Guardaley | Voltage

Déjà vu all over again: Pure Bill of Discovery is still being abused in Florida

An antiquated Florida’s Pure Bill of Discovery allows plaintiffs to obtain courts’ leave to perform discovery (including ex parte) without filing a lawsuit. Since the action based on this bill is not a lawsuit per se, the exclusive federal subject matter jurisdiction over copyright cases doesn’t apply, so discovery can be ordered by a local court. And because the evidence threshold for initiating such action is very low, it is inevitable that copyright trolls would exploit this easy way to harvest personally identifiable information of alleged file-sharers for subsequent shakedown.

John Steele and Keith Lipscomb obtained thousands of names using this loophole in the Miami-Dade county court years ago. In addition to this abuse-prone law, clueless judges, underfunded staff and lack of transparency make local courts a perfect breeding ground for the vermin. Trolls love local courts and always seek to take advantage of specific state loopholes: some tried to exploit a similar antiquated law in Pennsylvania, others attempted to masquerade copyright infringement claims as trademark ones in Oregon. The most infamous instances of local court abuses happened in Illinois.

We thought that the exploitation of this ancient law by the by copyright trolls is in the past: seemingly, the gullibility of judges in the Miami-Dade court was exhausted. Publicity also played its role. Alas, the cockroaches are very difficult to get rid of: they tend to move to other grounds when there is too much light.

As attorney Leonard French reports, Pure Bill of Discovery is currently being abused in another Florida local court — Brevard county court.

Since this lawsuit was hidden from the public eye in a county court, we didn’t know about it for more than a year! Only last week, after ISPs started warning their customers of the impending release of their names to the troll, we became aware of this case.

Alec D. RussellCopyright troll
Alec D. Russell

The plaintiff is Canal Street Films — yet another failed movie producer who agreed to participate in this travesty to compensate for deservedly poor sales (“Scary or Die“). The scam is run by Alec D. Russell, an attorney employed by a large firm GrayRobinson. It is estimated that 150 victims will soon start receiving deceitful mailings, in which Mr. Russell will make hollow threats that if the recipient won’t part with his hard-earned money, a lawsuit will be filed in a federal court.

So, a clueless judge ordered ISPs to cough up personally identified information entrusted to them by their customers. In the past ISPs stood up for what is right (although on rather rare occasions), it is not clear if they will seriously fight for their customers in this case. I think they should: there is a chance to bury the zombie of the Pure Bill of Discovery and punish wannabe filmmakers with attorney fees, like it happened in the Prenda’s Lighspeed v Smith.

In the meantime, ransom letters will soon start to arrive. If you received one, do not freak out: you are not being sued yet (and most likely won’t ever be). If you can’t afford a lawyer, waiting out is a valid option (which is not advised when an actual lawsuit is filed against you). Talking to a lawyer is advised in any case: the majority doesn’t charge for the phone conversation: contact an attorney who knows the topic, not just any lawyer: refer to one in your state — they are all good.

If you are in Florida, it probably doesn’t make sense to contact Bill Wohlsifer: not because he is not good, quite the opposite. I just assume that he is busy with his election campaign: Mr. Wohlsifer is challenging the sitting Florida Attorney General. As an attorney, William actively fought with the plague of copyright trolling, so I’m pretty sure trolls won’t be comfortable (to put it mildly) in Florida if he is elected. You have a chance to make a difference by voting.

(The document was obtained by Leonard French.)

Florida attorney Cynthia Conlin also wrote about this case.

Update

7/10/2014

Today Cynthia Conlin brought a good news — partially of her own making as explained in her tweets below.

Today the Pure Bill of Discovery case in Brevard County filed by Canal Street Films was dismissed. No John Doe info will be released!

It was voluntary. The ISPs helped. After my motions to vacate the judgment, the ISPs moved in and applied further pressure.

