WHAT IS THE RELATIONSHIP BETWEEN RIGHTS ENFORCEMENT AND YOUR ISP?

CEG-TEK-DMCA-Scare-Letters

RIGHTS ENFORCEMENT and your ISP. RIGHTSENFORCEMENT attorney Carl Crowell has the ISP send DMCA copyright infringement / terms of service abuse letters directly to subscribers asking for settlements.

As I described last year, there are THREE POSSIBLE RELATIONSHIPS between a copyright enforcement company (Carl Crowell’s RIGHTS ENFORCEMENT entity is one such company) and your Internet Provider (“ISP”).

[This article is a continuation of the “WHAT DO I KNOW ABOUT RIGHTS ENFORCEMENT” article.  It made sense to separate out the topics and keep them short and to the point.]

WHY IS THE RELATIONSHIP BETWEEN YOUR ISP AND RIGHTS ENFORCEMENT RELEVANT TO YOU?

RIGHTS ENFORCEMENT uses the Digital Millennium Copyright Act (“DMCA”) to send DMCA abuse / copyright infringement violation letters directly to subscribers.  This method of contacting a subscriber accused of ‘piracy’ directly avoids the need to file a lawsuit and pay a $400 filing fee to uncover the identity of the accused downloader.  Instead, the copyright holder can simply send a notice saying “you were downloading our movie, cut it out or we can sue you” as a mechanism to stop the alleged piracy with minimal fees charged to both the copyright holder policing his copyright, and to the ISP (who gets to avoid complying with costly subpoenas forced upon them by judges in federal copyright infringement lawsuits).

The DMCA is supposed to be the best solution, but copyright enforcement companies have found ways to misuse these DMCA notices.  Instead of telling the user to “cut it out,” they claim that unless they settle the claims against them and pay the copyright holder money via their website, the copyright holder will file a lawsuit against them for $150,000 under the copyright infringement statutes.

If you received a DMCA notice from RIGHTS ENFORCEMENT, chances are they are asking you for multiple thousands of dollars for infringement of their titles, priced at $300 per instance of infringement.

WHAT ARE THE THREE RELATIONSHIP TYPES BETWEEN A COPYRIGHT ENFORCEMENT COMPANY AND THE ISP?

There are three types of relationships between a company such as RIGHTS ENFORCEMENT and your ISP.  I am only listing them in summary form because I have already written about this topic in depth here.  The reason I am rehashing this topic is because RIGHTS ENFORCEMENT is an “evil twin” of what CEG-TEK is, and thus knowing the character of the attorneys involved, I come to different conclusions here than I did last year when reviewing this same topic when it came to CEG-TEK.

Here are the three types of relationships:

1) A RELATIONSHIP OF FORCE AND THREATS AGAINST THE ISP (where RIGHTS ENFORCEMENT threatens, and the ISP complies),

2) A RELATIONSHIP OF PROFIT FOR BOTH SIDES (where RIGHTS ENFORCEMENT pays, and the ISP cooperates), and

3) A RELATIONSHIP OF PURE MOTIVE (both RIGHTS ENFORCEMENT and the ISP hold hands and cooperate, to “fight piracy”) — UNLIKELY.

Most likely, the relationship between Carl Crowell and the ISPs are 1) a relationship of force, threats, and control.

WHY DO I BELIEVE THE RELATIONSHIPS BETWEEN RIGHTS ENFORCEMENT AND THE ISPs ARE BASED ON FORCE AND THREATS?

There are a number of ISPs on Crowell’s list of ISPs who are explicitly NOT FRIENDLY to companies such as RIGHTS ENFORCEMENT (e.g., COX, Frontier, Hawaiian Telecom, and Windstream).

These ISPs are known for protecting the privacy of their subscribers, and I understand that they were staunchly against CEG-TEK’s attempts to get them ‘on board’ with the 3) RELATIONSHIP OF MOTIVE (“holding hands and cooperating to fight piracy”), and I understand that they were likely not willing to even join them in a 2) RELATIONSHIP OF PROFIT FOR BOTH SITES.  They were simply against any participation in the DMCA settlement notice scheme.

