Need to rehash some bittorrent concepts because they are just as relevant today as they were five years ago.

Every few years it is important to rehash some older bittorrent concepts which are still relevant to today’s copyright infringement lawsuits.

In July, 2010, this blog was started to address the at-the-time unknown problem of copyright trolling.  For years, myself and my staff wrote articles explaining the business model of copyright trolling, which at the time was an adaptation of patent trolling (where “patent trolls” would file [often frivolous] lawsuits against alleged infringers who refused to pay what appeared to be a “shakedown” of the patent holders [e.g., “pay us or else you will end up having to pay even more to defend the claims against you in a federal court”], even when the patent being asserted against the would-be infringer had absolutely nothing to do with the product the targeted company was producing).

There were common threads between patent trolls and copyright trolls, and as the cases developed, there were common themes of how a copyright troll must act to make his model of extorting the public (the bittorrent internet users) profitable.  At the time, that included questions of 1) where and how can a copyright enforcement company or lawyer sue a group of defendants (personal jurisdiction), 2) how to link non-related downloaders into a cohesive set of defendants into a cohesive set of “John Doe Defendants,” (joinder, and my controversial strategy to force a copyright troll to sue the entire bittorrent swarm when a defendant is named and served) and 3) how to avoid risking the potential settlements from hundreds or thousands of accused bittorrent users by moving forward and “naming and serving” one or more defendants.  There were also time limits they faced based on a) how long the ISPs retained the records of which IP address was leased to which account holder / subscriber, b) statute of limitations on how long a copyright holder has to file a lawsuit, and c) how long a copyright troll attorney may keep a case alive before a judge imposes the time limits described in the Federal Rules of Civil Procedure (FRCP Rule 4m, a.k.a. the “120 Day Rule”).

Then, over the years, there arose a confusion under the discussions of “net neutrality” asking questions such as whether an internet service provider (ISP) was governed under the cable act, and if so, under what title.  The reason for this was that there were allegations that various ISPs were outright sharing the contact information of its subscribers without valid court orders to do so, thus violating the privacy rights of its subscribers.

In sum, there were a lot of issues, and we tackled each one over the course of almost five years.  The goal was to educate the bittorrent user and the accused downloader about the issues so that they understand how to act, react, and in many cases, fight against a group of attorneys with questionable ethics.

The problem is that these articles — the ones that have been so helpful to tens of thousands of accused defendants — these articles have been buried by the search engines because they are simply now aging and many articles are now many years old.  An accused defendant can no longer search for a “copyright troll” on Google and find any of my older articles.  [And, enterprising attorneys (and good for them) have put up websites containing SEO-based content full of keywords in hackneyed sentences, but devoid of useful content (e.g., the “contact our law firm, we can help you with your copyright troll lawsuit issue” type of website), while what I consider to be the “useful” content (not only mine, but content written by other attorneys in their blogs, and proactive users [really, trailblazers such as “Sophisticated Jane Doe” of FightCopyrightTrolls and “DieTrollDie”] in their respective blogs) is no longer accessible by typing the name of the particular copyright troll, issue, or case that has been recently filed.

What I will be doing to remedy this as far as this blog is concerned — and I apologize up front to the thousands of you who get updated on each and every article that I or a staff member of mine writes — is that I need to rehash some of the “older” content on the educational topics that I have already covered in the blog ad nauseam.  The reason for this is that the older content explaining the legal concepts in terms of the bittorrent lawsuits (and now in terms of the DMCA letters being sent to subscribers through the ISPs) is just as relevant today as it was five years ago.  There has been little-to-no judicial or legal oversight of the copyright trolls from the attorney generals of each state and from the lawmakers (both federal and in each state), and the problem and issues surrounding “copyright trolling” is just as relevant today as it was almost five years ago.

For these reasons, I need to violate my own preference not to repeat information or content that has already been described or hashed-out in previous articles (my opinion is that one article describing a topic is enough, and writing multiple articles containing the same topic “waters down” or “cheapens” the content of a website).  The reason I now feel the need to rehash some of the older topics is to re-teach those who have not yet been victimized by the copyright trolls, as my older articles are no longer found, even by those looking for that particular topic.

