Another K-Beech Case Takes a Beating! – K-Beech vs Does 1-85, 3:11cv469-JAG (Eastern District of VA)

Well this week has been nice to the Does.  I was just informed that another K-Beech case (K-Beech vs Does 1-85, 3:11cv469-JAG (Eastern District of VA)) was dealt a serious blow yesterday (5 Oct 11).  Thanks Raul!

I will add the document to this Blog soon.  Here is the link to it – https://www.eff.org/files/K-Beech.pdf

Order – Court_Order_5Oct11_K-Beech

EFF Article on this new development –

Funny part taken from ARS Technica Article on this ruling.  O’Bryan is the Troll.

One of the Doe defendants who complained to the court was Doe #7—O’Bryan’s former computer repairman.

“Doe #7 in the case at bar operates a computer repair business from home,” wrote the unnamed defendant to the judge, protesting that an IP address was not meaningful information. “Doe #7 connects clients’ computers to the internet through the home router. In fact, Doe #7 previously provided computer repair services to plaintiff’s attorney, who nonetheless refused to voluntarily dismiss John Doe #7.”

After the objection was filed, Doe #7 was dismissed.

Please read the order from the Court and spread the word!  The judge also noted that the two other similar cases filed in his court will meet with the same fate as this one.  The court on its own accord, severed Does 2-85, quashed the subpoenas, and then ordered plaintiff’s counsel to show cause as to why he should not be hit with Rule 11 sanctions for frivolous conduct.

This one will be a pleasure to add to the Motions template.

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
This entry was posted in 3:11cv469-JAG, bitTorrent, copyright, copyright Troll, dietrolldie, infringement, IPP, IPP International IPTRACKER, IPP Limited, K-Beech, Motion to dismis, p2p, piracy, Virgins 4. Bookmark the permalink.

12 Responses to Another K-Beech Case Takes a Beating! – K-Beech vs Does 1-85, 3:11cv469-JAG (Eastern District of VA)

  1. Rau; says:

    This is great news and is essential case law to insert in your motion to quash and ask for Rule 11 sanctions for frivolous joinder of unrelated parties (as in not supported by any existing statutory
    or case law) despite repeated rebukes of this bullshit by countless District Courts of which K-Beech is cynically aware of at this point.. This is getting to the point where an anonymous letter to your local Attorney General pointing out the fact that K-Beech has never tried to sue the uploader (it seems to be obviously an agent of K-Beech=honeypot) and that K-Beech is and their lawyers are seemingly engaged in a RICO conspiracy to extort money which is being unwillingly abetted by our Federal Court system. Time permitting, I will write such a letter next week and post it here for others to modify to their circumstances. Keep up the good fight!

    Raul

    • Raul says:

      Here is a post I left today at http://fightcopyrighttrolls.com which may be of use to your readers:

      This may be of interest to all John Does in the Southern District of New York, in the case entitled Do Denim v. Fried Denim, Judge Swain granted defendant’s motion to dismiss the copyright infringement claim for lack of subject matter jurisdiction under Section 411 of the Copyright Act. Do Denim had filed its deposit, application, and fee prior to filing suit, but had yet to receive a grant or a refusal. At least two other Southern District decisions have followed Do Denim in support of dismissal of the claim of infringement of an unregistered copyright. DMBJ Productions v. TMZ TV, and Lewinson v. Henry Holt and Company, LLC.

      K-Beech has only registered for the copyright to “Gang Bang Virgins” but has yet to receive the copyright ( see, Exhibit B to K-Beech’s complaint for copyright infringement). In other words, K-Beech is identical to the situation in Do Denim. Accordingly, under the Southern District’s case law the Southern District does not have subject matter jurisdiction over these lawsuits and they may be ripe for a motion to dismiss. That would be a (FRCP) Rule 12(b)(6) motion to dismiss (for failure to state a claim on which relief may be granted) and a Rule 12(b)(1) motion (for lack of subject-matter jurisdiction).

      Have fun with the info kiddies but be cautious as I am not an attorney and this blog post does in no way constitute legal advice.

