica, on digitalmediawire, etc. — example here) — if you read the news articles carefully, there is no indication that a new wave of individual lawsuits are being filed. (Obviously taking note of a few “test the water” cases, one example described here). These articles, along with their source article on CNET News state that the owner of Dunlap, Grubb & Weaver is “driving to the court right now…” Very exciting and newsworthy, but no proof of a new and pervasive business model of filing against individual defendants.

I have no doubt that in the coming months, we will transition from fighting procedure (no jurisdiction, improper joinder) to fighting actual evidentiary issues, but we are FAR from being there yet. John Steele is still messing around with trying to move forward with a reverse class action suit (article here), and if he succeeds, I’m sure the other law firms and media companies will copy his methodology and will first try their hand at John Steele’s new business model before scaling down what was (and for the time being, still is) their profitable mass copyright lawsuit business model to going after individual defendants. This current business model of joining hundreds, if not thousands of internet downloaders into one lawsuit is failing in the courts because of inherent procedural defects, but the model itself is not yet a failure. From what I hear, there is a huge settlement rate (e.g., I heard that 90% of defendants get scared into settling before even talking to a lawyer), and so for as long as they can continue to scare defendants into settling, their business model will remain a success.

I cannot see, however, the profitability of going after an individual for any other reason than to attempt to secure a few example cases in their favor. I have no doubt that even if they were successful in suing individual downloaders (an outcome which I doubt would be the case if the defendants hired competent attorneys to fight their case rather than going pro se), the media companies would never collect a penny from the defendants because in all likelihood, any defendant hit with a $150,000 judgment will immediately be hiring a taxi to drive them to the nearest bankruptcy court, followed by dinner at an expensive restaurant.

In short, beware of what you read online. Check your information from all sites against the simple facts, filings, and pleadings of the case which are publicly available to those who want to do their homework.

6,374 DISMISSED John Doe Defendants cheer as the LFP Internet Group lawsuits go down in flames.

I would like to personally congratulate the 6,374+ John Doe Defendants (3,120 + 635 + 2,619) who have been dismissed from the LFP Internet Group, LLC (Larry Flynt Productions) cases. This is a huge victory for our clients and internet users in general. What makes this case significant is not the daunting number of defendants, but that this case provides great case law for future cases.

In short, since the West Virginia Cases crumbled in December of 2010, judges across the country have taken notice that there are more issues in these cases other than plaintiffs merely being sued in the wrong jurisdiction. There and here — like dominoes tipping dominoes — the cases were dismissed and severed based on joinder issues. In short, the joinder issue can be summarized by stating that it is improper for a plaintiff attorney to sue many John Doe defendants who, when downloading — although they were all committing the same copyright infringement crimes at the same time — were not engaged in one concerted effort.

In the words of Hon. Royal Furgeson, Senior United States District Judge for the Northern District of Texas, the defendants may have shared files via BitTorrent, but “there are no allegations… that the Defendants are in any way related to each other, or that they acted in concert or as a group in their allegedly offending actions.” The plaintiff only claimed that “each Defendant… has used, and continues to use, BitTorrent software to reproduce and/or distribute Plaintiff’s motion picture to hundreds of other BitTorrent users.” Because the plaintiff’s infringement claims against each Defendant is based on the individual acts of each Defendant rather than “arising out of the same transaction, occurrence, or series of transactions or occurrences,” joining them together in one lawsuit is improper.

In short, the rule we get from this monster case is an affirmation of the law from the West Virginia cases, namely, “merely committing the same type of violation in the same way does not link defendants together for purposes of joinder.” West Coast Prods., Inc. v. Does 1-535, No. 3:10-CV-94 (N.D. W. Va. Dec. 16, 2010). This is good law, and I would not be surprised if the dominoes continue to fall, knocking down one case after another.

Now what does this mean for our firm’s clients? In short, all defendants were dismissed and severed. What this means is that if the plaintiff attorneys wish to continue the lawsuit, they will have to file against each of the six thousand defendants individually. They will need to draft complaints specific to each defendant alleging infringement of their client’s copyrights — each one is extremely time consuming. They will have to get admitted (pro hac vice) in the local court in which each defendant lives, or they will have to find local counsel in each state each defendant lives and they will have to hire that local counsel to file the paperwork on their behalf. They will have to learn and follow the local court rules, they will have to pay the filing fees for each defendant (~$350) they sue, and they will have to properly serve each defendant. Then us attorneys will begin defending the cases, and we will begin conducting discovery and making them attend depositions, answer interrogatories, and prove their case. I would think this would be difficult for them to do with just a few defendants. I can imagine this would be nearly impossible to do with 6,000+ defendants. But, I’m sure if asked, they will probably post some news article expressing their determination to go after each and every defendant, and I wish them well.