However, seeing that these ISPs are working with RIGHTS ENFORCEMENT, I must assume that they have apparently caved in to what I believe are threats of lawsuits by Carl Crowell that if they do not comply and forward the DMCA settlement demand letters to their subscribers accused of downloading Crowell’s titles via bittorrent, he will sue these ISPs and claim they are in violation of the DMCA Safe Harbor rules.  COX is already in a similar lawsuit, and it is possible that they may lose based on the current state of the DMCA statues.

SHOULD I CANCEL MY ISP ACCOUNT AFTER RECEIVING A NOTICE FROM RIGHTS ENFORCEMENT?

NO.  In the RIGHTS ENFORCEMENT case, it appears to me as if your ISP is being forced to comply with Crowell’s demands.  They are possibly just as angry about these DMCA notices as you are.

Many of you will be shocked and upset when you learn that your ISP forwarded the DMCA settlement notice to you, and you will likely call me asking whether you should cancel your ISP.

As a general rule, no, there is no benefit to cancelling your ISP.  Emotionally, even if they were not forced to send the DMCA settlement notices to you, they do believe that piracy is bad, and even if they do not believe this, piracy does put a terrible strain on their servers.  So they have a financial benefit to cooperating with the copyright holders to stop piracy.

For more details, I invite you to read the article I wrote last year when it was CEG-TEK sending the DMCA notices, not RIGHTS ENFORCEMENT.  There, I hashed out the various relationships in a way that you could understand that the ISPs are almost never a partner encouraging this sort of copyright enforcement.

For that reason, it is almost never needed to cancel your ISP because you learned that they forwarded a DMCA notice from a copyright holder.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

    NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

    How time limits and purged records stop a copyright holder from learning the identity of an accused downloader.

    It occurred to me that there is some confusion as to what is an ISP retention policy a.k.a. an “IP address retention policy.” the effect the amount of time ISPs keep IP address logs (linking a particular IP address to a particular subscriber) have on whether those records will be available to the copyright holder if a lawsuit is filed after that time period has elapsed.

    The question that sparked this post is as follows:

    If CEG-TEK hasn’t subpoenaed someones identity, but the ISP only retains IP information for one year, then after a year it would essentially be impossible for CEG-TEK to obtain the identity correct?

    My answer:

    In order to understand what is going on, it is important to know who-is-who, and who does what.

    I: CEG-TEK (a.k.a. Copyright Enforcement Group):  CEG-TEK hasn’t sued anyone in two years, and thus there are never subpoenas sent to the ISPs.  CEG-TEK is hired by the copyright holders 1) to track the IP addresses of accused downloaders, 2) to maximize the settlement payment by establishing connections between current accused downloads and other “older” downloads that happened at that same location (using IP address geolocation data), 3) to elicit payment in the form of “settlements” from the accused users via their settlement website, and 4) to provide attorney enforcement for those who choose not to settle via the website.

    How they do this: CEG-TEK establishes relationships with the ISPs (internet service providers, e.g., Charter, CenturyLink, Giganews, etc.) and they arrange for the ISPs to forward the DMCA settlement demand letters to their subscribers.  CEG-TEK has a website they use to elicit payments from accused downloaders.  Lastly, they have attorneys (e.g., Marvin Cable) who follow-up with accused downloaders (sometimes asking for increasingly larger amounts of money).  Contrary to what is said by the attorneys, neither CEG-TEK nor their lawyers [at the moment] sue people.

    II: COPYRIGHT HOLDERS (generally, the production companies): After failing to receive a settlement via the CEG-TEK settlement process, the copyright holders themselves hire out attorneys who enforce their copyrights against those subscribers who “ignored” CEG-TEK’s offers to settle.  Sometimes the attorneys are no-name attorneys, and other times, they are prolific copyright trolls such as from the law firm of Lipscomb and Eisenberg (best known as the attorneys for the Malibu Media lawsuits).

    III: ISPs (internet service providers, including Universities and select VPN service providers): ISPs generally hold IP address data (and to which subscriber it was assigned to, and on what date) for one year — check your ISP’s “IP retention policy.” Congress and the RIAA/MPAA are pushing to increase this amount of time to 18 months.  For comparison purposes, in 2010, IP address data was kept for only 6 months. 