ALSO.  Copyright trolls are now enjoying a seed of legitimacy by the courts, where once upon a time us defense attorneys were “winning” the cases by arguing concepts such as “an IP address does not equal a person,” or “my client had an open wireless router, it could have been anyone who downloaded this video,” the arguments themselves have also aged and are now increasingly being ignored by the courts, even though the arguments remain “an elephant in the room,” meaning, just as valid today as they were yesterday.  On the flip-side, faulty and failed arguments (e.g., “are you negligent if you let someone else use your internet connection to commit copyright infringement” [Answer: NO!]) are being reasserted by the copyright trolls, and to my utter disbelief, they are not immediately being dismissed by the judges as being a faulty argument.

Copyright trolling has not changed in the past five years, and the successful arguments defending a case do not deserve to be ignored just because they have been used successfully by defendants in older lawsuits which too are aging.  Ignoring good case law is contrary to law, as successful arguments in one jurisdiction are binding on all other judges in that federal district, and are persuasive on cases in the federal districts in other cases.  Yet, I see more and more lawlessness in judges who ignore the case law from not only other jurisdictions, but from their own jurisdiction as well (creating a “split” in the court), and they are denying a John Doe defendant’s ability to assert what was a successful argument in another court (even one binding upon them in their own jurisdiction).

In sum, judges are allowing plaintiff copyright holders to sue larger number of defendants each week, even though nothing has changed making this new trend permissible (in my opinion, whether 200 defendants were sued by a plaintiff attorney in one lawsuit or in ten cases [having 20 defendants in each case] filed in the same week still means that 200 defendants were sued; it does not matter that the plaintiff made the cases “appear” to be smaller, especially if they are implicating the same bittorrent swarm in each of the ten cases).

Remember, the underlying copyright troll business model of “shakedown, extort thousands of dollars from each defendant, but avoid moving forward against anyone [but pretend that you are prepared to move to trial]” is still the same as it was five years ago.  It should not matter whether the content of the lawsuit is a Hollywood movie or an adult film.

[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, e.g., sending DMCA copyright infringement notices to the subscriber directly via the ISP, this article is also relevant to RIGHTS ENFORCEMENT.]


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.

shalta book now cta

Dallas Buyers Club rivals adult film bittorrent lawsuits in quantity of lawsuits.

Dallas Buyers Club filings have reached a quantity of lawsuits — so much so that they rival the hundreds of adult film lawsuits that flood the federal courts.

As a quick recap, the Dallas Buyers Club, LLC piracy lawsuits started in Texas and Ohio, and like a cancer, over the past year they have metastasized into the federal courts of Illinois, Florida, Oregon, Washington, Colorado, Michigan, Indiana, Wisconsin, and even Hawaii.  Copyright lawyers employed by Dallas Buyers Club have even moved their copyright enforcement activities offshore into Canada, Australia, Finland, Denmark, and Japan.

Regardless of where they go, their business model is the same — Voltage Pictures, LLC or Dallas Buyers Club, LLC files a peer-to-peer lawsuit alleging copyright infringement against multiple John Doe Defendants (generally referred to by plaintiffs as “pirates”), they convince a federal judge to rubber-stamp a subpoena demanding that the ISP turn over the contact information of the accused account holders unless the accused account holders file what is known as a “motion to quash.”  The target of the subpoena is almost always the account holder, implying that the account holder is the actual downloader or infringer who downloaded the Dallas Buyers Club (2013) movie.  The plaintiff attorney then sends one or multiple settlement demand letters to the accused downloaders in each case threatening that each will be “named and served” as a defendant in the lawsuit unless they pay a settlement of thousands of dollars (settlement requests average $3,500 to $6,500 [and in one case, $14,000, really?] depending on the state in which the lawsuit is filed).

Where the settlement demand letters blur the line of ethics is that many plaintiff attorneys employ scare tactics, making the John Doe Defendant believe that the lawsuit has already been filed against them personally.  Various attorneys have sent accused downloaders “waiver of service” forms and questionnaires along with their settlement demand letters suggesting that the not-yet-named-defendants answer these questions voluntarily, or that they waive service effectively negating the need for the plaintiff attorney to name and serve them as a defendant.

