The following hearing transcript (24 Oct 11) is from a 2011 copyright troll case. Even though it is dated in terms of troll cases, it is still has some relevant aspects to today’s mass-Doe and single Doe cases. HearingTrans_Doc21_00469(VA) As the saying goes, “The apple doesn’t fall far from the tree.”
The case is K-Beech v. Does 1-85, 3:11-cv-00469 (VA). Docket The Troll in this was David W. O’Bryan, O’Bryan Law Firm, Richmond, VA. He was hired by Keith Lipscomb as the local VA counsel for K-Beech. K-Beech no longer sues people who download/share their movies via BitTorrent. A side note to this case is it was the target of my second Declaration (Torpedo #2, see ECF Doc # 19).
The judge had severed all the Does except for #1, and Plaintiff motioned to reconsider. The judge also required Troll O’Bryan to obtain counsel for him to address the issue of bringing this case for an improper purpose. The judge eventually decided there would be no sanctions against Troll O’Bryan or the Plaintiff, but still severed all but Does #1.
What I found very interesting in the hearing transcript was what Troll O’Byran said about the Plaintiff’s motivation and Judge John Gibney’s thoughts.
(Judge Gibney, page 5) Let me just tell you what really got my concern in this case, Mr. Paris. The fact that they sue all these people and then they, as soon as somebody shows up to make any kind of defense, they get non-suited or voluntarily dismissed. And to me it just looks like they are trying to cherry pick the defendants that are easy to settle with, and then not having any interest in actually having the case resolved, but in settling cases. Candidly, I don’t really think that is necessarily Mr. O’Bryan’s doing, but more the clients. And I don’t know whether there is, you know, conflict between Mr. O’Bryan and his clients at this stage.
Troll O’Bryan informs the court that Troll Keith Lipscomb’s firm is the controlling factor in the litigation strategy and settlement negotiations, that he is essentially the local mouth-piece for Plaintiff. Troll O’Bryan claimed their strategy for Does who file motions is to sever them and sue them individually. On page 13, Troll O’Bryan makes the mistake of telling the court that the motions filed by these Does are “just delaying tactics and really frivolous.” The court has a different opinion.
Again, it is not — no, they are not frivolous. They are not frivolous. They are legitimate motions. And, in fact, I granted one, or granted a bunch of them. So they are not frivolous. I could be wrong about it. Maybe the Fourth Circuit will tell me that. But they are not frivolous motions. They have a right to be sued individually.
(Judge Gibney, page 13) Your affidavit says, and I am quoting here, “The labor and expense associated with the Big Torrent peer-to-peer copyright litigation may make it prohibitively expensive to sue IP addresses prior to knowing that any particular IP address resolved to a solvent individual who could be served.” What does that sentence mean?
MR. O’BRYAN: It means, Your Honor, that basically this whole approach to these cases is a winnowing process. And we start out with a large group and get down to a smaller and smaller group. We dismiss cases for a number of reasons. We have run into law enforcement agencies doing this stuff, and for legitimate reasons. And we dismiss them. We don’t sue anybody in the armed services. We don’t sue well-known politicians. We are not in the business of doing that kind of thing.
Did you catch the word “solvent?” You have to have assets to make it worth their while to sue. The following exchange is also telling.
MR. O’BRYAN: Right. Yes, sir. But the system that has been designed, to me it looks like it is pretty effective in being the least expensive way to proceed. My clients have a huge problem with these internet pirates. They are out there stealing, they are copying product.
THE COURT: I understand there is a big problem, but there is also a rule regarding severance that is, you know, or joinder, rather, that may not be helping you in these cases. It seems to me like you say in your papers that you, like your client, like to sue a number of defendants in one case because it is too expensive otherwise. And that you want to settle with the defendants through a mass suit because it is otherwise too hard to get the cases done with all of the expenses. And that you voluntarily dismissed the defendants who insist on being sued separately in order to prevent people from using the right to be sued individually or asserting their right to be sued individually. And that you voluntarily dismiss cases because it is too expensive to fight the motion to sever.
