PA Judge Denies Troll Motion to Serve a Subpoena on ISPs, 2:11-CV-07247, Patrick Collins v. John Does 1-26

One area I haven’t spent as much time on as I should is the issue of copyright registration verse copyright application in regards to copyright infringement law suits. It is an area that has some differing opinions from various courts. Thank you RAUL for passing this along. I will do a little analysis and try to highlight key points.

The document is a 30 Dec 11, Court Order denying the Trolls/Plaintiff’s (Fiore & Barber, LLC/Patrick Collins) Motion for Leave to Serve Third Party Subpoenas on ISPs. Case # 2:11-cv-07247, Patrick Collins Inc., v. John Does 1-26. Complaint. The main issue Judge Legrome D. Davis had, was the movie in question (Asa Akira is Insatiable 2) did not have a copyright registration, only an application for one from the U.S. Copyright Office. 

The judge stated for copyright infringement cases such as this one, the court will use a variety of factors to determine if issuing a subpoena for subscriber information is warranted against 1st Amendment interests. One of these factors is the concrete establishment of a “Prima Facie” claim of actionable harm.

This rule makes good sense, both as a matter of policy and constitutional law. If a copyright infringement plaintiff cannot even make a prima facie showing of actionable harm by the defendants, then we see no good reason to force an ISP to turn over the defendants’ identities. Such a rule serves a screening function of sorts, ensuring that courts (and litigants) give due deference to an individual’s First Amendment right to disseminate information anonymously, see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (holding that the First Amendment protects an author’s decision to remain anonymous), and constitutional right to privacy, see Whalen v. Roe, 429 U.S. 589, 598-600 (1977) (noting that right to privacy encompasses “the individual interest in avoiding disclosure of personal matters.”). Although not absolute, these rights should not give way without a compelling reason.

AND

Here, Plaintiff’s complaint does not allege a viable copyright infringement claim properly before the Court because the work in question, “Asa Akira is Insatiable 2,” has not yet been registered with the United States Copyright Office. Under 17 U.S.C. § 411(a), absent certain circumstances not applicable here, one cannot bring a copyright infringement action until the copyright is registered. It follows that “a party may not state a prima facie case of copyright infringement where the party does not hold a registered copyright in accordance with 17 U.S.C. § 411(a).” Telebrands Corp. v. Exceptional Prods. Inc., No. 11–CV–2252, 2011 WL 6029402, at *3 (D.N.J. Dec. 5, 2011) (citation omitted).

The court noted there are different opinions on the copyright registration verse copyright application debate, but as the law is written (17 U.S.C. § 411(a)), a claim of copyright infringement cannot be made until the copyright is registered.

Judge Davis also had a nice comment on the general nature of Copyright Troll cases,

We see some value in the registration approach’s potential to reduce the frequency of coercive settlements of meritless copyright infringement claims. See SBO Pictures, Inc. v. Does 1-3036, No. 11–4220, 2011 WL 6002620, at *3-4 (N.D. Cal. Nov. 30, 2011) (observing that “[t]he vast majority of these mass copyright infringement suits are resolved through settlement once the plaintiff secures the information identifying the Does,” and “plaintiffs appear[ed] content to force settlements without incurring any of the burdens involved in proving their cases.”) (citations omitted).

The court then went on to comment that even if they accepted the “Application Approach” to this issue, Plaintiff has not shown the court it completed all the application requirements. To properly make a copyright application, Plaintiff must (1) submit the required paperwork, (2) provide the required numbers of copies of the work, and (3) pay the required application fee. Plaintiff has only shown the court submitted the application and not the remaining requirements.

In its last point, the court addresses Counts 3 & 4 to the complaint (Not used to support the Motion to Subpoena ISP subscriber data), in which Plaintiff make trademark infringement claims against the Does. The court dismisses this claim also,

However, the complaint lacks any specific factual allegations that John Doe Defendants sold, distributed, or advertised any goods, much less goods bearing Plaintiff’s trademarks; or that Defendants have used Plaintiff’s trademarks “in commerce.” Instead, the facts alleged in the complaint show, at most, that all twenty-six (26) John Doe Defendants participated in a BitTorrent swarm to obtain a copy of Plaintiff’s movie. We harbor some doubt that these facts, even if true, support a claim of trademark infringement. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” will not survive a motion to dismiss). As such, Collins’ trademark infringement claims do not give us good cause to permit Collins to subpoena John Doe Defendants’ ISPs.

