Judge’s opinion: Mass p2p lawsuits are frivolous

Posted: October 6, 2011 by SJD in Lipscomb
Tags: , , , , , , , , ,


Federal judge
John A. Gibney

Noticeably, I’ve been busy over the last couple of weeks and did not cover many significant events in the p2p litigation world. Fortunately, other people were on top of that. DieTrollDie’s blog has covered new victories of common sense diligently, and big thanks to the author for that. In addition, he was active on my and his blog’s discussion boards answering questions and comforting victims, which is invaluable. We need more people to help bring copyright trolling plague down. I’m convinced that we together are already making a difference by bringing light of truth under the bridge, where trolls dwell and make their cowardly assaults on passers-by.

 
 

It’s worth noting that all the recent events were positive: subpoenas to quash granted, cases dismissed, etc. Half a year ago the news were mixed, but the times have changed, and the critical mass of judges now clearly see the predatory and fraudulent nature of mass p2p lawsuits.


Wayne O’Bryan

Yesterday federal judge John A. Gibney severed all defendants but one (a typical response to improper joinder) in 3 cases filed in the Eastern District of Virginia by a copyright troll Wayne O’Bryan.

  • 3:11-cv-00469-JAG K-Beech, Inc. v. John Does 1-85
  • 3:11-cv-00531-JAG Patrick Collins, Inc. v. John Does 1-58
  • 3:11-cv-00532-JAG Raw Films, Ltd. v. John Does 1-32

This kind of dismissal is not unusual nowadays, but the judge moved way further, beyond my humble hopes: he suggested that this type of lawsuit is frivolous in nature and directed the troll to show cause why his actions don’t violate Rule 11(b):

This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does. Whenever the suggestion of a ruling on the merits of the claims appears on the horizon, the plaintiffs drop the John Doe threatening to litigate the matter in order to avoid the actual cost of litigation and an actual decision on the merits.

The plaintiffs’ conduct in these cases indicates an improper purpose for the suits. In addition, the joinder of unrelated defendants does not seem to be warranted by existing law or a non-frivolous extension of existing law.

Pursuant to Rule 11(c)(3), the Court, therefore, will direct the plaintiff and its counsel to show cause why the conduct specifically described in this Memorandum Order has not violated Rule 11(b). See Fed. R. Civ. P. 11(c)(3); Fed. R. Civ. P. 11(b).

When I first became aware of these lawsuits, one of the first thoughts I had was about the frivolous nature of the lawsuit that I was involved in, but at that time I thought that it was too daring to bring up this point in my filings. I’m glad to see that my instincts were correct.

Update

12/14/11

The battle is raging on. A total of 3 attorneys appeared on the case begging the judge not to sanction O’Bryan. That’s funny: one of their main arguments is that everything Does wrote in their motions is “hearsay”. If Internet contains thousands of stories about Steele’s and other trolls’ extortion practices, this “hearsay” is more reliable than a sworn affidavit by any member of a troll’s gang.

Comments
  1. brian says:

    I so happy that the judge saw right through them because that case was stressing me out and I knew the copyright trolls only wanted money and Im not giving them anything because I have no clue what they was talking about.

  2. Pete says:

    SJD good to have you back! I enjoy reading your blog. Unfortunately, my case, Imperial Enterprises (Ken Ford/DGW) is still open in DC. But the news are encouraging! EFF also blogged about it today.

  3. DieTrollDie says:

    Yes it is good to have you back. I hope the trip was enjoyable.

    Pete – Is this the case you mentioned? Imperial Enterprises, Inc. v. Does 1-3,545 1:11-cv-00529-RBW. Thanks

    DieTrollDie :)

  4. DieTrollDie says:

    I just heard from Doe on this case. He just received the Troll letter. As the case has been open since March 2010, I suggested he file a motion to dismiss for not serving the Does within 120 days.

    DieTrollDie :)

    • Pete says:

      Thx! Also, the alleged infringement started before copyright registration. This was a West Virginia case that was already severed. I am aware of a handful of Does anxiously waiting for their letters so that they can begin their offensive. They sure picked the wrong does! The ones with deep pockets and friends in the right places.

  5. Anonymous says:

    I was one of the Does on this case, was quite nice to see that blackmail doesn’t pay anymore!

