Tag Archives: swarm

The music industry is now coming after internet subscribers.

[youtube http://www.youtube.com/watch?v=VIuR5TNyL8Y]

NOTE: The above video (NSFW) is from 2006.  While it (and many others) were made to address the Napster lawsuit (which was a lawsuit against a COMPANY), they apply more than ever now (where the plaintiffs are suing individual bittorrent users).

Lurking in the midsts of our bittorrent lawsuits has been a silent party who has been watching everything we have been doing in the pornography lawsuits and the “B-Rated” movie cases. This silent party is the RIAA, the MPAA, and the record labels who started all of these lawsuits years before the John Steeles, the Dunlap Grubb & Weavers, and before the Mike Meiers of the world got involved, grew their copyright troll legs, and started suing John Doe groups of internet subscribers. I used to refer to the record labels as the “sleeping giants,” because their lawsuits got really quiet after they scored their million dollar judgments (now reduced) against defendants such as Jammie Thomas-Rasset and Joel Tenenbaum.

However, one case at a time, I’ve been seeing the record labels rear their ugly heads again. The record labels have now started suing John Doe Defendants in EXACTLY the same way as the copyright trolls have been for the past two years.  In a way, you could thank the porn industry for repaving the way for the music industry to prey on its fans. The record labels appear to be using the same tactics — file for early discovery against a set of IP addresses, contact and harass the John Doe Defendants en masse, and scare each one (or their parents) into settling for thousands of dollars for each download (and unlike the John Steeles of the world, the music industry has actually have brought defendants to trial, are well funded, and have achieved million-dollar verdicts).  The threat as we have heard ad nauseam is that if the accused downloader doesn’t settle the plaintiff’s claims of copyright infringement against him or her, they will “name” them as a defendant in a copyright infringement lawsuit.

One such record label troll is “Century Media Ltd.” who is suing on behalf of their “Iced Earth” band (think  Jon Schaffer and Greg Seymour) for the download of their 2011 heavy metal album “Dystopia.”  The interesting thing about the lawsuit, however, is that Century Media has retained copyright troll Jay McDaniel of the McDaniel Law Firm in New Jersey to sue defendants, and it is unclear to me why.  Jay McDaniel runs what I call a “settlement factory,” where he spends his time fighting motions to quash in court, and while not in court, he has his staff attorneys contact defendants attempting to convince them to settle.

CASES FILED BY JAY R. MCDANIEL OFMCDANIEL LAW FIRM PC IN THE DISTRICT OF NEW JERSEY:

Century Media Ltd. v. Swarm Does 1-2,192 (Case No. 2:12-cv-03867)
Century Media Ltd. v. Swarm Does 1-944 (Case No. 2:12-cv-03868)
Century Media Ltd. v. Swarm Does 1-225 (Case No. 2:12-cv-03869)
Century Media Ltd. v. Swarm Does 1-214 (Case No. 2:12-cv-03870)
Century Media Ltd. v. Swarm Does 1-77 (Case No. 2:12-cv-03911)
Century Media Ltd. v. Swarm Does 1-3,811 (Case No. 2:12-cv-03912)

I count almost 7,500 Doe Defendants in these NJ cases alone, and more are being filed as we speak. And, as far as I can see, the plaintiff attorneys are setting the subpoena deadlines far into the future, so we will not be hearing more about these until after October 1st, 2012 (this appears to be Comcast’s deadline before they hand out subscriber information for these cases).

Now while we try our best to keep a professional tone in these cases, I think the following video properly describe the mentality of those suing defendants today:

[youtube http://www.youtube.com/watch?v=_OGGtF_h0mw]

On a personal note, while I respect the interests of the artists and the musicians who deserve to have their copyrighted media sold to willing consumers and fans at reasonable prices (and it would be nice if the record labels properly compensated the artists and musicians for their work), I choose to represent the so-called “pirates” as well (many of whom have actually downloaded what they have been accused of and would happily do so again). It is my opinion as an attorney that it is a misuse of the copyright laws to sue defendants for $150,000 per title (statutory damages for willful copyright infringement) when the actual damages suffered by the record labels and the production companies are at best a small fraction of this statutory amount.

