Well I hope everyone had a great Saint Patrick’s Day, even if you are not Irish. 😉 I was actually in a parade and had a great time. Sorry I can’t share the location or pictures. No green beer for me, but I am partial to some nice bourbon. Cooked some corned beef and vegetables in dark ale last night – very nice.
Well, Raul passed on some more interesting information on a CA case, 3:11-cv-02143, Patrick Collins v. John Does 1-51, Southern District of CA, originally filed on 15 sep 11. The Troll is Adam M. Silverstein, Cavalluzzi & Cavalluzzi, Los Angeles, CA. In the latter filings, the case title is “Patrick Collins v. John Does, 34-51, et al.” (Amended complaint filed on 9 Feb 12) Amend_Complaint_02143(CA) Here is a copy of the docket as of 19 Mar 11 – Docket_19Mar12_02143(CA) The docket shows this case has two named defendants and two Doe defendant that are represented by local attorneys. This is another busy case for me to review, so if I miss anything, I apologize. Please post your thoughts and analysis of the different aspects of it.
Standard Troll case from Patrick Collins. (The initial complaint – Compliant_02143(CA)) Plaintiff claims that all defendants reside within the court’s jurisdiction and they took part in illegally sharing the movie “Gangbanged,” via BitTorrent. The movie was first published on 26 Mar 11, with a copyright application date of 26 May 11 (62 days). Plaintiff was given a copyright for the movie on 3 Jun 11, registration # PA0001745322 (70 day from 1st publication).
Plaintiff employed IPP Limited to track the illegal file sharing of the movie. IP_List_02143(CA) The period of alleged activity is 48 days (19 May – 5 July 2011). As usual you cannot tell when a public IP allegedly started or stopped sharing the movie in question.
On 12 Oct 11, the court granted plaintiff the right to serve the subpoena on the ISPs. Disc_Granted_02143(CA) Some subscriber information was released by the ISPs, but AT&T decided to mess with the Troll, if in a rather awkward way – see below.
Two Does decided to fight the release of their information and filed motions through an attorney. JaneDoe_MTQ_02143(CA) Doe40_MTQ_02143(CA) On 14 Mar 12, the judged denied both motions to quash. Deny_Motion_02143(CA) Deny_Motion2_02143(CA)
One Doe even officially responded to the complaint with denials (Doe_Answer_02143(CA)) of the alleged activity, requested the court to dismiss the case, and for Plaintiff to pay his attorney fees. On 5 Mar 12, this Doe defendant (A.J. Bernal) filed a “NOTICE OF MOTION & MOTION TO DISMISS OR ALTERNATE MOTION FOR A MORE DEFINITE STATEMENT; AND MOTION TO STRIKE AND FOR PROTECTION.” Motion_Strike_02143(CA) A 14 May 12, hearing has been set-up to address this motion. In support of this motion, Mr. Bernal provided a memorandum in support of his request. Doe_Sup_Memo_02143(CA)
This document is the really fun one, as it states Plaintiff failed to state a legally cognizable claim for copyright infringement under the law, failed to allege a valid copyright, or copying of any identifiable constituent elements of the work that are original.
I have found that a valid copyright does exist for the movie, but it is not in the complaint. As far as the issue of original content, Mr. Bernal states that complaint does not state the movie is original content, or parts of it contain original content.
That the subject matter may not be original is a serious concern, particularly since “Gangbang” movies are apparently a type of generically named, non-original pornography that has been around long before the “Work” in question—so there is real doubt that any particular element of the Work is original.
