Since the end of April 2013, TCYK LLC (Movie – The Company You Keep), has been filing multiple cases in various jurisdiction. Previous TCYK posting. A quick search of RFCExpress shows 70 TCYK BitTorrent copyright infringement cases in the following jurisdictions – WI, IL, TN, OH, CO, IA, and MN. I count the number of Does in these cases to be 2826. Instead of filing a single large case that is most likely to be dismissed (even in the District of DC), Plaintiff decided to file the cases in the appropriate jurisdictions for the Does. Two aspects of these cases have brought up some interesting points to consider.
Waiver of Service
Recently, a nice Doe pointed out that in one of the IL TCYK cases, Does 1-12, 4:13-cv-04041, Troll Keith Vogt filed three Waiver of Service (WOS) forms for Does # 1, 2, & 7, listing their true names, addresses, and IP addresses. WOS_Doe7_04041(IL) WOS_Doe1_04041(IL) WOS_Doe2_04041(IL) The date on the WOS is 19 Jul 13, but they were not filed until 29 Jul 13. I don’t know if any of the WOS have actually been sent to the Does, but I assume they have. I believe the reason they filed the WOS was to show the court they was moving forward with the case. The only other activity noted in this case was the voluntary dismissal of Doe #4 (without prejudice) and Doe #11 (with prejudice). Dismiss_Doe11_04041(IL) Dismiss_Doe4_04041(IL) Note: all of these Does are COMCAST subscribers, so I will assume the other ISPs have yet to provide Plaintiff the subscriber information.
The WOS is the same general form I mentioned in my Troll Tricks posting concerning The Thompson cases. The WOS can be dangerous for Does if they do not file an answer to the complaint no later than 60 days after signing the WOS. Failure to do this will allow the Plaintiff to motion the court for a default judgement. Unless you know how a judge will rule on damages, it can vary between $750.00 – $150,000.00, plus costs and attorneys fees (willful infringement claim). I’m of the opinion that once a Doe receives a WOS, they should be talking to an attorney to explore their options. I personally wouldn’t decide to settle if I received a WOS. The worst that can happen by not signing the WOS is Plaintiff pays a process-server to serve you. You COULD have to pay for this (approx. $75-100). We haven’t seen this Plaintiff in action, so it is hard to say what they will do. Based on the fact that they are repaying a mortgage with the settlements, fighting it out in a trial is not a good way to make a profit (or repay a debit). I believe the WOS is being used here to find out if a Doe is willing to settle if pressured or if they are a likely candidate for a default judgement. If Plaintiff is serious about going to trial, they will simply serve a defendant (summons/complaint) and wait the 21 days to see if they respond. The WOS in my opinion is a “soft” approach that reduces the possibility a Doe will fight back.
Disclosure Statement (Plaintiff)
As I previously posted, an examination of the copyright registration for this movie disclosed the interesting fact that it had been mortgaged (See below). It appears the Plaintiff in this case purchased the copyright so it could file these cases to collect settlements from alleged BitTorrent infringer. As the movie was a larger production with some big name stars, I assume the original copyright holder required a substantially large amount of money from the Plaintiff – thus the mortgage company was needed to finance this operation. While Plaintiff now owns the copyright for this movie, the mortgage companies (Fireman’s Fund Insurance Company and International Guarantors, LLC) are the lien-holder until the debt is paid off.
For this case I also decided to look at the Disclosure Statement. This is a standard requirement (FRCP 7.1) used by the court to determine if there is some financial reason the judge should remove himself from the case. The most common reason is because a judge may own stock (or other interest – mutual funds, etc.) in a company is financially tied to Plaintiff. The disclosure statement requirement – “(1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or (2) states that there is no such corporation.” Here is the disclosure statement that Plaintiff provided the court for this case. Disclosure_04041(IL)
For the Central District of IL, there are also additional Local Rules (11.3) Plaintiff has to abide by. This local rule sets the additional requirement of disclosure by Amicus Curiae parties and non-governmental lawyers who will be taking part in the case. What I found interesting concerning FRCP 7.1 is the reason for the disclosure statement.
The information required by Rule 7.1(a) reflects the “financial interest” standard of Canon 3C(1)(c) of the Code of Conduct for United States Judges. This information will support properly informed disqualification decisions in situations that call for automatic disqualification under Canon 3C(1)(c). It does not cover all of the circumstances that may call for disqualification under the financial interest standard, and does not deal at all with other circumstances that may call for disqualification. (Committee Notes on Rules—2002)
Now Plaintiff appears to be abiding by the letter of the rule, but misses the spirit of it. As the copyright is mortgaged by Fireman’s Fund Insurance Company and International Guarantors, LLC (International Film Guarantors LLC operates as a subsidiary of Fireman’s Fund Insurance), there is clearly a financial interest in these TCYK cases by a “publicly held corporation.” As theses companies hold the lien to the copyright, the financial interest is most likely greater than 10%.
I don’t think this information will kill these cases, but it will inform the court that it appears that the copyright was mortgaged with no other purpose than to go after alleged infringers for thousands of dollars in settlements. I expect the courts to eventually see this, but not until many of the 2826 Does have paid Plaintiff.