New York judge blasts trolls’ practices, recommends banning mass bittorent lawsuits in the district

Posted: May 2, 2012 by Raul in Lipscomb, XArt
Tags: , , , , , , , , , , ,

By Raul and SJD

Yesterday Magistrate Judge Gary R. Brown submitted an Order & Report & Recommendation (ORR) in the United States District Court for the Eastern District of New York involving four lawsuits, all of them related to the “blizzard of civil actions brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent.” A lawsuit on behalf of a pornographer K-Beech had been brought by Frederic Abramson, and Aaron Kotzker had filed the other three lawsuits on behalf of Malibu Media. The judge decides to recommend that K-Beech’s third part subpoenas be quashed, severs all Does from the remaining lawsuits with the exception of Doe 1 and prohibits the troll from obtaining Doe 1’s telephone number and email address. In arriving at this conclusion the judge makes the following factual determinations:

The factual defenses presented are vastly different and highly individualized. One movant — John Doe #16 — has stated that he was at work at the time of the alleged download. John Doe #2 states under oath that he closed the subject Earthlink account, which had been compromised by a hacker, before the alleged download. K-Beech, Decl. of John Doe #2, ¶5, DE [34-1]. John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins. DE [13]. John Doe #10 represents that downloading a copy of this film is contrary to her “religious, moral, ethical and personal views.” Mtn ¶5, DE [7]. Equally important, she notes that her wireless router was not secured and she lives near a municipal parking lot, thus providing access to countless neighbors and passersby.

[...]

[I]t is no more likely that the subscriber to an IP address carried out a particular computer function — here the purported illegal downloading of a single pornographic film — than to say an individual who pays the telephone bill made a specific telephone call.

The judge even points to troll Meier’s admission that there is a 30% rate of false positives in these lawsuits.

[M]ost, if not all, of the IP addresses will actually reflect a wireless router or other networking device, meaning that while the ISPs will provide the name of its subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper.

Next the judge takes exception with the trolls’ “improper litigation tactics” citing this statement from a sworn Doe statement as but one example:

Upon receipt of the Complaint, I reached out to Plaintiff and spoke to a self-described “Negotiator” in an effort to see if I could prove to them (without the need for publicly tying my name to the Complaint) that I had nothing to do with the alleged copyright infringements. The Negotiator was offered unfettered access to my computer, my employment records, and any other discovery they may need to show that I was not the culpable party. Instead, the Negotiator refused and was only willing to settle the Complaint for thousands of dollars. While the Negotiator said on October 24, 2011 that he would check to see if he could come down from the thousands of dollar settlement amount, the Negotiator has not responded to two voice mails that were left on October 25, 2011. Notably, the Negotiator justified the settlement amount because, in part, I would incur legal fees in hiring an attorney.

He also quotes Judge Gibney, who found that the usual troll lawsuit is nothing more than a shakedown racket.

Having made these factual findings, Judge Brown next makes the following determinations of law:

  1. K-Beech does not have a valid copyright registration, and its trademark infringement claim is idiotic (actually the judge decides that it fails to state a claim). Likewise the possible negligence claim is disposed of in footnote 1 as nonsense.
  2. That the trolls do not need the telephone numbers and email addresses of the Does to proceed with their lawsuits (they are only needed to further abusive settlement strategies).
  3. That the Does have an expectation of privacy in their internet activities.
  4. That the “most persuasive argument against permitting plaintiffs to proceed with early discovery arises from the clear indicia, both in this case and in related matters, that plaintiffs have employed abusive litigations tactics to extract settlements from John Doe defendants. Indeed, this may be the principal purpose of these actions, and these tactics distinguish these plaintiffs from other copyright holders with whom they repeatedly compare themselves.” Further “[t]he Federal Rules direct the Court to deny discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). This situation cries out for such relief”
  5. Permissive joinder is inappropriate for a host of reasons including that swarm joinder complicates the lawsuit and results in a waste of judicial resources.
  6. That “[i]n the four cases before this Court, plaintiffs have improperly avoided more than $25,000 in filing fees by employing its swarm joinder theory. Considering all the cases filed by just these three plaintiffs in this district, more than $100,000 in filing fees have been evaded. If the reported estimates that hundreds of thousands of such defendants have been sued nationwide, plaintiffs in similar actions may be evading millions of dollars in filing fees annually. Nationwide, these plaintiffs have availed themselves of the resources of the court system on a scale rarely seen. It seems improper that they should profit without paying statutorily required fees.”