I expect the Troll will file a response to this order, but as the court was following the letter of the law, I don’t think they will have much luck in getting the court to change its ruling. It also doesn’t bode well for the Troll that the court considers these types of cases to be focused on obtaining “…coercive settlements of meritless copyright infringement claims.”

Well done Judge Davis.  Well done.

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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43 Responses to PA Judge Denies Troll Motion to Serve a Subpoena on ISPs, 2:11-CV-07247, Patrick Collins v. John Does 1-26

  1. Raul says:

    Thank you DTD for giving this aspect of Troll litigation the attention I think it deserves. Since being grabbed roughly into the world of a potential Troll lawsuit I have taken great comfort in this site and that of SJD http://fightcopyrighttrolls.com/ as an avenue to share thoughts, strategy and concerns.

    As to strategy, as a retired member of the world’s second oldest profession, it has long been my opinion that the lack of a certificate of copyright registration is the Achilles heel for a lot of these Troll lawsuits. It seems that a majority of them involve DVDs to which no certificate of copyright registration is attached which can be fatal to the lawsuit. Specifically if you live in a state that adheres to the “registration” approach you have great grounds to quash a subpoena on a basis other than misjoinder (See, http://docs.justia.com/cases/federal/district-courts/new-york/nyedce/2:2011cv03331/319938/10/0.pdf?1316528006 as well as the case above) or move to dismiss the complaint pursuant to FRCP 16 (b) (6). Pennsylvania, Colorado, New York, Illinois, Alabama, Florida. Georgia as well a other states I am not aware of APPEAR TO adhere to the “registration” approach as opposed to the “application” approach. What is also important to recognize is that by virtue of the interplay between Section 411(a) and 412 of the Copyright Act, states that follow the “registration” approach do not permit Rule 412 statutory damages (up to $150,000) or attorneys fees under that section. So in the unlikely case you receive a summons and complaint, you would make a Rule 16 (b) (6) motion to dismiss the Section 412 relief and request Rule 11 sanctions against plaintiff’s counsel for asserting such nonsense in the first place (the motion would be even better if you attached a letter you wrote to the law firm in response to a phone call you received from them in which you advised them of the above). In the event I get served I will prepare such a motion and share it with this wonderful site.

    All of the above is mere speculation on my behalf and in no way constitutes legal advice. Use or contmeplate at your own risk.

  2. Raul says:

    Caveat: Under no circumstances should you make a Rule 16 (b) (6) motion until AFTER you served with a summons and complaint. I am not sure if the above is ambiguous on that point but I just want to be sure no one makes a bone head mistake.

    This in no way or manner constitutes legal advice so read at your own risk and, by no means, adhere to it. .

  3. This was one of the best articles I’ve seen in quite a while. It is one thing to kill these cases on procedural bases (based on violations of the Federal Rules of Civil Procedure), but as Raul and the author clearly describe, there *are* other ways to kill a bittorrent case (here, based on the MERITS of the case). Great article!

  4. anonymous obviouly says:

    I know the legal mumbo/jumbo can be difficult for a non lawyer but try to wade through it to gain an understanding because this stuff in pure, unadulterated Kryptonite to a Troll lawsuit that fits the criteria.

  5. PAJohnDoe says:

    In my single John Doe case 11:cv:07083BMS
    http://www.rfcexpress.com/lawsuits/copyright-lawsuits/pennsylvania-eastern-district-court/85054/k-beech-inc-v-john-doe/summary/ ), I tried to make this copyright registration argument in my Motion to Quash the subpoena to my ISP. On 11 Jan, the judge denied my motion, without any explanation other than he considered my motion and the Plaintiff’s response.

