Fight Copyright Trolls

I have added a new page dedicated to a case filed in Pennsylvania’s local court — Liberty Media v. John Does 1-441. Raul wrote a nice overview of this case, which is duplicated below for casual surfers, those who don’t want to dive to the depths of this site. I only want to add a few points:

• This case was filed by an otherwise reputable (although undeniably snobby) relatively young attorney, Jordan Rushie of Mulvihill & Rushie LLC. Since this case’s plaintiff is a gay pornography purveyor Liberty Media, even a moron in a hurry understands that Rushie is only a puppet, and Marc Randazza is the one who pulls the strings. Randazza is infamous for shaking down Liberty’s current and potential customers. Sure, this strategy brings some short-term cash to benefit a few, but extorting business’ targeted audience is an assisted suicide in the long run. I’m not even talking about ruined careers, families and lives. Marc Randazza surely learned how to count to One, and he became quite known as a First Amendment attorney. The problem is that his hubris prevented him from mastering bigger numbers, Eight in particular.
• The entire business model of copyright trolls was never based on the law, it was always based on loopholes in the law, and this case is not an exception. By abusing local rules and misleading the court, Randazza and his devotees have finally stooped to the low area previously occupied only by such scum as Prenda Law. In the past Randazza and his admireres mocked John “Buffy” Steele and claimed that Liberty’s strategy of going after infringers is ethical: today I would like to hear any convincing argument why this lawsuit occupies a higher ground than Florida’s “Pure Law of Discovery” fishing expeditions run by con artists John Steele and Keith Lipscomb.

To avoid duplication, please discuss this case in the comment section of the cases’s page, not below.

Case overview

By Raul, copied from the page dedicated to this case

All warfare is based on deception.
— Sun Tzu, The Art of War

Such is the lawsuit entitled Liberty Media Holdings, LLC v. John Does 1-441; a deception being practiced upon the Philadelphia Court of Common Pleas in which the plaintiff is seeking pre-complaint discovery of the personal identifying information of 441 Comcast subscribers. Plaintiff has claimed that it needs this discovery in accordance with Pa. R. Civ. Procedure 4003.8  (writ of summons) so as to bring a future complaint for unjust enrichment and conversion against these individuals based upon their alleged pirating of plaintiff’s unspecified adult content during the period of 10/30/2011 through 2/2/2012.

Jordan Rushie

On 3/18/2012 Judge Allan L. Tereshko granted the plaintiff pre-complaint discovery by means of a subpoena on Comcast. Subsequently on 6/11/2012 Comcast filed a motion to quash the subpoena and a motion for a protective order which was denied on 7/13/2012. Plaintiff filed a petition on 7/20/2012 to hold Comcast in contempt of court for failing to produce the pre-complaint discovery which has yet to be decided. Comcast made a motion for reconsideration of the judge’s denial on 7/23/12 which the judge also denied on 7/31/12. Undeterred Comcast filed a motion for permission to take an interlocutory appeal of the judge’s denial of their motions to the Superior Court on 8/1/2012. One of the John Does filed a motion to quash the Comcast subpoena on 8/3/12 which is pending.

Does wishing to fight this lawsuit should look at some of its obvious problems:

• Lack of subject matter jurisdiction: A future state lawsuit for unjust enrichment and conversion is preempted by the federal Copyright Act.
• Lack of personal jurisdiction: TAC has pointed out that the large majority of the IP addresses are located outside of Pennsylvania and the individuals linked to those addresses may be outside of the court’s jurisdiction (long-arm statute).
• Improper joinder
• Damages: Unlike a copyright infringement lawsuit, there are no statutory damages for unjust enrichment or conversion. In all likelihood plaintiff’s damages would equal a lost sale (i.e. purchase price of the adult content). Plaintiff has admitted this in its motion to take pre-complaint discovery (unjust enrichment = “…film’s sale’s price, which is normally paid by law-abiding customers”). So assuming the high end of a retail sale for plaintiff’s content; $60 per film downloaded as damages.
• The best grounds for a motion to quash comes from the standard for pre-complaint discovery: “Under no circumstance should a plaintiff be allowed to embark upon a “fishing expedition,” or otherwise rely on an amorphous discovery process to detect a cause of action he lacks probable cause to anticipate prior to the pre-complaint discovery process under this standard.” He said that he couldn’t find any previous case where pre-complaint discovery was used to obtain the identity of a John Doe, let alone 400 of them, which made this a fishing expedition. (This is a lawyer’s opinion: thanks to anonymous commenter for this update.)