Introducing the Swarm Joinder Defense Strategy
I am investigating a new strategy for clients who are named and served as part of a bittorrent swarm. This swarm joinder defense strategy states that if the plaintiff claims that you were part of a bittorrent swarm, then each downloader from that swarm needs to be joined as a necessary party in your lawsuit. Here is the article:
I am changing the tone of the blog. The plaintiffs are changing their strategies and so must we. While I am happy advising my clients, not all of you are my clients, and I don’t want those who are not my client to be left without the tools to understand their rights as a defendant. I’m changing my tone to give named defendants (the number of whom are growing) ammunition to protect themselves and to catch the plaintiff copyright trolls in their missteps. I call this strategy the “pro-joinder” strategy.
Copyright trolls are suing the same defendant in two lawsuits.
We have always told our clients that a plaintiff cannot sue a defendant for the same thing in two separate federal lawsuits. Yet certain plaintiffs are forgetting that this rule exists, and they are suing a defendant in one lawsuit in one federal court, and then they are “naming” that same defendant in a second lawsuit in another federal court (usually in a different state). In my opinion, blindsiding a defendant with his own personal lawsuit in which he is named can backfire on the plaintiff, and here is how.
There is a rule that if a plaintiff pursues two federal cases against the same party involving the same controversy at the same time, one of the two identical pending cases should be dismissed. (This is true in MANY districts: Colorado River, 424 U.S. at 817; Missouri v. Prudential Health Care Plain, Inc., 259 F.3d 949, 953054 (8th Cir.2001); Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.1993); Zerilli v. Evening News Ass’n, 628 F.2d 217,222 (D.C.Cir.1980); Walton v. Eaton Corp., 563 F.2d 66,70 (3d Cir.1977).)
There is also what is known as the “first-to-file” rule, which states that when two related cases are pending in two federal courts, the court where the suit was last filed [where the defendant was named] cannot hear the case if the issues substantially overlap.(See Employers Ins. of Wausau v. Fox Entm’t Group, 522 F.3d 271, 274-275 (2d Cir.2008); Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir.2005); Cadle Co. v. Whataburger, Inc., 174 F.3d 599, 603 (5th Cir.1999).)
Using the troll’s own pleadings to establish standing in the first case.
Now as soon as you object to the second “named” case from being filed, I have NO DOUBT that your plaintiff will counter with, “well, so-and-so defendant was never named in the first case, and so he was never a party to that action.” True. You were likely not a party in the first case (you were a “John Doe,” or a “putative defendant”). However, the plaintiff’s own “scare” letters might suggest otherwise [read them and snicker], because quite frankly, they should have been more careful when they decided to blast the scare letters out to all of you. However, this isn’t the strategy. Keep reading.
As a response to the plaintiffs response to the court, I would certainly then point out that in the plaintiff’s OWN COMPLAINT in the first lawsuit, he listed your accused IP address as one of the many defendants in the swarm, and he stated in his complaint that “joinder is proper” combining all of these defendants in one lawsuit “…since they all participated in the same bittorrent swarm.” Based on this information (and using the plaintiff’s own filings as exhibits in your motion), I would ask the judge to dismiss the second case against you personally and order the plaintiff to name you in the first mass bittorrent case with all of the other tens or hundreds of defendants (and good luck to the plaintiff litigating that one).
If served, consider joining all of the Doe Defendants from the first lawsuit as co-defendants in your lawsuit.
Alternatively — and here is the bittorrent swarm joinder theory — I would consider joining all of the John Doe Defendants from the first lawsuit as co-defendants in the lawsuit where you were named. Here’s the logic:
If the plaintiff stated in his complaint under the theory of swarm joinder that joinder was proper there in the first lawsuit, then this is what is known in evidence as an “admission,” and the plaintiff cannot turn around and object when you want to join those same defendants in the second lawsuit against you personally. I also want to point out that if you hold that swarm joinder was proper in the first case, then federal joinder rules actually require that you join all relevant parties [e.g., those other John Doe defendants who were “properly joined” in the first lawsuit] as co-defendants in the [second] lawsuit, or else it [the second lawsuit] cannot go forward.
The reason this swarm joinder strategy will benefit you if you are served.