Even the footnotes in the ORR are a delight to read. An example is footnote 7 which reads:

Plaintiff K-Beech’s rambling motion papers often lapse into the farcical. In its papers, counsel for K-Beech equate its difficulties with alleged piracy of its adult films with those faced by the producers of the Harry Potter books, Beatles songs and Microsoft software, and compare its efforts to collect from alleged infringers of its rights to the efforts of the FBI to combat child pornography. Mem. in Opp. at 4, 10, DE [22]. In an ironic turn, the purveyors of such works as Gang Bang Virgins, explain how its efforts in this matter will help empower parents to prevent minors from watching “movies that are not age appropriate” by ensuring that viewers must pay for plaintiffs products, and thereby effectively notify parents of such activity because “many parents would surely notice if they showed up on billing statements.” Id. at 7-8. It is difficult to accord the plaintiff, which features “Teen” pornography on its website, the moral high-ground in this regard.

No doubt this is another super-milestone (the previous excellent ruling came from California a month ago), another nail in the coffin of the legal plague of copyright trolling. The order lists all the injustices and sleazy practices employed by the trolls. I have a feeling that we are not far away from hearing judges call trolls’ practices by their actual names: extortion, blackmail, and racket and recommend Attorneys General to investigate the scammers. This order means that trolls are not welcome in the Eastern district of New York anymore, but of course it will impact court decisions country-wide, and I foresee that more and more districts will follow EDNY’s steps pretty soon.

Judge Brown concludes his excellent analysis (emphasis is mine):

For all of the reasons set forth herein, it is respectfully recommended as follows:

1. That the complaints in Malibu 26, Malibu 11 and Patrick Collins be dismissed, sua sponte and without prejudice, as to all defendants other than the individual designated as John Doe 1 in each action;

2. That the complaint in K-Beech be dismissed, sua sponte and without prejudice, in its entirety; and

3. That plaintiffs and their counsel in all four actions be directed that any future actions of a similar nature in this district be filed as separate actions as against each John Doe defendant, so as to avoid unfair outcomes, improper joinder and waste of judicial resources, and to ensure the proper payment of filing fees. See, e.g., DIRECTV, Inc. v. Armellino, 216 F.R.D. 240, 241 (E.D.N.Y. 2003) (Spatt, J.) (“plaintiff is advised that all future claims of this nature must be instituted separately against individual defendants”), (citing CSC Holdings Inc. v. Tack, CV 00–3555 (E.D.N.Y. June 16, 2000) (Seybert, J.)).

I’m humbled by judge’s fairness and ability to listen to the public: I wish more judges look outside the sophistry of courtrooms and rule based on the common sense and the spirit, not solely the letter, of the Law.

Interestingly, I have a strong suspicion that judge stumbled upon this blog: he mentions the Kevin Beechum involvement in criminal activity, which has not been widely publicized. I mentioned this fact in my post about Frederic Abramson, one of the trolls being lashed by the judge.
Media coverage

Bold: an article links back to this post (It’s fine not to or link to or mention this site: spreading the news is by far more important. Nonetheless, it’s always appreciated and makes us happy.)

Also, don’t miss this amazing video!

Comments
  1. Anonymous says:

    Superbly researched and well written recommendation. This ruling should be sent to the judges in all the pending actions so that the judges are aware of all the facets of trolling.

