Troll Defense has just learned, courtesy of Ray Beckerman, that the Court of Appeals for the District of Columbia Circuit has ruled that the joinder of many different “John Doe” parties into a single action, for purposes of obtaining early discovery of the Does’ identities, is improper when the only basis for joinder is their common participation in a BitTorrent swarm.

As readers familiar with the typical modus operandi of BitTorrent-related copyright lawsuits know, this is a very significant decision.  As the Court of Appeals opinion notes, the financial attractiveness of mass BitTorrent copyright cases to many rights-holders hinges on the economies of scale associated with suing as many Does as possible in a single case.  By paying only a single court filing fee to allow the discovery of the identity of tens, hundreds, or even thousands of Does, copyright owners gain a huge financial advantage in later settlement discussions.  Once the Does’ identities are disclosed by their ISPs, they can be then contacted and a settlement payment demanded from each of them.  If copyright plaintiffs are required to pay a separate filing fee (and other legal costs) in the case of every single Doe, the financial stakes for the plaintiffs shift dramatically.

The D.C. Court of Appeals opinion is the first appellate-level federal court decision which directly addressed the problems associated with “swarm joinder.” The plaintiff in the case, AF Holdings (part of the notorious Prenda Law stable), had argued that because BitTorrent users who download the same file are part of the same swarm, they have all participated in the same series of transactions, which allows for their common joinder under the court rules.  The Court of Appeals was “unconvinced” by the argument, explaining as follows:

AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time.  Instead, it has simply set forth snapshots of a precise moment in which each of these 1,058 Does allegedly shared the copyrighted work—snapshots that span a period of nearly five months.  Two individuals who downloaded the same file five months apart are exceedingly unlikely to have had any interaction with one another whatsoever.  Their only relationship is that they used the same protocol to access the same work.  To paraphrase an analogy offered by amicus counsel at oral argument, two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times.  They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions.

Although the D.C. Circuit Court of Appeals decision is binding only on the lower court within its jurisdiction, the U.S. District Court of the District of Columbia, its reputation for sound jurisprudence (and a history of producing future Supreme Court justices) will give its opinions significant weight in other Circuits.

So what is the next step for Bittorrent copyright trolls?  Malibu Media has already resorted to the filing of hundreds of single-Doe copyright cases in numerous courts, apparently in response to earlier objections and court concerns about swarm joinder.  Pursuing a large number of singleton Doe cases obviously involves a more significant commitment of legal resources, and some may simply be unable to afford it.  But so long as the Copyright Act allows for the threat of statutory damages, the incentive remains for copyright plaintiffs to make a moderate adjustment to their strategies and continue in pursuit of singleton BitTorrent litigation.

Just last Friday, the two Voltage Pictures, LLC Oregon State Trademark lawsuits pending in the Circuit Court for Marion County, Oregon were removed to the U.S. District Court for the District of Oregon.  These cases involve the motion picture Dallas Buyers Club.

The new District Court Case Nos. are 6:14-cv-00812-MC (which relates to the state court Case No. 14C13823), and 6:14-cv-00816-TC (which relates to the state court Case No. 14C13824).  The removal proceeding was initiated by attorney Morgan E. Pietz on behalf of some of his clients.

As this is a new development, Troll Defense will continue to monitor the proceedings and the form the cases take.  We understand that Voltage Pictures will contest the removal and seek to have the cases remanded to the state court.  One can wonder, if the cases do remain in federal court, whether Voltage will later seek to take advantage of the federal court’s jurisdiction to amend the complaints and add claims under the Copyright Act, or the federal Lanham Act, which includes provisions for the protection of registered trademarks.

A new BitTorrent lawsuit involving the award-winning Dallas Buyers Club film was filed yesterday in the U.S. District Court in Colorado.  The complaint sets forth now-standard allegations of copyright infringement via BitTorrent usage against 20 anonymous “Doe” parties.  Unlike the Marion County, Oregon state court trademark actions involving the same film that were previously reported on by Troll Defense, the new Colorado actions do not name Voltage Pictures, LLC as a party.  The lawsuit was filed by attorney David J. Stephenson, Jr. of Golden, Colorado, with Case No. 1:14-cv-01398.