    I was going to file an amendment, pointing out his colleague’s ruling about denying the ISP subpoena, but I guess I didn’t get it done in time. Would it be possible to offer the Judge Davis ruling as some kind of appeal to the subpoena? I have no idea how long until the Plaintiff gets my subscriber info from the ISP.

    • DieTrollDie says:

      I think that is a perfect idea. Just reference your original MTQ, the Judge’s decision, and the ruling on the other case. Highlight the section from the Judge that states that Plaintiff didn’t show Prima Facie claim of harm – based on the movie not being registered.

  6. Motion to reargue the MTQ ?

    • PAJohnDoe says:

      Short of printing out Judge Davis’s full ruling and putting a postage stamp on it, I took a bunch of the opinion, wrapped it with stuff from my case, and sent it off.

      I faxed it to my ISP as well with a request to wait for the Judge, hopefully before they release my info.

      Thanks again for the quick responses and insightful comments here.

      • PAJohnDoe says:

        Judge Schiller denied my Motion to Quash the ISP subpoena on 30Jan.
        He wrote a six-page memo which is in Pacer.
        Basically he agrees with the “application” approach, instead of the “registration” approach.

      • DieTrollDie says:

        Can you email me the case number in which to find the memo. Thanks.

        DTD 🙂

      • DieTrollDie says:

        OK. I got the court order. Sorry the judge ruled that way. So once the Troll has you personal information, expect calls and letters. When this happens, I would suggest answering the telephone calls politely and advise them that (1) you didn’t do it, (2) there is no evidence on your system, (3) you will fight them in court, & (4) have a nice day and don’t call back.

        It is to a point where the troll has to put up or shut up. I don’t know if the judge will allow any limited depositions, but if you respond to their efforts to talk to you and not run & hide, it will make it harder for them to whine at the judge – “The Doe will not talk to me and admit he did it, (whine, sniffle, whine). Please grant me a limited deposition so I can interview him for a couple hours.”

        If the judge sees that the troll has made contact with you and you are unwilling to settle, he is more likely to tell the Troll hurry up and serve you with a summons. I know it is not something anyone wants to hear, but the troll doesn’t want this either. If you do get a subpoena for a deposition or a summons, get an attorney. That will scare the troll, as they don’t want to have to answer questions from your attorney on who and how the evidence was collected.

        Keep us posted.

        DTD 🙂

  7. CTVic says:

    So the Trollawyers tried submitting a copyright infringement claim without actually having a copyright?!? That’s incredibly sloppy! I find it hard to believe that even a first year law student hung over with a skull fracture would stutter his way into a mistake like that. That’s like having somebody arrested for violating a restraining order, but not actually HAVING a restraining order. What’s your excuse to that? Sorry … I just didn’t notice?
    I think these trollawyers are just testing waters – seeing which judges are paying attention, and which ones aren’t to see how far they can get away with their scheme and for how long.

    • Anonymous says:

      Some time ago I became curious about this and did a brief survey of registrations using the Copyright Office’s online database:

      http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First

      I suspect that in many cases applications were not even submitted. In all of the cases I have seen where the complaint claimed that a registration was pending, there was never a copy of the application on the docket and after many, many months the database comes up empty.

      Some thoughts since IANAL and don’t know the gold standard procedure for verifying copyright registration:

      * The online database may not be up to date.

      * The application may be in process. The Copyright Office website states the average processing time for e-filing is 3 months, 10 for paper forms. I found a number of cases from early last year where the works do not appear in the database, while works in more recent cases have registrations, and in those cases the turnaround time from publication to registration was a month or two. It seems unlikely that the application for a work involved in a case from Q4 2010 or 1H 2011 would still be pending while applications for works involved in cases from 2H 2011 had been processed.

      * Stuff released on DVD is more likely to be registered than online content. I’d guess the publishing pipeline for DVDs makes registration a normal part of that process, while streaming/downloadable content providers just put stuff on their websites and never gave much thought to copyright registration until it became a potential revenue stream.

