Tag Archives: Dallas Buyers Club

Dallas Buyers Club only target iiNet customers – as of now

In yesterday’s hearing, Dallas Buyers Club LLC and Voltage Pictures’ lawyers said part of more than 4700 IP addresses they are proposing to contact foe alleged movie downloads were all used by iiNet subscribers. However, 10% of the IP addresses do not represent all the iiNet customers that the DBC LLC believes may have infringed copyright. Aside from iiNet, the complete collection of IP addresses came from Adam Internet, Amnet Broadband, Dodo, Internode and Wideband Networks Pty Ltd.

Previously, Justice Nye Perram who’s presiding over the case granted a DBC LLC application for preliminary discovery where it gains access to ISP customers contact details link to the IP addresses involved in Dallas Buyers Club downloading. However, he imposed a stay on that order in August.

DBC LLC modified the method used to calculate the settlement that they would propose. Initially, they had constructed a formula based on the cost of the film when you purchase a copy, licence fee for the distribution of film (pirate’s uploading activities), a portion of the DBC’s legal costs and a fine for an individual’s piracy of other films. The company was willing to take an approach as “one size fits all” to the proposed demands. They excluded other unauthorised downloads of films as part of its settlement formula but kept the licence fee for the distribution.

When Dallas Buyers Club applied to the court in September to lift the stay, they offered the $60,000 amount in exchange for access of customer details of 10% of the IP addresses but the ISPs opposed the proposal.

DBC’s request for an adjournment while they sought to gather more evidence about the licence fee to seek from downloaders was denied by Judge Perram. A new ruling is expected next week.

BitTorrent Litigation: Court Threatens Sanctions Against Vexatious Doe Defendant

Judge Richard A. Jones has had about enough of the boilerplate and Internet sourced self-help Motions to Quash being filed by defendants in Washington and on March 11, 2015 issued an order threating one “Mr. Doe” with monetary sanctions.

Initially this “Mr. Doe” or John Doe No. 4 filed a motion to quash arguing many of the standard boilerplate arguments. The court was not impressed.

[Mr. Doe] asserts that Plaintiff has improperly joined ten “John Doe” defendants in this case. He also asserts (without providing evidence) that he has learned from “prior defendants” that Plaintiff follows up the identification of a Comcast subscriber with “forceful correspondence, persistent phone calls and other methods asking for money to avoid their lawsuit.” He asserts that he has never heard of the Dallas Buyers Club movie and he has never unlawfully downloaded it.

The court rejected the improper joinder arguments and the denial of liability as a basis for quashing the subpoena, and pointed out that allegations of “strong-arm tactics” were without any actual evidence. (“Mr. Doe has not, however, given the court a basis to conclude Plaintiff is actually using those tactics.”)

However, not satisfied, “Mr. Doe” proceeded to file further objections and motions. After a third try, the court had enough and stated:

This is the third motion Mr. Doe has filed targeting the same subpoena issued to Comcast. Just as the court has denied the previous two motions, it denies this one. If Mr. Doe persists in filing motions attacking the subpoena, the court will terminate those motions without further notice. It may also issue an order to show cause why it should not designate Mr. Doe as a vexatious litigant and issue monetary sanctions against him.

As a caution, it appears Judge Jones’ patience with BitTorrent infringers is wearing thin.

The case is Dallas Buyers Club, LLC v. John Does 1-10, W.D. Washington, 14-cv-01819-RAJ.

The relevant orders of the court:

Order Denying Motion 14-cv-01819-RAJ_Doc_16

Order Re Sanctions 14-cv-01819-RAJ_Doc_21

JOINED BITTORRENT COPYRIGHT SUITS GO FORWARD IN HAWAII

Hawaii now joins the majority of states which allow joined BitTorrent copyright enforcement cases.  In early 2013 the Prenda scam was uncovered where a group of attorneys were revealed to be using shell games to operate a honeypot scheme for people that downloaded porn via BitTorrent.  In response courts across the nation clamped down on all BitTorrent cases as a precaution.   As the courts have become better educated they are recognizing the Prenda scam was unique and that joined BitTorrent copyright litigation is the most efficient and best way to enforce copyrights, especially in light of the massive scale of BitTorrent related infringement.

Single party cases are still being filed in many jurisdictions, but some studies put the average costs and attorney fees for copyright litigation at $300,000 to $2,000,000+ *. (Note, this is a National average for all copyright cases and many cases are resolved for significantly less.)   However the courts, and many wise defendants, recognize that by permitting joinder costs can be reduced dramatically, permitting rights enforcement and allowing cases to be economically resolved for less than 10% of the national average.

Related:

Hawaii: Dallas Buyers Club, LLC, v. Does 1 – 20, Case No. 1:14-cv-00330
Hawaii: Dallas Buyers Club, LLC, v. Does 1 – 22, Case No. 1:14-cv-00331

 

Opinions of the court allowing discover in the joined case to proceed:

Hawaii: Dallas Buyers Club, LLC, v. Does 1 – 20, Dkt. 10, Case No. 1:14-cv-00330, (D. Haw. Aug. 28, 2014), Order allowing subpoenas.
Hawaii: Dallas Buyers Club, LLC, v. Does 1 – 22, Dkt. 9, Case No. 1:14-cv-00331, (D. Haw. Aug. 28, 2014), Order allowing subpoenas.

