Kerry Culpepper of Hawaii-based Culpepper IP LLLC has taken a roundabout way of uncovering the identities of Verizon Wireless subscribers who downloaded the Hunter Killer movie using their cell phones. I wanted to spend a moment on how Culpepper did this, because it provides a good follow-up on my 5/3 article about the Hunter Killer Productions Inc. lawsuits.
Hunter Killer Inc v. John Does as a Copyright Infringement Lawsuit
Ordinarily the case would show up on my radar because the plaintiff attorney would file a Hunter Killer Productions Inc. v. John Does copyright infringement lawsuit in a particular federal court (here, the U.S. District Court for the District of Hawaii).
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Kerry Culpepper would then ask the court for what is referred to as “expedited discovery,” meaning, he would ask the court to authorize Culpepper to send a subpoena to the ISP. I described this process in detail just days ago in the “How Paul Beik Has Malibu Media LLC Defendants Served” section of the linked article.
This ISP subpoena would ordinarily then force the Hawaii-based ISP to hand over the name of the John Doe defendant(s) accused of infringing the Hunter Killer Productions Inc. copyright holder’s “Hunter Killer” movie.
Judges are aware of the “copyright troll” problem.
I had to ask myself, “why would Kerry Culpepper go through such loops to disclose the identity of the alleged downloaders? Couldn’t he have just filed a Hunter Killer Productions Inc. v. Does 1-20 copyright infringement lawsuit against 20 downloaders like any other plaintiff attorney / copyright holder?
Then it occurred to me: In the list of Hunter Killer Productions Inc. lawsuits filed against defendants, I did not see *any* cases filed in the Hawaii District Court. (Rather, I only saw a few Hunter Killer Productions Inc. cases filed in the US District Court for the Northern District of Illinois).
Could it be that the Hawaii District Court has outlawed Rule 26 “expedited discovery” bittorrent-based copyright infringement cases in their case holdings? If Kerry Culpepper cannot get a federal judge to grant an “expedited discovery” to allow him to send a subpoena to the ISPs [to discover the identity of the would-be John Doe defendants], then the plaintiff attorney has a copyright infringement lawsuit without any known defendants.
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Judges across the US have become aware of the problem we refer to as “copyright trolling,” where a copyright holder uses the federal courts to file a copyright infringement lawsuit against a set of unknown defendants. They use the Federal Rules of Civil Procedure (Rule 26) “expedited discovery” tool to unmask the identities of the defendants sued in the lawsuits.
As a result of much abuse and harassment by a number of plaintiff attorneys, some judges have taken proactive steps to DENY the plaintiff attorney’s FRCP Rule 26 “expedited discovery” requests. If this is what is happening in Hawaii, this would in theory prevent Kerry Culpepper from forcing the ISP to hand over the names of the account subscribers (hence, no known defendants to sue).
What is a “MISCELLANEOUS CASE”?
What a BORING name for such an abused type of lawsuit!!!
I have seen lawsuits that look something like “Case No. 1:19-mc-00123” which differ from the civil cases [which look like “Case No. 1:19-cv-00123”]. These “miscellaneous” cases do not formally accuse the defendant of copyright infringement in the form of a complaint, but rather, they function more as a “motion to compel” [to force] a third party (here, Verizon Wireless) to disclose the identity of a would-be defendant.
From a non-lawyer’s eye, who cares whether the plaintiff attorney used a “1:19-cv-12345″ (a “civil” case) to file their lawsuit, or a “1:19-mc-12345″ (“miscellaneous” case) to discover the identity of the alleged infringer. It is the same result — the plaintiff attorney (here, Kerry Culpepper of Hawaii-based Culpepper IP LLLC) acquires the name of the alleged infringer and contacts him or her with the intention of accusing them of copyright infringement.
However it is the BACKHANDED WAY the plaintiff attorney gets his defendants that simply irks me.
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I saw these same “miscellaneous case” filings in Florida state courts in 2010-2012.
This is not the first time I have seen “miscellaneous cases (mc)” rather than the typical “civil cases (cv)”.
Keith Lipscomb, the attorney [at the time] behind all of the Malibu Media LLC cases (and formerly, the Patrick Collins Inc. cases from 2010-2012) used to use a similar mechanism in the Florida state courts to achieve these same ends. As an attorney myself who operates in the FEDERAL COURTS, a “mc” case filed in a state court would not show up on my radar.
What Kerry Culpepper did in Hawaii to force the clerk to issue 512(h) subpoenas to Verizon Wireless
Kerry Culpepper in my opinion is one of the smarter plaintiff attorneys. I have always known this, as his copyright infringement lawsuits were always out-of-the-box.