Why join all John Doe Defendants from your first case as co-defendants (you are not the plaintiff here, you are still on their side as a co-defendant) in the second case in which you are named? Because if a John Doe Defendant (the term is properly a “joint tortfeasor”) wasn’t joined in this second lawsuit, well then, his rights might be adversely affected by the outcome of the case of which he did not have a say in the testimony or evidence that lead to the outcome of it. Also, if a defendant was indeed properly joined in the first lawsuit with the bittorrent swarm and he is found guilty of copyright infringement, do you think he wants to pay the entire judgement of $150,000 for each alleged act of infringement on his own? Or, would it be in his best interest to spread out the judgement so that everyone else who was part of the bittorrent swarm pay their “fair share” of the judgement?
Success or failure of this strategy is based on the beliefs of your federal judge (and whether swarm joinder is proper).
Obviously this swarm joinder theory is probably something that your attorney should be discussing with you, as there are considerations in whether and how to fight this strategy [most important of which is whether the judge believes that swarm joinder is proper (based on his own former rulings)]. Get a pro-defendant judge, and this argument may not work [but then you would likely get a ruling stating that swarm joinder is not proper in the first case]. But, get a judge like Judge Facciola or Judge Beryl Howell (who are hell-bent on asserting that swarm joinder IS proper for bittorrent cases where there are multiple defendants), then you have a very strong argument.
All this being said, now you know about one strategy of many that you can use to defend yourself. This is obviously not legal advice, but still, do your research and when you prove to yourself that this swarm joinder strategy could hurt bittorrent cases across the U.S., and consider having your attorney join all other defendants from the first lawsuit. If you are smart enough to do this on your own, then bless you, because you are a pioneer and your efforts should be rewarded.
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Pure Genius, Mr. Cashman!
Let’s just see it work in the courts first. I’ve checked this with a number of attorneys and many have said that the argument is sound. Quite frankly, I think it necessarily will force (based on a reduction to absurdity analysis) the courts to acknowledge that joining defendants in a bittorrent swarm [e.g., assuming joinder is proper] can only lead to an unmanageable result (an absurdity).
The strategy reads like a chess match with a predetermined ending. The only dice roll is how each judge rules on the motions. It only takes one judge to create precedence, of course that door swings bothways. Its worth a shot and very creative. I thought i was reading a Law and Order script.
I just ran across an incredibly interesting and possibly applicable legal concept for the state Texas; Barratry is the filing of frivolous or harassing lawsuits. Granted, these are misdemeanors in all the states above (except TX, where it becomes a felony on second and later offenses), but if the trolls are convicted of this time and time again, it shows a pattern of behavior that may be helpful in future defense cases in those states. Not being a lawyer, I have no idea if this is useful, but I thought I should at least mention its existence.
I will take a serious look at it. Please also feel free to e-mail me any particular sources you have come across (otherwise I’ll just look it up on my own). Thanks again! -Rob
Yeah. I think the swarm tactics of the trolls could easily be defeated if the john does could congeal and present a unified defense.
I know in my case I couldn’t afford the 5 figure bill to fight, but 30 or a 100 similar people could pitch in 1000 bucks each and I wager would do a very good job in stonewalling the trolls.
Maybe there’s a way for you defense lawyers to foster the pooling of john doe resources like this?
Great idea, I wonder where I’ve heard this before? I presume you already have my briefing on this issue, downloaded from PACER, but if you would like it in word format so that you can save even more time, feel free to contact me.
Thanks Marc! Yes, please, I would enjoy reading it. PS – This is a perfect example of why ideas are not copyrightable. 😉
I absolutely 120% agree. Taking an individual to trial would be relatively easy – propound a discovery request and get a copy of the hard drive. If the movie or torrent file is on the system, they’re dead to rights. If it’s not there, but bittorrent and other copyrighted material is, the case could arguably be built with circumstantial evidence. An individual Doe is an easy target going up against a much better financed opponent.
However, trying a case against several Does would also require proving the elements of a conspiracy, which would be difficult. Trial would be long and expensive. Trying a case against 100+ Does would practically be impossible – the trial would last for a year.