  2. JohnDoevHDP says:

    Great news for the Does involved in those cases and, hopefully, this will help influence courts in other jurisdictions.

    And footnote 7 is fantastic.

    • Raul says:

      It the most sarcastic footnote for sure but footnote 1 was almost selected: “While Plaintiffs claim that they can amend their complaints to allege negligence against the owner of a WiFi router who failed to password-protect the device which was then used by an intruder to infringe its copyright, see K-Beech Case 2:11-cv-03995-DRH-GRB Mem. in Opp. at 24, DE [10], this assertion flies in the face of common sense”. Which is just another way of saying such a claim is nonsense.

  3. Erika says:

    Bravo! I wish the Attorney General would get involved!

  4. Anona says:

    Excellent…wishful thinking, but Beryl Howell should read this; it might change her perspective. But then again, it might not – hard to see past RIAA (funded) blinders :D

    • Anonymous says:

      lol this ruling reads like a list of arguments that have been made on this site verbatim. i am sure someone either the judge or one of his clerks saw this site b4 this wonderful document was penned. i am tempted to post it on gfy’s forums but i don’t want to sound like steev-o jones.

      • Fighter of Copyright Trolls says:

        Considering the Judge checked K-Beech’s website to find that it features “teen” pornography (see fn.7), there is no doubt that he also checked out this website. This is especially true considering the fact that John Doe #16 referenced it in a footnote his/her motion papers as additional evidence of how these lawsuits are an abuse of the legal system.

    • BraindeadBeryl says:

      Best of luck with that. She has her thoughts Gang Banged by the monies she can make remaining a shill, no matter what the evidence and circumstances. I don’t know where or who to complain to about her. Maybe someone can send her all this information, I bet she will wipe her ass with it after she is done reading it.
      I am worried that she might undo all the progress that is being all over the country by some silly ruling that trolls twist.

  5. that anonymous coward says:

    And in closing I’d like to say NEENER NEENER NEENER to K-Beech.
    That’s really how it should have ended :)

    Funny how all of the points that have been made in forums, blogs, etc… are finally being remembered by Judges. Hopefully as goes NY so goes the nation.

  6. anonymous says:

    Just great now the trolls may have to get real jobs and possible find a business model that if more financially viable. Don’t know which is scarier, what they are doing now or the thought of their ilk performing a function that it supposed to actually contribute to society.

  7. [...] New York judge blasts trolls’ practices, recommends banning mass bittorent lawsuits in the distric… (fightcopyrighttrolls.com) [...]

  8. Anonymous says:

    Like a good novel, I couldn’t put this down and hated for it to end. Great, great news. During the last couple of months that I’ve been educating myself, I’ve not seen anything regarding why the Plaintifs can’t safeguard their own “highly regarded and copyrightable” material. In Judge Browns ruling, footnote 3, it states:

    “While Plaintiffs claim that they can amend their complaints to allege negligence against the owner of a WiFi router who failed to password-protect the device which was then used by an intruder to infringe its copyright, see K-Beech”

    So, if I don’t protect my router, I’m liable. Even if I protect it with a password and somebody hacks into it, I’m still liable (according to the plaintifs). However, if they don’t protect their “movies” from being copied, why aren’t they responsible for their own negligence? And, if they do have some sort of password protection from their “movie” from being copied (or hacked), then why aren’t they negligent for not doing a better job of protecting it? If I’m not mistaken, their ARE copy protection schemes for movies. If those protection schemes aren’t strong enough to protect against hackers (like they claim routers are not protected enough from hackers), then maybe it’s THEIR fault that these movies are hacked. Something to think about.

    • Interesting thought. I’m not sure it’s applicable to bittorent cases as shared moves are in most cases already cracked (i.e. DVD protection hacked, which is a no-brainer), but it’s a food for the thought regarding Lightspeed: if Prenda brings up negligence argument in some cases, defendants can call the kettle back and reverse apply this claim to Lightspeed: isn’t it negligence not to install protection software and allow known compromised passwords to be used over and over again to access their masterpieces?