MR. O’BRYAN: Your Honor, the theory is when they raise their hand and say, I want an individual suit, we give them the individual suit.
THE COURT: I understand what the theory is. I don’t see the practice of it too much.
MR. O’BRYAN: That is what we do. We are just beginning in this district. These are the first suits we filed.
THE COURT: Well, I suppose in a sense when they ask to be let out you are giving them what they want, aren’t you?
MR. O’BRYAN: What they say they want, Your Honor, but the reality is in the long run they don’t want it. But they say they do to get out of the case. So we say if you raise your hand and you want it, we will give it to you even though it is not as efficient to do it that way.
THE COURT: I think that your client in these cases — I believe what you are saying to me, Mr. O’Bryan — I believe that that is your understanding of the process. I am not so convinced that your clients are not trying to put the squeeze on people. And I think that there is a conflict between you and the producers in this case at the sanctions level. And I think that — I have taken a look at the rules of ethics, and it seems to me that the rules are pretty clear that when a lawyer’s personal interest — I am not saying you are doing anything wrong — but when a lawyer’s personal interest puts him in a quandary with his clients’ interests, that they need — the client needs separate counsel.
I think based on the outcome of this mass-Doe case and others in VA, the jurisdiction was seen by the various Trolls to not be very friendly. I believe it may have also been a deciding factor for Troll Lipscomb to start changing his operation to single Doe cases to avoid some of these headaches. The last Malibu Media cases I see in RFC Express for the EDVA is dated 17 Feb 12.
Now I don’t think Malibu Media/Troll Lipscomb have changed their business model, just that they are trying to more finely tune who they target – those people who are sharing large numbers of Plaintiff’s movies and that have enough assets to pay a settlement (Solvent). What would be very interesting to see is the process Troll Lipscomb/Malibu Media uses to determine who they file suits against. Troll Lipscomb is adaptive and understands the value of a billable hour. I would not doubt there is some sort of “winnowing” process they use against the bulk IP addresses they collect. They already filter the BT monitoring results to remove the non-US IP addresses, anonymous proxies, and non-filing US jurisdiction IP addresses. It is not that far-fetched to further filter the results that are within the jurisdiction. I mean why spend $400 to open a case for an IP address from an otherwise poor area in the jurisdiction? The chance that they can afford to pay a $7,500.00 settlement is ridiculous. Poor people are just going to laugh at you. Even Troll O’Bryan tells the court (page 14) that “we are not going to try to get blood out of a turnip.” Why not limit your case filings to IP addresses in areas that are not considered poor? As these operations are a business, it just makes financial sense. I don’t know how detailed you can get with IP geolocation, but I bet it wouldn’t be too hard to accomplish. I’m sure I will be called a nut-case for even suggesting this, but I’m sure the same thing was said when peopled suggested Prenda Law was seeding the movies it was suing over. More to come on this I’m sure.
As far as the other mass-doe case filing Plaintiffs/Trolls, this transcript has more of a tie-in. These Trolls/Plaintiffs are using the old mass-doe case model, with the only serious difference being the movie in questions is not pornography. To be honest, the non-porn movies in these cases are probably of the same cinematic quality as the porn. For the new Does out there, take the time to read the transcript and understand the motivation of the Troll. Settlement generation with the lowest costs is the key here. Even with all the single Does cases filed since the PA Bellwether trial (June 2013), we are only seeing 1) cases filings. 2) settlements. 3) defaults on a small number of cases. And 4) Dismissals. For those people who are fighting back, the Plaintiffs generally try to dismiss, stall, and eventually offer a “walk-away” deal. Some of these mass-doe cases may make it to the deposition and forensic examination stage, but I really doubt it.
Point for the Newbies – For all the BitTorrent copyright infringement cases filed since 2010 (with the exception of the PA Bellwether), NONE have gone to trial and been judged on their merits.
Wishing you all “Happy Holidays!”