File Sharing

July 5, 2013

Indiana Court Orders BitTorrent Defendants Severed

Ft. Wayne, Indiana — The Northern District of Indiana has directed Malibu Media, LLC of Los Angeles, California to file separate amended complaints against each defendant in its lawsuit for copyright infringement.

The case, initially filed in July 2012 against 14 Doe defendants, had only four defendants remaining. In December 2012, the court had denied the motions to sever and declined to exercise its own discretion to sever the Doe defendants.

The court, in a recent opinion issued by Magistrate Judge Roger Cosbey, moved sua sponte to reconsider the issue. It held that, while permitting joinder earlier had promoted judicial economy and facilitated the discovery process, the case had reached the point where continued joinder would instead create judicial inefficiency due to the different factual issues and legal defenses in each defendant’s case. Does No. 5, 9 and 12 were severed, leaving Doe No. 6 as the only defendant remaining in the current suit.

The practical effect of severance of previously joined claims is the creation of one or more new actions. The court directed Malibu Media to file a separate amended complaint for each of the severed Does.

Practice Tip:

It has been estimated that over 200,000 users of various peer-to-peer file-sharing protocols, usually users of BitTorrent, have been sued for copyright infringement. Instead of a thorough investigation, followed by a lawsuit, these plaintiffs — usually holders of a copyright to a work of adult entertainment — gather the IP addresses of many potential/presumed infringers and then sue tens, hundreds or even thousands of defendants in a single suit. The plaintiffs then extract settlements from the defendants, who are motivated to settle to avoid the embarrassment of being associated with pornography and the expense of litigation, even if they may not have infringed the work.

The problem has become sufficiently widespread that it has garnered attention from mainstream press (see, e.g., here). Different approaches to the growing problem of copyright trolls have been taken. In some cases, defendants have filed suit, alleging fraud and extortion.

The problem has also caused considerable strain on the federal judiciary, leading one judge to deny joinder as serving no legitimate purpose in such cases once IPSs have been put on notice to preserve identifying information for particular IP addresses and to opine that it is “difficult to even imagine the extraordinary amount of time federal judges have spent on these cases.” Many other courts have also denied joinder, often on the theory that, while doing so does not solve the problem it, at least, makes pursuing such abusive litigation much less profitable.

Some courts have exercised their discretion to allow Doe defendants to proceed under a pseudonym, at least during the discovery phase of a suit.

May 8, 2013

Malibu Media Sues Twenty-Eight Additional “John Doe” Defendants for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Ind. — Malibu Media, LLC of Los Angeles, Calif. has sued twenty-eight “John Does” for copyright infringement in separate complaints filed in the Northern District of Indiana and Southern District of Indiana.

Copyright lawyer Paul Nicoletti is again in federal court on behalf of Malibu Media. The company has filed twenty-eight similar lawsuits claiming copyright infringement. The “John Doe” defendants allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media’s copyrighted material.

We have previously blogged about Malibu Media here and here. We have also blogged about some of the other copyright-infringement litigation filed by Paul Nicoletti here.

Malibu Media seeks a permanent injunction against infringing activities; an order by the court to remove infringing materials from all computers of each defendant; an award of statutory damages of $150,000 per infringed work and reasonable attorneys’ fees and costs.

Practice Tip: The actions of companies such as Patrick Collins and Malibu Media have been called “extortionate” and, in at least one case, a class action suit has been filed against these “trolls.” The issue of “trolls” has also caught the attention of at least one U.S. lawmaker. Senator Charles Schumer has proposed legislation wherein the U.S. Patent and Trademark Office would review patent infringement suits before they could be filed in court. Of course, such legislation is not directly relevant to actions sounding in copyright, such as the multiplicity of lawsuits filed by Malibu Media. It may, however, sound a warning bell that tolerance of the questionable activities of intellectual-property trolls of all varieties is wearing thin.

