6 Mar 14 Update
Here is a link to a paper written by Matthew Sag, Professor, Loyola University Chicago School of Law and Associate Director for Intellectual
Property of the Institute for Consumer Antitrust Studies.
Abstract:This detailed empirical and doctrinal study of copyright trolling presents new data showing the astonishing rate of growth of multi-defendant John Doe litigation in United States district courts over the past decade. It also presents new evidence of the association between this form of litigation and allegations of infringement concerning pornographic films. Multi-defendant John Doe lawsuits have become the most common form of copyright litigation in several U.S. districts, and in districts such as the Northern District of Illinois, copyright litigation involving pornography accounts for more than half of new cases filed.This Article highlights a fundamental oversight in the extant literature on copyright trolls. Paralleling discussions in patent law, scholars addressing the troll issue in copyright have applied status-based definitions to determine who is, and is not, a troll. This Article argues that the definition should be conduct-based. Multi-defendant John Doe litigation should be counted as part of copyright trolling whenever these suits are motivated by a desire to turn litigation into an independent revenue stream. Such litigation, when initiated with the aim of turning a profit in the courthouse as opposed to seeking compensation or deterring illegal activity, reflects a kind of systematic opportunism that fits squarely within the concept of litigation trolling. Existing status-based definitions of copyright trolls are inapt because they do not account for what is now the most widely practiced from of trolling.
In addition to these empirical and theoretical contributions, this Article explores the features of copyright doctrine that have facilitated the recent explosion in trolling litigation. In particular, it shows how statutory damages and permissive joinder make multi-defendant John Doe litigation possible and why allegations of infringement concerning pornographic films are particularly well-suited to this model.
Thank you Professor Sag
For some Plaintiffs (namely Voltage Pictures/Nicolas Chartier), the mass Doe cases are still advantageous. These cases rely on the “swam joinder” theory. Swarm joinder theory is simply the belief that because a group of public IP addresses are in the same jurisdiction (i.e. IL Northern District) and used BT to downloaded/shared the same file (same SHA-1 hash #), they are properly joined in a case. Being joined makes all the defendants jointly & severally liable for any damages. We have seen a few courts decide that BT swarm joinder of defendants is not proper, but jurisdictions like the IL Northern District and Colorado are still hold-outs to change. Other untried districts could come into play, but the Plaintiff first has to find a local attorney willing to lower themselves into taking on cases like these. The fact we don’t have droves of attorney lining up to do this speaks volumes.
For cases in these Troll-Friendly jurisdictions, the courts usually accept these copyright infringement complaints at face-value. The courts expect that Plaintiff will provide full details/evidence once the case comes to discovery and trial. The fact of the matter is there have been NO mass Doe cases where the full details justifying swarm joinder have come out in court. The usual course of events is for these cases is to negotiated settlements, name/serve a small number of defendants, request some default judgments, and then voluntarily shutdown the case (by Plaintiff) or it is dismissed by the court for failure to prosecute. Here is one Killer Joe Nevada case – Case Dismissed
Omission Of Evidence
A simple analysis of the complaint and initial evidence by anyone reasonably acquainted with BT is going to raise some serious questions. First one is going to be – How did Plaintiff’s BT Agent (PBA) determine all these Does were in fact sharing the same file among each other? For the ease of this article, I will refer to the “Does,” but actually it would be better to say “public IP address associated with the ISP subscriber.” Taking what the various Plaintiffs have said in their support documents, they use a modified BT client (that will not upload data) to collect the evidence from BT clients illegally sharing Plaintiff’s content. So PBAs collects file data from all the various BT clients sharing the file (SHA-1 #) they have determined to be a copy (or at least a representative copy) of Plaintiff’s content. This method is a reasonable start, but it still only shows that each Doe “individually” shared data with PBA on a specific date/time. This is reasonable enough to start a single Doe case only. Plaintiffs assume that because the Does were sharing the same file (SHA-1 hash #) – they surely must have shared among the other Does in these cases. The PBAs knows this is a wild assumption based on the data they collected. That is why the PBAs have not (and will not) make such a statement in support of early discovery – it just cannot be shown with the evidence they collect. It is my opinion the Trolls knowingly omit this HIGHLY important fact when they file these complaints and when they seek early discovery of the ISP subscriber data. In my opinion, this omission is a fraud upon the courts. FOR SHAME! For all the Trolls reading this, I challenge you to refute this.