If the court does not dismiss this case, Mr. Bernal requested that Plaintiff be required to provide a more defined complaint with the following information:
- (1) the exact elements of the work itself that are original
- (2) the exact manner in which the Moving Defendant is alleged to have copied the original elements
- (3) with whom the Moving Defendant allegedly conspired to download the “Work”
On 13 Jan 12, Plaintiff requested the court “compel” AT&T to provide the subscriber information. AT&T was originally required to provide the subscriber information by 28 Nov 11. Seems like the Troll took his sweet time in asking for the courts assistance once AT&T failed to provide the information (93 days). My belief is the Troll was happy for the delay in that it gave them more time to work on the initial set of Doe information, while they could then cry to the court for more time, due to AT&T not complying. On 22 Feb 12, the court issued an order requiring AT&T to provide the ISP subscriber information. On 5 Mar 12, AT&T filed a motion requesting the court reconsider the 22 Feb 12, order directing compliance. Plaintiff_Resp_ATT_02143(CA) Order_Hearing_02143(CA)
AT&T asserted that it had objected to the subpoena and presented exhibits in support. Consequently, AT&T claims that Plaintiff failed to provide notice of the motion pursuant to Fed.R.Civ.P. 45(c)(2)(B)(i) which requires that the issuing party, after receiving written objections to the subpoena, may bring a motion to compel upon notice to the commanded party. In addition, AT&T states that the subpoena was issued from the Northern District of Texas and, pursuant to Rule 45(c)(2)(B)(i), Plaintiff was required to bring the motion to compel before that court.
On 14 Mar 12, Plaintiff told the court that AT&T’s motion to reconsider was “moot,” because they had already provided the requested information on 29 Feb 12 (Five days prior to asking the court to reconsider it’s order).
The problem the Troll had is they cannot open the file that AT&T provided (subscriber information) to them! LMAO!!!!! So it looks like AT&T provided the information, but possibly encrypted it. That way they were technically complying with the order, but still could motion the court.
Hey Mr. Troll, I posted how easy it was for me to crack the password on the document. Here is a little demo – hope you like – 😉http://www.youtube.com/watch?v=dQw4w9WgXcQ
Judge Mitchell Dembin, provides the following analysis of this rather confusing situation:
It appears to the Court that we may have a improper motion to compel followed by a moot motion to reconsider and an objection to information produced pursuant to a compulsion order obtained without required notice and from the wrong court. The Court cannot rule on this matter based upon the record before it.
On 15 Mar 12, the judge orders the attorneys for Plaintiff and AT&T to appear before him on 22 Mar 12, at 2PM, “to discuss their use of the resources of this Court and to provide suggestions for the Court to resolve this dispute.”
Also on 15 Mar 12, the judge denied a third motion to extend the time period for serving a summons on Doe defendants. Denied_Exten_02143(CA) The first two extensions were approved and gave Plaintiff until 13 Feb 12, and 14 Mar 12, to serve Doe defendants with a summons. The judge puts it rather bluntly of what he thinks of Troll’s third request:
…To the contrary, judging from the other filings in this case, it appears that those Doe Defendants may indeed suffer prejudice if Plaintiff is granted yet another extension of time within which to serve them. Finally, the Court notes that, as was the case with the prior two requests for extension, Plaintiff has filed his request on the last possible day for him to effectuate service. Such conduct demonstrates lack of due diligence on Plaintiff’s behalf, and weighs against the finding of “excusable neglect” or “good cause” in this case. Accordingly, Plaintiff’s third motion to extend time for service of summons and complaint on Doe Defendants is hereby DENIED.
Dear readers, this does not bode well for the Troll. The judge appears to see what type of operation he is dealing with, as well as the type of attorney is handling it. The judge appears to be of the opinion that Does who are innocent will fight, while others will settle with the Troll. A common view, as what crazy person/company would bring suit against so many defendants if it was otherwise? The judge may soon change his mind concerning this abuse of the courts time and resources, as the truth of the mater becomes clearer. Hopefully the 22 Mar 12, meeting will turn out well for the AT&T Does. The 14 May 12, meeting to address Mr. Bernal’s motion will also be interesting. I bet Plaintiff will try to close up shop and dismiss everyone by that date, as they don’t want to have answer some tough questions.