WA Court Set Limits As To What BitTorrent Copyright Troll (Dallas Buyers Club) Can Do (CASE 2:14-cv-01819)

Recently courts in the US and Australia have begun to set limits on what BitTorrent (BT) Copyright Trolls are allowed to do – in terms of “actually” running a case and not simply “Speculative Invoicing” (AKA: Threatening to sue unless a settlement is paid – “Copyright Trolling”). Recently Techdirt posted an article in which the “King of the Trolls,” Malibu Media LLC/X-Art/Troll Keith Lipscomb was reined in by a MD court.  Techdirt Article   Also see a recent DTD Posting on the AU Dallas Buyers Club court order.

DBC and Troll David Lowe

DBC_Troll_LoweRecently, the Western District of Washington issued an order on a group of Dallas Buyers Club (DBC) copyright infringement cases. The attached order is for 2:14-cv-01819, DBC v. Does 1-10, opened on 26 Nov 14.   Archive Docket   This order also applies to five other DBC cases in the district (2:14-cv-01336, 2:14-cv-01684, 2:14-cv-01926, 2:15-cv-00133, and 2:15-cv-00134). The Troll attorney for these cases is David Lowe, LOWE GRAHAM JONES. Troll Lowe is most noted for his work on the Elf-Man LLC v. Lamberson, case # 2:13-cv-00395, where the Troll (Elf-Man LLC) had to pay Mr. Lamberson $100K –  FCT Article

On 4 May 15, Judge Richard Jones, Western District of Washington, issued case management orders for 13 DBC mass-Doe cases. The orders required Troll/Plaintiff to show what progress it was making to bring these cases to a conclusion.  Doc_26_Order_01819(WA)

The 4 May 15, order stopped Troll/Plaintiff from issuing subpoenas for depositions and document production from the Does. Note: In the previous subpoenas, Troll Lowe only gave the ISP subscriber a seven-day notice to appear for a deposition (which could take up to seven hours – FRCP default). The court also said Troll/Plaintiffs document production requests were burdensome to the ISP subscriber.

On 1 Jul 15, the court decided that due to the lackluster performance by the Troll, some limits needed to be placed on them.   Doc_36_Order_01819(WA)

In this case and 5 others like it, Plaintiff faced an early June deadline to either file an amended complaint that named no John Doe defendants, or file a motion to amend in which Plaintiff explained why it wished to continue to name one or more John Doe defendants. Plaintiff elected to file 6 “motions to amend.” The court uses quotation marks because, as it will soon discuss, Plaintiff prefers to delay filing an amended complaint for months at least.

AND

Plaintiff’s justification for being unable to name the vast majority of the people it is still suing (in cases that have been pending for at least 5 months, and as many as 10 months) is that although it has learned (via subpoenas to an internet service provider) the names of the subscriber whose internet account was allegedly used to download copies of Plaintiff’s copyrighted motion picture, Dallas Buyers Club, it has been unable to confirm that the subscriber is the person who allegedly infringed its copyright. In some instances (the court has no idea how many), that is because the subscribers have refused to confer voluntarily with Plaintiff. In other instances (the court has no idea how many), that is because the subscriber has denied responsibility for the copyright infringement and Plaintiff has not determined who is responsible.

Troll/Plaintiff then decided it had better make the appearance of trying to working with the court. Troll/Plaintiff informed the court they would change how they handle the deposition subpoenas. They said they would give the ISP subscribers at least a 30 day notice for the deposition, limit the deposition time to two hours, and work with the Does to reschedule depositions as needed. The court noted that even with these proposed changes, it still left “dozens” of Does disadvantaged by Troll/Plaintiff’s slow-moving investigation. The court in turn placed the following restrictions on Troll/Plaintiff.

  1. Troll/Plaintiff does not need to file an amended complaint at this time.
  2. For ANY future document filed by Troll/Plaintiff in these cases; OR ANY future order the court issues (including this order), Plaintiff has to “serve” a copy to anyone it is prepared to name as a Defendant, AND it shall also serve a copy on any person who is the target of a pending subpoena or a subpoena it plans to issue. After serving these copies, Troll/Plaintiff WILL file a certificate of service reflecting its compliance with this order/requirement.
  3. Troll/Plaintiff WILL cease to file ex parte motions, except in cases where Troll/Plaintiff has yet to identify (by name) a potential defendant or subpoena target. Troll/Plaintiff shall note its motions for relief on the third Friday following their filing, and any person whose interests are impacted by the motion may oppose it no later than the Monday preceding that third Friday.
  4. Troll/Plaintiff may issue a subpoena (deposition), in the manner it proposed in its motion, on the two ISP subscribers it has the names of. Those subpoenas shall demand ONLY deposition testimony (two hours or less), and it will be at least 30 days from the date of service.
  5. Within 90 days of service of each deposition subpoena, Troll/Plaintiff MUST either dismiss its claim against the two Does, file a statement that it is prepared to name him or her, file an amended complaint naming him or her, or file a statement explaining why it has not taken one of the other options.
  6. When Troll/Plaintiff is prepared to name a defendant, it shall notify that person with a letter stating that Troll/Plaintiff is prepared to name him or her as a defendant, but they prefers to delay the naming until it can name all other remaining defendants in the case (i.e. Does 1, 3-6 ALL have to be named at once). That letter shall inform the person that they CAN demand Troll/Plaintiff name him or her. If the person exercises that option, and Plaintiff is not prepared to file an amended complaint naming ALL the remaining defendants, Plaintiff shall file a new civil action naming ONLY that person, and shall thereafter dismiss that person from the original lawsuit.
  7. Troll/Plaintiff need not provide a copy of this order or take any further action with respect to any individual or entity with which it has reached a settlement or other permanent resolution of its claims.

