“Who Are You?” ISP Subscriber or Defendant? (1:12-cv-10805 (MA))

I hope everyone had a good weekend and got to enjoy themselves a bit.   😉   I was unable to get this out sooner, but if you follow SJD or Raul on Twitter, you would have seen it publicized. 

On 10 Aug 12, Judge Leo Sorokin, District of Massachusetts, issued a Memorandum and Order on Motions to Quash, 1:12-cv-10805, Discount Video Center, Inc., v. John Does 1-29.  Sorokin 8-10 Order_10805(MA)   The bottom line of the order is as follows.

  • All the subpoenas for early discovery of ISP subscriber information are quashed. 
  • PROHIBITS Plaintiff/Troll from using the ISP subscriber information it has already obtained to do ANYTHING except (within three days) to serve a copy of the order on the subscribers it has contact information on.
  • Within three days Plaintiff/Troll will notify the ISPs to stop working on collecting the subscriber information, as early discovery has been quashed {Will also provide a copy of the order to the ISPs}.
  • Plaintiff/Troll has 30 days to request leave to file a new early discovery request and must abide by specific conditions set by the court in the order.

This order follows the hearing and subsequent supporting documents filed by Samuel Perkins (Firm) for Doe #22.    {Previous post on this subject}     If you haven’t had a chance to read the transcript of the 30 Jul 12, hearing, please take the time to do so.

In this memorandum and order, Judge Sorokin addresses many issues and puts off others for another time.  The judge starts off explaining why early discovery of the ISP subscriber information is justified.

As a preliminary matter, I find that good cause supports early proper discovery under Rule 26(d) (largely for reasons explained by other judges in similar cases) for the sole and limited purpose of identifying the Doe defendants sufficiently to name them as defendants and to serve the Complaint upon them.

Please note the underlined word, “proper.”  The judge did this because the actions of Troll cable are questionable to say the least.  As there is no other way for Plaintiff to identify the defendants, expedited discovery is warranted.  What I take from this is the judge is making it very clear to Troll Cable (and others out there) that the only thing that will be “proper” is if Plaintiff uses the information obtained from the ISPs to try to determine who the actual infringers are and to name them once the determination is made. 

In the 30 Jul 12, hearing, Troll Cable told the judge that he was willing to depose all the ISP subscribers to determine who the infringer was.  He ended up in this position against his better judgment when he told the judge he was only trying to find the infringers and not squeeze out settlements from the ISP subscribers.  First he tried to tell the judge that he would submit formal written questions (interrogatories) to the ISP subscribers, but Mr. Perkins informed the court that you cannot use interrogatories on a non-party (ISP subscriber), only defendants.  This can be a costly matter for Plaintiff/Troll.  If Plaintiff decides to go forward with this action, they had better be prepared to conduct the depositions. 

29 Non-Defendants

Plaintiff attempted to tell the court that they were suing the actual infringers and not the ISP subscribers.  The court noted the confusion that Plaintiff’s complaint made in making this distinction hard to understand.  The court also noted the notice attached to the subpoena, “states unequivocally that the subscriber is the defendant in the law suit:  The best Troll Cable could do was tell that court that they are only suing the Doe defendants who are the actual infringers.  Troll Cable had to admit that not all of the ISP subscribers were going to be the infringers. 

The judge made it clear the improper naming of ISP subscribers as defendants in a pornography copyright infringement case could lead to people settling when they were innocent.     

Accordingly, the subscribers should not have been told that they already were defendants.  Plaintiff’s concession at the hearing that the subscriber appearing as Doe 22 has not been sued and is not a party merely confirms the point. Moreover, the improper assertion in the Notice that subscribers are Defendants is significant in that it might well cause innocent subscribers (understandably concerned about the prospect of the threatened public identification as a copyright infringer of “Anal Cum Swappers 2″) to accede to unreasonable settlement demands. See Digital Sin, 279 F.R.D. at 242 (the “risk of false positives gives rise to ‘the potential for coercing unjust settlements from innocent defendants’ such as individuals who want to avoid the embarrassment of having their names publicly associated with allegations of illegally downloading” pornography). That the subscribers have a privacy interest created by Congress heightens this concern. See 47 U.S.C. § 551 (establishing, with limits, the privacy of certain personally identifiable information held by cable providers).

