Tag Archives: bittorrent swarm

The music industry is now coming after internet subscribers.

[youtube http://www.youtube.com/watch?v=VIuR5TNyL8Y]

NOTE: The above video (NSFW) is from 2006.  While it (and many others) were made to address the Napster lawsuit (which was a lawsuit against a COMPANY), they apply more than ever now (where the plaintiffs are suing individual bittorrent users).

Lurking in the midsts of our bittorrent lawsuits has been a silent party who has been watching everything we have been doing in the pornography lawsuits and the “B-Rated” movie cases. This silent party is the RIAA, the MPAA, and the record labels who started all of these lawsuits years before the John Steeles, the Dunlap Grubb & Weavers, and before the Mike Meiers of the world got involved, grew their copyright troll legs, and started suing John Doe groups of internet subscribers. I used to refer to the record labels as the “sleeping giants,” because their lawsuits got really quiet after they scored their million dollar judgments (now reduced) against defendants such as Jammie Thomas-Rasset and Joel Tenenbaum.

However, one case at a time, I’ve been seeing the record labels rear their ugly heads again. The record labels have now started suing John Doe Defendants in EXACTLY the same way as the copyright trolls have been for the past two years.  In a way, you could thank the porn industry for repaving the way for the music industry to prey on its fans. The record labels appear to be using the same tactics — file for early discovery against a set of IP addresses, contact and harass the John Doe Defendants en masse, and scare each one (or their parents) into settling for thousands of dollars for each download (and unlike the John Steeles of the world, the music industry has actually have brought defendants to trial, are well funded, and have achieved million-dollar verdicts).  The threat as we have heard ad nauseam is that if the accused downloader doesn’t settle the plaintiff’s claims of copyright infringement against him or her, they will “name” them as a defendant in a copyright infringement lawsuit.

One such record label troll is “Century Media Ltd.” who is suing on behalf of their “Iced Earth” band (think  Jon Schaffer and Greg Seymour) for the download of their 2011 heavy metal album “Dystopia.”  The interesting thing about the lawsuit, however, is that Century Media has retained copyright troll Jay McDaniel of the McDaniel Law Firm in New Jersey to sue defendants, and it is unclear to me why.  Jay McDaniel runs what I call a “settlement factory,” where he spends his time fighting motions to quash in court, and while not in court, he has his staff attorneys contact defendants attempting to convince them to settle.

CASES FILED BY JAY R. MCDANIEL OFMCDANIEL LAW FIRM PC IN THE DISTRICT OF NEW JERSEY:

Century Media Ltd. v. Swarm Does 1-2,192 (Case No. 2:12-cv-03867)
Century Media Ltd. v. Swarm Does 1-944 (Case No. 2:12-cv-03868)
Century Media Ltd. v. Swarm Does 1-225 (Case No. 2:12-cv-03869)
Century Media Ltd. v. Swarm Does 1-214 (Case No. 2:12-cv-03870)
Century Media Ltd. v. Swarm Does 1-77 (Case No. 2:12-cv-03911)
Century Media Ltd. v. Swarm Does 1-3,811 (Case No. 2:12-cv-03912)

I count almost 7,500 Doe Defendants in these NJ cases alone, and more are being filed as we speak. And, as far as I can see, the plaintiff attorneys are setting the subpoena deadlines far into the future, so we will not be hearing more about these until after October 1st, 2012 (this appears to be Comcast’s deadline before they hand out subscriber information for these cases).

Now while we try our best to keep a professional tone in these cases, I think the following video properly describe the mentality of those suing defendants today:

[youtube http://www.youtube.com/watch?v=_OGGtF_h0mw]

On a personal note, while I respect the interests of the artists and the musicians who deserve to have their copyrighted media sold to willing consumers and fans at reasonable prices (and it would be nice if the record labels properly compensated the artists and musicians for their work), I choose to represent the so-called “pirates” as well (many of whom have actually downloaded what they have been accused of and would happily do so again). It is my opinion as an attorney that it is a misuse of the copyright laws to sue defendants for $150,000 per title (statutory damages for willful copyright infringement) when the actual damages suffered by the record labels and the production companies are at best a small fraction of this statutory amount.

So… Has the sleeping giant woken up from its slumber?  Will we see more?  Or is Century Media Ltd. merely an overly ambitious record label who thought it would be better for business to assault its’ fans rather than to devise ethical means to convince them to buy their music album?


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New Arizona Rule: You are only properly joined with those you upload to or download from.

For those bittorrent users accused of copyright infringement in Arizona, there is a new rule which you can use in your defense.

Traditionally, in order to properly sue multiple bittorrent users together in one lawsuit, they need only to participate in the “same transaction or occurrence.”  In other words, they need to do the same “crime” at the same time.  Not so in California, and NOW, not so in Arizona.  [For the California citation, see Document 26 in the Hard Drive Productions, Inc. v. Does 1-188 (Case No. 3:11-cv-01566) case in the U.S. District Court for the Northern District of California.]

In bittorrent language, when you connect to a bittorrent swarm and download copyrighted media, all of you participating in that bittorrent swarm would be sued together.  This is one of the most recent kinds of lawsuits by the more skilled plaintiff attorneys — instead of Plaintiff v. John Does 1-123 (or however many John Doe Defendants there are lumped together [and separated by the state in which they reside] in this lawsuit), smarter plaintiffs are suing participants of the swarm itself (e.g., Plaintiff v. Swarm of Nov. 3rd, 2011 [and participants thereof]).  No longer in in Arizona.

NEW RULE: Now in Arizona, in order to be sued with other John Doe Defendants, you must have either UPLOADED TO or DOWNLOADED FROM each one of the other defendants. If not, the defendants are not properly joined and defendants can be severed and dismissed from the case for improper joinder.

TODAY in the Patrick Collins, Inc. v. John Does 1-54 (Case No. 2:11-cv-01602) case in the U.S. District Court for the District of Arizona, in U.S. District Judge G. Murray Snow’s own words:

Plaintiff alleges that the two remaining Defendants “participat[ed] in the BitTorrent swarm with other infringers” but does not claim that John Doe 6 provided data to the former John Doe 12 or vice versa. (Doc. 26 ¶ 56). …

… Plaintiff alleges no facts that these two particular Defendants shared data with each other, and provides data instead that they were logged on to BitTorrent weeks apart. “The bare fact that a Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world.” Hard Drive Prods., Inc. v. Does 1–188, 11 No. CV-11-01566, 2011 WL 3740473, at *13 (N.D. Cal. Aug. 23, 2011)

(emphasis added).

Personal Note: While this ruling is not immediately relevant if you do not live in Arizona, it is still good news because it indicates that judges are starting to understand how rules (here, the rules of “joinder”) apply in the bittorrent context.  No doubt, this order will be recognized and used in other cases in other jurisdictions as being persuasive as to how a judge should understand who can be sued together with whom.  Soon it will no longer be permitted for an enterprising plaintiff (e.g., “copyright troll”) to sue tens or hundreds of defendants in one lawsuit, lumping them together by the state in which they live (this lumping-together-by-state was the result of the dismissals last year over personal jurisdiction issues).  I look forward to other judges in other states soon to adopt this ruling.  It is a well thought-out understanding of the joinder issue.

I have pasted the link to the order below for your enjoyment.

[scribd id=86003821 key=key-2fdfgumg990ug6reuo9a mode=list]