      • Raul says:

        Lightspeed has many problems when it comes to damages. One of them is that our legal system requires you to mitigate your damages which means that once you notice you are being damaged you have to take steps to prevent more damage and if you do not, you cannot recover those damages which could have been avoided. In this lawsuit, Steve Jones freely admits that he monitored hacked passwords to his website for one year and that he did nothing to stem the access other then harvest IP addresses. In other words, he failed to mitigate his damages. A decent attorney could crush this lawsuit on this issue alone unless his client was the first one to hack the websites that Steve noticed. This lawsuit has so many problems that I am frankly surprised by the attorney who are touting it as the best thing since Tawnee Stone.

      • Anonymous says:

        I just thought it was interesting how they believe it’s the IPS subscriber who’s responsible for everything that happens with their router (“yes Mr. homeowner, you ARE going to jail because the robber broke into your house, stole your gun and used it to rob the bank”). Yet, they can spend $250K for software that locates alleged infringers, but, they can’t use that money to figure out a better way to copy protect their “valued” material? Of course, we all know the answer – they don’t want to… it would ruin their business model if they figured out a way to keep their material from being copied.

      • D'oh! says:

        I’ve wondered about the possibility of IP providers being negligent. I’ve considered giving my IP provider a call to tell them if I get brought into court they can expect to be there with me. Why wouldn’t I counter-sue the company that GAVE me defective merchandise with no clear warning or instruction on how to properly secure it?

        • Anonymous says:

          This falls in line with some of the counter claims that have been filed where they ask for evidence of any DMCA takedown notices being sent out. The trolls sit for months gathering IPs from a swarm. Have they taken any action to try to stop it?

  9. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  10. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  11. anonymous says:

    Yeah the software is a joke. If they paid $250k for it I have a bridge to sell them. The functionality to log web clients and the pages they visit is built-in to every web server. Even basic $25 hosted plans include Geo-location services which they either intentionally left out of the software or left out of the initial complaint (which would be damaging for them to come up during discovery). As far as I know the software has no industry certifications and is not being used by banks or other high security firms for a reason. It’s a guy parsing web logs and database accesses and exporting them to Excel.

    If there concern was truly to protect their investments the money would have been better spent on the commercial software (as mentioned in the adult forums) to prevent the breach in the first place.

    As Raul said there is some responsibility to mitigate their own damages…..If I pay to have a new roof put on my house and watch it leak for 10 years without saying anything to the contractor, it is hard to go after them for the cost of replacing all the carpet and furniture 20 times. But WE all know the reality behind these lawsuits. They are stuck in the 90s trying to sell something that is low quality and freely available elsewhere therefore no one is buying so this IS the only source of revenue.

    On the flip side attorneys that are of low reputation and can’t get legitimate work can hire some schmuck to call and harass people and never have to litigate anything beyond attaching an excel spreadsheet to their cookie cutter lawsuit.

    Just my two cents ( and no John you cannot have that two cents…get a job)

  12. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  13. [...] lawsuit’s targets included–and I quote verbatim from Judge Brown’s ruling–”an octogenarian with neither the wherewithal nor the interest in using BitTorrent to [...]

  14. [...] Fight Copyright Trolls] Related Items Copyright file sharing Piracy Pornography About Shaylin Clark Shaylin Clark [...]

  15. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  16. [...] lawsuit’s targets included–and I quote verbatim from Judge Brown’s ruling–”an octogenarian with neither the wherewithal nor the interest in using BitTorrent to [...]

  17. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  18. [...] by Fight Copyright Trolls, a legal news and opinion blog that follows Internet copyright issues Judge Brown wrote that accusing someone of stealing copyrighted material purely on the basis of an I… Brown noted that it “is no more likely that the subscriber to an IP address carried out a [...]

