Bittorrent Swarm

RIAA music industry is now coming after internet users.

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NOTE: The above video (NSFW; now removed) 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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    shalta boook now cta

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

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    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

    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]

    What to do about these smaller Doe bittorrent cases?

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    The bittorrent cases are speeding up, both in number of cases filed, and in the issues relating to the cases. Judges are smartening up to what is going on, and I am seeing the smaller “Does 1-23” cases ripped to shreds in the courts. But, because they are so small, the activities in each case are falling below the radar.

    These smaller cases are now filed in the multiple courts across the country — the correct courts — with the John Doe Defendants often living in the states in which they are sued. Thus, there are no more motion to quash issues, and there are no more “wrong jurisdiction” arguments.

    However, while NEARLY ALL the smaller lawsuits still have “improper joinder” issues (meaning, suing Does together in the same lawsuit who did not participate in the same swarm; thus, they did not take part in the same transaction at the same time), THE CASES ARE SIMPLY NOT GOING TO TRIAL and thus defendants are not getting the chance to contest improper joinder.

    The problem with these smaller cases is that 1) the settlement amounts are elevated, and 2) the risk of being named as a defendant goes through the roof because all that is required to name defendants in these smaller cases is that the plaintiff merely needs to amend the complaint against a particular Doe (thus the case will change from Patrick Collins, Inc. v. Does 1-30 to Patrick Collins v. “Elliot Hendel” and Does 1-29 [this name is merely fictitious]), and then someone comes knocking at Elliot’s home and serves him a copy of the complaint. At that point if he has not already done so [and he should have hired an attorney immediately upon having notice from his ISP that he was one of the Does in this case], he has to hire an attorney to respond within 20 days with his answer and his counterclaims, or he will default (which means the court can enter a default judgment against him for the full $150,000).

    However, the BIG SECRET is that for the most part, these defendants do NOT get named as defendants, and they remain anonymous as far as what is visible from the court’s eyes. Instead, the plaintiff attorneys scare the b’jeebies out of them and cause them in some cases to sign [in many cases] an “I’m guilty, I’m sorry, I’ll never do it again” settlement agreement. The end result is that they end up paying significantly more than they would have if they merely called an attorney and had that attorney negotiate on their behalf. To make matters worse, defendants do not realize that there are really three-tiers of settlement prices (not two) — 1) the plaintiff attorney’s asking price (the “pay us $X by this date or else we’ll name you as a defendant in this case” amount), 2) defendant-negotiated price, and 3) attorney-negotiated price.

    When the defendant tries to negotiate his settlement on his own, the likelihood is that he will probably say something incriminating about his case. (For example, not knowing the case law, he may say, “it wasn’t me; it was probably my son — he uses the internet all the time; I keep telling him not to watch that porn,” or “I let my neighbor / son / guest / roommate use my internet,” or “I didn’t realize it was illegal to download — I thought it was only illegal to upload!” etc.) The result is that the plaintiff says, “thank you for telling me you are guilty; the offer is now off the table and I will see you in court <click>,” only to call back shortly afterwards and, in the graces of his heart, he will offer a new settlement amount which is nearly double the asking price of the original settlement amount.

    It is not only important to have an attorney negotiate your settlement amount 1) because he can, and 2) he won’t incriminate you while you would likely incriminate yourself, but also, the attorney knows the case law [which is not so obvious], and he knows what to put into a settlement agreement so that the settling defendant does not later get sued for the same claim, attorney fees, etc. It kills me to see so many people turn around and try to settle on their own without reading what they are agreeing to. What burns me more is when attorneys don’t read the contracts they have their clients agree to.

    …In short, the plaintiff attorney mops up the floor with the defendants, and many of the defendants (if not most of them) turn over and lay dead while they capitulate and settle their cases. Had they lawyered-up, they would have known how to protect themselves. Better yet, their lawyer would have stepped in their shoes and the plaintiff attorneys would not have even been allowed to contact the defendants in the first place. No letters, no scare tactics; no threats.

    Everything being said, one thing that most don’t even bother to find out is who exactly their plaintiff attorneys are. In more cases than not, the plaintiff attorney is merely a guy in a room with a laptop and a phone. Sometimes there is a second lawyer guy in the room making phone calls scaring the defendants into settling — a two-man show. …Do you really think this one or two-man show actually has the ability to sue more than just a few defendants, and if you defendants lawyered-up, do you think the plaintiff attorneys would have the time to name each and every one of you? AND if they named each and every one of you (which is literally impossible because to serve each one of you with service of process would be nearly impossible to track and there are bound to be significant errors), do you think they would have time to respond to each and every one our discovery requests?

    As your attorney, when I defend you, I have a duty to properly protect your interests. That means that us attorneys must establish evidence that calls into question their so-called experts’ methods in collecting IP addresses (see here for just a taste). We need to call into question their methods of suing multiple Does in one lawsuit. We need to fight them procedurally with motions to dismiss, motions for summary judgement, and in some cases, motions for sanctions.