  2. Raul says:

    I am writing to correct my earlier post regarding the Do Denim post above. The Supreme Court in Reed Elsevier v. Muchnick overruled those cases holding that a party cannot bring an infringement claim for an unregistered work due to lack of subject matter jurisdiction. However Reed Elsevier did not affect the holdings that a work with a pending copyright registration is not a pending application with in the meaning of Section 411(a) of the Copyright Act. Section 411(a) makes the registration of a work a precondition to bringing a copyright infringement action. On September 19, 2011 in K-Beech v. Does 1-29 (CV 11-3331) Judge Swain of the United States District for the Eastern District of New York found that K-Beech’s failure to have a certificate of registration for “Virgins 4” means that it has not pleaded a prima facie claim of copyright infringement and denied K-Beech’s motion fo serve third party subpoenas on various ISPs.
    What is also interesting about this decision is that Section 412 of the Copyright Act prohibits the awarding of statutory damages and attorneys fees unless a work has been registered which Judge Swain found “Virgins 4” was not because K-Beech does not have a certificate of registration for that movie. In other words it would seem that, in New York, K-Beech cannot recover statutory damages of attorney’s fees. See, e.g., Lewinson v. Henry Holt& Co., 629 F. Supp. 2d 547, 553, 559 (S.D.N.Y. 2009) (holding that a work for which a registration application had been sent was not registered within the meaning of § 411(a)). Therefore, K-Beech would only be entitled to sue for “actual damages” which for all practical purposes would be the retail cost of “Virgin 4” or “Gang Bang Virgins” which I believe is $19.99. In the event that K-Beech does eventually obtain a certificate of registration for those DVDs it would still not be able to recover statutory damages or attorneys fees for any infringement that occurred prior to the issuance of the certificate of registration. See, Arista Records LLC v. Lime Group LLC (06 CV 5936 (KMW) (barring statutory damages for preregistration copyright infringement).

    Accordingly, if you are one of the John Does in New York and you receive a “settlement letter” from K-Beech’s attorney and it threatens statutory damages and attorneys fees, you may wish to have your attorney write a letter to K-Beech’s counsel pointing that such damages are not recoverable by K-Beech under the circumstances and that K-Beech’s assertion that they are in its complaint and settlement letter may very well constitute “frivolous conduct” within the meaning of Rule 11 of the FRCP.

    This analysis is that of a layperson and does not constitute legal advice.

  3. Raul says:

    K-Beech v. Does 1-29 (CV 11-3331) Memorandum Opinion and Order can be found here: http://docs.justia.com/cases/federal/district-courts/new-york/nyedce/2:2011cv03331/319938/10/0.pdf?1316528006

  4. Raul says:

    My analysis above regarding K-Beech having to have a certificate of copyright registration for its DVDs prior to being able to make out a prima facie copyright infringement claim and not being entitled to statutory damages and attorneys fees by virtue of sections 411(a) and 412 of the Copyright Act is applicable to other states that follow the “registration approach” as opposed to the “application approach”. Aside from New York, it appears that Colorado, Georgia and Maryland have adopted the “registration approach” (there may be other states (Circuits) that have likewise adopted the “registration approach”).

    This analysis is that of a layperson and does not constitute legal advice.

  5. Raul says:

    Needless to say I am already preparing a Rule 12(b)(6) motion to dismiss which I am using this as a VERY rough template regarding the striking of statutory damages and attorneys fees: http://jmri.org/k/docket/192.pdf
    Additionally I will be making the argument set forth in Judge Swain’s Memorandum Opinion and Order: : http://docs.justia.com/cases/federal/district-courts/new-york/nyedce/2:2011cv03331/319938/10/0.pdf?1316528006

  6. Raul says:

    In the United States District Court for the Eastern District of New York in a case entitled K-Beech, Inc. v. John Does 1-37 (2:11-cv-03995) the law firm of Wong Wong & Associates, P.C., has filed a motion to quash subpoena as to John Doe #32. The essence of the motion is that plaintiff’s complaint does not allege a registered copyright for the film “Gang Bang Virgins” and plaintiff, therefore, has not pleaded a prima facie case for copyright infringement.

  7. Raul says:

    It is a great motion containg part of the legal analysis I posted yesterday. I tried to email you the zip file but my email server could not upload the file for some reason (too large?)

  8. SamIAm says:

    Hello, I just received a civil action 00469 for Eastern District of VA filed 12.30.11 from Beech Inc. I have no idea how my wireless IP address was chosen or used. I was never involved in any of this so i really need some help. Some how I am number 1 of the 85.
    I just need some guidance please.
    SamIAm

  9. Raul says:

    In yet another Memorandum and Order, dated 12-30-11, from the Eastern District of Pennsylvania Judge Davis held that the failure of Plaintiff, Patrick Collins, to have a copy of a copyright registration certificate for “Asa Akira is Insatiable 2” at the time it made a motion for leave to serve third part subpoenas prior to a Rule 26(f) Conference warranted the DENIAL of the motion for failure to make a prima facie showing of actionable harm. The case is entitled Patrick Collins, Inc., v. John Does (1-26 11-cv-7247) and can be found herehttp://law.justia.com/cases/federal/district-courts/pennsylvania/paedce/2:2011cv07247/454242/6/ What is interesting about this Memorandum and Order is twofold. First the Judge acknowledges the Does’ First Amendment right to disseminate information anonymously as well as the Does’ constitutional right to privacy (avoiding the disclosure of personal information) which should not give way without a compelling reason. Secondly, this is the first Memorandum and Oder that I have seen that addresses the trademark infringement claims being recently asserted in the a Patrick Collins as well as the K-Beech lawsuits. The Judge essentially says that these trademark infringement claims would not survive a motion to dismiss as the facts, as pleaded, do not support such a claim.

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