Half a year ago I wrote:
Copyright troll lawyers are a highly motivated and somewhat resourceful bunch, yet their ranks are small compared to the sheer number of citizens those attorneys have been shaking down for years. While most defendants pay the ransom, many chose to fight back, and with every new pushback fresh defense attorneys bring new ideas, and some of those ideas are statistically destined to success.
A new, successful defense strategy was demonstrated yesterday by a Chicago attorney Susan Malter, who represented one of the Does in LHF Productions v John Does 1-26 (ILND 16-cv-09324). After the defense filed a motion to dismiss and 26(b) motion for leave to take discovery prior to rule 26(f) conference, the plaintiff voluntarily dismissed the entire case¹. On the same day.
This Guardaley-driven lawsuit targeted alleged downloaders of one of the worst movies of 2016 – London Has Fallen. It was filed on 9/28/2016 by one of the most prolific copyright trolls – Michael Hierl of Hughes Socol Piers Resnick & Dym, Ltd. This medium-sized law firm is responsible for hundreds and hundreds of frivolous bittorent lawsuits, many of which relied on forged declarations of a fictitious “expert” Darren Griffin. According to Ms. Malter, these lawsuits disproportionally targeted low income victims.
One of such victims contacted Chicago Volunteer Legal Services – an organization, whose stated mission is to “coordinate, support and promote the voluntary pro bono legal representation of the Chicago area’s poor and working poor,” and this non-profit subsequently contacted Ms. Malter, who first filed a motion to proceed anonymously (granted on 4/24), and then the motion to dismiss/discovery:
As its title suggests, this is a two-part motion. The first part asked the court to dismiss the complaint for failure to state a claim. The accompanying memorandum, embedded at the bottom of the post, eloquently reiterated mostly known defenses: that an IP address is not equal to a person, that the plaintiff didn’t sufficiently plead the copying of the entire work, etc.
However, the other part of the motion is something new: the defendant demanded that the troll would disclose the identities of the other 25 defendants:
Plaintiff has an unfair advantage of information during ongoing settlement talks due to the third-party discovery data that was obtained from Comcast.
Rule 1 of the Federal Rules of Civil Procedure states that the Rules should be construed, administered, and employed to secure a just, speedy, and inexpensive determination of every action. The ability of Defendant to consult with co-defendants would remove the unjust discrepancy in information between the parties during settlement.
It looks like particularly this request was the reason behind the same-day voluntary dismissal.
The fact that copyright trolls often drop defendants who fight back is nothing new, and it is relatively easy to invent a plausible explanation that fits judges’ credulity framework in a case of a single dismissal. However, dropping the entire case over a simple, non-burdening discovery demand (which any legitimate plaintiff litigating a meritorious case wouldn’t even think about opposing) is fishy, to put it mildly. A logical explanation of such conduct is that Mr. Hierl and his German co-conspirators are scammers on a quest for low-hanging fruit.
As if it was news.
If such a motion were granted, the other defendants would be empowered to share defense strategies and likely learn from each other that few of them (if any) downloaded this excuse of a film. The troll wouldn’t want such collaboration to happen.
The takeaway from this hasty dismissal is simple: any defendant in a mass bittorent lawsuit should file a similar motion and, if the defendant is of modest means, he/she should contact the CVLS (I hope organizations that secure a competent pro bono representation exist in other states). An added bonus is that such a volunteer attorney would lack the incentive to push her client to settle.
¹ Six defendants were dismissed with prejudice, which means that they surely settled. Thus, despite the dismissal, this case appeared to be windfall-profitable.