With the change in BitTorrent copyright infringement activity recently, I decided to take a look at one of the single Doe TCYK cases: 1:13-cv-06772, TCYK, LLC, v. Doe IP Address 18.104.22.168 (Formerly Doe 92), opened in NDIL, on 20 Sep 13. Complaint_Doe92_06772(IL) Complaint_Doe92_EXA_06772(IL) Archive Docket
*** For additional information on TCYK and the mastermind, Nicholas Chartier, please see the 21 Sep 13 Fightcopyrighttrolls article. ***
The complaint or docket has no mention of what case this was originally part of, except that the defendant was “Formerly Doe No. 92.” A short search disclosed Doe 92 was originally part of case 1:13-cv-03840, TCYK, LLC, v. Does 1-113, opened in NDIL, on 23 May 13. Complaint_Does1_113_03840(IL) Complaint_EX_A_B_03840(IL) Archive Docket
In the original case, Doe 92 filed a motion to quash the ISP subpoena, as well as a motion to sever (via attorney John E. Partelow). Doe92_MTQ_03840(IL) Other Does in this case obtained representation and filed similar types of motions. On 30 Aug 13, the court informed Plaintiff that it had until 24 Sep 13, to respond to the various motions (Does 3, 23, 67, 68, & 92). Min_Entry_Doc32_03840(IL) On 19-20 Sep 13, Plaintiff dismissed these Does from this case. DoesDism_Doc_34_03840(IL) DoesDism_Doc_36_03840(IL) On 19-20 Sep 13, Plaintiff refiled a single Doe cases against these Does.
Note: On 27 Jun 13, Judge Elaine Bucklo, made a docket entry which granted Plaintiff early discovery against the ISPs, but also directed them to amend its complaint with the names of the “actual defendants” by 2 Aug 13. MinEntry_Doc13_03840 This was a bit of a “Red Flag” to Plaintiff. They might have the ISP subscriber information by 2 Aug 13, but to name/amend the complaint with the “Actual Defendant” is another story. Plaintiff knows the ISP subscriber might be the offender, but it is possible it is another person in the residence, a short-term guest, or even an unauthorized user of the WiFi Internet connection. Without doing any type of real investigation, amending the complaint to the ISP subscriber sets up a possible FRCP Rule 11 violation for Plaintiff.
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
The move to dismiss these defendants is a classic copyright troll action. It first removes the “trouble makers” from the larger case and allows Plaintiff to obtain the ISP subscriber data for the remaining defendants – No more motions to answer. Once it is obtained, settlement letters will start to flow. If you remember, the TCYK copyright for this case was purchased by a mortgage and the settlements are needed to repay the mortgage.
Now simply dismissing the trouble making defendants is only the first step. If they do not refile a case against the single Does, people will figure out they only need to file a motion to get dismissed. The $400 filing fees for each single case is small compared to the possible loss of settlements if people do not fear them. The single Does cases also have the benefit of being able to withstand any challenge to the ISP subpoena. The problem plaintiff will still have (and Malibu Media / X-Art can attest to this) is they still need to do some sort of investigation prior to actually naming the defendant. As this is a costly time-intensive option, most Trolls will not waste the effort beyond looking at looking at all the movies/media that were being shared via BT on the public IP address associated with the Doe. If the Troll can somehow draw a link to the ISP subscriber (or another resident) from this, it can give them a possible out from FRCP Rule 11 sanctions (if it becomes an issue).
An example of a weak-linkage could be the social media profile of a member of the defendant’s household shows they are fan/connoisseur of various horror/zombie movies. Plaintiff’s technical monitoring disclosed that the BT client sharing Plaintiff’s movie(s) also shared multiple horror/zombie movies/TV shows (Night of the Living Dead, The Walking Dead), eBooks (The Zombie Survival Guide), and a Zombie game. Combine this with information this person is a young male adult who is computer literate, and Plaintiff may feel strong enough to amend the complaint to name this person. Yes, it is extremely weak and circumstantial, but these civil cases are only decided on the preponderance of evidence standard. As the chance of it actually going to full trial is so slim, such information would be more beneficial to settlement negotiations. It also gives Plaintiff an arguing point against claims of Rule 11 sanctions for failing to adequately investigate the matter prior to naming the defendant.
In my opinion, it is extremely unlikely these single Doe TCYK cases will come to trial. As testified by Keith Lipscomb in the PA Bellwether trial, there is a great risk that any evidence on the offending system will not be available (or the system itself) to Plaintiff/Troll for discovery. This is due in part to the time length between the offense and discovery, but also that a defendant could destroy/remove the evidence. Warning: Destroying evidence is wrong (spoliation) and it can get you into more trouble (One of the PA Bellwether Does is a prime example) – don’t do it.
Plaintiff will likely obtain the ISP subscriber information if early discovery is requested. Settlement demands will be made and Plaintiff will try to keep the case open as long as possible unless the Doe pays up. As this is the second time a Federal civil case has been opened on these public IP addresses, Plaintiff will not get another chance, as it will be deemed to have been judged on its merits (or lack of them IMO). I see nothing different here from the other Copyright Trolls cases – generate settlements, fight troublesome Does, obtain a few default settlements, close out the case, and move onto the next one. The problem all of these large-Doe-single-movie cases is you will eventually come up against a Doe who is innocent, has some money, and it willing to fight back. Once an answer (and possible counterclaims) is filed to a complaint, Plaintiff/Troll cannot easily dismiss it. If Plaintiff is not willing to go the distance, then they will try to offer a “walk-away” deal where both sides pay for their own legal bills. In these cases, Plaintiff/Troll has the “deep pockets” and thus the advantage. We are still in the early stages of these TCYK cases, but IMO, it is the same show, just a different day.