    NOTE: After the ISP’s “IP retention policy” time limit elapses, if there are no copyright infringement claims, legal claims or requests on a particular IP address assignment record, they will purge that record from their database, meaning that lawsuits, subpoenas, or requests filed AFTER DESTRUCTION will not reveal the subscriber’s identity because that data is no longer available.

    HOWEVER, most ISPs have a SECOND DATABASE — this second database holds IP address assignment records which have had claims of copyright infringement asserted against the subscriber, and these records are often kept indefinitely. Thus, if a lawsuit happens YEARS later (even after the IP retention policy date has expired), the data indicating which subscriber was assigned what IP address on what date and time IS RETAINED and will be available to the copyright holders and their attorneys when suing subscribers.

    Lastly, (and I did not include this in my initial response,) it is my experience that ISPs generally forward DMCA settlement demand requests LITERALLY WITHIN DAYS of the accused download actually happening.  For example, Charter literally pumps out letters to their subscribers FOUR DAYS after the downloads happen.  Now obviously there are hiccups where a subscriber will receive a pile of infringements at one time, or an infringement notice is withheld until after the CEG-TEK due date has passed, but in my understanding, when this happens, it is either a business-related issue between CEG-TEK and the ISP, or a staffing issue in the subpoena / abuse department at the ISP.

    Thus, where CEG-TEK is concerned, I have never heard of a situation where CEG-TEK demands that the ISP forward a letter to a subscriber and the ISP denies that request based on the ISP’s IP retention policy making the subscriber’s information unavailable.

    As far as copyright lawsuits in general, yes, the IP retention policy does factor in to when a lawsuit is filed.  I have personally seen a handful of copyright infringement lawsuits filed against John Doe Defendants fail because the ISPs were unable to identify the identities of the accused subscribers because the plaintiff took too long to file the lawsuit (or a judge took too long to approve the subpoena to the ISP demanding the identities of the accused subscribers), and by the time the request or subpoena was received by the ISP, the IP address assignment records were already purged.

    Thus, even though a plaintiff copyright holder does have three years from the alleged date of infringement to file a lawsuit against an accused subscriber, they are still bound by the ISP’s IP retention policy if they wish to ever identify the accused subscriber.  That being said, it is the “SECOND DATABASE” which trips up most individuals, as many individuals accused of copyright infringement are not aware that ISPs keep certain IP address assignment records indefinitely (or for a prolonged period of time), and these IP address assignment records are those which have been flagged by a copyright holder, attorney, or other law enforcement agency prior to the expiration of the ISP’s IP retention policy.


    UPDATED COPYRIGHT ENFORCEMENT GROUP (CEG-TEK) ARTICLES (from this blog):
    Canada begins receiving CEG-TEK DMCA settlement letters. (3/12/2015)
    How time limits / purged records stop a copyright holder from learning a downloader’s identity. (12/18/2014)
    CEG-TEK’s growing list of participating ISPs, and their NEW alliance with COX Communications. (11/12/2014)
    The Giganews VPN Problem (11/12/2014)
    CEG-TEK is now your friendly “photo” copyright troll. (6/13/2013)
    CEG-TEK’s new “you didn’t settle” letters sent from Marvin Cable. (3/22/2013)
    CEG-TEK’s DMCA Settlement Letters – What are my chances of being sued if I ignore? (2/22/2013)
    Why CEG-TEK’s DMCA settlement system will FAIL. (2/22/2013)

    [2017 UPDATE: Carl Crowell has created a new entity called RIGHTS ENFORCEMENT which has reverse-engineered CEG-TEK’s proprietary DMCA copyright infringement notice system.  Many of you have visited CEG-TEK links thinking that RIGHTS ENFORCEMENT was CEG-TEK, but really they are an ‘evil twin’ competitor.  Since the two entities operate almost the same way, and since Crowell appears to have taken most of CEG-TEK’s client list, this article is relevant.]


    CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

      NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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      New Florida Rule: CABLE OPERATORS WHO ARE ALSO ISPs ARE BOUND BY THE CABLE ACT.

      Umm… Did Judge Wilson just suggest that ISPs fall under the CABLE ACT??

