|The locusts came up over all the land of Egypt and settled on the whole country of Egypt, such a dense swarm of locusts as had never been before, nor ever will be again. They covered the face of the whole land, so that the land was darkened, and they ate all the plants in the land and all the fruit of the trees that the hail had left. Not a green thing remained, neither tree nor plant of the field, through all the land of Egypt.|
The judge in this case, is Judge Harold Baer, who was assigned three of Meier’s lawsuits: Media Products v. Does 1-26 (12-cv-3719), Media Products v. Does 1-40 (12-cv-3630) and Patrick Collins v. Does 1-4 (12-cv-2962). In the beginning of his order, Judge looks back to his initial decision to permit Meier expedited discovery in order to learn the personal identifying information of the Does by means of subpoenas to various ISPs. Even at that time the judge had concerns about these determinations. Accordingly (emphasis supplied in this and the subsequent quotes),
To satisfy my concerns, I provided a period of time during which Doe defendants would remain anonymous and could move to quash the subpoena or take other actions before their identifying information was turned over to Plaintiffs. Such protective orders have become commonplace in BitTorrent suits. My hope was that this would allow Plaintiffs to overcome the hurdle of the anonymity of infringement on the Internet while at the same time shielding Doe defendants from the coercive tactics employed by Plaintiffs. The relatively small group of lawyers who police copyright infringement on BitTorrent have customized the concept of extracting quick settlements without any intention of taking the case to trial.
The judge then embarks on a discussion of the difficult question of “whether the joinder of tens and sometimes hundreds or thousands of unnamed defendants in these cases is proper,” when it comes to the trolls’ swarm theory of joinder in BitTorrent lawsuits. While not deciding the issue, the Judge notes that
It is this swarm that Plaintiffs have relied on in grouping Doe defendants together in a common suit. Ironically, there are swarms on both sides, for copyright locusts have descended on the federal courts, exacting low-cost settlements from embarrassed John Does and then moving on to the next District.
In footnote 2, which accompanies this quote, the judge ponders the waste of judicial resources caused by copyright troll lawsuits:
[i]t is difficult to even imagine the extraordinary amount of time federal judges have spent on these cases.
Judge Baer seemingly takes his cue from Judge Wright, who asserted that the courts are not “cogs in a plaintiffs copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that [Plaintiffs have] no intention of bringing to trial.” Joining with Judge Marrero, Baer orders the severance and dismissal without prejudice of all Does except the Doe 1. The judge is
also troubled by the fact that some Doe defendants have already been voluntarily dismissed at this early stage in the litigation; it suggests as suspected that the pressure on Doe defendants to settle their case quickly and thereby avoid embarrassment and litigation costs — when they may not even have committed any infringement — is all too real.
According to Judge Baer, this unfair pressure tactic employed by the trolls,
if left unchecked, could turn copyright protection on its head. Congress intended to incentivize the creation of useful arts by providing a statutory right and a means of enforcement that would reward authors for their labors, hardly the Plaintiffs’ strategy here. […] In the BitTorrent pornography cases, settlements are for notoriously low amounts relative to the possible statutory damages, but high relative to the low value of the work and minimal costs of mass litigation. Cases are almost never prosecuted beyond sending demand letters and threatening phone calls.
Of final interest is one portion of Judge Baer’s order, which warns Troll Meier as follows:
…that Plaintiffs shall not contact any Doe defendant who does not remain in this or a subsequently-filed case, and any pending settlement not with John Doe 1 in each named case shall immediately cease. If after 14 days Plaintiffs have not reinstituted cases against the remaining Doe defendants, Plaintiffs shall destroy whatever personal information they presently have for those defendants and shall not use the information for any purpose. If any Doe defendant no longer named in a case is contacted following entry of this Order, I encourage them to contact the Court.
Below is the entire Order and Opinion:
In closing, I wish to thank Ray Beckerman, Esq., who was the first to point to this fine Opinion and Order as well as Mike Meier for, once again, increasing the federal judiciary’s arsenal to hinder this wasteful and predatory abuse of the federal courts.
Of course, the obvious music video to embed would be Bob Marley’s “Exodus” but I think this one is more apt:
- 9/24/2012 Techdirt: Another Judge Blasts Copyright Trolls by Mike Masnick.