      * The work is part of a compilation, under another company name, etc. I don’t know if I should expect to find a registration under the exact title, or if it might be registered to a parent company, or what. When I didn’t find something by title, I tried additional criteria like plaintiff name, affiliated brand names, etc., which sometimes worked.

      My guess is that since the Trolls never intended to fully litigate these cases, they were greedy and sloppy and registrations fell through the cracks. One can easily see that each Troll group uses the same complaint over and over with a different plaintiff, title and number of Does. They may have started with a few titles and actually submitted applications, then started copy-and-pasting more complaints for more titles and got carried away and neglected to register or didn’t care. The complaints *do* claim the right to statutory damages under the Copyright Act, and a valid registration *is* required to make that claim, so making that claim without registering and sending people letters telling them they may be liable for statutory damages is fraud.

      This may have worked early on when there was no information about these scams and people were most likely to get scared and settle, but the mistake will come back to haunt them. In addition to getting cases tossed, once counter-suits and class actions get going this stuff will hurt, as the ongoing class action against DGW cites this kind of behavior as grounds for the suit. If this had only happened one time, in one case, ever, that would be one thing, but plaintiffs who have made a habit of claiming statutory damages they aren’t entitled to for works they haven’t registered in case after case after case are asking for it. Even if they never make the same mistake again, they are liable for the mistakes they already made.

      It would be great to start a database here or at SJD’s site to keep track of case numbers and details and whether the title in each case is registered. It would be super-easy to crowd source, then we can track just how fast and loose the Trolls are with registration, and it would also be great for convincing attorneys and regulators to get involved in these cases.

  8. JohnD says:

    First I want to reiterate Raul’s comment above about DTD and SJD,

    “Thank you DTD for giving this aspect of Troll litigation the attention I think it deserves. Since being grabbed roughly into the world of a potential Troll lawsuit I have taken great comfort in this site and that of SJD http://fightcopyrighttrolls.com/ as an avenue to share thoughts, strategy and concerns.”

    I wish that everyone who’s gets targeted by these Trolls are able to find these two great websites, and the great information they provide.

    Not sure if this is in the right area, but I just notices in RFC a Patrick Collins case with this summary:

    Case 2:11-cv-04203-FSH -PS in NJ

    1/19/2012 28 SCHEDULING ORDER, Scheduling Conference set for 1/26/2012 01:00 PM in Newark – Courtroom 10 before Magistrate Judge Patty Shwartz. Plaintiff’s counsel is to notify all defendants that they have contact information for. Signed by Magistrate Judge Patty Shwartz on 1/19/12. (aa, ) (Entered: 01/19/2012)

    What does it mean?

    and thank everyone again for the great information

  9. JohnD says:

    Latest from RFC,

    Does anyone know the status of this one?

    1/23/2012 33 Joint Discovery Plan by PATRICK COLLINS, INC..(LUTZER, SAMANTHA) (Entered: 01/23/2012)
    1/23/2012 32 Letter from Lutzer, Samantha. (LUTZER, SAMANTHA) (Entered: 01/23/2012)
    1/23/2012 31 AFFIDAVIT of Schmidt, Lydia For Service by PATRICK COLLINS, INC.. (LUTZER, SAMANTHA) (Entered: 01/23/2012)
    1/23/2012 30 NOTICE of Appearance by JONATHAN ZACHARY COHEN on behalf of Jeff Hitchcock (COHEN, JONATHAN) (Entered: 01/23/2012)

    thanks,
    JohnD

    • DieTrollDie says:

      Which case is this for? Case 2:11-cv-04203-FSH -PS in NJ?

