On 20 Aug 12, Judge Thomas G. Wilson, issued an Amended Order allowing Troll Keith Lipscomb to take leave to serve third-party subpoenas on the ISPs; case is 8:12-cv-01419, Malibu Media LLC, v. John Does 1-18. Amended_Order_01419(FL) Docket Complaint_01419(FL) The initial order from the court was issued on 7 Aug 12 (7Aug12_order_01419(FL)). The initial and amended orders are interesting and probably can best be described as a warning to the Copyright Trolls. The Judge appears to be telling the troll that if they have to play fair and actually following through with claims and not just make threats to all the ISP subscribers.
The court stated Plaintiff had good cause to get the subpoena, but its broad request doesn’t protect the possibility that innocent people may be publicly identified with the allegations of illegal downloading pornography. Based on what the judge ordered (and warned the Troll), I believe the judge doesn’t think it is only the “association” with illegal porn downloads, but the abusive methods employed by the Trolls against ALL the ISP subscribers/Does.
The Order Requires The Following
- Prior to release of the ISP subscriber information to Plaintiff, any motions filed by a Doe has to have the Doe # or IP address listed.
- Plaintiff shall only use the ISP subscriber information to “protecting and enforcing” Plaintiff rights as stated in the complaint.
- Plaintiff is required to advise the ISP subscriber the following when they contact is made (Doe initiated or Troll initiated).
… John Doe defendant has the right to obtain legal counsel to represent him or her in this matter and that anything said or provided by the John Doe can and likely will be used against him or her in these proceedings.
- Any John Doe who doesn’t wish to be contacted by Plaintiff may at any time inform Plaintiff/Troll by letter, telephone, or email (email@example.com) the following – “Please do not contact me (again) prior to serving me in this matter.”
- Plaintiff is required to inform the Doe (or his attorney) of its intent to name and serve the Doe at least 14 days prior to making the request from the court for the summons to be issued.
- Plaintiff/Troll must inform the Doe that if the they (Plaintiff/Troll) incorrectly “name” the ISP subscriber as the defendant in a case (i.e. true name – Malibu Media LLC, v. Mark Jones), then Plaintiff/Troll could be subject to sanctions IAW FRCP Rule 11.
- Plaintiff/Troll must provide a copy of this order to each John Doe.
- Plaintiff/Troll is required to inform each Doe that they MAY submit written or electronic objection to Plaintiff/Troll. If an objection is sent, the Doe MUST either state who is responsible for the alleged infringement OR provide some exculpatory evidence if the person responsible is unknown. Plaintiff/Troll must then try to file the object under seal with the court, along with their response to the Doe objection. The court will then determine if there is enough evidence to proceed with a case against the Doe defendant. Plaintiff/Troll is prohibited from actually naming the Doe in a suit until the court make this determination. If the Doe does not file an objection, the Plaintiff/Troll can name and serve the Doe defendant.
What Should You Do?
I dont’ know anything about Judge Wilson, but I must say I like this order better than the free-for-all the Trolls have been enjoying since this started in 2010. I will warn the Does affected in this case that such a 5th Amendment like advisement is a dual-edged sword. It can protect you, but it can also cut you. There is nothing more a Troll would love to tell the court than that they advise John Doe of his rights and he/she voluntarily waived them and admitted everything.
I did like the part that a Doe can tell the Troll to not contact them until they move forward with naming and serving a summons. Here is where the Richard Pryor Response (RPR) comes into Play.
I believe the best course of action for these Does is to give the RPR and wait. Plaintiff/Troll then has to make a decision on what to do. If they mess up and name an ISP subscriber as a defendant with only their weak evidence (Public IP address), they may be subject to sanctions IAW FRCP Rule 11. As this Plaintiff’s counsel in NY stated that approx. 30% of the ISP subscribers are not the actual infringers, the ground work has been laid.
I would caution most Does that if they feel the need to respond to the Troll allegation, that they only do it through an attorney. The good thing with responding through an attorney is the attorney will be better able to formulate a response to get Judge Wilson to possibly prevent the Troll from naming you.
Obtaining exculpatory evidence in these cases will be hard, as most small office/home Firewall/Routers don’t log anything of value. On most of these cases the time frame to record such data is long past and since most of the Plaintiffs don’t issue DMCA takedown notices, they have prevented you from even trying to collect that information. Other issues of malware infections on your systems or that the Internet Access point was run “Open” may be of value.
This will be interesting to see if this order is picked up by any other FL judges or spreads to other jurisdictions.