The same day, a lawsuit was filed in the same Colorado court by Countryman Nevada, LLC against 24 Doe parties.  This case involves the travel romance/adventure flick Charlie Countryman (the Necessary Death Of), starring Shia LaBeouf.  The case bears Case No. 1:14-cv-01404, and was filed by lawyer Scott T. Kannady of Denver.

The common denominator?  Both films were financed or otherwise co-produced by Voltage Pictures, LLC, which is apparently increasingly committed to a nationwide legal assault against BitTorrent infringers.

Music Group Services, US and its offshore affiliate have filed a Seattle U.S. District Court lawsuit for a host of John Doe claims related to “unauthorized” statements made via Twitter feeds.

Music Group is a holding company for a number of different brands of professional-grade music production and performance equipment, including loudspeakers, amplifiers, mixers, computer-based recording and DJ products, microphones, headphones, wireless systems, musical instruments and lighting systems.   Among the several brands held by Music Group is Behringer, a company founded by Swiss musician Uli Behringer, who pioneered the development and China-based manufacture of professional-grade mixing equipment, making mixers available at more affordable price levels.

The Music Group lawsuit alleges that one or more Doe parties registered the Twitter accounts “Fake Uli Behringer” and “NotUliBehringer” and made various disparaging tweets against Music Group during early 2010.  This allegedly “included assertions that MUSIC Group supported tax evasion, domestic violence, child abuse, and misogyny,” as well as posting other damaging remarks about Music Group products, employees and contractors.  Music Group suspects that one of the Does is a current of former employee of Music Group.

Last month, according to the lawsuit, Twitter responded to Music Group’s notice and supposedly refused to remove the offending tweets or de-activate the accounts.

The complaint contains numerous counts including  violations of the Computer Fraud and Abuse Act, 18 U.S.C.A. § 1030; violations of the Lanham Trademark Act, 15 U.S.C.A. § 1125 (cyberpiracy, trademark infringement, trade name infringement and false designation of origin); unfair competition under state and federal law; copyright infringement; and breach of contract.

My initial thought upon understanding that the offending tweets were all made during early 2010 was whether the Does might argue for a statute of limitations defense.  Although the Lanham Act does not have its own statute of limitations, courts have used limitations periods contained in “related” contracts between the parties, or limitations periods in “analogous” state statutes.  In Washington State, a six-year statute of limitations applies to claims for breach of written contracts (RCW 4.16.040), while a three-year limitations period applies to general claims for injury to persons or property, fraud, and claims arising from oral contacts (RCW 4.16.080).  The Copyright Act (17 U.S.C. § 507) states a three-year limitations period for civil copyright claims.   It is possible that Music Group could claim to have “discovered” the tweets sometime later than the initial postings, and seek a delay or “tolling” of the running of the limitations periods.

The suit was filed by Seattle law firm Seed Intellectual Property Group PLLC under Case No. 14-cv-621 (W.D. Wash.)

We have completed review of the Voltage Pictures, LLC lawsuits filed in Marion County, Oregon in connection with Dallas Buyers Club.  

Instead of suing for copyright infringement, conversion or negligence, Voltage has stated claims against the many Does for violations of the Oregon Trademark Act, ORS 647.   As with trademarks protected by the federal Lanham Act, the Oregon Trademark Act is intended to protect words, names, symbols or designs used to distinguish goods or services promoted in commerce.

The Oregon Secretary of State maintains an registry of trademarks used in Oregon, and apparently Voltage Pictures has registered its own mark there. Voltage alleges in this case that:

The VOLTAGE PICTURES mark is unique, distinctive, and clearly visible in the presentation and the viewing of plaintiff”s motion picture

The VOLTAGE PICTURES mark is valuable, well known and famous as it is associated with numerous award winning motion pictures in addition to Dallas Buyers Club.

The complaint goes on to make various allegations about Bittorrent and other file-sharing clients, IP addresses, the bad acts of the Does, harms to the motion picture industry, and other statements that are essentially identical to many other complaints filed in Bittorrent copyright infringement cases (albeit in a more detailed fashion).

However, the Voltage complaint alleges that, by using Bittorrent to use, copy or distribute Dallas Buyers Club, the Does have infringed Voltage’s registered Oregon trademark.