      I was just reading DieTrollDie’s article, and looking at Judge Wilson’s ruling [in the Malibu Media, LLC v. John Does 1-18 (Case No. 8:12-cv-01419) case in the U.S. District Court for the Middle District of Florida], it appears as if he just suggested that ISPs fall under the CABLE ACT (See Order, Doc 14, p. 5 of 7).

      ORDER: …3. Each of the ISPs that qualify as a “cable operator” under 47 U.S.C. 522(5) shall comply with 47 U.S.C. 551(c)(2)(B), which provides that:

      A cable operator may disclose [personally identifiable information] if the disclosure is … made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.”

      Now many of you know that I have wrapped my head around the Cable Communications Policy Act of 1984 (a.k.a., “the Cable Act”) so many times, and it surprises me that now TWO judges have suggested that a law written in 1984 applies to the internet (which was not even in existence at the time the Cable Act was written).

      As we discussed on Monday in the “Judge Facciola opens up a can of worms with the Cable Act” article, 1) DC Judge Facciola argued whether an ISP would violate the Cable Act by sharing subscriber information. He concluded that assuming arguendo that the Cable Act did apply [noting that DC has not yet ruled on the issue of whether the Cable Act applies to ISPs], that Cablevision would not violate the statute if it complied with the copyright troll’s subpoena. Now, we have 2) Judge Wilson explicitly ordering “each of the ISPs that qualify as a “cable operator” under the Cable Act to comply with the subpoena.

      In its essence, the Florida Middle District just ruled that ISPs WHO ARE ALSO CABLE OPERATORS ARE BOUND BY THE CABLE ACT STATUTES.

      This is fascinating to me (especially since these judges would be going against significant case law from other districts stating that the Cable Act does NOT apply to ISPs) because it appears as if Judges are trying to corner the ISPs into the confines of the Cable Act (which makes my May 5, 2011 argument of how to sue ISPs for violating the Cable Act possibly viable). I have not even considered the MANY IMPLICATIONS of what happens if — as a rule — ISPs became bound by the Cable Act provisions? What else would change?

      Looking at this logically, it makes sense to me that an Internet Service Provider (“ISP”) can be a “cable operator” bound under the Cable Act. Why? Because cable companies (Cablevision, Comcast, Verizon, etc.) *ALL* have taken a HUGE SHARE of the internet subscriber business. Cable companies today offer internet services to their subscribers. Thus, it makes sense that an ISP can be a “cable operator,” and thus they can be bound by the Cable Act.

      After all, if hypothetically a huge oil company such as Exxon started selling their Esso Tiger toy dolls (remember these?), wouldn’t they also be obligated to the laws that govern child safety laws regarding lead paint? How can an ISP say “we’re no longer a cable operator, we’re an ISP” when the same customer who pays for their internet connection pays them for their cable service?

      In other words, I am starting to form the opinion that CABLE COMPANIES SOLICITED INTERNET BUSINESS AND BECAME ISPs. THEY ARE STILL CABLE COMPANIES AND THEIR SERVICES SHOULD STILL BE BOUND BY THE CABLE ACT WHICH GOVERNS CABLE COMPANIES.

      Wow, this is a can of worms.


      CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

        NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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        Judge Facciola opens up a can of worms with the Cable Act.

        These old cases keep creeping back up on us, and I am quite frankly dumbfounded that they are still alive so many months later. In the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) case in the District of Columbia, Judge Facciola brought back to life what was a stale, dormant case by answering an unanswered question of whether it would violate the Cable Act if Cablevision complied with the subpoenas and shared subscriber information with the copyright trolls.

        Cablevision’s argument resembled a failed argument which I posted on my blog in May, 2011 for literally a day before puling it from the website.

        [FOR PURPOSES OF CLARITY, I was writing two years ago about whether you can sue an ISP based on the Cable Act.  Then, I was referring to subsection (f) of the statute; here, Cablevision is referring to subsection (c) of the statute, asserting that the “checklist” of requirements under the Cable Act was not met and thus the subpoena was defective and they didn’t have to comply.]