  6. TAC says:

    If not for it being very hard to coordinate from the shadows where most of us dwell, I think it would be fun to launch a kickstarter project to raise cash to hire a dream team.
    Use the law to force one of these cases into court, and open up the pandoras box that is their evidence.

    While we can file motions and get Judges educated, nothing really stings like a Judge seeing all of the holes in the “identification” methods the trolls use. If they understood even half of the problems with IP address identification alone, they would never issue another subpoena based on just the data gathered by a company who has a financial stake in the outcome.

    It would be fun to see all of the cases explode as many of them use the exact same techniques with different company names.

    But then I have always dreamed big…

    I remain…
    TAC

  7. rob8urcakes says:

    sjd finished this excellent post saying –
    “When I first became aware of these lawsuits, one of the first thoughts I had was about the frivolous nature of the lawsuit that I was involved in, but at that time I thought that it was too daring to bring up this point in my filings. I’m glad to see that my instincts were correct.”

    May I be so bold as to say your instincts were indeed 100% spot-on.
    Thank you for posting these too coz Rule 11 is soooo important in defeating these cowardly trolls and their speculative invoicing attacks on the general populace.

    It also appears that US Courts are beginning to recognise how GENUINELY unlawful this copywrong crap is in terms of harassment, lies and extortion.

    Thanks for the heads-up sjd – this is potentially GREAT news my friend.

  8. JustAnotherDoe says:

    If you think this is good, read the scathing orders, published on EFF, issued by Judge McBryde to Evan Stone a week ago!

    https://www.eff.org/files/McBrydeOrder.pdf

    The endless onslaught of orders from Judge McBryde here seems remarkably scathing. This looks to be one of the, if not ‘the’, strongest recent reversals by a judge against copyright trolls!

  9. brian says:

    it looks like the lawyer is trying to appeal judge Gibneys ruling and asking him to reconsider… he filed a motion of clarification and a emergency motion to reconsider

  10. Anonymous says:

    I received a call from a third party to collect on 3K settlement in regards to this case. I have no idea where its coming from sense I never received any word from my ISP. Until the phone call I have not received one piece of evidence that I am part of any litigation but the caller had an IP and my address ect…

    I am not sure what I need to do from here.

    • Anonymous says:

      Wait… How is a “3rd party” collecting on a settlement you did not make? Is this legal? How can they collect on a debt that does not exist? It is really weird that you never got the ISP notice either.

    • Drown The Trolls says:

      I’m in the same boat as you. I don’t know what is going on. I posted on the updated motion to squash page before I found this one. Not to pry but is/was your provider Embarq? I got a second call today but didn’t answer. If you trace the number it’s a cell phone in CA. I didn’t even know I was involved in a doe suit until they called me. I got the same offer $2900 or else. Anyone who knows what’s going on please help.

      Thanks

      • Anonymous says:

        I got phone call from Florida number asking $ 2,900 on August 2011. Resolution I blocked this number on ATT smart list. Two months after from another troll on California asked the same $2,900 negotiable to dismiss the case out of court resolution block this number from ATT smart list.

        Thanks AT&T

  11. Anonymous says:

    Read the FAQ and all the great posts on this blog. Do nothing unless you get a notice from the court. I would say to even take advantage of a free consultation with a lawyer or two, especially if you have assets(savings, house, boat). Just remember to think outside the bubble these trolls try to keep u in. Your not going through this alone and these trolls will only go away once people stop capitulating. The tides is already turning in the courts.

    • Drown The Trolls says:

      Thanks for your kind words. I’ve been reading and it seems like this form of litigation is going nowhere. I intend on consulting an attorney on Monday. I’m going to start with the one currently representing other doe defendants in the Virginia suits. I will never give in to extortion.

  12. Drown The Trolls says:

    Can anyone give me some info on these three lawsuits in Virginia.

    1. 1:11-cv-00406-GBL -TRJ Virginia Eastern District Court – Patrick Collins, Inc. v. Does 1-35

    2. 1:11-cv-00408-GBL -TRJ Virginia Eastern District Court – Patrick Collins, Inc. v. Does 1-26

    3. 1:11-cv-00407-GBL -TRJ Virginia Eastern District Court – Patrick Collins, Inc. v. Does 1-30

    All three were filed on 4/15/2011 by Charles C. Maddox of Maddox Hoppe Hoofnagle & Hafey

    District Judge Gerald Bruce Lee
    Referred To: Magistrate Judge Thomas Rawles Jones, Jr.