The Oregon Trademark Act allows for remedies as follows:

647.105 Remedies for infringement.

(1) An owner of a mark registered under this chapter may proceed in a civil action to seek an injunction against the manufacture, use, display or sale of a counterfeit or imitation of the mark. A court of competent jurisdiction may:

(a) Grant injunctions to restrain the manufacture, use, display or sale as the court deems just and reasonable;.
(b) Require the defendant to pay to the owner all profits the defendant derived and all damages the owner suffered from the manufacture, use, display or sale; and
(c) Order counterfeits or imitations in the defendant’s possession or under the defendant’s control to be delivered to an officer of the court or the owner to be destroyed.

(2) If the court finds that the defendant acted in bad faith, with knowledge or otherwise according to the circumstances of the case, the court in the court’s discretion may enter a judgment in an amount not to exceed three times the sum of the defendant’s profits and the owner’s damages and reasonable attorney fees. If the court finds that the plaintiff acted in bad faith, vexatiously, wantonly or for oppressive reasons, the court in the court’s discretion may award reasonable attorney fees to the defendant.

Voltage has specifically asked for an award of attorneys fees in its complaint.  However, it has otherwise only sought an injunction against further infringement, rather than lost profits or damages.  This is likely because the Act states that a plaintiff cannot recover damages or lost profits unless the defendant has “appl[ied]” a counterfeit or imitation of a protected mark to a product, its packaging or advertising intended to promote the sales and distribution of goods and services.  It is impossible to see how that could occur in a standard Bittorrent file download transaction.

The owners of rights to the award-winning Dallas Buyers Club film have resorted to filings in the state courts of Oregon naming scores of unidentified internet users.

As was reported over the last few months, an entity known as “Dallas Buyer’s Club, LLC” had begun a series of Bittorrent copyright infringement lawsuits in the federal courts, including courts in Wisconsin, Texas and Illinois.  An exemplary complaint from the Southern District of Texas is available here, courtesy of ArsTechnica.

These federal lawsuits follow a familiar pattern of naming several “Doe” parties as defendants and then seeking early discovery to identify the Does via a subpoena issued to their Internet Service Providers (ISP).  The ISP typically then informs the service subscriber that the subpoena was sent, giving he or she only a brief period to respond.

Now, we see that Voltage Pictures, LLC has filed at least one action in the Circuit Court of the State of Oregon, Marion County, Case No. 14C13823.   Voltage Pictures is reportedly an investor in the original production of Dallas Buyers Club and has now elected to sue in its own name.  Voltage became notorious for suing on an unprecedented scale a few years ago, naming literally tens of thousands of defendants to actions involving The Hurt Locker and The Expendables.

While review of the Marion County lawsuit is pending, it appears that the subpoenas already issued from that Court may be subject to question for lack of jurisdiction.  No major ISPs are headquartered in Oregon and relevant electronic records are likely located outside of the State.  Of course, a discussion with legal counsel of alternative options is advisable for those targeted in these cases.

The VanderMay Law Firm, on behalf of Elf-Man, LLC and Thompsons Film, LLC, is in the process of filing several amended complaints in U.S. District Courts for the Eastern and Western Districts of Washington.  These new complaints identify many individuals by name, list their city and state of residence, and make other allegations regarding specified acts of infringement.

The amended complaints are apparently dictated by many recent orders entered by the Courts which followed VanderMay’s initial Doe-only lawsuits and its related efforts to identify the Does based on subpoenas issued to their ISPs.  This initial activity was consistent with a now-familiar pattern of ex parte discovery requests by film copyright owners in Bittorrent cases that were typically followed by demand letters seeking settlements in the range of $2,500-$10,000.

However, with regard to the VanderMay lawsuits in the Western District, Judge Robert Lasnik temporarily stayed the matters while considering the appropriateness of permitting the typical procedure to continue, as Troll Defense previously posted.

In a series of rulings issued in August of this year, Judge Lasnik allowed the lawsuits to continue, but set a time frame ranging from 60-90 days during which the VanderMay plaintiffs were required to identify, name and serve the still-anonymous Doe parties.  Failure to name and serve a Doe be a specified date shall result in dismissal of that party from the action.