What bothers me is that because Dallas Buyers Club is not an “adult film” copyright infringement lawsuit (but rather, a “real” movie with a valid copyright and without the stigma of being an adult film), the federal judges are giving them leeway to move in and out of the federal courts to “enforce” their copyrights.  In U.S. copyright law, there is a legal presumption of validity, which means that a judge will initially lean towards favoring the copyright owner until that copyright owner has been shown to be abusing the legal process through a pattern of abuse.  Attorneys for copyright holders who represent the plaintiff generally (in our blog and in the eyes of the courts) get increased scrutiny because they have represented other copyright holders in similar lawsuits employing the same strategy of “sue and settle, but try not to name and serve [and if you do, bluff to the judge that you are prepared to go to trial on the merits of the case].”

These lawyers who file Dallas Buyers Club lawsuits (these are those who sue defendants, NOT those who defend defendants) include a growing list of attorneys, such as: Keith Vogt (Texas), Michael Hierl (Illinois), David Stephenson Jr. (Colorado), Eric Osterberg (Connecticut), Richard Fee (Florida), Paul Nicoletti (Michigan), Carl Crowell (Oregon), Leon Bass (Ohio), and Gregory Ferren (Hawaii).

Many of these names are familiar to those who have followed our “copyright troll” / bittorrent lawsuit blogs over the years, and we often see these names representing one copyright holder after another in the same fashion.  Regardless of who the lawyer is, be aware of the motivation of the Dallas Buyers Club lawsuits — to create a ‘windfall’ profit for the company by pursuing those who download the movie without authorization, and to scare and intimidate the accused downloaders into paying large settlement amounts to avoid defending the claims against them in court.

Related: Dallas Buyers Club launches post-Oscar copyright salvo, sues 615 Does (ArsTechnica)


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.

shalta book now cta

What to do when a copyright troll named and served you as a defendant in your bittorrent lawsuit.

Copyright trolls have the power and force of the law to haul you into court and force you to defend your case by having you named and served as a defendant.

I’ve been bumping into more clients than ever who did not retain counsel and have now been “named” as a defendant in their bittorrent case (e.g., they were one of many John Doe Defendants, and now they have been served with paperwork and are now a defendant in their case).  The purpose of this post is to very explicitly state what you are up against at this point (this is for attorneys [unfamiliar with these cases] defending clients as well, as many of you also call me with the same questions as named defendants) and to give you your options.  Here are a few examples of named defendants:

Patrick Collins, Inc. v. John Doe 6, Ching Y., et al. (Arizona U.S. District Court; Case No. 2:11-cv-01602 [or 11-cv-1602]) (1/7/2012)

K-Beech, Inc. v. George H., Shana S., Richard S., Brian T., and Catherine V. (Arizona U.S. District Court; Case No. 2:11-cv-01604 [11-CV-1604]) (originally, K-Beech, Inc. v. John Does 1-54) (12/19/2011).

and K-Beech Inc. v. Derek L.K-Beech Inc. v. Paul F.K-Beech Inc. v. Carl P.; K-Beech Inc. v. Cesar V.; K-Beech Inc. v. Joseph G.; K-Beech Inc. v. Scott S.; K-Beech Inc. v. Hanna B., etc. (each in the U.S. District Court for the Eastern District of Pennsylvania)

In short, my opinion thus far has been that these so-called lawsuits each are pieces of one larger “extortion scheme” where the plaintiff attorneys have acquired your name and contact information (whether through early discovery in a federal court, or a lawsuit in a state court such as Miami Dade, FL, Maricopa County, AZ, or even St. Clair County, IL).  Then they called you and sent you what I described as “scare” letters telling you that if you did not settle by a certain date, they would name you as a defendant (either individually or as a smaller group of Does) in your home state’s federal court.  For whatever reason, you did not hire an attorney and you became what I referred to as “low hanging fruit,” meaning that you became an easy target because by not hiring an attorney, you told them that you are not taking their case seriously and that you probably did not educate yourself about what they could do to you.

