I was searching for interesting cases to profile and a smaller one caught by attention. Liberty Media Holdings, LLC v. BitTorrent Swarm, et, al (Does 1-38), case number 1:11-cv-21567, Southern District of Florida. The case was initially filed on 3 May 2011, by Jason Fischer, Randazza Legal Group, FL. The case was voluntarily dismissed by the Troll on 15 Nov 2011, after it took a shot to the head.
This small case had some interesting decisions (and documents) that can be of interests to Pro Se Does and Copyright Defense Lawyers.
Case was opened on 3 May 2011, and states that 38 John Does acted together to infringe upon Plaintiff’s work, “Down on the Farm. “ The Troll states all the Does either live within the court’s jurisdiction (Southern District of FL), did business in the area, or took part in acts that occurred in the district. As you will see a little later, that comment came back to hurt the Troll and helped out Doe #1. What is funny is that in the initial complaint, the Troll messed up and stated there were only 20 Does in the “Parties” section. They later filed an amended complaint. If you are going to run a cut & paste operation, I guess you need better quality control review – embarrassing. Complaint_21567(FL)
The complaint goes on to list the Does one-by-one and details when they started the download/sharing activity. They of course do not mention when the activity ended. Doe #1 was the first public IP address that Excubitor USA, Inc., (BitTorrent monitoring firm)identified, so they believe he was the initial uploader of the movie. Makes sense to do this, but it came back to hurt them, as Doe #1 did not reside within the court’s jurisdiction.
The Troll claims they are all part of a single “Swarm,” and lists the complaints as:
- Copyright Infringement 17 U.S.C. § 501
- Contributory Copyright Infringement
- Civil Conspiracy
- Negligence (Failing to secure their Internet access point)
Motion to Quash
As usual, the court granted the Trolls request to take early discovery and issued a subpoena for ISP subscriber information of the Does. On 8 Sep 2011, Doe #25, filed a Motion to Quash the Subpoena (Doe25_Motion_21567). (attach) Doe #25 requested the subpoena be quashed because:
- Improper joinder of all 38 Does
- The subpoena is overly broad and Does are ambiguous.
Here is a great point Doe #25 brings up concerning the overly broad subpoena and what ISP information will “identify” the defendants adequately.
As explained in the Court’s “Order Granting Plaintiff’s Motion for Early Discovery” (D.E. #11) filed in the instant case, Plaintiff intends its early discovery be for the limited purpose of identifying these Doe Defendants.” However, the subpoena received by Comcast and sent to Defendant requests 1) Name; 2) Present address and address as of the Hit Date; 3) Telephone numbers; 4) Email addresses; 5) Media Access Control (MAC) addresses; and 6) The Internet Service Provider’s Terms of Service applicable to the account holder.” Plaintiff has gone beyond the limited purpose of identifying the Does by asking for items 3 through 6. In order to comply with the Court order, Comcast may provide more information than is necessary for Plaintiff to effect service. ln order to effect service, all Plaintiff needs is Doe’s name and address. The subpoena in the instant case does not have the narrow scope of the information sought. A narrow scope would be Plaintiff requesting just the names and addresses used to identify the user of the IP addresses on the date and time listed. Plaintiff requests significantly more information and therefore, this subpoena is overbroad. Further, the subpoena received by Comcast is overbroad in that there is no proof that the person whose information Plaintiff receives acted in any way to violate any copyright law. At most, Plaintiff may be able to implicate an unknown computer rather than a person.
Doe #25 also informs the court of the mistake the Troll made by stating there was only 20 Does in the body of the complaint when there should have been 38.
Considering the Plaintiff has filed a nearly identical lawsuit (11-cv-21525) in this court, one can assume this clerical error is the byproduct of this mass litigation, but it should be clarified if moving forward to disambiguate the actual targeted Defendants in the instant case.
- IP addresses do not qualify as personal information, capable of accurately identifying an individual.
- Undue Burden
Doe asserts being subject to an undue burden in being a target of this civil action, when there is a substantial likelihood that the plaintiff will be unable to establish that Doe was actually the person responsible for any files transferred at the times alleged, or that Doe copied, distributed, or otherwise infringed on a protected work owned by the plaintiff. Furthermore, the removal of Doe’s cloak of anonymity will subject him to intrusive public scorn as an alleged unlawful copier of gay pornography.