As a funny closing note, I found it interesting that even in this case, the many motions to quash and motions to dismiss based on lack of jurisdiction, etc., were NOT APPROVED. They were denied as moot.

NAMED AND SERVED | When a Defendant Stops Being a John Doe

When is a bittorrent user “named and served”?

QUESTIONS ASKED ON BEING NAMED AND SERVED:

  • At what point is an accused torrent user ‘named and served’ in a lawsuit? Is it once the ISP turns over his information to the attorneys?
  • What do I do if I am ‘named and served’ in such a lawsuit?
  • Can your firm still represent me if I am ‘named and served’ in a lawsuit?
  • What if I am named and served in a jurisdiction in which you are not licensed?

ANSWER:
All of the proceedings that have been taking place with these copyright infringement cases have been in the pretrial stages while the defendant is still a John Doe represented merely by his accused IP address. Even after the internet service provider hands over the defendant’s identifying information, he or she remains a John Doe Defendant until the plaintiff attorney decides whether to name and serve the defendant or dismiss him or her.

2017 UPDATE: I am including this article as part of the TorrentLawyer University set of fundamental topics which are relevant to bittorrent-based copyright infringement lawsuits.

Am I ‘Named and Served’ when the ISP complies with the subpoena asking for my information?

No.  The ISP was under a duty signed by a federal judge to hand over your information.  If your attorney did not file a motion to quash the subpoena, then your ISP likely complied with the judge’s order.  This means that they forwarded over your account information, along with the account information of the other “John Doe” Defendants in your case.  It is easiest to think about this as if the ISP sent over a spreadsheet with a bunch of lines on it — your account information was included in one of those lines.

You are not named and served when your ISP complies with the subpoena.  You remain a “John Doe” defendant — anonymous to the world, but only known to you, the ISP, and now, your plaintiff attorney (and his copyright troll client).

Being ‘Named and Served’ Happens When the Complaint is Amended

Amending the Complaint (“Named”)

A plaintiff attorney ‘names’ a bittorrent defendant when he amends the copyright infringement complaint, replacing the John Doe placeholder with the real defendant’s name.  In a bittorrent-based copyright infringement case, the plaintiff attorney names a defendant when he changes the name of the accused defendants from “John Does 1-200” (or however many “John Doe” putative defendants there are) to “John Does 1-199, and Jim Smith” (Jim Smith being the named defendant).

Service of Process (“Served”)

Upon naming a defendant, the plaintiff attorney then must ‘serve’ a defendant with a copy of the complaint.  The Federal Rules of Civil Procedure (FRCP) gives him a few ways to do this.  The easiest (and costliest method) is to hire a process server to stop at the defendant’s house and serve him with a copy of the complaint.  Other methods include using the U.S. mail (asking the defendant to waive service of process in return for receiving a longer time period to file an answer with the court), etc.  The complaint must conform to both the Federal Rules of Civil Procedure and the court’s local rules (more on this in a future post).

Status of the former “John Doe” Defendant upon being Named and Served

If the plaintiff attorney names and serves the defendant, the named defendant ceases to be a John Doe and must immediately file any motions (e.g., motions to quash if still relevant, motions to dismiss, etc.) with the court. The defendant is advised if he has not already done so to hire local counsel (or if he is already represented by an attorney, to have his attorney hire local counsel to file motions on his behalf) to defend the case.

In short, upon being named and served, the defendant’s attorney (or local counsel) must file an answer to the complaint with the court, send a copy to the plaintiff, and must start evidentiary proceedings (e.g., discovery) if he is to properly defend his client.

Can your firm still represent me if I am ‘named and served’ in a lawsuit?

Absolutely.  A bittorrent lawsuit is simply a copyright infringement lawsuit.  It is filed in one of the many federal courts spread across the country, and any attorney who knows how to navigate the federal courts can represent you in your case.  Our Cashman Law Firm, PLLC practice focuses in federal court practice, so we can represent you in any federal court, even if we are not licensed to practice in that state.

What if I am named and served in a jurisdiction in which you are not licensed?