At this point, you have to give Marc Randazza some credit,. He was the first one (to my knowledge) to defend a torrent case and oppose severance. While some called him unethical, I think he was correct:
http://www.scribd.com/doc/102207971/101975339-Doc-018-Opposition-and-Concurrence-to-Mtn-to-Sever
Opposing severance was a good idea a year ago. Now I think it’s a bad idea.
I just read your motion. Marc, you are certainly ahead of your time. Seriously, kudos. -Rob
Oh yeah. Per Marc Randazza, joinder is good for plaintiff when he is a plaintiff’s attorney, and joinder is good for defendants, when he is a defendant’s lawyer. That alone should have set off some alarms.
Although I see the arguments (and I hope I understand them adequately), we are talking apples and oranges here. In a strategy Rob has suggested (post-mass case, an individual one, and this is a critical difference), joinder works toward burdening a troll, creating an absurd situation that is designed to derail the offence.
When Randazza crashed the party in a Marvin Cable’s case, preserving joinder would mean one and only one thing: continuing harassment, which was essentially what Cable wanted. All Does but 1 have been severed from this case in the end of the day, and THAT derailed this case, as well as other MA cases: if everything went Randazza’s way, we would see this case still lingering, attorney fees pile up and (what attorneys often fail to take in account) Does and their families suffer.
You may argue (somewhat fairly) that I’m not an attorney and I don’t see the forest for the trees. For the record, I did have my doubts and consulted with 3 very respected attorneys (I won’t name them) before that post, and all of them confirmed that, in their opinion, Randazza’s action was nothing but a sabotage wrapped in sophistry.
And last thing… Randazza brought tons of misery to hundreds of families, and even sometimes I admire his sharp mind and appreciate original ideas, I don’t trust him: he already has spent his entire reputational credit (and IMO he does not want to realize that, less admit). And if I don’t trust someone, I would better go less efficient path but with people I can count upon.
SJD, here is the thing…
At the outset of the litigation, the plaintiff gets an advantage by filing a mass action. They have lots of potential defendants to settle with. The more, the merrier.
However, that advantage becomes a huge disadvantage if anyone forces the case to trial. It would be an incredible burden on the plaintiff to try a case against a mass amount of Does. The more Does, the bigger the burden. Each Doe probably has a separate defense, plus it allows them to combine their resources, experts, etc. A trial against 100 Does would take over a year, and you would need to pay an expert witness for each day at trial.
The plaintiff’s advantage at the outset has become their disadvantage. Now they’re a heavy cavalry stuck in a valley trying to wade through a swamp facing an opponent skilled in guerrilla warfare.
So while it might help a plaintiff at first to file a mass Doe action, it doesn’t benefit them down the line. The advantage shifts during the course of the litigation.
Severing these cases might win a few battles, but it won’t win the war. If people want to end mass torrent litigation, these cases need to be pushed to trial and fees need to be sought.
If forced to go to trial, the defendants are in a much better position joined with other Does. It creates a case that will be almost impossible for the plaintiff to try, and if they lose they’re most likely on the hook for counsel fees.
Yup, that’s what I was saying in the Media Products case.
Jordan, a couple of things.
You are talking about war, battles, strategies etc., but those 120 Does is not your army. It is not my army. They are no one’s army. They don’t want to have any role in any greed-fueled war. All they want is to be left alone. Both innocents and those who “did it”: the punishment the latter have already received to date has grossly exceeded any reasonable threshold.
If you think about these matters as a chess game and consider dozens and thousands of Does pawns, the proposed strategy does make sense only within a specific combination of figures. Namely, a mass lawsuit, where plaintiff will definitely pursue the majority of defendants individually if they are severed. Sorry, but all my senses fail to detect such a situation in Massachusetts last summer: old good troll Marvin Cable was using old good troll model without a slightest intention to innovate — file (less litigate) individual lawsuits.
Taking a theory and running with it is good, but ignoring the assumptions is the reason for all mess-ups. In theory all this Kafkaesque, inhuman situation — when 300K are threatened with insane amounts of money and ruined reputations for the “crime” that 99% put into a double-parking category — shouldn’t be occurring.
Does the strategy being discussed here make sense? Yes. It is clever, novel and not grossly out of touch. The only small problem: it is hard to find situations to apply it. John Steele is not a good lab rabbit to test forceful joinder since he is yet to start serving a critical mass of individually named defendants. How many did he serve? 15? I think that everyone here grossly overestimates the importance of current individual lawsuits. This business model is not lucrative and it is going to die – with novel defense strategies or without. Why do I think so? I’ll try to explain my vision on Jordan’s blog, most likely tomorrow.