So what does this mean for all the remaining DBC Does in these six WA cases? I have it on good accord that Troll Lowe/DBC has started to issue deposition subpoenas for some of the ISP subscribers. The time frame for the depositions is limited to two hours, but that is more than enough time to assess who the likely infringer is OR find out the ISP subscriber/family is NOT responsible.

Recommendations

If you are one of the Does who receive a deposition subpoena, I suggest consulting with an attorney who has experience with DBC/Troll Lowe. I would not go into a deposition blind, even if you/your family are not the infringer. DBC/Troll Lowe is NOT out for justice. The Trolls are doing this to generate settlement dollars. They are not your friends and it doesn’t matter how nice he appears to be. Keep this words of advice in mind – “The bigger the smile, the sharper the knife.” {My Opinions}

Essentially these depositions are an interrogation done with a hand shake and a smile. Troll Lowe’s goal is to get you on record either admitting or denying the infringement. In addition he will try to obtain as much personal detail about you, your network (Password/No password), and others who use it. The questions will likely include downloading habits of the network users, BT usage, jobs, hobbies, interests, network set-up, etc. They will compare all the information they get to the list of “Other” BT files (Non-Dallas Buyers Club movies) that were being shared over your IP address, as well as any social media profiles related to the Doe. They of course will only focus on the files that seem to indicate guilt.

Once the depositions are complete, Troll/Plaintiff will likely try to get the ISP subscriber to settle. I would bet he will tell you that based on their “evidence” and what you told them, you (or family member) are the infringer. He will likely say that a court/jury will see that they have enough evidence to get a decision in their favor. Note: In a civil case it only takes a “Preponderance of Evidence” to prevail. 

Failing that, they will have to determine if they feel strong enough to move forward or simply dismiss the case. If they do not dismiss the case, they will have to send a letter to the Doe, explaining they plan on naming them (see #6 above). It is at this point that the Doe has the option of DEMANDING DBC/Troll Lowe name them and amend the complaint. DBC/Troll Lowe will then be forced to either name ALL the remaining Does in that case OR dismiss the one Doe and immediately refile a separate single defendant case naming the Doe ($400 filing fee – new case). The Doe can of course decide not to be named and it will be postponed.

If a Doe is dismissed from the original case and then made part of a new case, Troll/Plaintiff will have their hands full in my opinion. This court is surely going to make sure Troll/Plaintiff moves forward with Discovery and any half-ass delay excuses will get them in trouble. The main part of this Discovery will be the forensic examination of the computer hard drives in the residence. This is NOT cheap and Troll/Plaintiff will want to avoid this at all costs. Malibu Media LLC/Troll Lipscomb may be willing to pay $300+ an hour for a computer forensic analysis, but DBC has not been so keen on this expensive measure. A simple analysis and report on one computer can easily take up to 12-24 hours ($3,600 -$7,200).

Also keep in mind that your financial situation is a key factor in determining how far Troll/Plaintiff will go. They have made it very clear that they target people who are likely to be able to afford a settlement.

Anti-Piracy Management Company (APMC)

Anti-Piracy Management Company (APMC)

Finally, if you do receive a deposition subpoena from DBC/Troll Lowe OR have been through a deposition by him, please contact me.

DieTrollDie 🙂

“Fuck what you know. You need to forget about what you know, that’s your problem. Forget about what you think you know about life, about friendship, and especially about you and me.” {Tyler Durden, Fight Club}

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
This entry was posted in Uncategorized and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

3 Responses to WA Court Set Limits As To What BitTorrent Copyright Troll (Dallas Buyers Club) Can Do (CASE 2:14-cv-01819)

  1. Stanley Yelnats says:

    How can I contact you

  2. Stanley Yelnats says:

    I emailed you, I haven’t gotten a reply

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s