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When dealing with him, Culpepper rarely asked for a settlement outright — rather, he had a roundabout way of explaining that, “…since my client accessed the bittorrent file 530 times over a two-day (26 hour) period to download a full copy of the movie, and that bittorrent swarm shared the movie with 2,930 other bittorrent users over those same 26 hours, judging the discounted cost of a movie at Wal*Mart is $2.99 (in a clearance bin, not $19.99 retail on the shelf), multiply the $2.99 x 2,930 to arrive at a settlement price of $8,760.70.”
His thinking style was also visible when he decided to sue a group of individuals who I presume were profiting off of the ad sales of a movie app which shares pirated movies. Rather than “shake down” the end user (the downloader), he went after the “big bucks,” here I assume the ad revenue, as the Showbox app was actively being used [and ads shown] by literally millions of users.
In sum, Kerry Culpepper a good mind which he uses to discover methods of suing defendants for profit.
Hunter Killer Productions Inc. and their new defendants.
This brings us to Kerry Culpepper’s latest feat — getting the Hawaii Federal Court to force Verizon Wireless to hand over the names of several defendants WITHOUT EVER FILING A COPYRIGHT INFRINGEMENT LAWSUIT.
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In his application to the US District Court for the District of Hawaii entitled “In re Subpoena to Verizon Wireless” (Case No. 1:19-mc-00125), he invokes 17 USC 512(h) to ask the *CLERK* (not a judge, and WITHOUT a lawsuit filed) to issue a subpoena to disclose the identity of an alleged copyright infringer.
Let me say that again. Kerry Culpepper just succeeded in getting the CLERK to issue a subpoena WITHOUT ANY JUDGE ruling on the motion, and WITHOUT NEEDING TO FILE ANY COPYRIGHT INFRINGEMENT LAWSUIT.
Literally, the entire “miscellaneous” lawsuit was:
- Doc 1) Application for a 512(h) subpoena,
- Doc 2) Judge assigns the case to a magistrate judge (in my opinion, in an “I’m not touching this one,” way),
- Doc 3) Clerk issues subpoena.
[CASE CLOSED]
KERRY CULPEPPER’S ARGUMENT TO THE HAWAII DISTRICT COURT
Kerry Culpepper’s argument was simple. I am laying it out in points below:
1) DC Circuit said that a 512(h) subpoena can only be issued to an ISP engaged in storing infringing copyrighted materials on their servers. (351 F.3d 1229, 1233 (D.C. Cir. 2003)).
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2) Eighth circuit said that a 512(h) subpoena only applies to an ISP that directly stores, caches, or provides links to infringing materials. (393 F.3d 771, 776-77 (8th Cir. 2005)).
Kerry Culpepper noted that neither court mentioned anything about whether a subpoena can be issued to an ISP that acts as a CONDUIT [to allow their subscribers to pass copyrighted content through their servers].
Here is where Kerry Culpepper shows his talents:
Culpepper then commented that the 9th Circuit (which is a higher court which includes and is binding upon the Hawaii District) has not ruled on whether a copyright holder can use a 512(h) subpoena to an ISP that acts as a CONDUIT [to allow their subscribers to infringe copyrighted materials].
He then invoked the recent BMG Rights Management (US) LLC v. Cox Communications Inc., 881 F.3d 293, 300 (4th Cir. 2018) case to conclude that the 9th Circuit (including the Hawaii District Court) would allow such a 512(h) subpoena.
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PERSONAL NOTE:
There are some people who operate at such a high level that I get a headache when listening to them. I could strain to understand them, but I wonder whether I would understand them better if I too were high on drugs.
I read the arguments and looked up the references, but I don’t get the jump in logic.
Personally, I think Culpepper confused the court with a logic-based argument, but I believe he jumped to a conclusion that his facts did not support.
However, I’ve heard Culpepper speak — he is a smart dude and he thinks very quickly. Sometimes it is difficult to understand him because he is thinking at levels higher than the average person (here, the average judge) can comprehend.
However, I still think that the judge dropped the ball and did not have the caffeine to oppose Culpepper (NOTE: there was no “defense” counsel to oppose him), and the Hawaii court capitulated.
This is how I see it after reading what happened.
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THE END RESULT: CULPEPPER KNOWS WHO YOU ARE.
The end result is that now Verizon Wireless will be complying with the subpoena and providing Culpepper here, a list of 20 defendants who allegedly used their cell phones to view, stream, or download copies of his client’s Hunter Killer movie, and the settlement demands will likely ensue.
If you are an attorney and have the desire to see exactly what Kerry Culpepper did, here is the link to his application to the court.
If you are a defendant (or you received a letter from Kerry Culpepper asking for settlement money for the download of the Hunter Killer movie using your cell phone), at least now you will understand how he got your name.
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