Which will be the bittorrent lawsuits of tomorrow?

With the larger cases from Dunlap Grubb & Weaver, PLLC heading off into the bittorrent litigation graveyard, the plaintiff attorneys have not yet learned their lesson about the dangers of filing John Doe lawsuits with thousands of Does sued together. Below are just a few cases filed by the same plaintiff attorneys — newer cases — which thus far have not achieved much traction. No doubt we’ll be seeing more of these in the coming months.

First and foremost, Ira Siegel’s new case, Digital Sin, Inc. v. Does 1-5,698 (Case No. 4:11-cv-04397-LB) filed in the US District Court for the Northern District of California. Apparently it did not occur to his client that suing 5,698 defendants is the easiest way for a case to achieve scrutiny.

Also by Ira Siegel is his SRO Pictures, Inc v. Does 1-3036 (Case No. 5:11-cv-04220-PSG) case, his Discount Video Center, Inc. v. Does 1-5,041 (Case No. 5:11-cv-02694-PSG) case, his Zero Tolerance Entertainment, Inc. v. Does 1-2,943 (Case No. 3:11-cv-02767-EDL) case, each filed in the same California court as Digital Sin.

We are already hearing from Doe Defendants on Ira Siegel’s Third Degree Films, Inc. v. Does 1-3,577 (Case No. 4:11-cv-02768-LB) and most notorious, his Patrick Collins, Inc. v. Does 1-2590 (Case No. 3:11-cv-02766-MEJ) case, also in the same California court.

Next, filed by Thomas Dunlap himself (of Dunlap Grubb & Weaver, PLLC) is CineTel Films, Inc. dba Family of the Year Productions, LLC v. Does 1-1,052 (Case No. 8:11-cv-02438-JFM) filed in the US District Court for the District of Maryland. This one should be fun. This same plaintiff has had Dunlap sue in his home US District Court for the District of Columbia, the Cinetel Films Inc. et al v. Does 1-1,951 (Case No. 1:11-cv-01334-RLW) case. Same plaintiff, different jurisdiction. My guess is that Ellis Bennett or Nicholas Kurtz will be the on the paperwork for these since they have to date handled Dunlap Grubb & Weaver’s older cases.

In the District of Columbia (where most of Dunlap Grubb & Weaver’s cases are filed,) to everyone’s surprise is the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274-RBW) case, apparently using Timothy Anderson of Anderson & Associates, PC as the local counsel. The funny thing about this one is that AF Holdings, LLC is John Steele of Steele Hansmeier PLLC’s clients (where Steele Hansmeier has sued a bunch of AF Holdings, LLC v. Does smaller cases across the country already), so this Tim Anderson guy is probably another one of Steele’s local counsel puppets (sorry Tim).

Then, there is Evan Stone’s FUNimation Entertainment v. Does 1-1,427 (Case No. 2:11-cv-00269-DF) filed in the US District Court for the Eastern District of Texas. I haven’t heard much about this case yet, but Evan Stone is the attorney who was the plaintiff attorney over the LFP Internet Group, LLC v. Does [LFP a.k.a. “Larry Flint Productions”] lawsuit that had over 6,000 defendants in total dismissed last year. Maybe he’s back in the game with a case that won’t be immediately dismissed.

Last, but not least, there is a set of triplet lawsuits filed by an unknown McDaniel Law Firm plaintiff (probably a copycat attorney who has watched these bittorrent cases develop and now has decided to try his hand and sue) in the US District Court for the District of New Jersey. Both of them go by the same name, Baseprotect UG, Ltd. v. John Does 1-X (Case No. 2:11-cv-03621, Case No. 2:11-cv-02021, and Case No. 2:10-cv-06806 respectively). The deceptive part is that the “Does 1-X” title appears to suggest that there are just a few defendants, so the case is hoped to stay under the radar. Nope. In one case, I believe there are over 300+ John Doe defendants implicated, and in the other case, I believe there are over 1,500 John Doe defendants. Funny enough, I hear that Baseprotect does not even own the Polish copyrights they assert, and that they have merely questionably acquired a limited right to sue on these copyrights. This will be fun to watch.

So in short, with the demise of the famous DC cases (Maverick Entertainment, Call of the Wild, and now West Coast Productions, Inc.), there are a whole new generation of cases who hope to achieve exactly the same purpose as their predecessors. Make a profit before getting dismissed into oblivion.

6,374 DISMISSED John Doe Defendants cheer as the LFP Internet Group lawsuits go down in flames.

I would like to personally congratulate the 6,374+ John Doe Defendants (3,120 + 635 + 2,619) who have been dismissed from the LFP Internet Group, LLC (Larry Flynt Productions) cases. This is a huge victory for our clients and internet users in general. What makes this case significant is not the daunting number of defendants, but that this case provides great case law for future cases.

In short, since the West Virginia Cases crumbled in December of 2010, judges across the country have taken notice that there are more issues in these cases other than plaintiffs merely being sued in the wrong jurisdiction. There and here — like dominoes tipping dominoes — the cases were dismissed and severed based on joinder issues. In short, the joinder issue can be summarized by stating that it is improper for a plaintiff attorney to sue many John Doe defendants who, when downloading — although they were all committing the same copyright infringement crimes at the same time — were not engaged in one concerted effort.

In the words of Hon. Royal Furgeson, Senior United States District Judge for the Northern District of Texas, the defendants may have shared files via BitTorrent, but “there are no allegations… that the Defendants are in any way related to each other, or that they acted in concert or as a group in their allegedly offending actions.” The plaintiff only claimed that “each Defendant… has used, and continues to use, BitTorrent software to reproduce and/or distribute Plaintiff’s motion picture to hundreds of other BitTorrent users.” Because the plaintiff’s infringement claims against each Defendant is based on the individual acts of each Defendant rather than “arising out of the same transaction, occurrence, or series of transactions or occurrences,” joining them together in one lawsuit is improper.

In short, the rule we get from this monster case is an affirmation of the law from the West Virginia cases, namely, “merely committing the same type of violation in the same way does not link defendants together for purposes of joinder.” West Coast Prods., Inc. v. Does 1-535, No. 3:10-CV-94 (N.D. W. Va. Dec. 16, 2010). This is good law, and I would not be surprised if the dominoes continue to fall, knocking down one case after another.

Now what does this mean for our firm’s clients? In short, all defendants were dismissed and severed. What this means is that if the plaintiff attorneys wish to continue the lawsuit, they will have to file against each of the six thousand defendants individually. They will need to draft complaints specific to each defendant alleging infringement of their client’s copyrights — each one is extremely time consuming. They will have to get admitted (pro hac vice) in the local court in which each defendant lives, or they will have to find local counsel in each state each defendant lives and they will have to hire that local counsel to file the paperwork on their behalf. They will have to learn and follow the local court rules, they will have to pay the filing fees for each defendant (~$350) they sue, and they will have to properly serve each defendant. Then us attorneys will begin defending the cases, and we will begin conducting discovery and making them attend depositions, answer interrogatories, and prove their case. I would think this would be difficult for them to do with just a few defendants. I can imagine this would be nearly impossible to do with 6,000+ defendants. But, I’m sure if asked, they will probably post some news article expressing their determination to go after each and every defendant, and I wish them well.

As a funny closing note, I found it interesting that even in this case, the many motions to quash and motions to dismiss based on lack of jurisdiction, etc., were NOT APPROVED. They were denied as moot.

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