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.
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[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:
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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.
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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:
- 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.
- 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).
- That the Does have an expectation of privacy in their internet activities.
- 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”
- Permissive joinder is inappropriate for a host of reasons including that swarm joinder complicates the lawsuit and results in a waste of judicial resources.
- 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!