March 5, 2013

Court Refuses to Quash or Modify Subpoena Designed to Identify Alleged Infringer of Copyrighted Movie

By Overhauser Law Offices, LLC

Indianapolis, IN – The Southern District of Indiana ruled in favor of Plaintiff Patrick Collins, Inc. by denying the motion of pro se Defendant John Doe No. 7 to quash or modify Plaintiff’s subpoena.

In a lawsuit originally styled “Patrick Collins, Inc. v. John Does 1 – 13,” Patrick Collins, Inc. of Canoga Park, California (“Patrick Collins”), alleged direct and contributory infringement by 13 then-unidentified individuals including John Doe No. 7. The suit was filed by copyright attorney Paul Nicoletti.

By motion, Dustin Hillman (“Hillman”), identifying himself only as “John Doe 7,” asked the court to quash or modify the subpoena seeking to compel his internet service provider to provide his real name to the Plaintiff, stating that “such actions violate right to privacy and the disclosure of such matters may result in wrongful or unjust incrimination.”

Hillman attached for the court’s review an article which concluded that a common approach for identifying users infringing copyright law using BitTorrent (via the Internet) was not conclusive. He then asked the court to require Plaintiff to provide further information about its methods of identifying defendants and proof of the reliability of those methods. “Hardly a day goes by,” said Hillman, “that the news does not contain a story where a computer system containing highly confidential data has been hacked, spoofed and infected by malware.” He asked for the subpoena to be quashed or modified on these grounds.

The court was not persuaded. It discussed those situations under FRCP 45(c)(3)(A) where a court must quash or modify a subpoena and then those situations under FRCP 45(c)(3)(B) where a court may quash or modify a subpoena. Citing the Malibu Media litigation, a similar matter which we blogged about here, the court then noted that the burden of establishing the grounds to quash a subpoena is borne by the party seeking to quash it. Hillman, it said, had made an argument denying liability based on the possibility that his IP address may have been used by someone else. Such an objection was an argument on the merits of the case and was “irrelevant and premature” in the discovery phase of the litigation.

Hillman also asked the court to require the Plaintiff to disclose its “shake down methods” of collection, how much it had collected from alleged copyright infringers, the percentage of cases settled without trial and the total costs incurred by the Plaintiff. The court was not moved by this request, either, stating that no evidence of abusive settlement tactics had been presented to the court.

Hillman’s identity was deemed “relevant information that is reasonably calculated to lead to the discovery of admissible evidence” and Hillman’s motion to quash or modify the subpoena was denied.

Practice Tip: Patrick Collins, Inc. has filed quite a few suits, including another case naming over 1,000 John Doe defendants. The company has been called a “copyright troll” on more than one occasion. The actions of companies such as Patrick Collins and Malibu Media have been called “extortionate” and, in at least one case, a class action suit has been filed against these “trolls.”

March 5, 2013

Malibu Media Sues Seventeen “John Doe” Defendants for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, IN – Plaintiff Malibu Media, LLC of Los Angeles, CA has sued seventeen “John Does” for copyright infringement in separate complaints filed in both the Southern District of Indiana and the Northern District of Indiana.

Paul Nicoletti, a copyright attorney, has filed seventeen nearly identical suits in Indiana federal court on behalf of Malibu Media. The “John Does” allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of copyrighted material.

We have previously blogged about Malibu Media here. We have also blogged about some of the other copyright-infringement litigation filed by Paul Nicoletti here.

Malibu Media seeks a permanent injunction against infringing activities; an order by the court to remove infringing materials from all computers of each defendant; an award of statutory damages of $150,000 per infringed work – which would total over $1 million for many defendants – and reasonable attorneys’ fees and costs.

Practice Tip: The BitTorrent protocol is a decentralized method that allows users to distribute data via the Internet, and has become an extremely popular method for unlawful copying, reproducing and distributing files in violation of the copyright laws. While the copyright infringements committed with BitTorrent once consisted mostly of music copyright violations, the adult entertainment industry has increasingly been filing suit against infringers who have used BitTorrent-based technology.