Not realizing that the plaintiff attorneys are using the courts and the legal system to further their extortion scheme, you did not realize that these so-called “copyright trolls” could actually follow-up and “name” you as a defendant in your lawsuit.  As far as I’m concerned, it costs them essentially nothing to do this.  They have already sued you as a “Doe” Defendant, and by doing this they have already paid the filing fee.  The complaints are all essentially copies of one another so the paperwork is already written (and if there is a no-name local attorney involved, he has probably been given templates by the Lipscomb & Eisenberg, Prenda Law Inc., or other firm behind the scenes (e.g., if it is a Patrick Collins, Inc. or K-Beech, Inc. case), so naming a defendant is a piece of cake.  The hard part of finding a local attorney in many cases has already been done, and so it is just a matter of “naming” you as a defendant in the lawsuit.  Even Dunlap Grubb & Weaver, PLLC (parading as Media Law Group) has started to hire local counsel and sue dismissed defendants from their many cases from last year.

Many people have asked me whether at this point they can “hide” from the process server so that they are not properly “served.”  Many have also told me “I don’t live at that address anymore,” “I’ve since moved so they’ll never find me,” or “my ISP doesn’t have my correct [NAME SPELLING/ADDRESS/PHONE NUMBER/E-MAIL {pick one}].”  My answer to each one of these is to point out that you are not fighting a traffic ticket… This is a copyright infringement lawsuit in federal court. Whether or not you are guilty, these cases have the ability to broke you (and to potentially seize your assets and force you into bankruptcy).  It borderline offends me when people stick to their “I’m not guilty, they can’t do anything to me” viewpoint because this is simply not true.  The so-called copyright trolls have the power and force of the law to haul you into court and force you to spend tens of thousands of dollars to defend yourself or face a default judgement (essentially a finding of “guilty” because you did not timely file an answer once you were named).

If you are named as a defendant and you avoid service of process (“being served”), there are other ways to serve you.  Depending on the jurisdiction, they can post a notice at your last known address, they can publish a notice in the newspaper… the judge may even allow them to serve you by sending an e-mail to your last known e-mail address.  Don’t think that you are the first person to attempt to outsmart the legal system.  People have tried all these before (and some have even fled the country), and this is why every attorney now learns about the ins and outs of service of process in their first year of law school.

So once you are named as a defendant, depending on your circumstances, the general rule is that you have twenty (20) days to file an answer in federal court.  An “answer” essentially is a denial of their claims, along with all your counterclaims and defenses (remember, if you don’t plead it in your answer, you lose the ability to argue it later).  Fail to file your answer in time and you’ve already lost your case and will be facing a default judgement.  On this note, NEVER rely on a default judgement being $750 plus attorney fees & costs.  I know you have seen those few judgments (e.g., DC’s Call of the Wild Movie, LLC v. Does case) where named defendants didn’t respond and they only got hit with the minimum $750 statutory judgement (but then again, Judge Alsup in N.D. California hit two defendants with $30,000 default judgments each for not filing an answer).  Judgements can be $750, $30,000, $150,000, and based on the sole discretion of the judge, any number in between.  I would never risk my financial future on hoping a judge had a good day.  In short, if you are named and served, you must file an answer with the court.

This is the point where many defendants are when they  contact me.  They believe that they will “fight the good fight” and they will “take these f^%@&!! to court!”  What they don’t realize is that lawsuits cost money and time to fight, and that suddenly it becomes my job to manage their expectations and to explain to them that depositions take time.  Drafting and filing documents take time.  Hearings take time.  And do defendants want a barebones defense? or do they want me to give the plaintiffs hell as well?  This takes more time.  We CAN depose them, take interrogetories, and I’ve always said that with one winning case, we can bring down their whole extortion scheme.  But this all takes…time.  And time costs you money.  So be smart before you declare war on those who have sued you.  There are smarter ways to handle these cases, and so make sure your attorney knows your particular copyright troll, their capabilities, where they will crack, and where they will give in before you decide to step into the courtroom.

Now that you are named (and it took SEVEN PARAGRAPHS to get to this point), realize that your power of negotiating a settlement is severely limited at this point because the plaintiff attorneys have ABSOLUTELY NO REASON TO ACCEPT A SETTLEMENT AT THIS POINT.  I expect they are hoping that you do not hire an attorney and that you try to do this on your own, because if you mess up, they’ve just created a valid judgement against you which they can have the court enforce against you.  Now if you have retained counsel, maybe they *would* decide to settle because as you’re about to see, we’re about to cost them a lot of money.

