This case was filed by the troll lawsuit factory Prenda Law. I briefly mentioned it when I introduced a troll Paul Duffy, John Steele’s puppet (Steele pretends to be “retired”, although no one doubts that he is the puppet master.)
Brief history of the case
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.
During the rest of November many experienced attorneys appear on the case. John Michels of a reputable law firm Lewis Brisbois Bisgaard & Smith LLP appears on behalf of all the Does 1-1,495, but he did not file any motion as of today.
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 All the previously filed and sealed motions would be either unsealed or withdrawn.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.
2011-12-23. In a similar case (Open Mind Solutions v. Does 1-565: same trolls, same judge) ISP Cablevision refuses to provide names based on the unclear wording of the subpoena. Duffy complains and suggests amending the subpoena order to remove any ambiguity. Instead of simply signing a prepared order, Facciola threatens ISP with sanctions — heavy-handed to say the least. Some people suggest corruption. There is no proof, and I find it hard to believe, but Facciola’s actions indeed look bad, as if he goes an extra mile to please trolls.
2012-01-05. Steele (I use Steele/Prenda/Duffy interchangeably: multiple monickers — same gang) is forced to file replies to those four motions (good: more time trolls waste writing oppositions — less time is left to inflict damage on society — less lucrative the entire trolling “business” is.) In those replies trolls argue that Does were not allowed to file motions to quash, because they are not the parties against which the subpoena was issued; that ISPs are the ones who should file such motions. Kafkaesque situation deepens.
2012-01-25. Judge Facciola, in some cases assigned to him, issues memorandums questioning jurisdiction and venue. Strangely, no such memorandum was issued in this case.
2012-01-30. Finally! EFF files an amicus curiae brief:
Of course this is not a victory yet: I will update this post as new events happen.
Ha! Prenda opposes, calling EFF “Radical interest group”. What kind of interest, trolls? Huh? I know that you are the interest group, and your interest is money and money only; blinded by greed, you are not concerned that you ruin jobs and families, seed hate.
Also, the timing of this is suspicious — opposition filed the same day as the brief? As if someone has tipped Prenda. Who? Good question. Update: commenters suggest that the entire opposition was written in advance, in premonition of inevitable EFF or ACLU intervention.