This Dallas Buyers Club (DBC) case (1:14-cv-04010) was filed in Northern District of IL on 30 May 14, against 45 John Does alleged to have downloaded/shared DBC during 12-16 Feb 2014. What makes it different from the standard mass-Doe BitTorrent (BT) Copyright Troll cases is the Defendant, Defense Attorney, and the work of Mr. Delvan Neville.
The copyright infringement complaint and motion for early discovery (seeking ISP subscriber information) are the standard Troll templates, claiming joinder of the 45 John Doe IP addresses is appropriate because the infohash/torrent file for all the Does is the same. Complaint_04010(IL) Complaint_Exhibits_04010(IL) Motion_ED_Doc_10_04010(IL) Docket_2Feb15_04010(IL)
Now I will say I was a bit surprised that the court did tell Troll Michael Hierl to provide additional information concerning joinder. Motion_SupportJoinder_Doc_21_04010(IL) In their support document they claim that joinder is appropriate and the District of Columbia Court of Appeals in AF Holdings, LLC v. Does 1-1058, 752 F.3d 990 (D.C. Cir. 2014), was wrong. The Trolls states that in the Prenda Law case, there were 1058 Doe from multiple jurisdictions and the time-span was approx. five months. This case only had 45 Doe in the same jurisdiction and a time-span of only 5 days. The Troll of course did not inform the court that there was additional information showing that joinder of Defendants based on the infohash was not justified. Here is a previous declaration in a DBC case in IN. Decl_Neville_Doc_17-1_01142(IN) As there was no dissenting view provided, the court granted early discovery. Here are some previous articles of interest regarding Troll Hierl/DBC, DC Appeals Court ruling, and Mr. Neville’s Declaration.
As the ISPs started to notify their customers of the law suits and pending release of their information, one John Doe was in a little different situation from most. This John Doe (#26) was not a residential ISP subscriber, but a small business – Gaslight Coffee Roasters (GCR), 2385 N. Milwaukee Ave., Chicago, IL 60647 (corner of Fullerton Ave & Milwaukee Ave). GCR provides WiFi Internet access to over 200 customers each day. Note: The identity of GCR was voluntarily disclosed to the court by their attorney (see below). BTW, the coffee, food, and atmosphere at GCR look great – I will have to stop in sometime. 2nd Note: There were two additional Comcast Business customers listed – Doe # 24 & # 36 (see Complaint IP listing).
Attorney Kane opted to defend his client by attacking the issue of mass joinder in BT Copyright Infringement cases. The Trolls claim mass joinder is appropriate because the torrent file for all 45 Does had the same infohash number and all the Does resided in the same jurisdiction. Attorney Kane hired Delvan Neville, Amaragh Associates, LLC, to look at this particular case and tell him if the joinder of 45 Does was justified. What Mr. Neville provided was similar to his findings in another mass-Doe DBC case I reported on previously. Previous article
Mr. Neville’s assessed the chance that ALL 45 Does shared the same file (via BT) amongst themselves during the 5 day period was “astronomically small.” Well, Mr. Nelville, how small is that?
There is a 1 in 7 tresviginitillion (1 in 1072) chance that ALL 45 Does are linked together by some actual data sharing, NOT just a hash file number. WOW! You have a better chance of winning the Power Ball lottery three times in a row than being able to link up all 45 Does and show that joinder is proper!
Mr. Neville also makes the point that EVEN if the 45 Does were properly linked, Troll/Plaintiff would not be able to show this, as their monitoring apparatus (CBC/IPP/APMC) does not have the ability to record such data, as well as not all the Doe BT clients provide information concerning the other peers (other Does) they are communicating (sharing data) with.
I would also like everyone to note that the BT swarm members in the analysis were NOT limited to a geographical location or single jurisdiction (like this case of 45 ILND Does). This is important to note, as the current mass-Doe BT copyright troll cases are all filtered (by the Trolls) to a single court jurisdiction. Mr. Neville’s analysis was on UNFILTERED SWARMS of BT clients. This is important, as I believe the filtering makes it even more likely that any BT client in a swarm shared/received data from a BT client from OUTSIDE of the jurisdiction.
On 29 Dec 14, Attorney Kane filed a Motion to Sever (including the Neville Declaration) and a notice disclosing that Doe #26 was GCR. Motion_Sever_Doc_28_04010(IL) Decl_DelvanNeville_Doc_28-1_04010(IL) DBC_NDIL_Cases_Doc_28-2_04010(IL) GaslightCR_Doc27_04010(IL)
On 15 Jan 15, Troll Hierl filed a motion to dismiss all remaining Does in this case. Motion_DismissAll_Doc_34_04010(IL) According to the docket, there were 14 Does who were dismissed by the Troll prior to the full dismissal that ended the case. So it looks like 32 Does (including GCR) didn’t pay Troll/Plaintiff a dime. On 21 Jan 15, the court (Judge Sara Ellis) authorized the dismissal and closed the case. The dismissal (without prejudice) mooted attorney Kane’s Motion to Sever and allowed Troll/Plaintiff to avoid having to address the joinder issue (again) with a Judge who previously raised concerns. The Troll was probably concerned that even if they only dismissed GCR, the court would have sue sponte (on its own) required the Troll to respond to the Neville Declaration.
What Does It Mean?
I believe this means the Trolls do not want to have to defend their claims of joinder. Fighting the Neville Declaration is too risky in my opinion. Dismissing the case and moving onto new ones removes the threat to their operation. As many of these cases never have a motion to server raised, it is safer to dismiss and not risk a court severing all the Does. As the Troll/Plaintiffs do nothing to try to limit the spread of their movies via BT (like sending DMCA notices to the ISPs of the Does), they know they can simply file more cases.
If I was an attorney representing a Doe in one of these mass-Doe suits, I would hire Mr. Neville to provide a declaration, as well as attaching the previously filed declarations and the fact that the Trolls dismissed the cases instead of addressing the issue. Decl_Neville_Doc_17-1_01142(IN) Decl_DelvanNeville_Doc_28-1_04010(IL) Even if I was a Pro Se Doe Defendant, I would file a Motion to Sever based on both of these declarations. Note: The Troll can still refile against any dismissed Does, but I doubt this will happen.
Mass joinder of BT Copyright Infringement Defendants is bound to die as more and more courts see how the Trolls are simply avoiding the issue when forced into a corner. Even in the Northern District of IL, the Trolls would rather not have to answer the hard questions. Hopefully we will begin to see Mr. Neville’s declaration used in other jurisdictions.
If you are one of the dismissed IL Does that didn’t have to pay a settlement, do me a favor and drop attorney Kane and GCR a thank you note. Better yet, treat him to lunch or to a great cup of coffee at GCR. Also don’t forget Mr. Neville at Amaragh Associates, LLC.
DieTrollDie 🙂 “Always yield to temptation, It may never pass your way again.” [Lazarus Long – Time Enough For Love, Robert Heinlein]