West Virginia (WV)

West Coast Productions, Inc. Case is DEAD.

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With the flick of a wrist and the power a pen, the West Coast Productions, Inc. v. Does 1-5,829 case is dead.

I don’t know whether I should be saying congratulations to the Cashman Law Firm, PLLC clients who are now dismissed from the case, whether I should be writing an obituary on what was one of the longest-lasting monster bittorrent cases, or whether I should be skeptical and cautious at such a simple and eloquent end to such a violent case.

This case had everything wrong with it. Improper joinder, improper jurisdiction, even the content it accused internet users of downloading was distasteful. “I don’t like ugly biker chicks, I’d never download their films,” a Doe Defendant once told me.

On top of everything wrong with it, this case had baggage, namely West Virginia’s West Coast Productions, Inc. lawsuits with Kenneth Ford at the helm, all of which went bust last year.

But it wasn’t jurisdiction or joinder which caused to downfall of this case; it was failing to name and serve defendants within the 120 day limits as dictated by the Federal Rules of Civil Procedure, Rule 4(m). Judge Kollar-Kotelly, realizing that the plaintiff attorneys were using the courts to extract settlement agreements, decided to implement and enforce this rule forcing the case to shut down.

The last stab to the case was a September 1st, 2011 deadline where the plaintiff attorneys were ordered to name and serve defendants, and to report to the court by the end of today who they have named and served.

I was sure that they would at least name the John Doe Defendants who lived in the District of Columbia, and they would in turn ask the court for more time. But instead, they named NOBODY. They merely packed up their bags, closed up shop, and dismissed the case.

What does this mean? Could it mean that the plaintiff attorneys do not have the resources, the time, the patience, or the energy to take clients to trial? Or, did West Coast Productions, Inc. say “enough is enough; we’ve made enough money in settlements — let’s close up shop.” It cannot be that easy.

Here is my take. Before they sue each and every one of the defendants in smaller groups in the correct courts — a tactic that Steele Hansmeier, PLLC and other plaintiff attorneys have caught onto — they had to kill the big bad monster of a case. After all, it would be bad to sue the same defendant in two cases at the same time for the same alleged act of infringement.

So for now, those of you who were defendants in this case, you are no longer defendants, and I congratulate you on your victory. I would whip out the champagne bottles and celebrate, but be very aware that there is one more West Coast Productions, Inc. v. Does case lurking in this same DC court. West Coast Productions, Inc. (1:11-cv-00055), our case’s little brother is still alive and well. While Judge Kollar-Kotelly has taken the sword to slay the extortion machine that was our West Coast Productions, Inc. case, so far, Magistrate Judge John Facciola has been merely pushing paper on the other West Coast Productions, Inc. case.  Really, nothing of substance has been going on there.

What about the letters and the phone calls you all have been receiving?  Should you ignore them?  Probably not.  For the most part, the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC have your contact information, and they plan to use it.  Expect multiple “scare” letters saying, “we plan to sue you unless you pay us $3,500 (or more) by XYZ date.”  Then expect to get additional letters for higher amounts.  As far as whether this is a bluff or not, it is best to be prudent and to watch where they are suing in order to determine where they have hired local counsel.  For example, if you are watching the copyright cases on RFC Express (http://www.rfcexpress.com), and you see that one of Dunlap Grubb & Weaver’s cases — whether West Coast Productions, Maverick Entertainment Group, Call of the Wild, etc. etc. — has been filed in your home court, that should be a red flag that you might be sued yourself.  Lawyering up (e.g., hiring an attorney) at this point if you have not already done so, or even proactively settling might be a wise option.  However, if you see no lawsuits of theirs in your state, my opinion is that there is no need to feed their war chest with your settlement dollars.

I have attached the dismissal letter below for your viewing pleasure. Simple. Voilà!

[scribd id=64331514 key=key-215wj3misks3ksdu8ytl mode=list]

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

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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.

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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.

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