        More than two years ago, I wrote an article entitled “How an attorney can sue an ISP for disclosing a subscriber’s information“. In that article, I stated that a John Doe Defendant could possibly sue his ISP for violating the Cable Communications Policy Act of 1984 (better known as the “Cable Act”). Shortly after writing the article, however, I did further research into the matter and I found that there was a significant amount of case law which held that this statute DID NOT APPLY TO ISPs. Apparently, however, I am not the only attorney who stumbled upon this statute.

        In the Openmind Solutions, Inc. v. Does 1-565 case, Cablevision asserted that according to the Cable Act (47 U.S.C. §551(c)(2)(B)), they would violate the statute if they complied with the subpoena issued to it (which makes me wonder why they have been complying in other cases since). On Friday, Judge Facciola disagreed simply because regardless of what the Cable Act says, the Federal Rules of Civil Procedure (“FRCP”) simply gives the court the power to force the ISPs to comply with the subpoenas, and the Cable Act is irrelevant to the issue. (Personal note: A judge can’t throw away a statute that conflicts with the rules! They must address the law and explain why it DOES or DOES NOT apply to the circumstances. They can’t ignore it and pretend the statute is not there!)

        In short, the last time I took a look at this argument, I came to the conclusion that it was a very muddy issue. Anyone who wants to have a crack at this, please feel free to comment. I’m merely posting this article so that you understand what argument Cablevision was trying to assert, and why Judge Facciola ruled against it.

        Once again, I feel that Judge Facciola didn’t properly address the issue of whether the Cable Act applied to copyright infringement statutes (and particularly to these bittorrent cases where his court has been ruling that John Doe defendants do not have standing to file motions to quash until they are “named” as defendants). In my opinion, Cablevision brought before the court the Cable Act statute, specifically, “47 USC §551 – Protection of subscriber privacy,” subsection “(c) Disclosure of personally identifiable information.” I keep asking myself, “how in the world does this NOT apply to our cases?!? (and if this does not apply, what statute does apply?)” EVEN THE CABLEVISION ISP ITSELF (a cable company) THOUGHT IT APPLIED TO THEM!

        In sum, Cablevision brought before the court an issue — “how can I comply with the Federal Rules of Civil Procedure when this statute prohibits me from doing so?” At the very least, Judge Facciola should have ruled on whether the statute applies to these cases because instead, he said, “assuming it does apply, here’s why your argument is wrong.” My question is immediately, “assuming it does apply?!?WHAT?!? WHAT ABOUT ALL THESE OTHER PARTS OF THE STATUTE? DO THEY APPLY TO ISPs TOO?

        As a result of this ruling, Judge Facciola has reopened a copyright troll case that until now was pretty much in a coma.  As far as this Openmind Solutions, Inc. case is concerned, expect now to start getting subpoenas from Prenda Law Inc. because once again, Judge Facciola has sided with the copyright trolls and has let the extortion scheme continue.

        …And as far as the Cable Act and 47 USC § 551? Judge Facciola has just opened up a can of worms.

        [For those of you who want to read the statute on your own, it can be found at http://www.law.cornell.edu/uscode/text/47/551 ]

        As far as the two documents which caused this mess, the original motion requesting that the judge rule on Cablevision’s motion applying the Cable Act to bittorrent lawsuits can be found here.

        And, Judge Facciola’s ruling (the subject of this article) can be found here.


        CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

          NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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          MISSION ACCOMPLISHED? New York’s Split Southern District Court

          It is very easy to put up a banner claiming “MISSION ACCOMPLISHED — NO MORE BITTORRENT CASES IN SOUTHERN DISTRICT OF NEW YORK,” but reality is not that simple. A judge can give a ruling, and it can be a darned good ruling which is binding on all other judges in that federal district (similarly, that ruling is persuasive for judges in other federal districts). One such case is the case written up by Sophisticated Jane Doe in her “The Domino Effect: Trolls are not welcome in the Southern District of New York anymore” article posted just moments ago. I do not need to re-write this up — she did a wonderful job, and there is no reason to duplicate her efforts.

          That being said, this case does merit some discussion. The name of the case is Digital Sins, Inc., v. John Does 1-245 (Case No. 1:11-cv-08170, or 11 Civ. 8170) [misspelled], filed in the U.S. District Court for the SOUTHERN DISTRICT of New York (remember our blog post about forum shopping there?). I am happy to share that the case is now SEVERED AND DISMISSED. Obviously, congratulations to the Cashman Law Firm, PLLC clients who were part of that case. This ruling is WONDERFUL for you.