  19. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  20. [...] de recursos judiciales.” Por una variedad de razones, le recomienda a otros jueces que rechacen en el futuro casos [...]

  21. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  22. Raul says:

    A Fairy Tale (Not At All True)

    Once upon a time in the land of Malice there lived an evil old King by the name of Guardaley who ruled over a kingdom of evil Trolls and innocent unicorns called “Does”. One day Guardaley was getting drunk with his court Troll jesters, Frederick and Jason, and said “You know what? I have need to find some cash to construct my 60th castle and stuff my face with more food and wine. Can I screw the Does out of some more monies?” The jesters replied “Sire, the Does hate you so much you would have to find a new way to blackmail them into paying up”. Troubled by this news the evil old King considered summoning his other court jesters, Buffy & Duffy, but remembered that they had already passed out over a hearty brew called “Neverserve”. Slightly sobered by this realization the evil old King summoned his venerable evil wizard, Lipscomb. Once summoned the King roared “I need to squeeze the Does, again!” Lipscomb replied “But Sire we have used almost every spell of enchantment in my book of spells. In fact I no longer have the ingredients for “Fear” , “Uncertainty” or “Despair” having exhausted those resources months ago”. In reply the evil King said “Consult with those two drunken jesters in the corner and devise a plan!”.

    So over many gallons of a sweet mead called “Purebullshit” the evil wizard and the Troll jesters came up with some new magical spells called “Trademark Infringement”, “Negligence” and “Proper Joinder”

    After trying to cast their new spells on the Does, Good Wizard Auburn came screaming out of the clouds and cast his special spell, “WTF”, and the evil King, his evil wizard and court jesters turned into shit for the Does to see, smell and laugh at.

    The End

    • Troll Hunter says:

      Amen!

      After months of wondering when a judge would finally sign something of this magnitude (could have been Judge Marc Schumacher in FL if he wasn’t a dumbass that just signed motions without reading them). I imagine every MTQ from here on out will be referencing this document. In fact, haven’t MTQ’s just gotten easier to write…

      “Your honor, I request to quash this due to the fact that it is (A). Bullshit and (B). A judge who is obviously smarter than you figured it out in NY and severed all Does but number 1 due to…well why don’t you just educate yourself and read the 26 pages. Even non-lawyer types like me “get it”. It will save myself and 999 other people that I don’t know a crapload of wasted time and energy (something you could have helped us avoid if you spent 5 minutes on the internet researching…oh, and FIRE YOUR CLERK!!! Or get one!!!). If you don’t want to read it, I’ll send you another MTQ that contains 26 pages for you to read which will be fairly similar to what the good judge in NY had to say and you will feel dumber for not having read it in the first place.”

      Put that on a form letter, print out 1000 copies, sign them as Doe 1, Doe 2, Doe 3, etc and mail them all in a box (via some other city for anonymity of course). Hell, find a lawyer to file them and watch the trolls run. Would love to see 1000 MTQ’s roll in at once. There should be a website you can log in to and just check a box saying “I’d like to file a MTQ” then “please select the following reasons why: impromper joinder, lack of jurisdiction, I didn’t do it, this is blackmail, other” and presto…a Green solution to the issue. If google only ran the IT side of the courts. Hell, there would be an app for this!

      How ANY clerk these days does not know about these cases and protect their judges by sending them, oh I don’t know, a link to this site, is ludicrous. Someone should call FOX news and break this with Bill O’Reilly. Would love to see a troll on his show get his shorts eaten and exposed for the frauds they are (like Hannity did to the Occupy Wall Street douche-bag tonight). LOTS of judges would be dismissing cases overnight in order to save their careers come election time.

  23. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  24. [...] by Fight Copyright Trolls, a legal news and opinion blog that follows Internet copyright issues Judge Brown wrote that accusing someone of stealing copyrighted material purely on the basis of an I… Brown noted that it “is no more likely that the subscriber to an IP address carried out a [...]

