On October 3, Judge Baylson decided to take an unprecedented step and ordered a bellwether trial, picking five Does who had previously filed motions. Bellwether trial is a process designed to fast track a test case that is representative of many similar ones. Here is how uslegal.com defines this concept:
By definition Bellwether is an indicator of future trends. Courts utilize a bellwether approach when large numbers of plaintiffs are proceeding on the same theory or claim and there is no other feasible way for the courts to handle the enormous caseload. This approach has been used in many cases including asbestos litigation. A group of plaintiffs are chosen to represent all the plaintiffs. The issues for trial should concern common claims or theories among all the plaintiffs. These representative cases go for trial and the results act as the bellwether for the other plaintiffs’ trials. The verdict from this grouping is extrapolated to the remaining plaintiffs’ cases. The actual results may be utilized for valuing groups of claims in settlements. The plaintiffs can also choose to continue with their own individual trial.
There is only one plaintiff in this case — Malibu Media, represented by a veteran PA troll Christopher Fiore, but this is obviously enough to conduct a valid experiment, because all the mass bittorent cases are essentially the same. Four defendants are represented by various attorneys and one is pro se at this time.
Baylson recognizes that it is unfair to pick defendants who fought rather than waited their ordeals out, but he promised that if defendants prevail, at least their financial burden would be remedied:
The Court also acknowledges that the five John Does who will be defendants in the Bellwether trial are, in a sense, being penalized for filing motions challenging the third-party subpoenas presently at issue, given that all proceedings against the remaining John Does will be stayed until further order of the Court. In the court’s view, however, under the present circumstances, this is the fairest and most efficient means of resolving these actions. These defendants have objected to Plaintiff’s strategy and two of them have filed declarations asserting that Plaintiff’s claims are false. A Bellwether trial is the best means of testing the viability of Plaintiff’s claims, as well as Plaintiff’s sincerity in pursuing them.
In the event Plaintiff’s allegations cannot be sustained, the five John Does will have adequate remedies to recover most, if not all, of these litigation expenses and/or damages from Plaintiff, such as a Rule 54 motion for costs, a lawsuit for abuse of civil process, a Rule 11 motion for sanctions, and a motion to recover excessive costs under 28 USC § 1927. More fundamentally, as mentioned above, because this is a copyright case, a successful defense will likely result in an award of attorney’s fees to any John Doe who prevails under 17 U.S.C. § 505.
As courts, attorneys and the Internet community chase copyright trolls, exposing multiple weaknesses in their meritless quest for easy money, trolls adapt: they drop tactics that were defeated and invent new ones. So far, mostly successful legal fight against trolls was centered primarily on procedural issues — joinder and jurisdiction. There are some instances where the merits are being tested, but these are individual cases that won’t have proper effect until a critical mass of decisions is made, and this process is painfully slow. The beauty of a bellwether trial design is both in its pace and in its binding power: finally, trolls’ evidence (or lack thereof) will be tested. You won’t be surprised to learn that I really doubt that trolls will present enough evidence to declare victory; that’s why I’m excited and full of expectations.
I won’t go into further details: read the order, where you will find and the history of this case, its aggressive schedule, and the explanation of the rationale behind the judge’s decision.
Note that judge discusses DieTrollDie’s declaration (“torpedo,” as DTD calls it). Obviously, it was a success, as the judge considered this declarations’ arguments seriously, while he could to simply brush it off on the grounds that it had been filed anonymously by a non-party. All the PA Does are immensely grateful to DTD, and so am I. If you think that a single person can’t make a difference, try to sleep in a room with a single mosquito in it and all the doors and windows closed. Remember about it and be proactive.
For intellectually curious: A history of the word Bellwether.
- Bellwether trial update: trolls are trying to sabotage the process (10/17/2012).
- Bellwether trial update: a delicate art of bullshitting under oath (10/23/2012).
- Bellwether trial update: Telephone conference, new filings (11/2/2012).
TorrentFreak; Finally: BitTorrent Piracy Evidence to be Tested in Court by Ernesto.
Digital Trends: Copyright troll tactic faces fateful legal battle in Pennsylvania by Andrew Couts
PC World: Pivotal piracy case could put copyright trolls out of business by Sarah Jacobsson Purewal.
ArsTechnica: Judge tells copyright troll to put up or shut up on porn lawsuits by Timothy Lee.
TechDirt: Judge Calls Copyright Troll’s Bluff by Mike Masnick.
WebWereld: Pornopiraten vechten terug tegen copyrighthouders by Henk-Jan Buist.
Tietoviikko: Tuomari kyllästyi tekijänoikeustrolliin: “nostakaa syytteet tai pitäkää turpanne kiinni” by Olli Vänskä.
Techgear: “Η διεύθυνση IP δεν είναι επαρκές αποδεικτικό στοιχείο.” Για πρώτη φορά το BitTorrent εξετάζεται σε δικαστήριο! by Elpidis Chris.
BBC News: US judge orders piracy trial to test IP evidence.