    Do you think that the one-man show attorney and their underlying plaintiff (too often, the porn production company) can handle the hours of deposition time that EACH OF YOU DEFENDANT would be entitled to? What about their so-called experts? Do you think they have the time to answer all our in-person depositions for each defendant? What about our interrogatories? What about our other discovery motions? Do you really think the one-man show — the attorney guy in the room with a laptop — has the time to spend going after each one of you when he can instead go after the unrepresented defendants who roll over and settle their cases?

    To make these cases merely insulting, these plaintiff attorneys have been hiring no-name local-counsel attorneys to file their cases on their behalf (no disrespect to any of them; I understand they are doing it solely so that they can make a commission off of those who settle). As far as I understand, the local counsel often know absolutely NOTHING about these cases, but they talk a big game and then sheepishly refer you to someone else — an “in-house” negotiator, or the attorney behind the curtain — so that they can “close” the deal for them and scare you into settling. If you actually had us attorneys defend your cases rather than merely have us settle them, do you really think the BIG-8 ATTORNEYS (listed below) would have the time and the patience to babysit these local counsel when they ask for assistance after we file our own motions for discovery?

    Thus, a client in these smaller Does 1-20 (or 1-50, or 1-80) cases does not need to settle, especially if they do not live in the jurisdiction in which they are sued. This is true regardless of whether the plaintiff attorney is Dunlap Grubb & Weaver (Nicholas Kurtz or Ellis Bennett), Steele Hansmeier (John Steele or Mark Lutz), Gill Sperlein, Ira Siegel, Keith Lipscomb, or even Marc Randazza.

    We do know how to defend these smaller cases.

    Are you guilty if pirates use your internet?

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    I was very impressed to see TorrentFreak.com write two articles entitled, “Are You Guilty If Pirates Use Your Internet? Lawyer Says NO,” and “Are You Guilty If Pirates Use Your Internet? Lawyer Says YES,” respectively.

    Up front, I commend both attorneys Randazza and Ranallo for their contributions to these articles. Too many people are falling prey to these bittorrent lawsuits, and it is about time some on each side voice their opinions.

    In short, my take on the two articles. Starting with the “NO” article found here, I thought Ranallo’s brief was well written, but it felt, well, brief. As far as I was concerned, while I certainly commend attorney Ranallo for his well written opinion (and for putting himself out there), the article was significantly lacking as far as what is actually going on in these cases. In addition, he COMPLETELY glossed over discussing DIRECT INFRINGEMENT which is what 99.999% of you are accused of. Unlike the 1932 tugboat case referenced in Randazza’s opposing article (“YES”), there has grown some relevant case law in the various severances and dismissals that have already happened BOTH LAST YEAR AND THIS YEAR.

    For example, joinder. Many courts have held that it is improper to sue multiple defendants in the same lawsuit (e.g., Plaintiff v. Does 1-500) who did not take part in the same torrent swarm or who did not download the same torrent file. On top of that, EFF.org has been screaming “personal jurisdiction!” since these cases started showing up, and they are correct. For the most part, many (if not most) defendants who are sued DO NOT LIVE IN THE STATE IN WHICH THE LAWSUIT IS BROUGHT, (and bringing a bit of current law from the 2nd District [not binding on other courts] into the mix,) NOR ARE MANY OF THE LAWSUITS BROUGHT IN THE STATE WHICH IS THE PLAINTIFF’S PRINCIPAL PLACE OF BUSINESS. In short, these cases suffer because plaintiffs sue defendants in the wrong court and thus in a number of cases, there is no personal jurisdiction over the putative defendants.

    There was so much more that was missing from Ranallo’s brief, but I suppose he was most concerned about just stating basic copyright law rather than fighting our side of these bittorrent cases. For example, he completely missed the high likelihood of a defendant succeeding if a digital forensics expert (paid for by the plaintiffs and/or their attorneys) examines a defendants computer and finds 1) no infringing file, and 2) no spoliation [formatting/wiping] of evidence after having notice of the lawsuit. People seem to gloss over that one too. In short, if a defendant didn’t do the crime, they shouldn’t do the time (here, paying the plaintiff their settlement amounts). These topics often don’t get discussed in the context of these lawsuits because so far, they have not been going to trial.

    Now for the “YES” article found here. In short, Marc Randazza brought forth a well-written viewpoint that internet users who do not lock down their internet connections (e.g., with WEP or WPA2 encryption) are negligent and they deserve what comes to them through their ignorance. In short, the negligence theory as applicable to these cases states that an internet user 1) has a DUTY to lock down their internet connection [so far not true], 2) the internet BREACHED that duty by leaving his wi-fi router “open” (e.g.,without a password), 3) because the internet user did not lock down his connection, he CAUSED the plaintiff’s damage [again, not true], and 4) whether and how much the copyright holder suffered DAMAGES from the internet user’s lack of a secured wi-fi connection.

