DC Appeals Court Tells Judge Howell – “Try Again” (AKA: John Steele’s 1%) – 1:12-cv-00048 (DC)

Many of you already know that on 27 May 2014, the US Appeals Court for the District of Columbia ruled the DC District Court (Judge Beryl A. Howell) erred in its decision on personal jurisdiction and joinder in a hotly contested AF Holdings LLC (AKA: Prenda Law) case.   Judge Howell felt that “considerations of personal jurisdiction and joinder are premature when discovery is sought before the plaintiff has named a defendant and the discovery is targeted to identify unknown individuals associated with the IP addresses.”   DC_Appeal_12-7135-1494480

The initial case (1:12-cv-00048) was a potential gold-mine for the dim-wits at Prenda Law (John Steele\Paul Hansmeier\Paul Duffy).  Troll/Plaintiff decided to try to use the Troll-friendly DC courts to try to obtain ISP subscriber information on 1058 Does – majority who did not live or do business in the district.  The American Civil Liberties Foundation, Electronic Freedom Foundation, multiple ISPs, and various attorneys attempted to stop this clear abuse of the judicial system.  Judge Howell ruled in favor of Plaintiff and granted the motion to compel the ISPs to release the information.

The 1% Factor

Troll John Steele was so full of himself with this case that he even sent me comments and an email (I believe it was John Steele) when my declaration (Torpedo) on this cases was tossed by Judge Howell (not a big surprise) and when the case went up on appeal.  {Email and attachment I received AND Initial DTD Post on this case and Steele’s comments}.

GamblingWell things obviously didn’t turn out as well as the Prenda Law clan wished it had. The Appeals Court clearly felt Troll/Plaintiff was abusing the courts and they were seeking to “manipulate judicial procedures to serve their own improper ends.

The appeals court reversed the District court’s order and told them to use the appeal’s court opinion for “further proceedings” and “to determine what sanctions, if any, are warranted for AF Holdings’s use of a possible forgery in support of its claim.”  Now I don’t have too much faith that Judge Howell will doing anything of significance, but I have been wrong before.

So What Does This All Mean?

For the Mass-Doe cases that are still being filed by Plaintiffs like Voltage Pictures, it is going to make their operation a bit harder to say the least. For Trolls like Malibu Media\X-Art, their single Doe cases are unlikely to be directly affected.

Mass-Doe Cases

This is where this ruling will have a significant effect. The appeals court agreed that as filed by AF Holdings (and all the other Mass-Doe filing Trolls), there is no evidence to support joinder of the defendants based only on the fact the Torrent hash file being shared via was the same.  The EFF’s analogy of different players at a BlackJack table to clearly explain this was excellent.  I believe many of the Doe Defenders will start citing this order/opinion in motions to quash/sever/dismiss.

But 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.

So this means that the Mass-Doe Plaintiffs will have to change-up their game. The first option is to go the Malibu Media/Troll Lipscomb route and file only single-Doe cases.  This probably their least favorite option.  The second option is to change their complaint format to show how each Doe interacted with the other Does in the swarm – not an easy task!  This is because I really doubt the Troll’s German BitTorrent monitoring firms (IPP, Guardalay, etc.) are set-up to do this.  The problem is how to show that Doe #1 downloaded from Does #6, 10, & 13, and uploaded to Does # 2, 5, & 11.  Imagine what a nightmare it would be to try to link just 50 Does together to properly show joinder!  The best they are likely to be able to do is show that a particular public IP address was sharing Plaintiff’s movie over a prolonged period.  What I believe will most likely happen is they will try to limit the number of Does in a case to a small window of time (i.e. one week).  This of course looks better, but is still does NOT address the real issue of whether or not the Does shared Plaintiff’s content between each other.  Failure to adequately shows this even on a Prima facie level is a Red-Flag for Doe defenders and the court.  So the joinder issue is going to be a hard one for them to overcome.