So… Has the sleeping giant woken up from its slumber?  Will we see more?  Or is Century Media Ltd. merely an overly ambitious record label who thought it would be better for business to assault its’ fans rather than to devise ethical means to convince them to buy their music album?


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Comcast Fights Prenda… Victory for its subscribers!

Congratulations to the Texas Millennium TGA, Inc. defendants who (with the assistance of their Comcast ISP) will never have their information shared with Prenda Law Inc., Doug McIntyre (Prenda’s local counsel), or Millennium TGA, Inc. Essentially, you have won your case because the copyright trolls will never know who you are (without great effort).

In short, as we discussed back in our “Forum Shopping” article on 5/16, Millennium TGA, Inc. made the mistake of suing the same “John Doe” defendants in Texas as they did two weeks before in DC. This wasn’t a mistake — the judge that was assigned to their DC case (referred to as “MILLENNIUM TGA I“) — Judge Wilkins — was known to be unfriendly to copyright trolls. As soon as Prenda Law Inc. figured this out, they dismissed MILLENNIUM TGA I, and using their local attorney Doug McIntyre in Texas, they filed “MILLENNIUM TGA II” [Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501)] here in the Southern District of Texas.  When the Texas judge gave the okay for Prenda to demand the names of the subscribers from their ISPs, Comcast recognized the similarities of the John Doe Defendants to the DC case just dismissed, and they refused to comply with the rubber stamped subpoena given to Millennium TGA, Inc. by the Texas judge. Millennium TGA, Inc. (through Prenda Law Inc., their attorneys) filed a lawsuit against Comcast in DC (MILLENNIUM TGA, INC. v. JOHN DOE (Case no. 1:12-mc-00150), also referred to as “MILLENNIUM III“) asking the court to force Comcast to comply with the Texas judge’s subpoena and hand over the names, addresses, and contact information for the subscribers implicated in the MILLENNIUM TGA II Texas case.

Then, after an adverse ruling by the DC court which [in its order by Judge Alan Kay, order now overturned] forced Comcast to comply with the subpoena, John Seiver (Comcast’s attorney) wrote an amazing appeal which resulted in the DC case being transferred back to Judge Wilkins — the enemy of the copyright trolls. We wrote about this in our “Comcast wins battle against Millennium TGA & Prenda. Subscribers lose.” article on 5/29.

Now, almost one month later, I am happy to share that Judge Wilkins issued the order we have been looking for all along. In his ruling this Monday, he DENIED Millennium TGA, Inc.’s motion to compel Comcast to comply with the subpoenas (and hand out the subscribers’ information). In other words, congratulations to the Cashman Law Firm, PLLC clients who have been entangled in this mess — your plaintiff attorneys Prenda Law Inc. and their local counsel Doug McIntyre will likely NEVER know who you are. In addition, congratulations on your victory in your Texas case, because without knowing who you are, they cannot name you as a defendant, and they cannot move forward against you. Score!

Food For Thought Moving Forward:
Okay, here is the silver lining. For those of you who do not have Comcast as your ISP, your Texas case is moving forward as usual. Similarly, for those of you who do not live in Texas, Judge Wilkins has ordered that Comcast turn over to Prenda Law Inc. ONLY the CITY AND STATE which is linked to your accused IP address. That way, if Prenda wishes to file a follow-up lawsuit against you, they can sue you in your home state’s federal court… or not. Here is my thinking.

Remember the “two-strike rule” in the Federal Rules of Civil Procedure (“FRCP”) Rule 41?? — a dismissal in the Texas court in a number of John Does’ cases would be the second dismissal [which is deemed to be “on the merits.”] This could preclude your copyright trolls from filing suit against you a THIRD time in your home state’s federal court. See DieTrollDie’s “Two Strikes and You’re “Out!” – FRCP 41 & Copyright Trolls” article, and for more discussion on the topic, see Sophisticated Jane Doe’s “A Trolling Lawsuit Ends With Style” article here.