 

* Amer. Intl. Prop. L. Assoc’n, Report of the Economic Survey.

BitTorrent Copyright Update: Joined Cases Go Forward in Illinois

Judge Tharp, sua sponte, rules to allow joined cases to proceed and rejects a strict reading of D.C. Federal Court joinder analysis.

Without any motion before the court, Judge Tharp has addressed the issue of BitTorrent swarm joinder and the ruling of AF Holdings, LLC v. Does, 1-1058, 752 F.3d 990 (D.C. Cir. 2014), and has found that though in extreme cases joiner may not be proper, in the matters of the pending cases relevant to his ruling joinder is indeed proper for BitTorrent copyright claims, at least for initial discovery.  The D.C. Federal Circuit is the only appellate court to address this issue and in the case of 1000+ defendants, spread out over five months, the court found that joinder was not proper.  Judge Tharp, on his own (sua sponte) rejected the strict D. C. Federal Circuit analysis and the common argument that would require all parties be in a swarm a the same time, and found that such a requirement:

…appears to overlook the fact that the pieces of the file that Doe 1 distributed directly to other Does who were in the swarm contemporaneously with Doe 1 were in turn subsequently distributed by them to the Does who joined the swarm after Doe 1 left it; in the context of a swarm, there is only a single digital file that is distributed among the members. Thus, it cannot be said that subsequent transfers of that file are even entirely “independent” of the earlier transfers; all of the transfers involve the same file and the earlier transfers of the pieces of that file facilitate the later transfers. Moreover, nothing in Rule 20 suggests that joinder requires a direct transaction between every defendant.

…permitting joinder among noncontemporaneous swarm participants does not seem novel or extreme; the law governing joint ventures and conspiracies, for example, permits plaintiffs to proceed against groups of defendants who engaged in a cooperative endeavor to facilitate an unlawful object whether or not all of the members of the group took part in all of the actions of the group and without regard to when the members joined the group.

The judge acknowledged:

Though there are strong arguments on both sides of this issue, entering a sue sponte finding of misjoinder of the Doe defendants would, in the Court’s judgment, be inappropriate at this early stage.

Though the plaintiff may issue subpoenas to determine the Doe defendants’ true identities, the plaintiff is prohibited from publishing the defendants’ identities in any way without leave.

… the Court finds that allowing the defendants to proceed by pseudonym is appropriate at this preliminary stage of the litigation, when no defendant has been put on notice of this suit. Once defendants have received such notice, the Court will revisit the issue of whether the names of the defendants in this matter may be publicly disclosed.

While the proponents of BitTorrent piracy may have expected the D.C. Circuit to end all joined lawsuits nationwide, this is clearly not the case as several districts including those in Texas, Colorado, Illinois and Washington have subsequently made clear that joined cases are going forward.

Full Text of Opinion: Dallas Buyers Club v. Does 1-25, 1:14-cv-05643 (N.D. Il. Aug. 28, 2014).

Joined BitTorrent Copyright Suits Go Forward in Washington

Over the last two years there have been a number of twists and turns in the world of BitTorrent copyright infringement cases.   In early 2013 the Prenda scam was uncovered where a group of attorneys were revealed to be using shell games to operate a honeypot scheme for people that downloaded porn via BitTorrent.  Courts across the nation clamped down on all BitTorrent cases as a precaution.  More recently with the news that the major studio film Expendables 3 may have lost tens of millions, if not more due to BitTorrent piracy, BitTorrent cases are again receiving renewed interest, though now in a different light.

This whole cycle is readily observed in Washington State, where initially joined cases were allowed by the courts.  Following Prenda, the courts took a close look at the cases and at one point dismissed joined cases across the board.  Elf-Man LLC v. Cariveau, No. C13-0507RSL,(W.D. Wash., Jan.17, 2013).  But on review and scrutiny, the Court reversed itself and cautiously allowed the cases to proceed. Elf-Man LLC v. Cariveau, No. C13-0507RSL, (W.D. Wash., Aug. 7, 2013).

More recently the Washington courts have again affirmed that it will allow joined cases against BitTorrent infringers in a case involving the piracy of Dallas Buyers Club.

Dallas Buyers Club v. Does 1-10, Case No. 2:14-cv-01153 (WAWD).

Opinion of the court allowing the case to proceed:Dallas Buyers Club – 2:14-cv-01153, Dkt. 8; Order Granting Expedited Discovery

Edit:  Also pending:
Dallas Buyers Club v. Does 1-10, Case No. 2:14-cv-01336 (W.D. Wa.).

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October 2, 2014:  Washington is maintaining its position that joined cases are proper as of Oct. 1, 2014 with continued orders that these cases will go forward joined.
Order Granting Discovery – Dallas Buyers Club v. Does 1-10, Case No. 2:14-cv-01402 (W.D. Wa., Oct. 1, 2014).