January 29, 2013

The World Trade Organization Suspends United States Intellectual Property Rights in Retaliation for Trade Restrictions Deemed Improper Under the General Agreement on Trade in Services

By Overhauser Law Offices, LLC

Geneva, Switzerland – The World Trade Organization (“WTO”) has granted its permission for the twin-island nation of Antigua and Barbuda (“Antigua”) to disregard intellectual property rights granted by the United States (i.e., patents, copyrights and trademarks). The decision follows nearly ten years of negotiations and litigation pursuant to a 2003 complaint to the WTO by Antigua.

In the United States, there are three separate federal laws (the “Wire Act,” the “Travel Act” and the “Illegal Gambling Business Act”) and various state laws promulgated by Louisiana, Massachusetts, South Dakota and Utah that prohibit certain means of delivering gambling services, most particularly the interstate delivery such services. The dispute centered on the conformance of these laws with an international trade agreement when the laws restricted online gambling services offered in the U.S. by Antigua. [NB: Other WTO members participated as complainants but, by 2009, the U.S. had negotiated agreements with each of them.]

Via its attorneys, Antigua alleged that, together, the federal and state restrictions amounted to discrimination against foreign companies and constituted a breach of the United States’ agreement under the WTO’s General Agreement on Trade in Services (“GATS”). Antigua stated that its economy, which had, without the restrictions, included a substantial volume of online gambling services offered to the residents of the U.S., had been significantly damaged.

December 10, 2012

Indiana Court Denies Motions to Sever and Quash in Bittorrent Porn Copyright Infringement Suit

By Overhauser Law Offices, LLC

Fort Wayne, IN – Copyright attorney Paul Nicoletti filed a lawsuit on behalf of Malibu Media in the Northern District of Indiana alleging copyright infringement of the pornographic movie “Romantic Memories.” It alleges the infringement occurred by downloading it using the Internet file sharing “bittorrent” protocol. The suit was against 14 as-yet-unnamed Indiana Defendants, John Does 1-14. “Romantic Memories” had been coded with a “Unique Hash Number,” and upon investigation, 14 Internet Protocol (“IP”) addresses were identified. Upon receiving permission from the court, Plaintiff served third party subpoenas on two Internet Service Providers (“ISPs”) to discover the names and other contact information of each Defendant.

Defendant John Doe No. 12, acting pro se, filed a Motion to Dismiss or Sever for Misjoinder and to Quash Plaintiff’s Subpoena. The court rejected the Motion to Dismiss on a technicality, noting that under local rules motions must be filed separately, and denied the Motions for Severance and to Quash.

Doe No. 12’s Motion to Quash under Fed. R. Civ. P. 45(a) argued that there was no evidence that any improper use of his IP address would be sufficient to support an assertion that he was responsible for such misuse. The Court acknowledged that Doe No. 12 had standing to object to the subpoena on the grounds that it would implicate his privacy interest. However, it went on to reject his argument as a mere denial of liability and not relevant to a Motion to Quash. Doe No. 12 further asserted that the subpoena should be quashed as a burden on his ISP. The court found that argument unpersuasive as 1) the subpoena would not burden Doe No. 12 personally and 2) Rule 45 only requires a court to quash a subpoena when it subjects a person to an undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iv). Further, the court held that no exception for privilege was applicable, as courts have consistently held that “there is no expectation of privacy in Internet subscriber information because it has already been exposed to a third party, the Internet Service Provider.”

Doe No.12’s Motion to Sever under either Federal Rule of Civil Procedure 20 or 21 argued, that there was no single transaction or series of transactions as is required for permissive joinder. Courts across the country are split regarding whether joining anonymous defendants alleged to have participated in a single BitTorrent “swarm” in a single suit is appropriate. The court here allowed joinder as the Plaintiff alleged a set of facts sufficient to support a finding that the separate actions were part of the same series of transactions, noting that the file sharing protocol required each participant to send and receive portions of the work in order to download and view the entire work. The second requirement for joinder under Rule 20, a “common question of law or fact,” was sufficiently pled by the Plaintiff’s assertion, without exception, of the same counts of copyright infringement against all Defendants. Discretionary severance under Rule 21 was also denied as unnecessarily cumbersome at this stage of the litigation.

