WAWD Chief Judge Ricardo Martinez knows what’s going on in his district with a flurry of copyright infringement Bittorent lawsuits steered by foreign criminals and unscrupulous US attorneys. Well, maybe the judge does not know the exact details of the racket, but he obviously smells rampant abuse.
Today Judge Martinez ruled on the motions for default judgment against 28 defendants in five cases, awarding minimum statutory damages ($750) per case, $550 in attorney’s fees per defendant, and various per-defendant costs (in the $90-150 range):
- LHF Production v Does 1-9 (WAWD 16-cv-01175) – 6 defaulted defendants
- LHF Production v Doe 1, et. al. (WAWD 16-cv-00731) – 8 defaulted defendants
- LHF Production v Doe 1, et. al. (WAWD 16-cv-00864) – 7 defaulted defendants
- LHF Production v Doe 1, et. al. (WAWD 16-cv-01017) – 3 defaulted defendants
- LHF Production v Doe 1, et. al. (WAWD 16-cv-00551) – 4 defaulted defendants
The copyright troll attorney (David “He said Griffin!” Lowe) asked for $2,500 in damages along with $2,605.50 in attorney’s fees – per defendant. He didn’t get what he wanted by a large margin.
Judge Martinez wasn’t impressed by an overboard demand:
LHF argues that a statutory damage award of $2,500 per defendant should be awarded. The Court is not persuaded. Statutory damages are not intended to serve as a windfall to plaintiffs, and enhanced statutory damages are not warranted where plaintiffs do not even try to demonstrate actual damages. Additionally, the Court notes that LHF has not shown that any of the Defendants is responsible for the “seed” file that provided LHF’s copyrighted work on the BitTorrent network, and LHF has not presented evidence that Defendants profited from the infringement.
So, the judge awarded the very minimum ($750), which becomes increasingly common these days. However, there is something new that I never saw in the past (emphasis is mine):
[…] Because the named Defendants in this action were alleged to have conspired with one another to infringe the same digital copy of LHF’s motion picture, the Court will award the sum of $750 for Defendants’ infringement of the same digital copy of London Has Fallen. Each of the Defendants is jointly and severally liable for this amount.
You read it correctly: the judge ruled that each case’s minimum statutory award should be split among the defaulting defendants, which effectively yields $94-$250 per person.
Indeed, if the troll lumps together multiple Does to pay a single filing fee, and he justifies this conduct by claiming that the defendants were a part of a single transaction, he should accept the consequences: the award will also be “a single transaction.”
The fun continues: Lowe filed 96 pages of exhibits to explain his demand of higher compensation. Particularly, exhibits C and D feature DieTrollDie’s and Raul’s tweets, which mocked a $750 judgement in a different Guardaley’s case:
— Raul (@Raul15340965) November 4, 2015
— DieTrollDie (@DieTrollDie) August 9, 2016
Lowe disingenuously and falsely implied that both DTD and Raul advocated ignoring federal lawsuits:
13. Attached as Exhibit C is a true and accurate copy of a November 4, 2015 social media Tweet posted by a known BitTorrent advocate belittling the Court’s award of $750 minimum statutory damages in Dallas Buyers Club, LLC v. Madsen […]
14. Attached as Exhibit D is a true and accurate copy of an August 9, 2016 social media Tweet posted by a known BitTorrent advocate belittling the Court’s awards on the same day of $750 minimum statutory damages against 19 defaulted defendants in Dallas Buyers Club cases. The post further encourages defendants to take default judgments rather than appear or otherwise resolve the case.
Not surprisingly, the judge didn’t buy this hilariously moronic argument:
LHF also cites to tweets which appear to mock statutory minimum awards in other BitTorrent cases. […]. The Court is not persuaded that viewpoints of individuals not named as defendants in this matter should be attributed to Defendants. LHF has presented no evidence that Defendants in this case will not be dissuaded from infringing in the future. Many barriers to accessing and understanding the legal system exist, and the Court refuses, absent evidence to the contrary, to adopt the position advocated by LHF. The Court “is [thus] not persuaded that a higher award is appropriate simply because certain members of the BitTorrent community are not impressed by a $750 award against someone they do not know.” […]
Our glee doesn’t end here. The judge essentially called bullshit Lowe’s claim that he spent 5.4 hours per defendant:
While there is nothing wrong with LHF’s filing of several infringement claims, it is wrong for LHF’s counsel to file identical complaints and motions with the Court and then expect the Court to believe that it spent hundreds of hours preparing those same complaints and motions.
There is nothing unique, or complex, about engaging in what can only be described as “the essence of form pleading,” and the Court will not condone unreasonable attorneys’ fees requests.
Instead of awarding the unreasonable number of hours requested by LHF, the Court will award Mr. Lowe one (1) hour, at an hourly rate of $300, to compensate his firm for the time he worked on each named Defendant, and one (1) hour, at an hourly rate of $250, to compensate his firm for the time his associate attorney worked on each named Defendant. The Court will not award any of the time attributed to Mr. Lowe’s legal assistant; review of the declarations submitted indicate that Mr. Lowe’s legal assistant performed purely administrative tasks in this matter.
Non-porn bittorent lawsuits are not profitable if each case is filed against a single defendant. Lipscomb tried to do it, and it was a total loss. So, if courts around the country severed all the defendant but one (and I hope that recent severance rulings in Georgia and Maryland become a solid trend), single-movie, non-porn Bittorent copyright trolling would become unprofitable. Reducing profit in multi-Doe lawsuits, like it happened in the cases discussed in this post, is a fatal blow to the troll as well – from an opposite direction.
Sensing that the mass lawsuit gravy train is slowing down, one of the lead Guardley’s troll attorneys, Carl Crowell, already came up with a new idea of robbing US citizens cheaply, but it is another post’s topic…
Apparently (and rightfully) fearing that Judge Martinez’s orders present an existential threat to the extortion racket, Guardley filed an appeal with the Ninth Circuit on 3/21/2017 (CA9 17-35243) – all the five cases consolidated. The appellant’s brief was filed last week, on 8/02/2017. Since all the defendants defaulted, it is unlikely that anyone will appear on their behalf. I have not seen an “ex-parte appeal” before and curious what Nine Circuit’s attitude toward such abomination would be.
As of today, no new developments in the appeal.
On 5/18/2018 Lowe argued his appeal in front of the three Nine Circuit justices. Judges’ attitude can be described as following: “Default judgment means that the allegations of the complaint were accepted as true. The complaint alleged that the defendants infringed jointly. So why they are not jointly and severally liable?” Not a single persuasive argument could be heard in Lowe’s mumbling. While judges apparently didn’t appreciate the merits of the appeal and thus were rather aggressive, to be honest, I didn’t expect Lowe’s performance to be that bad.