I was recently asked to revisit a previous article/Cases to check on its status. The Plaintiff is Zambezia Film (Pty.) Ltd, and they have 26 multi-Doe cases opened in FL, IL, CO, TN, and GA. The cases were opened between 25 Jan – 6 Mar 2013. Note: on 5 & 9 Apr 13, Seven single Doe cases (un-named/i.e. Doe 43) were opened in the Florida Middle District.
Here is my previous Zambezia article, dated 23 Apr 13 – ZAMBEZIA FILM (Pty.) Ltd Wants A “Tap” – 2:13-cv-00308 (WA)
On 2 May 13, Judge Robert S. Lasnik, Western District of WA, put a hold on subpoenas granted to Plaintiff on 13 WA cases. He also issued a show cause order concerning joinder and that ”…plaintiff was using the judicial authority of the United States to wrest improvident settlements from pro se litigants under threat of huge statutory penalties.” 10Sep13_Docket_00318(WA)
On 24 May 13, Plaintiff responded to the show cause order – Sorry I haven’t downloaded that document/exhibits. Note: they also finally filed a notice of related cases that must have slipped their mind. Also filed under seal was some limited communications between Plaintiff and Doe defendants.
On 7 Aug 13, Judge Lasnik issued his order concerning joinder and the possibility that Plaintiff was abusing the court to generate settlements from Doe defendants. Doc21_Order_00318(WA)
The judge was of the opinion that joinder of multiple defendants was appropriate in these cases, but it did not appear Plaintiff actually wanted to litigate these cases.
To be clear, the Court finds that joinder under Rule 20 for purposes of prosecuting copyright infringement claims against members of a swarm in a single lawsuit can be appropriate. There is no indication, however, that plaintiff was actually prosecuting any of these actions. Despite receiving identifying information regarding some of the individuals associated with the IP addresses at issue, plaintiff failed to affect service, asserting that complications in obtaining subscriber information regarding every IP address somehow prevented it from naming any individual defendants.
In addition, the failure to prosecute the actions suggests that the motive for joinder is not to promote the underlying goals of efficiency, justice, and expeditious resolution of the disputes, but rather to use the pendency of this litigation to obtain unilateral discovery regarding non-parties and to push for quick (and potentially unjustified) settlements.
The judge was clearly not impressed with Plaintiff’s efforts in these cases and even stated Plaintiff was picking which “…procedural rules it likes and ignoring deadlines and discovery limitations.” (Page 9)
The judge also made mention of the fact that Identification of the ISP subscriber from the public IP address was unlikely to meet the requirements of FRCP 11, and that Plaintiff knows this. This lack of factual support could lead to sanction against Plaintiff and their attorney.
It is not clear that plaintiff could, consistent with its obligations under Fed. R. Civ. P. 11, make factual contentions regarding an internet subscriber’s infringing activities based solely on the fact that he or she pays the internet bill. Plaintiff seems to be aware of this problem and has refrained from identifying the Doe defendants more specifically even after it learns the name of the subscriber. Plaintiff does not, however, take the appropriate steps of returning to the Court to seek an extension of time in which to serve and permission to conduct additional discovery. Rather, plaintiff demands that the subscriber prove he or she did not download “Adventures in Zambezia.” Therein lies the rub. Plaintiff has effectively obtained access to unrepresented individuals and parleyed that access into open-ended and unlimited discovery, despite the very narrow discovery order entered by the Court.
Even with his concerns, the Judge lifted the stay on the subpoena and informed Plaintiff they have 60 days to “complete discovery and affect service.” The 60 day time frame will end at the close of business on 6 Oct 13. I expect Troll Richard Symmes to milk the settlements up until 6 Oct13, and then dismiss all the Does that they can.
Failure to file proof of service on or before the sixtieth day will result in the dismissal of plaintiff’s claims as to each unserved defendant. The Court takes under advisement issues regarding ownership of the copyright and/or plaintiff’s failure to provide complete information regarding communications with subscribers and the ownership of Zambezia Film (Pty.) Ltd.
One problem Plaintiff will have (at least in this case); a defendant has filed an answer to the complaint and made counterclaims. It is one thing for a judge to see that you had no intention of actually litigating your cases – but it is something else to not be able to close out a “dog” case(s) in front of that same judge. Answer_CClaim_00318(WA) On 9 May 13, Susan Vandee, represented by John E. Whitaker, filed the first amended answer and counterclaim against Plaintiff. Mrs. Vandee denies the allegation of copyright infringement or even having knowledge of the movie. As of this article, I did not see Plaintiff’s answer to the counterclaims.
Mrs. Vandee makes the following affirmative defenses (Page 10-11) –
- Lack of Standing
- No Infringement
- Abuse of Process
- Misuse of Copyright
- Estoppel and Unclean Hands
- Implied License
- Inadequacy of Copyright Assignment
We have a little less than a month to go, so I expect the Does out there are being contacted and threatened (My opinion) with damages of $150K+ unless they settle. If Plaintiff/Troll Symmes does not actually try to litigate some portion of these cases, Judge Lasnik is likely to kill (or at least severally hamper) any/all future copyright infringement cases that appear only to be filed as a settlement generating effort. Note: the Washington District courts (East & West) have not seen any new BT copyright infringement cases filed since the March/April 2013 time frame. I think based off this order, the Copyright Trolls/Plaintiffs in Washington State jurisdictions have become “Persona Non Grata.”