Hard Drive Productions v. John Does 1-1,495 (DCD 11-cv-01741) is over. It was voluntarily dismissed without prejudice on 12/21/2012 (de facto — with prejudice: I will explain below why).
The early phase (Judge removal)
This case has a long and controversial history that was a subject of many posts on this and other blogs. Almost a year ago, I tried to recap what was going on with this lawsuit:
2011-11-02. Judge Bates, reading numerous motions to quash the subpoena, seemingly smells the stink this lawsuit exudes and stays the subpoena. One of the predatory features of copyright trolling cases is a Catch-22 situation: court rules require signing motions, i.e. revealing defendants’ names, while the very purpose of such motions is to prevent releasing the names. Judge Bates tries to solve this puzzle and orders Does to file motions under seal; he promises not to reveal movants’ names even if their motions would be eventually denied. This order filled every putative defendant with hope, and an avalanche of motions ensued.
2011-11-16. The case was reassigned to magistrate judge John M. Facciola, and this event raised some brows and created huge discomfort. Rob Cashman wrote a post about it suggesting political games — that judge Bates was removed against his will rather than voluntary referred the case to Facciola.
2011-12-21. Judge Facciola betrays Does’ hopes and issues an order that undoes Bates’ promise. According to this order, no one is allowed to file either anonymously or under seal. All the previously filed and sealed motions would be either unsealed or withdrawn.
The worst part of this order is the fact that the motions would be unsealed by default, if a filer does not request withdrawal. Although ISPs were tasked with notifying all the Does, it is not enough: it is not implausible that some Doe would miss this order, and as such would be betrayed by the court. Unfortunately situation like this is not hypothetical: I witnessed a defendant indeed miss that order and panicked a day before the deadline.
This order was negatively accepted by many IP law experts: for example, read an Elliott Alderman’s guest post on the Eric Goldman’s blog.
Read the entire post for other developments.
Many things happened since then, and I’m not going to list them all: too much work. Nonetheless, if you feel that I missed something important, feel free to suggest (or, better, to write) a chapter.
Judge Facciola awakes from hiatus
Magistrate Judge John M. Facciola
This case was mostly dormant from January to August: Judge Facciola did not issue a single order until 8/13/2012. On this day, he woke up from his hiatus and issued his Memorandum and Opinion, essentially reiterating Judge Beryl Howell’s pro-troll position, including an opinion that considering jurisdiction question was premature. Troll’s extortion vehicle was given a green light, and this vehicle started moving a month later, when Judge Bates returned to the case that he previously “outsourced” to Facciola, and surprisingly put his courage in reverse, allowing ISPs to supply subscriber information to the trolls.
The order that followed denied all the eight pending motions to vacate, quash, sever etc.
On 8/20/2012 EFF (Mitch Stoltz), noting that Facciola is awake, reminded the judge that EFF had asked for permission to submit its amicus curiae brief half a year before, and it was time to consider looking at it (“ripe for decision”).
Judge Bates’s betrayal
From Rob Cashman’s 09/27/2012 article:
As of yesterday, Judge Bates caved in and wrote a scathing order describing in detail how and why Hard Drive Productions, Inc. should be allowed to force the ISPs to hand over the subscriber information for the John Does implicated in this case. In addition, siding with Judge Facciola and Judge Beryl Howell, Judge Bates agreed that internet subscribers have no expectation of privacy for the account information they provide to their ISP.
On the same day, Bates granted EFF’s motion for leave to file amicus curiae brief but denied the very essence of the brief — the request for emergency stay and reconsideration of earlier Facciola’s order.
In the same order, Bates unsealed 16 motions he had promised to keep under seal, loudly announcing that his word was worth exactly half penny from that moment on.
The scam artists filed a motion to strike EFF’s brief on 09/28/2012, basically providing no sane arguments — simply reiterating the same insults to EFF that were spitted in their earlier opposition. This motion was simply ignored.
Do I make my decisions by throwing a coin? Not your business: I am the judge!
On 10/31/2012 a brave defendant filed a letter to the court noting that Facciola issued two 180 degree opposite orders in the cases that were nearly carbon copies of each other. It is notable that this letter was filed at all, but it does not matter: Facciola decided not to answer. Rob Cashman wrote a post about it: Judge Facciola issues a F’You order to one of the defendants.
Disobeyed my order? Not a big deal: try again!
Just before this case was dismissed, on 12/18/2012, Facciola issued an interesting order. He learned that his December 21, 2011 order, directing Plaintiff to notify ISPs about one of his decisions, was blatantly disregarded. His reaction? Sanctions? Order to show cause? Wishful thinking! Instead, he basically told the trolls: “Guys, you disobeyed my order, why won’t you try again? I give you another month.”
Regarding individuals settling on this case
According to the case docket, some (I counted 28) Does were dismissed with prejudice at various times, including very recent occasions (which indicates that they settled). Although the overall number of dismissals is exceptionally low (good news), every time I saw a recent notice, my heart was bleeding: how is it possible for an intelligent person to settle on an out-of-state HDP case, given that an hour of Internet research would have convinced him not to? It is beyond my understanding. There was no way the plaintiff, Hard Drive Productions, would proceed with this lawsuit or file new ones in proper jurisdictions, since it was severely damaged by two counter actions and has been investigated for recruiting underage porn models.
Yet it is a number game: the IQ distribution is normal and the number of defendants (1,495) is big enough. If I insulted someone who had genuine reasons to settle (e.g., a schoolteacher risking to lose her employment), I do apologize, but it is apparent that the majority settled out of intellectual laziness and cowardice. Sorry for being so rude, but I am not angry with them, but rather sad.
Apparent political games in the DC court district resulted in betrayal of hopes that Prenda’s victims had a year ago. In my humble opinion, the mockery of justice that has been taking place in courts is unspeakably more harmful to the society than all the copyright infringements combined. For the sake of the argument, let’s assume that these lawsuits are about solving the infringement problem, not about exploring the law loopholes in order to monetize people’s fears and weaknesses. Even if what trolls say to judges is true, there are alternative solutions to the problem — business solutions, the only viable ones, the only ones that do not trump people’s rights and dignity. On the other hand, when people lose faith in justice, society begins to rot. Not that we live in an ideal society: a lot of unfairness happens on many levels, yet the majority of population genuinely respects judges and does not consider the judicial branch hopelessly corrupt. Yet if one looks closer at some of many DC trolling cases, it is apparent that heavy and shameless lobbying¹ resulted in some judges forgetting about objectivity and fairness and siding with parasites.
The DC district (or, to be precise, one-half of it — a faction led by Beryl Howell) is probably the only unconditionally troll-friendly district today, and Howell’s disingenuous memorandum, a Troll Bill of Trumped Rights, is essentially the only document that scam artists use to justify their tricks. The majority of districts almost unanimously rejected the ideas expressed in this write-up, principally leaving Howell and her faction in isolation. Yet trolls still hold tight on this straw, never failing to refer to it in their frivolous complaints and motions.
¹In addition, Beryl Howell allegedly has connections to the porn industry: there are very interesting leads and facts that require time and effort to check and follow through. If I ever dig in this direction, I will certainly publicize my findings as wide as I can.