Not a problem.  Copyright law is exclusively federal law.  Thus, copyright infringement lawsuits belong exclusively in the federal courts.  Now obviously some courts will require that we hire local counsel in that state, but we already know which courts require this and are prepared to defend you in your case.

Where the cases are (as of writing this article).

Our firm has been gearing up for full-fledged copyright infringement lawsuits since September of 2010, but as of writing this article (Feb., 2011), so far the cases have not moved past the John Doe stages of the lawsuits. It just seems to me as if the plaintiffs are nervous that if they start suing, then we will start defending the cases diligently and we will start creating bad case law for them (which is exactly what they have been trying to avoid). If they move the case down this road of naming and serving defendants and we start winning on the merits of the case rather than having them dismissed based on procedural defects (as has been the case in most of the dismissals to date), we will shut down their operations and will make it almost impossible for them to continue their cash machine of suing John Doe Defendants without naming and serving the underlying defendants and scaring them into settling, only to dismiss and repeat with a whole new set of defendants.

Warm regards,
Rob Cashman, Owner
Cashman Law Firm, PLLC


THIS HAS BEEN A LAWSUIT-NEUTRAL ARTICLE WRITTEN FOR THE TORRENTLAWYER UNIVERSITY.

FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your matter, 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.

MICK HAIG PRODUCTION DEFENDANTS DISMISSED.

Congratulations to all 670 defendants dismissed in the Mick Haig Productions copyright infringement lawsuit.  The plaintiff attorney was Evan Stone, and the case number was 3:10-cv-01900-N in the US District Court for the Northern District of Texas.

The interesting thing about this case is that it appears as if the case was dismissed with prejudice.  This means that regardless of whether defendants were initially sued in the incorrect jurisdiction, the plaintiff attorneys have lost their chance to later file against the John Doe defendants in their home states.

DIGIPROTECT CASE ORALLY DISMISSED!

UPDATE (2/2/2011): While it is generally not the policy of the blog author to update articles, I have been asked to update this article to keep the information up to date. Since writing this article, the hearing which was the subject of all the controversy has been posted on the PACER website and hopefully soon will be made available for us to view. Also, contrary to what was said about the oral dismissal at the hearing, there have been no orders of dismissal issued. Whether the judge decides to dismiss this case or not is soon to be determined.

Last week and to my surprise, the Cashman Law Firm, PLLC received a settlement request from the Digiprotect attorney regarding this case. This seemed strange to me since the settlement arrived without any prior discussion of evidence or guilt, and it raised a red flag for me that something was wrong with the case.  The last time something like this happened was when John Steele went on a settlement rampage days before he dismissed 99 defendants in his Lightspeed Media Corporation lawsuit.

Anyone about to settle the case may want to hold off, because I have received word that the Digiprotect case (Digiprotect USA Corp. v. John Does 1-266; 1:10-cv-08759-TPG) has been orally dismissed.

As soon as I received the attorney’s solicitation for settlement, I did some investigatory work, searched the PACER records, and called a few attorneys. This morning, I received a call from John Seiver, an attorney for Comcast who intervened in the case because the plaintiff attorney was giving him problems and pressuring him to disclose names faster than he was able to. He petitioned the court and showed up in front of the judges for both Digiprotect cases (1:10-cv-08759-TPG, 1:10-cv-08760-PAC). I have heard that one judge (Judge Thomas P. Griesa) got upset with the plaintiff attorney based on the jurisdiction, joinder, etc. issues with the case, dismissed it, and walked off the bench. The other Digiprotect case with Judge Paul A. Crotty (1:10-cv-08760-PAC) was not dismissed, but the judge was upset about what he heard. I believe Judge Crotty gave the plaintiff attorney a number of days to respond to the issues this attorney brought before the court.

To double check my information, this morning, I called the clerk’s office today, and they told me they did not have any information regarding this event. In short, “if it is not on PACER, it does not yet exist.” However, I did receive confirmation from the judge’s chambers that the case was orally dismissed, however the order has not yet been written and thus it is not yet on PACER.

Thus, I would advise anyone considering a settlement offer with plaintiff attorney on the Digiprotect cases to hold off on signing the agreement, since they might have been severely compromised.

On a personal note, the Digiprotect case was one which was concerning to myself and my clients, because this was one of the cases where the attorneys have smartened up their procedural practice and have sued our clients in the jurisdictions in which they live.