    Thanks

    • Anonymous says:

      It’s hard to get details on a particular case unless it’s been involved in a recently interesting and newsworthy decision or you find one of the Does. Best bet is to get a PACER account and then get Firefox and run the RECAP plugin. This extension merges the regular PACER database with the free records archive maintained by RECAP. When you access PACER with the plugin installed it modifies the pages displayed so if the document is already in RECAP’s archive you can view it for free. If the document is not in PACER, when you download it (it costs $0.08/page from PACER) the RECAP plugin will automatically upload it to their database so that you and others can view it for free in the future. It sucks that PACER charges, but for these cases the documents are not that big and if you rack up less than some minimum charge per quarter (I think it is $10.00) they’ll actually waive the fees. Chances are if you just need to follow your own case or keep tabs on a couple interesting cases you probably won’t end up having to pay. It’s also a great thing to do for the community as the more people browse PACER with RECAP the more documents become openly available and the more we all learn. I had to figure this out myself and I wish the importance of these tools was emphasized more in the various FAQs and discussions of these cases, because this is an instance where we can act out of individual motivation but also help everyone else out. If you read this SJD, an FAQ shoutout for RECAP would be a welcome addition.

      https://www.recapthelaw.org/

      http://www.pacer.gov/register.html

      You can also search the RECAP archive for cases and find documents that others have uploaded, however I *strongly* recommend going the PACER account/RECAP plugin route as I have found that the index for their web search is very out of date relative to what is available when using the plugin:

      http://archive.recapthelaw.org/

      • Thank you for reminding about this wonderful way to keep oneself informed. I agree that Pacer is great and cheap (if you stay below $20 per quater), but if you want to browse through various complaints or complex multi-page motions, your bill will be painful. I personally paid $40 recently. As of next March Pacer increases the fees – $.10 per page. I hope that by then we will have less necessity to refer to it ;)

        This information is valuable and I will copy-paste your comment to the FAQ.

  13. Anonymous says:

    There will be a hearing regarding sanctions.

    http://ia600707.us.archive.org/10/items/gov.uscourts.vaed.269663/gov.uscourts.vaed.269663.15.0.pdf

    “The Court ORDERS that a hearing will be held on Monday, October 24, 2011, at 10:00 a.m. to consider whether the plaintiff, its attorney, or both are subject to sanctions for violating Federal Rule of Civil Procedure 11, pursuant to the show cause Order entered on October 5, 2011.”

    Hope this guy is losing sleep.

    • He is. I read his urgent motion to reconsider (on DieTrollDie’s blog) and envisioned this guy sweating while writing – he is clearly scared. I feel that he made a lot of mistakes (not spelling or grammar, but tactical mistakes), but did not have time to analyze. Stating that the only reason for motions to quash is to make litigation costly was one of these bloopers. Although I see nothing wrong in wasting troll’s time (less time will he have to inflict harm to society), his statement is ridiculous: my name is about to be released in connection with a porn case, and I just play games with this scumbag? Unbelievably stupid. Hope that judge sees how he tries to grab random straws to stay afloat…

      • Anonymous says:

        The arrogance and audacity of admitting that he is taking punitive action against defendants for exercising their rights is breathtaking. The motion’s validity is to be decided by the judge, not the plaintiff. Having to possibly respond to many motions to quash is a risk that he must accept when bringing a suit against many Does, and he must accept that the Does have a right to file the motions. Really stunning, I would never have expected him to admit such contempt for the legal system in a filing, seems like he’s not thinking at all.

        • adominabull says:

          It would be funny if the judge suspend his license and make him retake ethics courses.

  14. Anonymous says:

    I can’t wait until Does start demanding their attorney’s fees reimbursed. I know I will be asking for mine!

  15. Judge Gibney finds “no sanctionable conduct” regarding joinder, but 11(b) sanctions are still looming: judge advised the disgraced attorney to hire an attorney :) Hearing on sanctions is set on 12/1/11.

    View minutes on Recap. Probably there will be an order later today.