You should ask yourself why does Malibu Media/Troll Lipscomb now only files single Doe cases??? They used to follow the mass Doe case format. Simple – because they knew they could not defend swarm joinder of Does based only on IP addresses sharing/downloading the same file/SHA-1 number. Say what you like about Troll Lipscomb, but he is smart enough not to pull a Full-Prenda. And YES Keith Lipscomb, my opinion is that you are a Copyright Troll. Now many of the Plaintiffs will claim that mass joinder is appropriate and the efficiency of it benefits the court and justice. Without real evidence it actually harms justice, as well as deprives the courts of fees rightly owed it. I would love to see some Doe defender use the fact that Malibu Media no longer files mass Doe cases due to there being no evidence to support this theory. As the Troll/Plaintiff never plan to take any of these case to a full trial, they have very little fear of the omission coming out to the court.
BitTorrent File Sharing
BitTorrent is a file sharing protocol used by many people across the world. As far as sharing goes in relation to these cases, it is probably more likely that a Doe downloaded/shared parts of Plaintiff’s content with another BT client in a different jurisdiction (i.e. Belgium, Washington DC, etc.). The PBAs collect no data to show whom a particular Doe has shared file data with – only that they shared some data with the PBA. They also fail to show when a Doe enters and leaves a swarm – only showing a snapshot down to a few seconds. The PBAs may be able to show that at a specific date/time, there were other Does (in a specific case) who were in the swarm. Now the PBAs could take some complex and time-consuming steps to try to obtain such information, but I have not seen anything supporting this. The simplest way to obtain such data would be for the PBA to somehow gain direct access to a Doe’s system and monitor the BT communications. Such monitoring could be done legally, but it would require prior consent from the Doe(s). Doing any unauthorized invasive monitoring (without Doe consent) would get Plaintiff into some serious trouble – civil and criminal. Based on my knowledge of these PBAs and the trolling business model, I find this possibility unlikely. It is easier and less expensive to simply make the simplistic claim and never have to prove anything.
So What Is PBA Doing?
I believe the various PBAs (IPP International and Crystal Bay Corp (CBC)) – possibly tied/associated) are simply recording as much information as possible on the various torrents they have determined to be of Plaintiff’s content. Note: CEG-TEK and Rightscorp use PBAs, but have no interest in filing cases. Once the data is collected over a certain time period, it is then filtered to find IP addresses that are within a jurisdiction they file cases in. For this example, let’s say a fictitious Plaintiff, “Bad Movies Inc.,” only has local Troll counsels in 5 States. Kind of hard to seriously fight piracy by only filing in a few US jurisdictions – go figure. That means they really don’t care about the IP addresses that are not associated to the jurisdictions they file in. What about an IP address that comes back to businesses instead of a residence? As we don’t see very many of these, I assume business IP addresses are handled differently or not at all by most Trolls. Depending on how many IP addresses from a jurisdiction are collected for a given period, the Troll will file a mass Doe case. Depending on how the courts feel about large numbers of Does in a case, the Trolls have been known to split up cases (Does 1-24 & Does 1-33, instead of Does 1-67). The fact that some of these cases are split up cleanly has everything to do with drawing less negative attention and nothing to do with defendants who are properly joined. Some jurisdictions also limit the number Does that can be in a case; I believe the Central District of California has a limit of 10.
What Can Be Done?
The education of the judges in these hold-out jurisdictions is the hardest part. As the technology is often confusing, getting a judge to see the deceptive practices is not easy. Many courts believe that unless they know an attorney or Plaintiff is “shady,” whatever that attorney files should be taken at face-value. This view does allow for greater court efficiency, but the risk of abuse is highly evident based on the history of these Copyright Troll/Plaintiffs. I really hope we see some Doe defenders employ some BT experts to support a motion to dismiss all but a single Doe. The problem is the cost of filing a motion and fighting early discovery. There is no guarantee that a Doe will be granted attorneys fees/costs if the motion is successful. Defeating these mass doe cases is a start. We did it with the mass Doe pornography cases and now it is the time for the non-porn cases. The good thing with these Trolls is that for a majority of the mass Does cases, they will be dismissed voluntarily by the Troll or dismissed outright by the court. I will note we have started to see a couple local Troll counsels actually serve a small number of defendants. I believe the number of people actually served is small and the tactic is more likely designed to get people to settle – not a true effort to have their case judged on its merits. Still, for the people who do get served it is a harrowing experience. For many of these cases, the courts eventually do tire of hearing the Troll’s repeated empty promises to litigate these cases on their merits. We can only hope that eventually the courts see that the settlement generating business model needs to be stopped.
DieTrollDie 🙂 ”Some ships are designed to sink…other require our attention.”
*** Here is a shared folder with the PA Bellwether trial transcript and audio recordings. Malibu Media/Troll Lipscomb’s BPA (IPP International) gives some limited testimony.