The only troll I know and to whom the proposed strategy can be applied is the one who pursues individuals even at tactical loss (I’m not sure about strategic gains, but it is a totally different topic that TAC has just scratched below) … Marc Randazza, but I’m risking to lose my sanity if I try to visualize this.
Yep, and when I filed that, the bottom feeders in the crybaby herd all nearly drowned in their collective tears — when someone dared challenge the EFF playbook, you would have thought that I took a giant s*** on the floor at their favorite hipster bar.
Some dumbass even cited my brief, crying that I couldn’t possibly have a good defense idea. The real resistance to this, I think, is that if defendants consolidate, then there will only be a need for a lot less defense attorneys, and the weak ones will die off.
I think Cashman would survive such an event, but 80 percent of the morons on the EFF subpoena defense list would have to go work at Starbucks.
Take the theory and run with it. The herd needs to be culled.
> Take the theory and run with it.
You mean…. tugboat theory?
Given your track record pookie, your surprised that we take anything you say with a shaker of salt?
Tugboat.
Inability to use proper names in legal documents.
Inability to provide service, sometimes in what appears to be an attempt to disguise your target being out of the courts reach. Idaho if I had a hoe.
No no its not copyright infringement even if the pron star was mouthing the words in promotions, it was incidental.
Partnering with an IP tracking company that has used a contract allowing them to create the infringement for you to benefit from.
Spying on forums trying to educate users about this extortion and posting BS. Brice Forshin indeed. But it did let you try and bully people into not challenging your abuse of the legal process, telling them to not bother challenging the jurisdiction or else… seems like something not ethical.
Targeting closeted gays and telling them to just lie that it was from the bi-sex line.
Trotting out an “expert” statement that no one would hurt themselves, and refusing to identify that expert.
Creating the illusion of giant court awards to scare people, $250,000 plus the use of the records of the company to set that trap.
The CF TOS agreement you deny ever said what it did say, trying to create liability where legally there is none.
Trying to create a 1 stop “extortion mecca” in Nevada. (Grats on passing the bar)
Your not as scummy as Steele, but only just staying above that line.
So yes, there might be people who look at your actions and ponder what the actual plan is. It would be wrong to not consider someone who sits on both sides of that line might have an ulterior motive of protecting his income stream.
When all you have is a hammer, everything starts to look like a nail. The problem is you see the ability to make money by inflicting pain on others rather than suggest that a dated business model adapt to the landscape. People might have been sharing CF material, but that most likely lead to more customers. You actions helped decrease the customer base and continue to. You might be winning the war on “pirates”, but your helping destroy your client’s business by denying the reality of an evolving marketplace. While its not your problem they keep making the same tired material, your happy pursuit of a dollar is disgusting riding a tired porn brand out of business.
If Mr. Cashman thinks the idea has merit, him I believe. You… not so much.
Now if history has taught me anything you will withdraw from commenting here, as you really seem to dislike me speaking about facts. You dislike me because you assume I am a pirate, but ignore I did enjoy your lawsuit against the guy eBaying CF material on disc… because he was really an infringer and that is what the law was meant to stop. Maybe you dislike me because I refuse to be dazzled by your legal expertise, instead pointing out the problems with it. Doesn’t matter, your silence will speak volumes.
I remain…
TAC
*By Kerosene Light, like Lincoln* Late to the discussion, thanks TAC.
The really sad thing is Randazza and I both dislike EFF sometimes.
He’s pissed about a brief in opposition to tugboat, and I’m pissed they never stood up to stop him until well after the trolls were in full bloom.
If they had acted to stop Stone early on, the porn troll landscape would be so much different today. Instead we still have yet to get a single “expert” in any of these cases deposed and their super secret technologies looked at by experts. Flawed tech is flawed and until a court finally gets that statement these cases will continue… of course one wonders what happens when it comes out it is flawed. I know the lawfirm in Germany sued Guardelay (sp)… I wonder if the lawyers in the US will sue to avoid being sued themselves for relying on flawed tech.