  16. Anonymous says:

    There did not seem to be allot of information in regards to the O’bryan case this past monday. I guess he was cleared of the joinder issue but 11(b) may still hit him in december. There is another identical case •3:11-cv-00468-REP where it seems that people are currently getting the shakedown. Not sure if the judge has looked at information from the cases that Gibney is working on.

  17. yes im a doe says:

    I just really wanna know can he still u sue us or not ?

  18. Anonymous says:

    I believe he will drop users from the case but he can still sue them individually. However, this does not seem to be the course they take unless Does have admitted guilt or done some other form of self incrimination. They are suing thousands of individuals at the same time. Its damn near impossible to litigate all the cases individually.

    There goal is to use fear to get people to settle. I would not be surprised if they use un-related file sharing to gather IPs and shake down Does. Think about it.. its like playing odds at a casino. Your odds are probably good if you can come out of nowhere and scare the crap out of some one who may have downloaded a few files in the past and be un-aware of the scheme that these guys are doing. Ruined for life or pay a fee and get out of the hot water.. On top of that they are using porn because it is very likely that even innocent people would fear the possibility of being named in a case associated with such material.

  19. Ian Titley says:

    If you are a Doe in the Raw Films case you may want to ask an attorney about whether copyright statutory damages apply to you. In the US statutory damages are only available for works that were registered BEFORE the infringement occurred. In the Raw Films case the Plaintiff acknowledges that this film has not been registered.

  20. Just Another Doe says:

    First off, I need to shout out to DTD for the Declaration to Refute the Motion for Reconsideration. Thank you kind Sir. I’m writing with a question on behalf of the hundred or so Does he assisted: The memorandum dated Oct 5 from Judge Gibney states: “Within thirty (30) days from the entry
    of this Memorandum Order, the plaintiff may file individual complaints against those Doe defendants whom it wishes to proceed.” Am I to take this to mean any individual motion against any Doe would have had to happen prior to COB Nov 4th? Can Does 2-85, 2-58, and 2-30 breath easier knowing they cannot be pursued individually? (Question for any of the Lawyers I see following this blog)

    • DieTrollDie says:

      For those Does under the Judges order, individual cases should have been filed by now. Check PACER to see if any individual cases have been filed in the court. If not, the Does associated with these cases should be clear. MAKE SURE the order covers you. Don’t assume! Call the court clerk and ask. I would also keep a copy of the order on hand just in case the Troll decides to later file (in this jurisdiction or another). If they do this, I would file a motion to dismiss based on the Troll’s failure to follow the court order. I would also file a complaint with the ethics board.

      DieTrollDie :)

  21. Just Another Doe says:

    I’ve read the transcript. There is NOTHING for any Does to redact. Everything in the transcript is already common knowledge: It is alleged the plaintiff to be using court improperly. It is the right of the defendant to defend himself. The method of implementing the “scheme” are talked about. Judge Gibney ordered the plaintiff to find new counsel. I don’t want to share much more than that as it’s taking food off the Court Reporter’s table, until it becomes a public document in February.

  22. A total of 3(!) attorneys from the law firm DurretteCrumb appeared on the case as counsels for Patric Collins.

    • Wyatt B. Durrette, Jr.
    • Buckley Warden
    • Christine A. Williams

    I’m not sure that these are the defendants that judge Gibley ordered O’Brian to hire as all three specified “Patric Collins” as their client, not O’Brian.

    Today is December 1st, and hearing originally scheduled for today is moved to December 20. Mark your calendars. I hope that O’Brian will have a nice Christmas gift of a sanction.

  23. Anonymous says:

    maybe a letter to the court might be in order!

  24. yes im a doe says:

    It looks like he didnt get sanction…. lucky him

  25. […] also quotes Judge Gibney is finding that the usual troll lawsuit is nothing more than a shakedown […]

  26. […] to show cause why Kotzker shouldn’t be sanctioned, and I hope that this judge won’t back out as Judge Gibney did. View this document on […]

  27. […] representation before: for example, in K-Beech v. John Does 1-85 (11-cv-00469), when Judge Gibney threatened a minor greedy troll Wayne O’Brian with Chapter 11 […]

  28. […] previous crusade to Virginia: it did not end very well. Lipscomb’s local, Wayne O’Bryan, was scolded by Judge Gibney, who smelled the air of extortion in mass bittorent lawsuits. After more than two and a half years, […]

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