The unfortunate named parties may have had their reasons for not resolving the matters earlier, but it now appears that the Court’s orders have forced the hand of the VanderMay plaintiffs.  Failure to timely answer the amended complaint after service of process can mean that a named individual can be subject to a default judgment in an amount claimed by the plaintiff, without further notice or hearing.  Troll Defense recommends that these individuals contact a knowledgeable attorney as soon as possible.

The cases where amended complaints naming individuals have or shortly will be filed are as follows (with original titles):

Elf-Man, LLC v. Does 1-152, No. 2:13-cv-00507-RSL (W.D. Wash.)(copy of amended complaint here)

The Thompsons Film, LLC v. Does 1-194, No. 2:13-cv-00560-RSL (W.D. Wash.)

Elf-Man, LLC v. Does 1-29, No. 2:13-cv-00115 (E.D. Wash.)The Thompsons Film, LLC v. Does 1-35, No. 2:13-cv-00126 (E.D. Wash.)

With one of the more ironic titles to be injected into a standard Bittorrent copyright lawsuit, the owner of rights to the 2013 film “The Power of the Few” is wielding the powerful threat of massive statutory damages against, well, more than a few Does.

The Power of the Few, LLC has filed several lawsuits in U.S. District Courts in Colorado and Louisiana over its work, which has been described by The Hollywood Reporter as “[t]he latest Pulp Fiction wannabe.” It features Christopher Walken, Christian Slater, and others in an ensemble cast of characters facing various challenges on the streets of New Orleans (where, it turns out, at least one of the lawsuits have been filed).

The Louisiana suit was filed by New Orleans attorney Alexa R. Stabler of AdamsIP, LLC, while the Colorado suits were lodged by Scott T. Kannady of Denver. Case listings with links to the complaints are below. Continue Reading "The Power of The Few" Lawsuits Filed Against Many In Colorado, Louisiana

“Killer Joe” is a 2011 “Southern Gothic” black comedy film starring Matthew McConaughey in a murder-for-insurance-money plot. It also enjoyed a ratings controversy as it garnered an NC-17 rating for bloody, sadistic violence. The owners of the film are now trying their hand with a substantial batch of Bittorrent suits in Ohio.

The Complaint lists Killer Joe Nevada LLC as the “RIGHTSHOLDER”, but other sources show that veteran Bittorrent copyright lawsuit troll Voltage Pictures, LLC–of “Hurt Locker” fame and “The Expendables” infamy was involved in the production, and this may explain the copyright litigation connection.

The Complaint I was provided was filed by Columbus, Ohio attorney Yousef M. Faroniya. Watch out for ISP letters to issue from Cox, Frontier and others over the next few months. Continue Reading Killer Joe Torrent Suits: Going "Southern Gothic" In Ohio

We just learned that Judge Robert S. Lasnik, who is managing all of Richard Symmes’ dozens of Bittorrent copyright actions filed in the U.S. District Court for the Western District of Washington, has on his own initiative entered several orders quashing pending subpoenas, imposing a stay, and ordering the plaintiffs in these cases to “show cause” why continued joinder of multiple Does in each case is appropriate based on the allegations that all Does participated in a common Bittorrent “swarm.” The plaintiffs have also been asked to verify the valid ownership of their copyrights, apparently to guard against corporate chicanery of the type discovered in the recent Prenda Law proceedings in California.

This follows an order entered last week by Judge Aiken in several Voltage Pictures, LLC matters pending in the U.S. District Court in Oregon finding against joinder based on the swarm allegation that was made there.

An order from the court may or may not have been yet entered in each of the several Doe actions pending before Judge Lasnik, but we anticipate that nearly identical orders will be entered in every pending case of this nature. A sample order is here. The “show cause” hearing has been set for May 24, 2013.

As we have discussed before on this site, the outcome of a “show cause” hearing on the joinder issues will most certainly not be that the plaintiffs are forever barred from pursuing a future personal copyright lawsuit against those subscribers allegedly implicated as Does. It may be that these plaintiffs are required to re-file cases separately in individual or “severed” Doe actions, with a separate filing fee required for each. Some of these plaintiffs have previously told me (and at least one other District Court) that they do intend to pursue individual Doe actions, with higher per-case settlement demands in order to recoup the cost of higher per-case legal costs. Only time can tell what may happen here.