After we file the answer on your behalf, because their so-called evidence is insufficient to prove that you (and not someone else in your household, or someone using your internet connection living within a 3/4 mile radius [depending on the strength of your router]) downloaded their client’s copyrighted video(s), they will need to hire a digital forensics expert. This is a costly step for them – you do not pay a penny for this — so that they can make a mirror image of your computer(s)’ hard drives and go through them with the equivalent of a microscope to see whether they can find a hint of the file(s) you are accused of downloading.

Assuming they do not find anything incriminating, they will pull you in for a deposition under oath where they will ask you many hours of questions (with me at your side; again, think time) about your bittorrent use, your internet habits and activity, your schedule on the date of the alleged infringement, and anything else they need to establish that it was more likely than not you who did the download.

Again, assuming you are not guilty and assuming you did not say anything incriminating in your deposition, we would likely file for what is known as a summary judgement, essentially telling the judge, “Judge, they looked at my client’s computer(s). They questioned my client. They did not find anything and they have no evidence to move forward. Please dismiss.” Assuming we win, we will ask the court for attorney fees and costs to reimburse you for everything you have paid me. However, remember again, you just spent six months of your life fighting this. Had you contacted me before you were swept into this path of litigation, we could have avoided having you go through this in the first place.

Remember, as much as each of these steps will take time to fight on your behalf (and I’m happy to do this for each one of you), I always tell people that it is important to be practical and smart.  Your plaintiff attorneys are looking at this like a business, and so should you.  I have no doubt they want to spend as little as possible to make the most amount of money from you that they can collect.  As giddy as they may be from getting a $150,000 judgement from you if they took you to trial, chances are they will never see a penny of it.  I have no doubt this is why not one of these bittorrent cases has ever gone to trial.  Your plaintiff attorneys know this, as this was the lesson we learned from the MPAA and RIAA lawsuits from a few years back (where they did bring defendants to trial) — that it is more expensive to get a few large judgments than it is to get many smaller settlements.  If I have not said this loud enough, let me say this explicitly.  Everyone (even each of your copyright trolls and their clients) has a cracking point and a monetary goal (yes, even after naming a defendant).  Your attorney should know 1) how far they are willing to go, 2) how far they have gone before, 3) at what point(s) they would consider a settlement and for how much at each point, and 4) how equipped they are to move forward in case you do decide to  use our firm’s services.   Without an attorney, you’re on your own and they have no reason not to trample all over you and demand as much as they can.  With an attorney, we are too much of a liability (one word from our client and we have no choice but to move forward with litigation) for them not to consider settling (contrary to what they’ll tell you) because we cost them time.

Can Ira Siegel no longer accept settlements for his dismissed cases?

Please allow me to extend a warm congratulations to the Cashman Law Firm, PLLC defendants (and all others) who have been dismissed from the New Sensations, Inc. v. Does 1-1,474 (Case No. 3:11-cv-02770) case and the Patrick Collins, Inc. v. Does 1-2590 (Case No. 3:11-cv-02766) case, both in the U.S. District Court for the Northern District of California. While this is no longer news since the dismissal happened literally days after my last post, I wanted to follow up with a quick comment on these two cases.

I hate to pin this on Ira Siegel as no doubt Steele Hansmeier, PLLC (now Prenda Law Inc.) have made a mess of cases in the Northern District of California, but with these two plaintiff attorneys making messes of the bittorrent cases (to your benefit, of course), judges have smartened up about bittorrent lawsuits, and have been giving both of them a bunch of hurt. [There is news about the Hurt Locker case as well, but I’ll save it for the next posting.] In short, I no longer believe that there is a judge in Northern California who is oblivious to what is going on in these bittorrent cases, and I feel that these cases moving forward will be shut down faster than the plaintiff attorneys can say “boo!” (akin to how John Steele (and soon Prenda Law Inc.) was essentially shut out of the Northern District of Illinois courts).

Here is the interesting part about these two cases. In Judge James’ order (almost identical in the two cases), she forbade Siegel from accepting settlements after 12/7. This means that if you have not already received an “I’m sorry for asking you for money” letter (actually phrased as “we intend to go after you after the issues are resolved”), expect one in the mail (or in your e-mail, as this is how your plaintiff attorney likes to cut costs and avoid huge postage fees).