          As far as I am concerned, this ruling was the order I was waiting for back in March when I reported that all of copyright troll Mike Meier’s New York cases were consolidated by Judge Forrest. Similarly, you’ll see what I thought would happen in my “New York Judge consolidates and freezes SMALLER BITTORRENT CASES for plaintiff attorney” article earlier that month. Well in short, my opinion with hindsight was that all this was a dud, and Judge Forrest merely consolidated the cases to rein in Mike Meier so that she can control him and his cases so that they all had uniform outcomes. This was obviously a step in the right direction, but it did not dispose of the cases in their entirety. Perhaps because Judge Forrest had experience with copyright cases in the past, she thought she should be the one to preside over them. However, in my opinion, she just made them more orderly; she didn’t rule on the underlying issues plaguing each of Mike Meier’s cases.

          Here comes Judge Colleen McMahon of the same Southern District as Judge Forrest, and she (like Judge Forrest) has my respect. In her ruling on Tuesday, she took the opportunity to take a John Doe ruling, and turn it into NEW LAW FOR NEW YORK COURTS (obviously I am referring to the federal courts). What impressed me was that not only was she aware of Judge Forrest’s activities, she changed the law by dissenting with them.

          “Judges Forrest and Nathan, have decided to allow these actions to go forward on a theory that permissive joinder was proper.  I most respectfully disagree with their conclusion.” (p.4)

          Further, she ruled that if Mike Meier wanted to sue these 244 defendants, he may do so in separate lawsuits, AND HE MUST PAY THE $350 FILING FEE FOR EACH LAWSUIT (that’s $85,400 in filing fees that Digital Sin, Inc. will have to pay if they want to go after the dismissed defendants).

          “They are dismissed because the plaintiff has not paid the filing fee that is statutorily required to bring these 244 separate lawsuits.” (p.4)

          What made this case blog worthy (and you’ll notice, I rarely post about the run-of-the-mill dismissals that happen every day in various jurisdictions when their rulings teach nothing new) was that Judge McMahon suggested TWO STRATEGIES to John Doe Defendants that she believes would successfully refute the plaintiff attorney’s geolocation evidence as proof that the court has personal jurisdiction over the accused IP addresses.

          Firstly, she suggests that the John Doe defendants not living in the jurisdictional confines of the court simply file a SWORN DECLARATION that they live somewhere else.

          “John Doe 148 could have overcome [the geolocation data evidence provided by the plaintiff] by averring [e.g., in a sworn declaration] that he was a citizen and resident of some state other than New York — even New Jersey or Connecticut, portions of which are located within the geographic area that is covered by the geolocation data.” (emphasis added, p.5)

          Secondly, she said that since plaintiff attorneys are getting the personal jurisdiction right (e.g., filing lawsuits against Californians in California, against Texans in Texas, etc.), defendants could start asserting the “WRONG VENUE” argument (essentially saying, “Court, yes, I live in New York.  But I was sued in Long Island and I live in Buffalo.  It would be an extreme hardship for me to travel down to Long Island every time I need to show up for a hearing there to defend my case.”).  The actual verbiage suggested by the Court is that “…plaintiff has failed to plead facts rom which a reasonable trier of fact could conclude that this Court has personal jurisdiction over this John Doe, or that venue is properly laid in this district.”  (emphasis added).

          Next, this ruling is VERY EXCITING because it puts handcuffs on Mike Meier should he wish to file against any of the severed and dismissed defendants in a follow-up case.  Those rules are:

          1) When an ISP complies with a subpoena request, it may not share the telephone number or e-mail address of the subscriber with the plaintiff attorney.

          2) Assuming the ISP does not file a motion to quash (it obviously may AND SHOULD do so on behalf of its subscribers [my opinion]), the ISP shall share the subscriber’s information WITH THE COURT ONLY (not directly to the plaintiff as is usually done), and the court will disclose the information to the plaintiff attorney.  (I’m not sure the benefit of this — they still get the contact information of the John Doe Defendants this way).