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Discussion

15 responses to ‘Déjà vu all over again: Pure Bill of Discovery is still being abused in Florida

  1. Wait. If the letter specially states it is about the alleged infringing of copyrights someone needs to hit pause.
    They flat out say it is investigating Copyright infringement in the letters, the letter says they are being sued…
    Someone might want to ask the court if there is or isn’t a lawsuit targeting these people for copyright infringement.
    Then ask why they would use a State court to handle a Federal matter.

    There is so much wrong on these letters, and it makes it very clear this is allegedly a copyright case. This is trying to avoid the inconvenience of the Federal Courts who might have questions they don’t want to answer.

  2. Wow! Look at Parties Jurisdiction and Venue in the complaint against this horrible serial infringer person Doe thingy.
    Comcast, Road Runner and Bright House are all foreign businesses who are claiming to be American. I am outraged. How dare these ISPs perpetuate such a bold, blatant and yea verily libidinous 😉 lie upon the good people of the United States of America.
    I’ll start a Facebook campaign to educate everyone on this travesty.
    Heads will Roll! Popcorn will Pop! Investors will Divest! Customers will …De-customize!
    And the Lawsuits… OMG!

  3. I wonder if a defense attorney could use this tactic on an offensive basis on behalf of a prospective defendant, to serve a subpoena on SunTrust Bank to get the bank records of Lipscomb’s Copyright Trust Fund account. They would certainly be relevant to infringement litigation as the settlement amounts would be relevant to a “reasonable royalty” for a copyright infringement claim. If an attorney wants to do this, email me I can forward such a Subpoena I served on SunTrust. I never got the requested documents from SunTrust because the Plaintiff quickly agreed to settle.

    • I really like the idea Paul, lets hope that a defendants counsel picks up on it and takes a run with this.

  4. I hope the ISPs file motion to quash as they should not be listed as defendants when the complaint states they are not being sued. I also hope all defendants file motion to quash and dismiss as the State Courts do not have jurisdiction in cases involving copyright law. The complaint should have been filed in Federal Court.

    The judge is a clown for issuing a subpoena for a case it has not jurisdiction over.

  5. The fact that a state statute is being used to get around having to ask a judge to grant an order for the ISP’s to release subscriber information in a copyright case shows how the Troll Lawyers will abuse the court system to no extent.

    I highly doubt a Judge would be very impressed that the Troll has purposely avoided filing in federal court where this should be. It will be interesting to see what will become of the troll if one of those Doe who receives a settlements letter with the veiled threat of a lawsuit being filed in Federal Court.

    The ISP’s in my opinion should be sending their legal team in to let a Judge who granted this in on what is really going on. This is really a failure of the Judge who looked at this and granted it. IMHO as soon as the word “copyright” was seen it should have signaled right then and there this belonged in a federal court..

    Even more astounding is the fact that the trolls letter states it is a copyright case, I understand courts are overburdened, but willful blindness should not be part of the equation. I hope Ithe SP’s will do the right thing and if not that a Doe lets the court know what is really going on and maybe this abuse of the court will stop in it’s tracks. Time will tell.

  6. How successful does everyone think motion to quash would be on this case? What would be the best strategy for the Does? Wait it out, motion to quash, or settle? And is there away for all the Does to get together and file a lawsuit against this company? Does the bill of discovery mean it is too late for a motion to be granted? Thank you.

    TAC Says – Portions of this message were edited. Always use a pseudonym when discussing these things online.

    • I am not fully up to date on this case but I think some names have already been turned over.
      I would consider contacting one of the Doe Defenders for FL and discuss the situation.
      As it appears from the paperwork being sent out that they are claiming it is a copyright case, they abused the state law to bypass the Federal Courts and this should anger a Judge.
      They skated around the legal framework required to bring one of these cases forward, and that could hurt them.

      As always this is not legal advice, I am not a lawyer, etc etc.
      Forgive my editing of your message, but the copyright trolls do watch here and gather information.

  7. Congrats Cynthia for leading the charge and it’s nice to see the ISP’s step up rather than rolling over. Great work!

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