The problem in my mind is that while Judge James dismissed the case without prejudice [meaning that Siegel can easily file against any of the Doe defendants in their home courts], she was UNCLEAR as to whether Siegel can now accept settlements now that the case is dismissed. In other words, there is an AMBIGUITY in her order which on its face means that Ira can no longer accept settlements from Doe Defendants from this case; logic suggests that this is not the case. I actually inquired about this, and two days ago (12/22, pasted below), Ira asked the court for a clarification as to whether he is still allowed to accept settlements moving forward now that the case is dismissed. He wrote the same inquiry to the court in the Patrick Collins, Inc. case (link here). We will wait and see what the judge says.

[scribd id=76442024 key=key-p9tnsxl5k1sxcqg2ajx mode=list]

Judge Bates “removed” from Hard Drive Productions, Inc. v. Does 1-1,495 case. Potentially bad news for defendants.

Like most of you, we here at the Cashman Law Firm, PLLC have been watching the Hard Drive Productions, Inc. v. Does 1-1,495 (1:11-cv-01741) case in the US District Court for the District of Columbia.

To our surprise and against the 1+ year trend of the DC Court, earlier this month, Judge Bates went against the trend to remain silent about the validity of these cases and inquired about whether or not John Doe Defendants in the case actually lived in DC. In short, we understand that if the judge came to the conclusion that this is yet one more of John Steele’s mass bittorrent cases (but filed in DC as a result of forum shopping), then the judge would have likely come to the conclusion that the DC court did not have jurisdiction to try the case. As a result, he would have likely SEVERED AND DISMISSED the case, giving Steele|Hansmeier, PLLC (now Prenda Law, Inc., a story in itself) the opportunity to file against defendants in their home states. As you have read in previous posts, as a result of such a dismissal, Steele would have three years from the alleged date of infringement to file these lawsuits in defendants’ home states.

What no doubt concerned Steele (and what caused an overflow of conversations on the various bittorrent forums) is that six days ago, Judge Bates took the extra step and invited Doe Defendants to file motions to quash with the Clerk’s office, stating that they would be put under seal (meaning, hidden from view).

[scribd id=72934240 key=key-1tp2qg0c4bb5lsbaqs83 mode=list]

However, in spite of the judge’s invitation, I have not been advising people as to whether they should or should not file the motion to quash — and in fact I have been overly cautious about his invitation to do so — because historically, the District of Columbia Court has typically UNSEALED motions to quash when they deny them, leaving all the formerly sealed motions unsealed and naked for everyone to see.

The DC court has historically been AGAINST accused internet downloaders. Yes, we have certainly had our fair share of victories, but then again, many of the original cases are still alive (and because of this, plaintiffs have added perhaps thousands of new defendants to various DC cases, hence the new subpoena letters for older cases). I do not see why Judge Bates would be bold enough to go against former judges’ orders for essentially identical cases [See, Stare decisis (Anglo-Latin pronunciation: /ˈstɛəri dɨˈsaɪsɨs]) is a legal principle by which judges are obliged to respect the precedents established by prior decisions.], and the fact that Judge Bates was willing to go against Judge Beryl Howell and the others made me optimistic, but still cautious.

As much as this invitation to file appeared to signal a victory for the accused internet users, for whatever reason — political pressure, angry judges, etc. — today Judge Bates has essentially stepped down presiding over the case and he has handed the case over to Judge Facciola. This magistrate judge has seen bittorrent cases before, and in my opinion this could be a sad moment for the accused Does. To be clear, I understand that this transfer might not have been done with the permission or consent of Judge Bates. In fact, his order explicitly states, “Consent of the District Judge [him] is not necessary.” So perhaps we can piece together what has happened behind closed doors.

[scribd id=72934438 key=key-2jg0ucvmpeocem3urigm mode=list]

While it remains my opinion that this case suffers from issues of improper jurisdiction and improper joinder, Judge Bates is no longer making the decisions as to whether the case will be dismissed or not. Similarly, it is no longer clear whether it is in Does’ best interests to file the motions to quash, or whether they will suffer the same fate as all the other motions to quash filed in the DC court over the past year.

As for what defendants should do — I would probably wait and see what Judge Facciola does. Will he continue in Bates’ footsteps and kill the case? Or will he deny the motions to quash and move forward? We can only wait and see.

Skip to content