New York Judge *Slams* Bittorrent Copyright Plaintiffs – K-Beech; Malibu Media; and Patrick Collins v. Does

[Post by Venkat Balasubramani]

K-Beech, Inc. v. Does 1-37, CV 11-3995 (E.D.N.Y.)

Malibu Media, LLC v. Does 1-26, CV 11-1147 (E.D.N.Y.)

Malibu Media, LLC v. Does 1-11, CV 11-1150 (E.D.N.Y.)

Patrick Collins, Inc. v. Does 1-9, CV 11-1154 (E.D.N.Y.)

Order & Report & Recommendation (May 1, 2012)

A trio of bit torrent plaintiffs were smacked around (somewhat brutally) by a federal judge in New York last week. The order addressed requests for early discovery filed by plaintiffs in three separate copyright lawsuits involving approximately 50 Doe defendants. It also addressed the requests of Doe defendants to quash subpoenas which were issued in a fourth action after the plaintiff obtained leave to issue early discovery.

The order is scathing and takes more than a few shots at K-Beech’s “rambling motion papers [that] often lapse into the farcicial.”

End result: the court dismisses one case in its entirety, and cuts the remaining three cases down to one Doe defendant, finding that joinder is improper.

Here is a summary of the key points in the court’s order:

1. An IP address does not conclusively identify an infringer: the court says that unlike in a university setting or in earlier times, these days, given the proliferation of wi-fi, the fact that someone’s IP address was connected to allegedly infringing activity does not mean that the person whose IP address was used is the infringer. (“[A] single IP address usually supports multiple computer devices – which unlike traditional phones can be operated simultaneously by different individuals.”) Accord Johnson v. Microsoft Corp., 2009 WL 1794400 (W.D. Wash. June 23, 2009); in contrast, the FTC considers IP addresses to be personally identifiable information. (For what it’s worth, more than a few courts have accepted the view–at least at the early stages of litigation–that an IP address identifies the putative infringer.)

2. Improper litigation tactics: at least one of the plaintiffs (K-Beech) engaged in improper litigation tactics. One of the Doe defendants contacted K-Beech to try to resolve the dispute. Apparently, K-Beech employed the usual threat that a defendant’s name could be tied to a porn lawsuit and persuaded the plaintiff to provide (under the auspices of settlement) “unfettered access to [Doe’s] computer . . . employment records [etc.]” K-Beech then failed to respond to the Doe defendant’s communications regarding settlement. In response to Doe’s allegations, K-Beech’s counsel failed to present proof that it or its investigators didn’t engage in this conduct. The court notes that Doe’s experience mirrors the experience of at least one other Doe defendant in a file-sharing case in New York. The court is not happy:

[t]his 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.

3. No copyright registration: the same plaintiff who engaged in the tactics referred to above did not have an actual copyright registration—it sought to rely on an application for registration (which is not sufficient in the Second Circuit). Although K-Beech was smacked down for this reason in another case in New York, it tried to remedy this by adding “conclusory trademark claims.” [??] When K-Beech’s briefing veered into discussing reputational harm from unauthorized downloads, the court in a footnote points out that the owner of K-Beech doesn’t necessary have the most stellar reputation:

it is worth noting that the owner of K-Beech Inc. (and apparent inspiration for the K-Beech mark) is Kevin Beechum . . . . It appears that this is the same Kevin Beechum who testified in federal prosecutions about his experience vandalizing adult retail video stores to help extort protection payments from their owners.

D’oh!

4. Joinder is inappropriate: the court says that plaintiffs should not be able to sue multiple defendants in the same suit. Plaintiffs tried to rely on the “swarm” theory–which has been accepted by some courts and rejected by others–under which file-sharing defendants who were a part of the same interactions can be sued together in the same lawsuit. Here, the court notes that plaintiffs’ own allegations undermine their swarm theory. For example, the downloads were often weeks or months apart:

even assuming that the John Does are the actual infringers, the assertion that defendants were acting in concert rests upon a thin reed.

The court declines to exercise its discretion to join the Doe defendants together.

5. Plaintiffs trying to avoid separate filing fees: the court notes that plaintiffs have avoided more than $25,000 in filing fees by filing mass-defendant lawsuits, as opposed to suing the Doe defendants individually. When you take other cases in the same district into account, this amount is closer to $100,000. (The court notes that this approaches millions when the suits nationwide are considered.)

6. Don’t try to take the moral high-ground, porn plaintiffs:

In its papers, counsel for K-Beech equate its difficulties with alleged piracy of its adult films with those faced by the producers of the Harry Potter books, Beatles songs and Microsoft software, and compare its efforts to collect from alleged infringers of its rights to the efforts of the FBI to combat child pornography. In an ironic turn, the purveyors of such works as “Gang Bang Virgins,” explain how its efforts in this matter will help empower parents to prevent minors from watching “movies that are not age appropriate.” . . . It is difficult to accord plaintiff, which features “Teen” pornography on its website, the moral high-ground in this regard.

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Ouch. As mentioned above, the court dismisses K-Beech’s lawsuit sua sponte in its entirety. The dismissal is without prejudice, but K-Beech should think twice about filing another file-sharing lawsuit in New York. The other defendants can pursue cases against defendants on an individual basis (they must file separately), and the Does (other than unlucky Doe No. 1) are dismissed from the three lawsuits. The court appears open to appointing counsel from its pro bono panel for Doe No. 1 (and I’m guessing future Doe plaintiffs).

There are a slew of these lawsuits pending around the country so it’s tough to say anything definitive, but courts certainly seem to be reaching the boiling point with bittorrent plaintiffs (the abusive litigation tactics don’t help). Check out the TorrentLawyer blog for a few recent examples:

– Malibu Media, LLC cases go down in FLAMES in Virginia

– THIRD DEGREE FILMS, INC. attorney perhaps facing a THIRD DEGREE FELONY

Also, as a follow up to the case in New York, Twitter user “fightcopyrighttrolls” reports on what seems to be an inexplicable strategic decision by lawyers for one of the plaintiffs in this case.

[A note to lawyers: judges compare notes, directly or indirectly.]

Other coverage:

Ars Technica: Furious judge decries “blizzard” of copyright troll lawsuits

Torrent-Freak: Judge: An IP-Address Doesn’t Identify a Person (or BitTorrent Pirate)

Previous posts:

Court Nukes Another Mass Defendant File-Sharing Lawsuit — Digiprotect v. Does

Copyright Doe Defendant Can’t Quash Disclosure Subpoena Anonymously—Hard Drive Productions v. Does