- Basic fairness and Due Process
On 22 Sep 2011, the Troll filed a response to Doe #25’s Motion (Oppose_Doe25_Motion_21567), in which he tries to refute the points in the motion. The Troll also attached “DECLARATION OF MALTE DINKELA IN SUPPORT OF PLAINTIFF’S OPPOSITION TO UNIDENTIFIED FILER’S MOTION TO QUASH,” (Oppose_Decl_Dinkela_21567)
Mr. Dinkela, is the Vice President of Excubitor USA, Inc., a company incorporated in Nevada. It’s principal address is 4550 West Oakey Blvd. #111H, Las Vegas, Nevada 89102. Excubitor provides of online anti-piracy services for the motion picture industry. The declaration provided only a small amount of details on what information Excubitor collects:
Excubitor’s software would then monitor the swarm associated with downloading and distributing the AE3 Hash. Excubitor would investigate each peer connected with the AE3 Hash by downloading a portion of the file from the peer’s computer. This download confirmed that the peer was actively distributing the file. The evidence of this download is then saved and documented and could be introduced into evidence as necessary.
What caught my eye on the declaration by Mr. Dinkela, was the signature area. Looks like a seven-year old kid signed it. That or they were hanging out in the bar with John Steele and it was hard to sign. I can only do what the court did and assume the firm is reputable. What city is did he scribble down? Somebody help me. Boy, my signature is nothing to brag about, but this is a joke. If I were running a Federal case, I would be sure to have my experts/technicians appear competent. Not that any of these cases will ever go to a full trial where the evidence and the collection firms have to defend themselves. Now that would be a fun day.
20 Does Pay the Troll
While the judge was making his decision on the Motion, the Troll was making settlement demands to those Does in which it had obtained subscriber information from. The Troll was apparently able to get settlements from 20 Does – Voluntarily dismissed by Plaintiff. It appears COMCAST held out releasing the subscriber information on all its customers once Doe #25 filed his motion. The other COMCAST customers should thank Doe #25 for his efforts.
Judge Rules on the Motion
On 1 Nov 2011, the Judge K. Michael Moore, made the following decision (Order_Sever_Does_21567):
ORDERED AN D ADJUDGED that all Defendants, with the exception of Defendant
John Doe 1, identified by the Internet Protocol address 126.96.36.199, are SEVERED from the current matter. It is further
ORDERED AND ADJUDGED that all claim s against severed Defendants are DISMISSED without prejudice for refiling in separate actions. It is further
ORDERED AND ADJUDGED that because all severed Defendants have now been dismissed, all subpoenas seeking discovery regarding all Defendants, Defendant John Doe 1, are QUASHED. It is further with the exception of
ORDERED AND ADJUDGED that any pending motions are DENIED AS MOOT.
The court did not buy the claim that joinder was appropriate.
A close examination of Defendants’ activity reveals that all remaining Defendants used BitTorrent on different days and at different times over a two-month period. Even if Defendants did use BitTorrent at the same time, however, due to the decentralized operation of BitTorrent, this fact alone would not imply that Defendants “participated in or contributed to the downloading of each other’s copies of the work at issue.”
On the issue of severance, the court found the following:
This Court finds it appropriate to exercise its discretion to sever and dismiss all but Defendant John Doe 1, identified by the Internet Protocol address 188.8.131.52, from the current action. Even if joinder were appropriate, severance necessary to avoid causing prejudice and unfairness to Defendants, and to expedite and economize the litigation.
Troll Request to Amend the Severance
On the same day the judge issued his order, the Troll filed motion to amend the severance order (Plaintiff_Request_Amend_21567). The Troll told the judge they believe Doe #1 doesn’t live with the court’s jurisdiction. They believe Doe #1 lives in the middle district of Florida. The Troll then has the audacity to ask the court to change the single defendant to Doe #25. The Troll states wishes this because Doe #25 likely lives in the court’s jurisdiction, and Doe #25 has shown he wishes to litigate this matter because he filed a motion.
The judge just shot your case in the head and you want him to assign Doe #25 as the single defendant?????? What Balls!!! You really don’t think the judge will see that this is an attempt to attack a Doe who filed a motion – one that was successful! Did you hear that John Steele!
The judge ignored the ridiculous Troll motion and on 15 Nov 2011, the Troll voluntarily dismissed Doe #1 with prejudice and requested the case be terminated (Case_dismissed_21567). Looks like the Randazza Legal Group was happy to see this one closed. Still even with the comedy of errors, they apparently got 20 Does to pay up. I’m not sure what the settlement amount was, but as it was a smaller case in 2011, I would guess something around $3,000 (20 X $3K = $60K – $36K to LMH & $24K to Troll). Does anyone have any copies of Randazza letters and/or other correspondence I can post?
It is good to see the judge saw this case for what is and did a double tap on it. Thank you Doe #25 for filing the motion. Hopefully we will see some reason start to flow from the DC courts in the future. Here is my Scribd page containing more of the files for this case – http://www.scribd.com/DieTrollDie
*** Here is another similar order from a Texas judge on 8 March 2011. Order_Dismiss_00046(TX) K-Beech v. Does 1-41, 6:11-cv-00046, Southern District of Texas.
“Some ships are designed to sink…Others require our assistance.”