If these trolls are forced to file single-Doe cases, the profitability of such operations drastically drops.  These Mass-Doe filing Plaintiffs are nowhere as established as Malibu Media/Troll Lipscomb in terms of only going after single defendants.  I’m also of the opinion that Malibu Media accomplishes some sort of IP address filtering/analysis to focus their case filing to locations with a higher-median income level.  They already filter out the IP addresses to only the jurisdictions they file in – so how hard would it be to do some sort of financial filters?

Single-Doe Cases

These cases will not be affected by the appeals court ruling on joinder. But I do believe other courts around the country will take notice of this ruling and see how Copyright Trolls are misusing the courts.  Now Malibu Media/Troll Lipscomb will claim they are NOT Prenda AND that they have a real Plaintiff, that they actively litigate their cases, and even had one “Show Trial.”  They will use the words of EDPA Judge Bayless support their view that they are not a Copyright Troll.  Well, IMO they are still a copyright troll because they play a sad game of threatening large numbers of people to seeking quick settlements priced just low enough to make hiring a defense attorney more costly.

This appeals court ruling is good news, but it will in no way kill off the Trolls.  That will come in time and I look forward to the journey.  I will leave you with a little bit I wrote on the blog after Judge Howell granted the motion to compel and John Steele emailed me.

Yes Mr. Troll, I’m a little upset that the DC court ruled as such, but it doesn’t change the facts of your cases and the scumbag business model you are pursuing.   Even with your minuscule naming and serving of defendants, you are still a joke.  You will still send out your settlement demands, Idiot-Lutz calls, robo-calls, and Informal Discovery paperwork.  People will turn to Google and find out all about you and how to handle these garbage allegations.  DC may become the venue to obtain ISP subscriber information, but you will still be unable to take 99.999% of these people into a DC court.  I don’t doubt you will get a few lucky default judgments, but that is going to pale in comparison to the counterclaims that will eventually come your way. 

So I say, “yes you won one here.”  Don’t gloat too much; you will not be able to see the bitch-slap when it hits!   ;)

DieTrollDie :)

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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6 Responses to DC Appeals Court Tells Judge Howell – “Try Again” (AKA: John Steele’s 1%) – 1:12-cv-00048 (DC)

  1. Anon E. Mous says:

    This was a stern rebuke by the Appellate Court to Judge Beryl A. Howell who is the former RIAA Lobbyist who granted the order to Prenda to proceed to extort thousand of people guilty or innocent.

    The ruling by the Appellate Court undoes what a travesty Judge Beryl A. Howell’s original order was in the first place by someone who can not separate herself from her former profession to issue orders that are based in law and are to be fair and impartial which she does not seem to understand and goes against the oath she took as a Judge

  2. DTD, I share the same feelings as you here. It is nice to see an appeals court see reason, however, the damage from Judge Beryl Howell’s bias can never be undone. As I said now a few years ago, she should have never taken these cases. Bias.

    • DieTrollDie says:

      Thanks Rob. Your article is a good one and enjoyed reading it. I wonder what Judge Howell will now do? I don’t think the DCD had a clue on how much public exposure this case and appeal would generate.

      DTD :)

  3. SamIAm says:

    Hey man,

    Been a long time follower. Love the site and the help you give to people going through this bullshit. I just wanted to let you know that the TCYK 1:13-cv-03845 in Chicago was terminated the other day, after almost a year. They ended up dismissing all the other does from the case. Just thought you would like to know and maybe others would too. Fuck TCYK and their lawyers! Have an awesome day.

    • DieTrollDie says:

      Thanks for the update! It does not surprise me one bit. For the most part, the Mass-Doe Troll/Plaintiffs milk these cases for settlements for as long as possible and then close them out. For most of the people in these cases, they will never be named and served. These bozos are nothing more than a carbon copy of Prenda Law.

      DTD :)

    • DieTrollDie says:

      Here is a shared folder with the docket for TCYK case # 1:13-cv-03845(IL), as well as the final dismissal documents.

      DTD :)

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