June 29, 2011 | By Rebecca Reagan

Thousands More Does Dismissed in Copyright Troll Cases -- But the Trolls Are Trying New Tactics

The copyright trolling world has been hopping in the past several weeks, and some developments seem to bode well for the protection of due process. All in all, we’ve seen the number of total Does sued rise to over 190,000, and we estimate that the number of Does remaining after the various dismissals is over 140,000. The following are the cases in which Does have been dismissed since we last reported.

In the Northern District of Illinois, attorney John Steele dismissed two of his cases (Boy Racer, Inc. v. Does 1-22 and Boy Racer, Inc. v. Does 1-17) post-haste after learning that they had been assigned to a judge who had thrown out one of his previous cases. In his memo, Judge Milton I. Shadur makes it clear that for anyone who has received notification of a subpoena for case number 1:11-cv-02984 or 5:11-cv-01958, the case has been dismissed, and can only be filed again against them as individuals.

In the Northern District of California, Judge Samuel Conti denied the plaintiff’s request to issue subpoenas in the case of Millennium TCA, Inc. v. Does 1-21. In his opinion, Conti states that the plaintiff’s argument for early discovery was not strong enough to convince him that the court should order it without anyone to contest it (which is what happens when the court makes decisions before the defendants are named and notified). He also says that the 21 parties do not appear to be properly joined as defendants. Conti admonished the plaintiff, who “tellingly claims that were the Court to grant Plaintiff’s Application, it would ‘allow Plaintiff to identify additional defendants.” Not good enough, said the court: “This Court does not issue fishing licenses.”

In four other troll cases in the Northern District of California -- New Sensations, Inc. v. Does 1-1768, Diabolic Video Productions, Inc. v. Does 1-2099, Boy Racer, Inc. v. Does 1-71 and Boy Racer, Inc. v. Does 1-52 (not to be confused with the Boy Racer cases in Illinois) -- Magistrate Judge Paul Grewal found that the defendants had been improperly joined and severing all but one of the defendants in each case. As a magistrate, Judge Grewal doesn't have power to dispose of the cases altogether, so he has split each into two cases, with the new cases including Does 2-n (2-1768, etc.). The new cases have all been assigned to different judges, and Judge Grewal recommended that they be dismissed.

Last in the list of Northern District of California decisions, Magistrate Judge Bernard Zimmerman has ordered plaintiff in On the Cheap, LLC v. Does 1-5011 to show cause by July 13th why the case should not be dismissed for all defendants 2-5011 for improper joinder. The court has given any Doe defendant until July 27th to file an opposition to the plaintiff’s response, i.e., to make an argument that the case should be dismissed given the lack of legally meaningful relationship between the thousands of defendants. The hearing is scheduled for August 24th; we’ll report on the outcome.

And in the Southern District of New York, Judge Thomas P. Griesa held that plaintiffs in Digiprotect USA Corporation v. John Does 1-266 et al may serve subpoenas only for IP addresses that had already been identified as being in New York State. A mere 25 of the original 266 subpoenas will be served, so if you’ve received a notice that your information has been subpoenaed in this case, consider whether the subpoena is valid.

In an interesting turn for those who are watching the case law in these cases develop, the judge also noted that the plaintiff, Digiprotect, is not the producer of the film that was allegedly downloaded illegally, but had purchased the rights to peer-to-peer distribution of the film. While Digiprotect tried to justify its business model, the judge recognized the scheme for what it is:

Digiprotect aquires such rights from various copyright holders in order to—as Digiprotect’s counsel described it—‘educate consumers.’ This ‘education’ of consumers consists primarily of bringing suit against such consumers and seeking ‘modest settlements.'

In the US District of Columbia, in Call of the Wild Movie, LLC v. Jason Smith, Joseph Sonka, and Does 1-331, the plaintiff’s attorneys have voluntarily dismissed 313 of the unnamed defendants and secured an extension of time to get the names of 14 more from their internet service providers. To check whether your IP address has been dismissed from this case (case number 1:10-cv-00455), you can examine this exhibit.

Meanwhile, one attorney has decided to try a new tactic in the Eastern District of Texas. In March, Evan Stone used a provision in the Copyright Act that allows copyright holders to ask federal clerks to issue subpoenas in order to obtain the identity of a copyright infringer, getting 49 subpoenas issued. Large ISPs are fighting these subpoenas and a judge has granted one motion to quash. Stone says that he’ll appeal that decision, and, if forced to sue, may seek admission in the District of Columbia where he feels he'll get a more sympathetic hearing. He may find a different reception than he expects: judges -- in DC and around the nation -- don't much care for this kind of forum-shopping.

We'll keep tracking these cases, intervening where we can, and keeping you informed.

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