Congratulations to our clients, and to all the other Digiprotect defendants out there!

Warm regards,
Rob Cashman

99 DEFENDANTS DISMISSED.

Congratulations to our client, one of ninety-nine defendants who have have been dismissed from the Lightspeed Media Corporation lawsuit (Civil Action No. 1:10-cv-05604).

This is an ongoing lawsuit with Mr. John Steele at the helm, where aggressive attempts to solicit and collect settlement offers for the alleged downloading of copyrighted materials via the bittorrent protocol.

The guilt of the defendants were not at issue in this case. We did not even get the chance to defend the copyright portion of the lawsuit itself. As with the other cases, defendants were improperly sued in courts which did not have personal jurisdiction over them.

This is a victory for now, but as always, there remains the threat that the plaintiff will sue each defendant either individually or in a class in a federal court having personal jurisdiction over each of the defendants sued. Of course, this would mean that the plaintiffs would need to hire local counsel in the relevant jurisdiction to file and serve each of the defendants, pay the filing fees for each defendant, and properly prosecute each lawsuit.

Considering the amount of defendants sued, this can be a costly proposition for the plaintiff client, but Mr. Steele has promised that this is the route he will take. Then again, this was the same promise that DGW’s notorious Evan Stone made when dismissing his clients in the Far Cry lawsuit.

Could an internet user found guilty of copyright infringement discharge that debt in bankruptcy?

Here in the Cashman Law Firm’s Federal Computer Crimes blog, we have been addressing a number of issues with regard to federal copyright law and its application to lawsuits dealing with the illegal downloading of movies and songs using the bittorrent protocol.

In our article entitled, “20th Century Fox v. small screenwriter. Suing for copyright infringement appears to be cheaper than advertising.” I mentioned that if the defendant (McIlvaine) is found guilty, she will likely need to file for bankruptcy to discharge her judgment because it is unlikely that if 20th Century Fox prevails in getting their $12 Million in copyright violation damages, McIlvaine will be able to pay it. As a response to my posting, a reader posited that “debts incurred for causing willful and malicious injuries are not dischargeable in bankruptcy,” referring to 11 U.S.C. s.523(a)(6).

The old Supreme Court case describing this issue was Tinker v. Colwell, 193 U.S. 473 (1904). However since that case, the law has been modified and in Kawaauhau v. Geiger, 118 S. Ct. 974 (1998), the Court limited the meaning of “willful and malicious injuries” to intentional torts, e.g., a doctor prescribing the wrong medication causing the patient’s infection to spread and ultimately to have the foot amputated. Thus, since copyright infringement is not one of the intentional torts, the rule preventing discharge for “willful and malicious injuries” would not include copyright infringement.

[Obviously this is not meant to constitute legal advice and one doing research on this topic should consult an attorney before proceeding. If I were to represent McIlvaine in her copyright lawsuit in New York, I would obviously update the case law with more recent cases of that district to confirm and strengthen what I have written above.]

4,437 FAR CRY LAWSUIT DEFENDANTS DISMISSED.

I had a number of clients who were sued by the DGW attorneys for the Far Cry lawsuit. As of today, they are no longer defendants.

Today is a victory that belongs to you, the internet community. You fought against those who used the legal system as a tool to solicit and elicit settlement payments from you without providing evidence to support their claims against you. Today you won.

I anticipate that other cases will have similar results, and that the plaintiff attorneys will regroup and will strategize a new and cost-effective means of moving forward against you. Perhaps they will go after each one of you individually in your own courts. This would be costly for them, and would require that they reach into jurisdictions in which they are not admitted to practice law. Perhaps they will find ways to group future lawsuits into smaller numbers or classes and proceed that way.

However they move forward, we will be there for you.

Warm regards,
Rob Cashman
Cashman Law Firm, PLLC

20th Century Fox v. small screenwriter. Suing for copyright infringement appears to be cheaper than advertising.

Being an attorney who grew up in NY and who has roots in The Big Apple, the Twentieth Century Fox Film Corporation v. Patricia McIlvaine case filed in the United States District Court for the Eastern District of New York (Case 2:10-cv-05358-LDW-AKT) is one which I can share a modest opinion.

The facts of the case are pretty simple, and details can be found on a number of sites, including the Moviefone blog, TorrentFreak, or a number of other news sites all parroting the same “talking points.”  In short, the defendant posted a number of movie scripts onto a web site that she created (for the benefit of other screenwriters), likely not realizing that her actions would constitute and enforceable act violating federal copyright laws.