      DTD 🙂

      • JohnD says:

        Yes,
        sorry to sidetrack, but it is a Collins case, and I was curious what all the updates on RFC means.

        thanks,
        🙂

    • Raul says:

      Just a guess: Prior to 1/23 the judge issued an Order for a Scheduling Conference for 1/26 and he directed plaintiff’s counsel to notify the defendants for whom she has contact info about the conference date. In response Jonathan Cohen filed a Notice of Appearance on behalf of defendant ,Jeff Hitchcock, as he will likely be in attendance at the conference. Plaintiff’s counsel on the same day filed a cover letter in which she enclosed an affidavit swearing that she had notified the defendants about the Scheduling Conference and had come up with a proposed Joint Discovery Plan. A Joint Discovery Plan sets up a timetable for the discovery stage (demand for documents, interrogatories, depositions, etc.) of a lawsuit and looks like this http://www.njd.uscourts.gov/forms/R16DiscoveryPlan.pdf. Hope this helps but remember it is just a guess.as I have not read the actual documents.

  10. JohnD says:

    DTD,

    do you think I should post this also on http://fightcopyrighttrolls.com/ ?

    JohnD

  11. JohnD says:

    Thanks, that’s what I was thinking.

    thanks again for all your info and help.
    🙂

  12. JohnD says:

    Good news for this case, I think,

    Saw this on RFC today:

    NJ Case – 2/1/2012 36 NOTICE of Voluntary Dismissal by PATRICK COLLINS, INC. (LUTZER, SAMANTHA) (Entered: 02/01/2012)

  13. anonymous says:

    Good news for the Troll maybe, the case was dismissed with prejudice. Meaning the individual settled.

  14. JohnD says:

    Crap, I was reading it as the entire case was dismissed,
    my bad 😦

  15. anonymous says:

    You were correct in that assumption, he/she was the only doe. 🙂

  16. JohnD says:

    opps, I think I should said it is the NJ case, sorry for the confusion,

    DTD, please fix this if you can.

    Sorry about that, I don’t want people to get misinformation.

  17. JohnD says:

    Double Crap,

    this is for Case 2:11-cv-04203-FSH -PS in NJ

    With prejudice means they settled, correct?

    2/2/2012 37 ORDER voluntarily dismissing Deft. JOHN DOE 33 only, w/prejudice. Signed by Judge Faith S. Hochberg on 2/1/12. (dc, ) (Entered: 02/02/2012)

  18. PADoe says:

    First of all, thank you for this site and all your hard work. It has helped me understand a bit about this random suit I appear to have wound up in & not completely blow my stack (though I am a borderline nervous wreck right now). I appear to be a John Doe named in a motion for discovery by Fiore & Barber, in Civil Action No: 2:11-cv-07248-MAM. Now that I know what is going on, and am rather appalled that suits like this go on, I followed the Noob advice, got a PACER account (with Recap), and have been trying to find info on this suit, but not been able find it. Unfortunately, I am under a very short time line to file the MTQ, so wondered if anyone could assist with some info on how to properly search the site for the court docs. This would be for the US District Court for the Eastern District of PA. Any tips would be greatly appreciated, as I only have a few days to get everything lined up. Am reading up as much as I can, but everything is a bit overwhelming. Any advice on the MTQ from those who have been through it would be spectacular as well. I have nothing to hide and want to fight this BS tooth & nail.

  19. Doe says:

    Can anyone find any info on Case# 11-37821 CA 22 Johne Does 1-915? Would you mind posting? Greatly appreciated!

  20. campkohler says:

    It seems kind of silly to celebrate the result of the denial. If all this goes away simply because there was no copyright, what about next time when a copyright does exist?

  21. campkohler says:

    Isn’t celebrating the denial a bit silly, being based on nothing more than not having a copyright in place? What happens next time when there is a copyright?

  22. Raul says:

    First off you have completely missed point; retread the post. Second, to answer your question if there is a copyright it may have been fraudulently obtained or obtained after the alleged infringement occurred which can have signicant legal consequences for the Does and the Troll. So if you are not a troll read this blog thoroughly and educate yourself because your post indicates that you have not done your homework.

  23. Raul says:

    Err…missed the point

  24. Raul says:

    DTD-Color me cynical but the fact that every time I check out these newly filed troll suits I Ifind that the complaint has been already RECAPPED got me wondering. I am wondering if it is troll SOP to RECAP their complaints so as to further terrorize Does by making the allegations against them readily discoverable? At this point in learning about all this nothing would surprise me but this would be a all time low.

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