    In short (and in response), the negligence argument assumes there is a DUTY to lock down your wireless access point (as noted). As a side note, as far as a duty is imputed to internet users, I’ve seen a few plaintiff attorneys argue that some ISP TOS agreements now require users to put a password on their wi-fi routers, but I have yet to see any proof of these myself. Plus, as far as I know, there have been NO court cases indicating that there is a DUTY to lock down one’s wi-fi access point.  As far as imposing a duty where none existed in the statutes, citing back to a 1932 tugboat case is a stretch at best, but point taken. We will see whether the courts impose a duty to lock down an internet user’s connection. Then again, if that ever becomes the case, then routers will come with WPA2 encryption active as the default setting with custom passwords, especially since the older forms of encryption can be cracked by anyone knowing how to look up “WEP cracking” on Google. If this ever becomes the case (and it would be a dark world if we were not permitted to share our connections with others, note EFF’s Open Wireless Movement,) we’ll have a fun time joining the ISPs as defendants because last I checked, it is their technicians and not the computer illiterate subscribers who set up routers in the first place.

    In sum, two good and well written articles.  Do either cover the topics which relate directly to the copyright infringement lawsuits currently pending?  Not really.  Copyright infringement has more of a dry way of looking at whether an internet user is guilty of copyright infringement, and neither side addressed those issues.  That being said, it was still fun reading the articles and no doubt they will attract a lot of attention over the coming weeks.

    Judge rules that it is improper to sue bittorrent swarms in the same lawsuit.

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    There is an interesting case coming out of the U.S. District Court for the Northern District of California — the court where most of John Steele’s newer and smaller Does 1-40 cases are showing up. In severing and dismissing all defendants (except Doe #1) in the Pacific Century International Ltd., v. Does 1-101 (4:11-cv-02533-DMR) case, Judge Donna Ryu held that it is improper to sue bittorrent users from different swarms in the same copyright infringement lawsuit, even if they all downloaded the same copyrighted work (e.g., the same movie).

    In her decision, Judge Ryu made the distinction that each swarm has bittorrent users downloading a particular .torrent file, but the files themselves might not be similar enough for the plaintiff to join together all of the John Doe Defendants from the various swarms into one lawsuit claiming that all the John Doe Defendants downloaded “the same copyrighted work”.

    For example, in one swarm, bittorrent users might download a low quality version of a pirated movie (e.g., perhaps from a “CAM” — an individual who takes a camrecorder into a theater and video tapes the film). Similarly, the bittorrent users of another swarm might be downloading a higher quality version of that same pirated movie, (e.g., a leaked high DVD quality version of a movie shared with movie screeners).

    While each of these users who download copies of the copyrighted work — whether low quality or high quality — would likely be found guilty of copyright infringement [should any of the plaintiff attorneys decide to take these cases to trial rather sending out “scare” letters, making threatening phone calls, and in some cases naming defendants for the sole purpose of eliciting settlements], Judge Ryu ruled that it is improper to join the first swarm of bittorrent users (e.g., the low quality film downloaders) with the second swarm of bittorrent users (e.g., those downloading the leaked DVD version of that same work) BECAUSE the first swarm of downloaders WOULD NEVER INTERACT with the second swarm of downloaders. Thus, plaintiffs who join the John Doe Defendants of multiple swarms into one lawsuit claiming that each defendant necessarily participated in the SAME TRANSACTION OR OCCURRENCE is a faulty argument. Swarm #1 will never take part in the same transaction or occurrence as Swarm #2, and thus the judge ruled that it is improper to join defendants of the two swarms into one lawsuit.

    This ruling flies in the face of almost every plaintiff attorney’s claim that each John Doe Defendant is properly joined with all the other defendants in that same lawsuit. Moving forward, should judges in other cases and in other jurisdictions adopt this judge’s opinion, following this opinion, the rule would be “ALL LAWSUITS THAT SUE DEFENDANTS OF DIFFERENT BITTORRENT SWARMS IN THE SAME LAWSUIT SHOULD BE SEVERED AND DISMISSED.”

    How does this change the playing field? As we already know, John Steele, Ira Siegel, and the other plaintiff attorneys have already started suing smaller numbers of John Doe Defendants. Seeing a “Plaintiff v. Does 1-40” or “Plaintiff v. Does 1-60” (or even smaller) has become commonplace in bittorrent lawsuits. However, these smaller lawsuits have been made smaller in order to 1) fix the inherent issues of jurisdiction (e.g., suing defendants in the wrong court), and 2) to keep the case under the radar of the judges (after all, a lawsuit suing fifty defendants (Does 1-50) will incur far less attention than a lawsuit suing five thousand defendants (Does 1-5,000). Thus, in the new trend of these lawsuits, California defendants are now being sued in the California courts, Illinois defendants are being sued in the Illinois courts, and so on. Until the plaintiff attorneys begin suing defendants swarm-by-swarm (where a swarm is merely a snapshot of users uploading and downloading at a particular time), these smaller lawsuits also suffer the inherent flaw of “improper joinder,” and thus in time, they too will be severed and dismissed.

    As a disclaimer, obviously this case is still alive as to John Doe #1 who remains a defendant in the case. In addition, there have been additional filings where the plaintiff attorney appears to be trying to convince the judge to change her mind on this matter.

    I have attached a copy of the order below for your viewing and reading pleasure.

    [scribd id=60104438 key=key-1nl3aa7e74qfotbkk3rl mode=list]
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