  25. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  26. Anonymous says:

  27. CTVic says:

    What was that bang? Nope … wasn’t a Gang Bang. It was the snapping sound of the main mast of the SS Copyright Troll! The ship’s taking on water! It’s obvious to anybody who looks that it’s going down!

    Now’s the time to be most careful! This is when the true pirates (the lawyers of the SS Copyright Troll) will be the most vicious and hateful, trying to scrabble together all that they can before they lose their vehicle. This is also the time to work the hardest to chain these bastards to their ship, so that when it finally *does* sink, it takes them down with it.

  28. Raul says:

    http://securitywatch.pcmag.com/security/297475-ip-address-not-a-person-judge-says-in-copyright-lawsuit

    Don’t get excited by Mr. Rashid’s reference to the Illinois decision, it is a 2011 determination but a nice read nonetheless.

  29. [...] comments sophisticatedjanedoe on New York judge blasts trolls’ practices, recommends banning mass bittorent lawsuits in the di…Anonymous on Lightspeed password hacking casesRaul on New York judge blasts trolls’ [...]

  30. Anonymous says:

    i submitted this page to npr, hopefully they will pick up this story. :-)

  31. [...] film is tenuous, and one that has grown more so over time,” Brown wrote in his ruling, first noted by the Fight Copyright Trolls blog. “An IP address provides only the location at which one of any number of computer devices may [...]

  32. [...] by Fight Copyright Trolls, a legal news and opinion blog that follows Internet copyright issues Judge Brown wrote that accusing someone of stealing copyrighted material purely on the basis of an I… Brown noted that it “is no more likely that the subscriber to an IP address carried out a [...]

  33. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  34. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  35. [...] is tenuous, and one that has grown more so over time, » Brown wrote in his ruling, first noted by the Fight Copyright Trolls blog. « An IP address provides only the location at which one of any number of computer [...]

  36. [...] film is tenuous, and one that has grown more so over time,” Brown wrote in his ruling, first noted by the Fight Copyright Trolls blog. “An IP address provides only the location at which one of any number of computer devices may [...]

  37. CTVic says:

    Every time I read this document, it gets better. I just read through it a third time, paying close attention to all of the footnotes and read the Judge’s playback of the Life of Kevin Beechum. Honestly … can a smackdown be any more complete?

    I want somebody to copyright this court document, so that it can be put on BitTorrent and downloaded illegally before I make sweet sweet love to it.

  38. [...] film is tenuous, and one that has grown more so over time,” Brown wrote in his ruling, first noted by the Fight Copyright Trolls blog. “An IP address provides only the location at which one of any number of computer devices may [...]

  39. [...] ruling in an increasingly long line comes out of the Eastern District of NY, where judge Gary Brown issued a nice smackdown on copyright trolls. The judge first notes the ridiculousness of relying on IP addresses to identify the individuals, [...]

  40. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  41. [...] tenuous, and one that has grown some-more so over time,” Brown wrote in his ruling, initial noted by a Fight Copyright Trolls blog. “An IP residence provides usually a plcae during that one of any series of mechanism [...]

  42. [...] film is tenuous, and one that has grown more so over time,” Brown wrote in his ruling, first noted by the Fight Copyright Trolls blog. “An IP address provides only the location at which one of any number of computer devices may [...]

  43. [...] ruling in an increasingly long line comes out of the Eastern District of NY, where judge Gary Brown issued a nice smackdown on copyright trolls. The judge first notes the ridiculousness of relying on IP addresses to identify the individuals, [...]

  44. [...] ruling in an increasingly long line comes out of the Eastern District of NY, where judge Gary Brown issued a nice smackdown on copyright trolls. The judge first notes the ridiculousness of relying on IP addresses to identify the individuals, [...]

  45. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

  46. [...] a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the [...]

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