October 5, 2011 | By Julie Samuels

Courts Call Out Copyright Trolls' Coercive Business Model, Threaten Sanctions

A Virginia district court is the latest to call out a copyright troll for using a business model designed to be little more than a shakedown operation to extract quick and easy settlements from hundreds of thousands of John Doe defendants. Judge Gibney says it far better than we could:

The Court currently has three similar cases before it, all brought by the same attorney. The suits are virtually identical in their terms, but filed on behalf of different film production companies. In all three, the plaintiffs sought, and the Court granted, expedited discovery allowing the plaintiffs to subpoena information from ISPs to identify the Doe defendants. According to some of the defendants, the plaintiffs then contacted the John Does, alerting them to this lawsuit and their potential liability. Some defendants have indicated that the plaintiff has contacted them directly with harassing telephone calls, demanding $2,900 in compensation to end the litigation. When any of the defendants have filed a motion to dismiss or sever themselves from the litigation, however, the plaintiffs have immediately voluntarily dismissed them as parties to prevent the defendants from bringing their motions before the Court for resolution.

This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants' personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does. Whenever the suggestion of a ruling on the merits of the claims appears on the horizon, the plaintiffs drop the John Doe threatening to litigate the matter in order to avoid the actual cost of litigation and an actual decision on the merits.

The plaintiffs' conduct in these cases indicates an improper purpose for the suits. In addition, the joinder of unrelated defendants does not seem to be warranted by existing law or a non-frivolous extension of existing law.

The Virginia court ordered the plaintiff to show why it should not be sanctioned for this behavior, and also ordered it to “immediately” notify the subpoena recipients (the ISPs) that the subpoenas have been quashed and all defendants but one severed from the case. Also of note, the court ordered the plaintiff to file (under seal), copies of all notices sent to all defendants. It’s unclear what, if anything, the court will do with that information, but we’re hopeful it will help notify the Doe Defendants that they’ve been severed from the suit.

The Eastern District of Virginia orders join a couple of other positive recent rulings. In Texas, repeat plaintiff’s lawyer Evan Stone was scolded by Judge McBryde for not “display[ing] the slightest degree of candor” by failing to disclose that he has:

filed at least sixteen lawsuits similar to the instant action in [another] division of this court, that each of those lawsuits was summarily dismissed, principally for improper joinder of the defendants, and that discovery of the kind, and under the conditions, sought by, and granted to, plaintiff in this action was inappropriate.

And in the Northern District of California, Magistrate Judge Grewal severed all but one of 5,041 Doe Defendants, stating that,

As the court has come to learn in yet another of the recent “mass copyright” cases, subscriber information appears to be only the first step in the much longer, much more intrusive investigation required to uncover the identity of each Doe Defendant. The reason is simple: an IP address exposed by a wireless router might be used by the subscriber paying for the address, but it might not. Roommates, housemates, neighbors, visitors, employees or others less welcome might also use the same address.

We applaud these judges for calling these cases what they really are – little more than a shakedown scheme – and for stopping plaintiffs from running roughshod over due process in order to extort settlements.


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