“The Divide” — Copyrighted Bait, New Copyright Trolls

The Divide - New Copyright TrollsI wanted to bring your attention to a new “copyright troll” in the backyard of Steele Hansmeier, PLLC (now Prenda Law Inc.). The copyright troll is “R & D Film 1, LLC” and their plaintiff attorney is Michael Heirl and Todd Parkhurst of Hughes Socol Piers Resnick & Dym, Ltd. Their website is http://www.hsplegal.com, and surprise, surprise — they are out of Chicago, Illinois.

It appears as if they are suing over the movie title “The Divide,” directed by Xavier Gens, which was seeded over the bittorrent network as “The Divide 2011 LIMITED 720p BRip XVID AC3 BHRG” on USAbit.com [and is coincidentally still being seeded now as we speak here, so apparently neither Michael Heirl nor Todd Parkhurst have issued a DMCA takedown letters to the bittorrent websites.] The download appears to be a rip of a Blu-Ray, the size of the file is 3.8 GB, and it appears to have been downloaded 2162 times so far (so expect to have 2,000+ defendants soon for this file alone).

On another complaint, I see the torrent file is “The Divide 2011 720p BRRip x264 -MgB,” and I could only guess that in their other lawsuits, they are suing for all the other bittorrent filenames downloaded.

It appears that plaintiff attorney Michael Heirl has targeted the following ISPs: Comcast Cable, Frontier Communications, Mediacom Communications Corp., RCN Corp., SBC Internet Services, Norlight Telecommunications, Wireless Data Service Provider Corporation, and WideOpenWest. Plus, it appears as if they have not only focused on those defendants in Illinois, but they have narrowed the IP addresses down to which town allegedly housed this accused IP address.  Thus, forget about motions to quash based on a lack of personal jurisdiction — they’ve nailed it.

So far, I only see 364 John Doe Defendants implicated in these lawsuits, but with 2,000+ downloads (and counting) for one file on one bittorrent website, they could easily amend their complaints to add thousands of new defendants as Dunlap Grubb & Weaver, PLLC and other plaintiff attorneys have habitually done in the past. Here are the lawsuit titles to date:

CASES FILED BY TODD S. PARKHURST & MICHAEL A. HIERL OF HUGHES SOCOL PIERS RESNICK & DYM LTD. IN THE NORTHERN DISTRICT OF ILLINOIS:
R & D Film 1, LLC v. Does 1-52 (Case No. 1:12-cv-05810)
R & D Film 1, LLC v. Does 1-20 (Case No. 1:12-cv-05817)
R & D Film 1, LLC v. Does 1-57 (Case No. 1:12-cv-05821)
R & D Film 1, LLC v. Does 1-62 (Case No. 1:12-cv-05822)
R & D Film 1, LLC v. Does 1-36 (Case No. 1:12-cv-05823)
R & D Film 1, LLC v. Does 1-88 (Case No. 1:12-cv-05825)
R & D Film 1, LLC v. Does 1-29 (Case No. 1:12-cv-05827)
R & D Film 1, LLC v. Does 1-20 (Case No. 1:12-cv-05828)

Now I have started a discussion page on the R&D FILM 1, LLC lawsuits here, and as I learn more, I will obviously post about it.

On a personal level, it is always an interesting experience defending defendants who are accused of downloading actual motion pictures (“movies”), because the attorneys for these cases are usually more self-assured than those from the porn industry. Obviously the difference between a porn copyright troll and a motion picture copyright troll is that the porn troll is usually suing because they want to 1) stop the piracy of their film and 2) it is a better business model (frowned upon by the porn industry or not) to get thousands of dollars from one internet user rather than to get hundreds of members to sign up for monthly or annual memberships at their sites.

However, with “movie” copyright trolls, they often appear to be self-righteous and have no compunctions throwing threats around because nothing of theirs stinks except for the way they have chosen to make money for their production company client (which they often share a piece of, so there are ethical implications as well [e.g., having a “stake” in the outcome of the litigation]). Looking at these attorneys, they look like older gentlemen who might not be aware of the poo they just stepped in by copying the methods of the copyright trolls.  I even wonder whether they are aware of the now hundreds of lawsuits that have been filed in the courts, and specifically the many adverse rulings in the Northern District of Illinois where any copyright troll should be thinking twice before filing there.  In short, what will be interesting is to see whether these copyright trolls are interested in stopping the piracy of their films, or whether they want to punish those who have not purchased a ticket at the box office.

Northern District of Illinois Judge Steeles The Life From A Second Torrent Case

[4/13/2011 UPDATE: I have not had time to update this article, but the same day as the Millennium TGA, Inc. v. Does 1-800 case was dismissed, that same judge ALSO dismissed the Lightspeed Media Corp. v. Does 1-1000 case for the same reasons. That would make 3.]

Congratulations to our clients who were recently severed and dismissed in the Millennium TGA, Inc. v. Does 1-800 case (US District Court for the Northern District of Illinois; Case# 1:10-cv-05603). Many of you have been defendants in this case since it began last September.

More importantly, even more of you have spoken to me about your case in the last few weeks since prior to Judge Manning’s dismissal of the case, the plaintiff attorneys appear to have stepped up their attempts to secure and acquire the contact information for the various John Doe defendants through their attempts to subpoena the ISPs for the various Doe subscribers.

In short, the Judge’s reason for dismissing the was because Millennium TGA has failed to show that the copyright infringement claims “arise out of the same transaction, occurrence, or series of transactions or occurrences.” In other words, the lists of allegedly infringing IP addresses spread weeks if not months apart were not considered by the judge to be “the same transaction or occurrence” in the commission of the crime.

The judge further went on to comment that “merely committing the same type of violation in the same way does not link defendants together for purposes of joinder,” and ruled that Federal Rules of Civil Procedure (FRCP) Rule 20(a)(2)(A) was not satisfied.

The interesting thing about this case is that contrary to other cases, the judge explicitly stated that she is dismissing the case because “potential defendants [are] located all over the country with no discernible ties to this district” (emphasis added). This is the ‘third rail’ “no jurisdiction” (Dear Court, I was sued in Illinois, I live in New Jersey) argument judges have been afraid to concede in previous dismissals.

In addition, contrary to the DC judge in the Dunlap, Grubb & Weaver cases who denied the validity of geolocation tools to ascertain the likely location of potential John Doe Defendants, this judge acknowledged the validity of these tools and used them to conclude that “many (if not all) of the defendants” do not reside in the state of Illinois.

These are two very welcome acknowledgements by the judge neatly wrapped up in an Northern Illinois case dismissal.

Last, but not least, I wanted to point out that this is the second case that has been outright dismissed in the US District Court for the Northern District of Illinois, and as we discussed previously, I have no doubt that this will continue to have a ripple effect across the remaining cases in that district.

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