Without 20th Century Fox telling McIlvaine to take down her infringing materials or serving her with some sort of cease and desist letter (they actually have no requirement to do this, although it is a polite thing to do which likely would have inspired compliance), they instead decided to gain some publicity by suing McIlvaine for $12 Million in copyright violations.

Now since hearing about this case from Brian Baker, a commercial real estate attorney in Dallas, TX [who consequently also blogs via wordpress — his blog is http://leaselaw.wordpress.com] and providing me a copy of the initial complaint, I read it carefully and went onto the US District Court for the Eastern District of New York’s PACER site to download a copy of other documents filed in the case.  However, contrary to what you hear in the fire of the news stories, things in this case appear to be going slowly, and filings appear to still be only in the initial stages — the NY attorneys for 20th Century Fox are still submitting documents proving that they own the copyrights for the 100+ movies they are accusing McIlvaine of infringing — and to me it appears as if the case is more for show rather than to punish McIlvaine violating their copyrights.

You might ask, “isn’t $15 million punishment enough?” to which I opine that I don’t think she’ll ever get the full $15 million judgment.  If anything, I think she’ll find some attorney to fight the case on her behalf, and the attorney will establish that she didn’t know what she was doing was copyright infringement, and that even if she did, 20th Century Fox (“Fox”) was not damaged by her actions.  I wouldn’t be surprised if she got off for even a few hundred dollars and a slap on the wrist, however you would NEVER hear about it on the news.  That is why it is important to read the case dockets and the pleadings yourselves because they are the most telling of what actually happened in the case without the bias that too frequently skews the actual results of cases such as these.

It’s interesting to note that this was not the first time the script for Deadpool was leaked onto the internet, and I wouldn’t be surprised if Fox’s “shoot, then ask” approach was because they worked so hard to have the first leak contained and removed from the web, and here she goes re-posting it again.  I am sure that made Fox’s legal team quite annoyed, enough so that they [poorly and quickly, in my opinion] draft a complaint and send a few goons to her house to scare her and make her cry.  It’s also interesting to note that McIlvaine is not the source of the leak; Fox does not yet know who these people are, but they have identified them as Defendant Does 1-10 who will be named as discovery reveals who they are.

[As a side note, to all you readers who get all huffy when a plaintiff sues Defendant Does 1 – 10 (or 100, or 5000), this is a perfect example of showing how the practice of naming Does is a perfectly legal and valid practice.  They simply don’t know who they are yet.  Similarly, I have seen many postings about how people recoil at the fact that an attorney (our Cashman Law Firm, PLLC) has uploaded and shared public and legal information through the use of a torrent on a pirate web site.  The use of peer-to-peer was meant for such a purpose, and just as Linux software providers legally share their operating system installation files via torrent (e.g., Ubuntu, etc.), so too can we.]

In short, after reading the complaint, I shrugged my shoulders and thought to myself that there is nothing really so exciting here.  20th Century Fox is trying to make an example of defendant McIlvaine, a woman who “sells flowers to make ends meet” and spends her free time “caring for an elderly relative suffering from dementia, and caring for an infant.”  This is someone who cannot even afford an attorney.

My opinion is that even if they win the full $15 million they are claiming she should pay, do they really think they will ever see a penny from her?  As far as I’m concerned — and I do not know her true financial situation, but I can only posit based on what has been written — she appears to be JUDGMENT PROOF.  She has nothing to lose.  [Even if she was not judgment proof, the bankruptcy laws of New York are such that it would merely require a filing to make such a judgement go away in heartbeat via a Chapter 7 bankruptcy (or less likely, via a Chapter 13), where 20th Century Fox as the supposed judgement holder would get $ZERO.]

All this being said, nobody wants such a lawsuit on their shoulders.  This must be a scary and unnerving proposition for her to figure out how to deal with.  She will likely need to hire an attorney, perhaps one to take the case pro bono, and she will need to defend her case.

If she is smart, she will use this lawsuit to gain notoriety within the Writers Guild of America and other networks of screenwriters so that she can further her career goals and dreams and make them a reality.  However, I doubt she will be writing for 20th Century Fox anytime soon.

Motions to Quash ISP Subpoena Letters, Malibu Media Lawsuits, Rightscorp DMCA Settlement Notices, and Helping John Does.