Copyright Trolls Hit Massachusetts Federal Courts With “Blizzard” of Lawsuits
Over the past few months, there has been a flurry of activity in Massachusetts federal courts involving copyright infringement claims of motion pictures. The Law Offices of Marvin Cable out of Northampton, Massachusetts, has filed more than thirty lawsuits naming over 1300 “John Does” who allegedly downloaded films (mainly pornography) the BitTorrent file-sharing protocol.
In each of the nearly identical lawsuits, the plaintiffs have sought and have obtained a formidable weapon against these alleged infringers – an order for expedited discovery, which allows the plaintiffs to seek the identities of the “john doe” downloaders from Internet Service Providers such as Verizon Internet Services, Comcast Cable, Charter Communications, and Road Runner.
These lawsuits are part of a trend that has proliferated in federal courts throughout the country. Most courts have authorized the sort of expedited discovery being sought in this case to some degree. This expedited discovery will allow the plaintiff to uncover the identity of the alleged “john does”.
In order to protect themselves, “john does” should retain counsel to file a motion to quash immediately. Cases in other jurisdictions have concluded with respect to these lawsuits, that joinder is impermissible.
The recent activity in Massachusetts Federal Courts is part of a nationwide trend. Much if this trend can be traced to a business called the Copyright Enforcement Group (“CEG”), which has the following law firm “partners”:
Law Offices of Ira M. Siegel
The Copyright Law Group, PLLC
The Carroll Law Firm
The Law Offices of Marvin Cable
Matlock Law Group
According CEG’s website, prospective Plaintiff (mainly pornographers at this point in the filed cases):
Establish a new revenue source while offering infringers multiple settlement options with our Monetization service. Settlement offers are fully customizable and can include opportunities such as hard goods, subscriptions, licensing arrangements, straight settlements or any other offering of your choice. Your options are limitless.
Content owners can choose a soft fan-friendly marketing based approach, a stringent graduated response system, models that include litigation, leveraging CEG’s vast intellectual property attorney network or anything in-between. Our fully customizable Monetization service solution is available at no cost to content owners. Contact us for additional details. http://www.ceg-intl.com/monetization.html
This activity has raised much scrutiny in the courts. In one case (In re Bit Torrent Adult Film Copyright Infringement Cases, Nos. 11–3995, 12–1147, 12–1150, 12–1154, 2012 WL 1570765, at *5 (E.D.N.Y. May 1, 2012) a New York court is quoted as follows:
Abusive Litigation Tactics Employed by the Plaintiffs
The most persuasive argument against permitting plaintiffs to proceed with early discovery arises from the clear indicia, both in this case and in related matters, that plaintiffs have employed abusive litigations tactics to extract settlements from John Doe defendants. Indeed, this may be the principal purpose of these actions, and these tactics distinguish these plaintiffs from other copyright holders with whom they repeatedly compare themselves. See, e.g., K–Beech, Pl. Mem. in Opp. at 3, DE  (arguing that this decision “will affect the rights of intellectual property holders across all segments of society”). While not formally one of the Sony Music factors, these facts could be viewed as a heightened basis for protecting the privacy of the putative defendants, or simply grounds to deny the requested discovery on the basis of fundamental fairness.
In an effort to defend its litigation approach, K–Beech argues that “Fed.R.Civ.P. 1 requires that Courts construe the rules to secure the inexpensive determination of every action.” Pl. Mem. in Opp. at 11, DE . This Court takes the mandate of Rule 1 quite seriously, and vigorously encourages efforts by litigants to reduce litigation costs through settlement. See In re Tobacco Litig., 192 F.R.D. 90, 95 (E.D.N.Y.2000) (describing court’s “duty to take affirmative action assisting the parties in all possible settlement options”). However, in its argument, plaintiff neglects to observe that Rule 1 requires that disputes should be resolved in a manner that is “just, speedy and inexpensive.” Fed.R.Civ.P. 1 (emphasis added). In this case, John Doe # 16 offered the plaintiff “unfettered access” to his computer and employment records demonstrating that he was not at home at the time of the downloading, yet still finds himself pressured to settle for thousands of dollars. It would be difficult to characterize such a resolution as “just” even if speedy and inexpensive (for the plaintiff). Cf. On The Cheap, LLC v. Does 1–5011, ––– F.R.D. ––––, 2011 WL 4018258, at *4 (N.D.Cal. Sept. 6, 2011) (“plaintiff’s desire to enforce its copyright in what it asserts is a cost-effective manner does not justify perverting the joinder rules to first create … management and logistical problems … and then offer to settle with Doe defendants so that they can avoid digging themselves out of the morass plaintiff is creating”).
Our federal court system provides litigants with some of the finest tools available to assist in resolving disputes; the courts should not, however, permit those tools to be used as a bludgeon. As one court advised Patrick Collins Inc. in an earlier case, “while the courts favor settlements, filing one mass action in order to identify hundreds of doe defendants through pre-service discovery and facilitate mass settlement, is not what the joinder rules were established for.” Patrick Collins, Inc. v. Does 1–3757, 2011 U.S. Dist. LEXIS 128029, at *6–7 (N.D.Cal. Nov. 4, 2011).
Given the unopposed, sworn account by John Doe # 16, which dovetails with the experience of defendants in other actions brought by K–Beech and Patrick Collins, I find counsel for K–Beech has already engaged in improper litigation tactics in this matter, and find it highly probable that Patrick Collins Inc. and Malibu will likely engage in similar tactics if permitted to proceed with these mass litigations. Such conduct cannot be condoned by this Court. This is a persuasive basis to deny the motions for early discovery, as well as an additional basis to grant the motions to quash. See Pacific Century, 2011 WL 5117424, at *2 (denying discovery on this basis).
It would be unrealistic to ignore the nature of plaintiffs’ allegations—to wit: the theft of pornographic films—which distinguish these cases from garden variety copyright actions. Concern with being publicly charged with downloading pornographic films is, understandably, a common theme among the moving defendants. As one woman noted in K–Beech, “having my name or identifying or personal information further associated with the work is embarrassing, damaging to my reputation in the community at large and in my religious community.” Mtn to Quash, ¶ 5, DE . Many courts evaluating similar cases have shared this concern. See, e.g., Pacific Century Int’l, Ltd. v. Does 1–37, –––F.Supp.2d ––––, 2012 WL 1072312, at *3 (N.D.Ill. Mar. 30, 2012) (“the subscribers, often embarrassed about the prospect of being named in a suit involving pornographic movies, settle”); Digital Sin, 2012 WL 263491, at *3 (“This concern, and its potential impact on social and economic relationships, could compel a defendant entirely innocent of the alleged conduct to enter an extortionate settlement”) SBO Pictures, 2011 WL 6002620, at *3 (defendants “whether guilty of copyright infringement or not-would then have to decide whether to pay money to retain legal assistance to fight the claim that he or she illegally downloaded sexually explicit materials, or pay the money demanded. This creates great potential for a coercive and unjust ‘settlement’ “). This consideration is not present in infringement actions involving, for example, popular music downloads. See Arista Records, 604 F.3d at 122, (“Teenagers and young adults who have access to the Internet like to swap computer files containing popular music … The swappers … are ignorant or more commonly disdainful of copyright.” ( quoting In re Aimster Copyright Litig., 334 F.3d 643, 645 (7th Cir.2003))).
The Federal Rules direct the Court to deny discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). This situation cries out for such relief.
If you have been named as a “john doe” contact us immediately, as we can help protect your rights.