The judge stated Plaintiff could be granted discovery, but only after proposing a proper notice and procedures in doing so.  Within 30 days, Plaintiff can make a renewed request for early discovery and abide by these rules:

  • Explain how the proposed discovery pursuant to the rules of civil procedure will establish the identity of the Doe infringers or lead to sufficient information for the Plaintiff to identify the Doe infringers such that the Plaintiff can seek leave to amend the Complaint to insert the names of the Doe defendants.
  • Propose a Protective Order ensuring the confidentiality of the subscribers’ identifying information unless or until the Plaintiff has a good faith basis to seek leave to amend the Complaint to name individual subscriber(s) as Defendants (at which point it may file a motion for leave to amend the Complaint which motion it shall serve on the proposed Defendant).
  • Submit to the Court any notice(s) it seeks leave to serve with the subpoena.

Bad Faith & Joinder Issues

The court declined to address the issue of “Bad Faith” settlement practices, but certainly kept the door open for that possibility in the future. 

At this time, the Court declines to make a finding regarding the bad faith issue in this case arising from the Plaintiff’s assertion in the Notice that the subscriber has been sued in federal court. However, the Court would evaluate differently any claims arising from future assertions that subscribers are Defendants and further cautions the Plaintiff to distinguish carefully between the allegations it has made at any given time and the allegations it believes it will be able to make in the future.

As the judge stated clearly that all 29 of the ISP subscribers are not defendants in this action, the issue of improper joinder will not be addressed at this time. This leaves the door open for any defendant to raise the issue of improper joinder based on the “swarm” theory. 

What Is Next?

After making the required notifications to the ISPs and subscribers which it has contact information on, Plaintiff can reapply for early discovery of the ISP subscriber information in accordance with the courts instructions.  This is where it gets a bit tricky for Plaintiff and Troll Cable.  If they decide to not pursue the matter, the court will see what Troll Cable said at the hearing is all lies and there is no intention to pursue the actual infringers – It is a shakedown operation.  If they do go forward with the early discovery, they are likely to have to pay for some depositions.  Unless they can get the ISP subscribers to admit to downloading/sharing Plaintiff’s movie or determine who the infringer was, they are in a tough position.  If a person claims they don’t know how it happened or that their Internet connection was abused or “Open,” Plaintiff will have to pay for additional investigation steps – additional interviews and/or forensic examination(s).  As this is a business operation, such costs are going to be a drain on profits. 

This memorandum and order highlights a good issue for future motions by Pro Se defendants and lawyers.  Who are the Plaintiff/Trolls suing and what does the Troll says as to your status?  Are you a defendant because you are the ISP subscriber or a non-party?  This is where the settlement notices you get are so important.  According to the C.E.G. and Prenda Law ones, you as the ISP subscriber are being sued because you are the infringer or were responsible due to negligence on your part.  Many of the Trolls have made statements to the courts that they are only seeking additional information from the ISP subscribers when they contact them regarding these issues.  By highlighting these lies, more courts see what the Troll are doing and put them in their place. 

DieTrollDie 🙂

“Some ships are designed to sink…other require our attention.”

   

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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8 Responses to “Who Are You?” ISP Subscriber or Defendant? (1:12-cv-10805 (MA))

  1. AC says:

    I’m a little confused, as I’m still trying to get my bearings in the legal process… at which stage of the troll process is this case? Has the plaintiff already subpoenaed the ISP and received the names of subscribers? That is, has Doe 22 already gotten the settlement letter and is filing a MTQ the copyright infringement complaint? Sorry for the confusion, but I hope you can clarify. Thanks.

    • DieTrollDie says:

      No problem. The previous post on this answers your questions. The Plaintiff/Troll was allowed early discovery to get the subscriber information from the ISPs. Three Does filed motions. After a 30 Jul 12, hearing, the judge issued this order. The Troll has some of the subscriber information, but not for everyone. If the Plaintiff wants to, they have to reapply for early discovery following the direction/order of the court.

      DTD 🙂

  2. Subscribe says:

    Subscribe

  3. that anonymous coward says:

    ROFL…. down the hole they go….
    Trying to get a Judge to sign off on trolling the family computer based on evidence that is flimsy?
    Not to mention once they name a Doe in a case… they are going to lawyer up and the first thing to attack is how the IP’s are gathered… ooopsie…

  4. Pingback: Another day, another defendant is fighting back « Fight Copyright Trolls

  5. anonymous says:

    Perkins dropped a goddamn BOMB on Cable today. Go read it. You won’t be disappointed.

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