The order from Judge Snow came out yesterday (20 Aug 13) and I see it as being light on the “order” portion. I think it is better titled as a “Memo/Order.” Order_Doc92_02144(AZ) The best thing about the order is that is clearly states that for jointly and severally liable cases, ANY settlements received are relevant to an award of damages by a court.
The order does make it clear that Judge Snow did have concerns that Plaintiff/Prenda wasn’t an honest litigant in these matters (my opinion). Of course Prenda declined to renew the motion for early discovery against the 71 Cox Communications customers. They are trying to cut and run as fast as they can and have even dissolved Prenda as a LLC. Call it whatever you want, but the Prenda (and its personnel) are still around. Paul Hansmeier has even started a new company Class Justice PLLC and used it in a recent filing.
Judge Snow mentions that Mr. Harris informed the court that Prenda was granted early discovery for 1140 defendants in DC case 1:11−cv−01274−RBW, from which they obtained his subscriber information and opened this case in his name in AZ. Goodhue was forced to admit that Prenda had received settlements from an undisclosed number of the DC case defendants. NOTE: Torpedo #10 states this fact as well as others.
The judge made it clear that as the Harris case (and others) were based on the same swarm (BT SHA-1 Hash file) as the DC case, all of the defendants were part of the same overall action (Jointly and Severally Liable). This was important because if they were all joined, the statutory damages Plaintiff/Prenda sought would have to be adjusted (reduced) based on the settlements they received from any of the 1140 defendants. Prenda declined to provide any information on the settlements received. Shocking!
- Here are some good passages from the order.
Further, there is a risk that Plaintiff will misrepresent to alleged infringers the potential range of damages based on a statutory award for copyright infringement in this case.
If an owner elects statutory damages, one award applies to “all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.” Id. “Stated another way, a plaintiff may receive a single statutory award for all infringements of any one copyrighted work from either (1) any one defendant, where that defendant is separately liable or (2) multiple defendants, where those defendants are jointly and severally liable.” Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936, 947 (9th Cir. 2011)
…There is a risk, however, that Plaintiff will not disclose that potential outcome to the alleged infringers when engaging in settlement negotiations with them after obtaining the requested discovery. It is in light of these concerns that the Court was not favorable to Plaintiff’s request to issue subpoenas.
I see this order as having a benefit to Doe defenders involved in the newer mass-Doe cases that have sprung up for movies such a The Company You Keep, The Thompson, Bad Kids Go To Hell, etc. The judge makes it clear that for cases where a Plaintiff claims all defendant are jointly and severally liable for the infringement (same swarm – same Hash file), the settlements they receive are relevant to adjusting (reducing) the damages awarded by the court. Note: TCYK has at least 70 cases with over 2800 defendants. Even Malibu Media/X-Art single defendant cases could be impacted by this. They may be single defendants cases, but they had to download/share with at least one other to get the movie(s). This could be the next can of worms for Plaintiff/Trolls.
I believe a majority of the Plaintiff/Trolls are not going to want to expose the amount of settlements they obtain in open court. Even if allowed to provide this information under seal, the amount the judge sets as damages will be a direct result of the settlements and will be inferred. The information will get out if they disclose it.
So what does all this mean? For Harris, the case is still open and will likely be closed by the court after no action is taken by Prenda. That is unless….. Mr. Harris asks for a declaratory judgment based on the facts (lack of them). More to come on this I bet.
Bad joke I recently heard – ”There are certain organizations like diecopyrighttroll.com, dietrolldie.com, techzer.com. What they do is they harass attorneys who represent copyright plaintiffs…”
Here is another bad joke.