          3) The plaintiff may use the information disclosed ONLY FOR THE PURPOSE OF LITIGATING THAT CASE (so the plaintiff may no longer use the threat of future litigation if they do not immediately settle to extort a settlement.  This was a tactic used by many plaintiff attorneys (most notoriously, Prenda Law Inc. who admitted that they dismissed the case so that they can go after the John Doe Defendants [extorting settlements] without the court’s involvement).

          Lastly — and her timing is quite interesting as we just finished writing about forum shopping in bittorrent cases — she warned Mike Meier not to engage in “judge shopping.”

          “Lest plaintiff’s counsel think he can simply put cases against the severed and dismissed John Doe defendants into the wheel for assignment to yet another judge, I remind him of Local Civil Rule 1.6(a) [which requires the plaintiff attorney to bring the existence of potentially related cases to the attention of the Court].” 

          For your reading pleasure, I have pasted a copy of the order below.  For my own opinion on the topics discussed by the judge, I have pasted them below the judge’s order.

          [scribd id=93798958 key=key-2fufis4rlcf1fuhmb3kz mode=list]

          MY OPINION:  There is more here that I did not write about, namely that the judge believes that all the bittorrent cases currently being held by Judge Forrest and Judge Nathan should be assigned over to her so that she can dispose of them once and for all.  She also went into other judge’s rulings which duplicate content in other articles on the blog.  However, once again, we have another wonderful ruling.  However, moving forward, perhaps I am a bit jaded, but I don’t foresee Judge Forrest or Judge Nathan tomorrow assigning over all their bittorrent cases to this judge.  There is now a disagreement in the New York courts (as there are in many jurisdictions) as to how to handle these cases.  I would love to jump up and down, wave a banner and declare “MISSION ACCOMPLISHED — NO MORE BITTORRENT CASES IN SOUTHERN DISTRICT OF NEW YORK,” but quite frankly this is not reality.

          More likely than not, plaintiff attorneys such as Mike Meier, Jason Kotzker, and any other copyright troll who wants to file in New York will continue to file there.  As you can see in my forum shopping article (which should more properly be called “Judge Shopping”), an attorney can in ONE DAY file  9 SEPARATE CASES and receive 7 SEPARATE JUDGES, as was the case with Kotzker’s recent filings.

          In addition, while the SWORN DECLARATION argument and the VENUE arguments are both easy solutions to disprove the plaintiff’s prima facie case for personal jurisdiction (meaning, the bare minimum a court will require in order to accept the fact that it has personal jurisdiction over the defendants in the case), a John Doe Defendant hoping to hide his identity from the plaintiff attorney and quash a subpoena should not be excited by these solutions.  1) For the sworn declaration, they’ll necessarily be giving up their true location (they cannot lie that they live in Connecticut when they live in California), and we all know that Mike Meier is only ONE local attorney to a larger IP monetization group (“The Copyright Enforcement Group”) which has other attorneys in other states, and who continues to recruit new hungry would-be copyright trolls.  So even if they succeed in getting their case dismissed here, guess who will be filing against them in their home state’s federal court?  2) A John Doe Defendant who asserts the “correct state, wrong venue” argue just made a big blunder — he admitted that personal jurisdiction is proper in that state.  Rules for venue are based on a number of factors, NOT ONLY WHERE THE DEFENDANT LIVES.  Similarly, no doubt the plaintiff will respond in a wrongful venue argument in a motion to quash that “John Doe filed this motion to quash asserting wrongful venue (which by the way is not a valid ground to quash a subpoena; jurisdiction IS), but he is not a party to the action [yet] and thus he has no standing to file this motion to quash.”  Remember this?  Lastly and realistically, the proper time a defendant CAN AND SHOULD use this wrongful venue argument is in his ANSWER (which means he was already NAMED as a defendant in the case).  Too late.  There are better issues to kill a case at this point than complaining that the court is too much of a drive.

          [DISCLAIMER: I’ve given many opinions here which is not to be taken as legal advice.  Each defendant has different needs and different circumstances, and for this reason, the legal advice I give for one of my clients may not be appropriate (or may even be harmful) to another client who’s circumstances are different.  Also, obviously no attorney-client relationship is formed until you sign a retainer and become a client.]

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