Finally, the court issued a warning to plaintiffs in situations such as these, stating that “the litigation strategy Plaintiff has employed in this case has a history of becoming abusive and potentially giving rise to sanctions under Rule 11.” The court further cautioned plaintiffs against improperly leveraging a defendant’s reluctance to have his identity revealed to coerce a settlement.

July 31, 2012

CP Productions, Inc. Sues John Doe for copyright Infringement of Video: “GH Hustlers – Maryjane’s Second Visit”

By Overhauser Law Offices, LLC

Indianapolis IN – Copyright lawyers for CP Productions, Inc. of Phoenix, AZ filed a copyright infringement declaratory judgment suit in alleging John Doe, an alleged serial infringer known at this time only by an IP address, infringed the copyrighted work “GH Hustlers – Maryjane’s Second Visit” which has been registered by the US Copyright Office.

In the complaint filed by attorneys for CP Productions, John Doe and other un-named parties are believed to have infringed a copyrighted video belonging to CP Productions. CP Productions is a producer of adult entertainment and seeks judgment against John Doe and others for the alleged serial infringement of the video “GH Hustlers–Maryjane’s Second Visit” to which the Plaintiff owns the copyright. John Doe and the joint tortfeasers are not known by name but rather, through their IP address and attorneys for CP Productions will be filing a Motion for Leave to Take Discovery in order to ascertain the actual identities of the Defendants from their ISPs. CP Productions is seeking judgment from counts including copyright infringement, civil conspiracy, and contributory infringement. CP Productions claims to have observed John Doe’s infringing multiple copyrighted content through agents the Plaintiff has employed using the BitTorrent protocol because the Plaintiff employs P2P netword forensic software to provide real time monitoring of the BitTorrent swarm that distributes the video. This software allowed CP Productions to log John Doe and the joint tortfeasers unlawful activities. CP Productions further alleges that John Doe and the joint tortfeasers intentionally downloaded a torrent file particular to the Plaintiff’s video, purposefully uploaded the torrent into their BitTorrent clients and entered a BitTorrent swarm particular to the Plaintiff’s video and reproduced and distributed the copyrighted video among themselves and third parties thereby becoming both and uploader and downloader of the video. By doing so, CP Productions claims that this “ever growing swarm will jointly contribute to the complete download of the Video for all individuals that enter the swarm at any given moment.” CP Productions believes that this lawsuit is the only practical means by which to combat BitTorrent based infringement. Because the damage claimed by CP Prodcutions includes economic and reputation losses, to which Plaintiff asserts will continue, the Complaint sets out demand for actual or statutory damages allowed under the Copyright Law, compensatory damages for the counts of civil conspiracy and contributory infringement, and an order or impoundment for all copies of Plaintiff’s works, photographs or other materials in the Defendant’s possession or control.

Practice Tip: The BitTorrent protocol is a decentralized method that allows users to distribute data via the Internet, and has become an extremely popular method for unlawful copying, reproducing and distributing files in violation of the copyright laws. Where this market was once consumed by music copyright violations, the adult entertainment industry has seen an increase in litigation against infringers using BitTorrent-based technology. Although no concrete rules govern jurisdiction of the Internet, Indiana’s long arm statute (Indiana Rule of Trial Procedure 4.4) permit personal jurisdiction of Defendants if they either downloaded or uploaded the copyrighted material.

April 12, 2012

Dish Network Sues Thomas Williams For Copyright Infringement Over Illegal Intercept Using Dark Angel

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright attorneys for DISH Network LLC of Englewood, Colorado, EchoStar Technologies LLC of Texas, and NagraStar LLC of Englewood, Colorado have filed a copyright infringement lawsuit in the Southern District of Indianaalleging that Thomas Williams of Coal City, Indiana infringed DISH’s copyrighted works by illegal satellite signal interception.

The complaint gives a detailed, technical description of a “pirate IKS television service” called Dark Angel. Apparently the Dark Angel service allows subscribers to intercept the DISH service without paying the license and subscription fees to DISH. The complaint alleges that Mr. Williams purchased subscriptions to the Dark Angel service on April 9 and July 19, 2010. The complaint makes claims of “circumventing an access control measure” and receiving satellite signals without authorization, both in violation of the Digital Millennium Act as well as one count of intercepting satellite signals in violation of the Electronic Communications Privacy Act.

Practice Tip: The complaint states that DISH learned of Mr. Williams identity through discovery in a lawsuit DISH has filed against Dark Angel. It states that DISH seized all of Dark Angel’s business records and gleaned the names of the end users from these business records.

November 11, 2011

Congress Considers Bill To Give Law Enforcement More Tools to Target Online Copyright Infringement

By Overhauser Law Offices, LLC

Washington, D.C. – The United States House of Representatives is considering a bill directed as providing law enforcement more tools to stop illegal online file sharing and copyright infringement. The bill, titled the “Stop Online Piracy Act,” was introduced by Representative Lamar Smith of Texas on October 26, 2011. The bill would authorize the Department of Justice to seek a court order requiring alleged infringers as well as domain names and websites to immediately cease any activities that are intellectual property criminal offenses. The bill would also create a new mechanism for seeking limited injunctive relief against the owners of domain names and websites to stop infringement occurring through their sites and domains. The bill also expands the definition of criminal copyright infringement to include public performance of copyrighted work by digital transmission or making work intended for commercial dissemination available on a computer network. The bill is also being called the E-PARISITE Act (“the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act”).

The bill is drawing criticism from a number of corners. Specifically, some critics have noted that the bill would allow the government or private parties to shut down entire websites, not just infringing content. A report from John Moe of NPR’s Marketplace, quotes extensively from Professor Mark Lemley of Stanford Law School, who stated ““What’s remarkable about this provision is that it would allow the government and in many cases private parties to come into court, get a temporary restraining order without the participation of the accused website and shut down not just the infringing material, but the whole website.”

The bill was referred to the House Judiciary subcommittee on Intellectual Property, Competition and the Internet, of which Indiana Congressman Mike Pence is a member.

November 3, 2011

Update to Third Degree Films V. John Doe: Purdue Releases Student’s Name Who Is Accused of Copyright Infringement of Adult Film

By Overhauser Law Offices, LLC

Lafayette, IN – According to a report from the Associated Press, Purdue University has released the name of a student who is accused of illegally downloading an adult film from a dorm room internet connection. Last month, Indiana Intellectual Property Law and News reported on Magistrate Judge Andrew Rodovich of the Northern District of Indiana ruling that denied a motion to quash the subpoena that sought Purdue’s disclosure of the student’s name and address.

This Purdue student is one of 2,000 internet subscribers that Third Degree Films, Inc. of California alleges have committed copyright infringement by illegally downloading adult videos. Third Degree did not know the identities of the persons who allegedly illegally downloaded the copyrighted work, but did have the internet protocol (I.P.) address. Third Degree has served subpoenas on internet services providers attempting to uncover the identities of the subscribers with the specified I.P. addresses. The underlying copyright infringement lawsuit was filed by copyright attorneys for Third Degree in the Northern District of California. Several similar copyright infringement cases are currently pending in Indiana district courts.

The Purdue student had filed a motion to quash the subpoena issued on Purdue, arguing that the subpoena sought confidential information and was burdensome.

Practice Tip: Typically in a case like this, once the identity of the I.P. subscriber is learned, the copyright attorneys for the film company will send a letter to the person seeking a settlement and threatening to sue the person if a settlement is not reached.
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