Saturday, February 13, 2016

Justice Scalia Found Dead In Room In Texas

It's a sad day for jurisprudence.  U.S. Supreme Court Justice Antonin Scalia was found dead this morning in his room at a Texas resort.  No foul play is suspected, and it appears he died of natural causes.

Justice Scalia was definitely known as having a strong voice for his opinions.  Not everyone liked those opinions, but you have to respect his commitment to them.  No one ever wondered where Scalia stood on an issue. 

I for one will miss his wit.

Thursday, February 11, 2016

Dallas Buyers Club: Court Orders Case to Move Forward

Lots has happened here in Seattle in the Dallas Buyers Club cases.  So here's the latest.  Judge Jones just handed down an omnibus order disposing of a ton of co-pending motions in the several DBC cases here.  Honestly, I couldn't even tell you what all the motions are, but there were many.  They included motions for contempt against people who did not appear for their "subscriber depositions"; motions for alternative service against people who DBC had yet not served; motions for more time to take more depositions; motions to reconsider the denial of subpoena power; motions to continue cases with "Doe" defendants.  I'm sure I missed some.  Bottom line: Lots of motions.

The order demonstrates that Judge Jones' patience is at its end.  He basically walked through the development of the cases and expressed some real concern that they just aren't progressing like one would expect from legitimate litigation.

The order is pasted below.  It is definitely worth a read.  Bottom line: DBC needs to either fish or cut bait.

Who knows what DBC will do.

Thursday, February 4, 2016

The Curious Case of Anthony Reale

This story is actually worth highlighting.  There have been several Dallas Buyers Club cases filed here in Seattle.  My last count is about 13 or 14. One of the things that the DBC folks like to suggest is that their "forensic software" is so advanced and accurate that it never makes any mistakes.  DBC files a declaration of someone named Daniel Macek in every case that goes on for 8 pages about how sophisticated the software is.

So against that background, consider the curious case of Anthony Reale.

One of DBC’s earliest cases filed here in Seattle started with ten “John Does.”  Pretty quickly after getting the names of those Does from their ISPs, DBC filed an amended complaint naming eight of them.  DBC included some exhibits with the FAC that had a table associating the names with their IP addresses.  One of the named individuals is Anthony Reale, associated with IP address 50.135.196.210.

When DBC filed its amended complaint, it included a lengthy listing of a bunch of movies that DBC says were all being shared by the respective defendants at about the same time as the Dallas Buyers Club movie.  There was one listing for each named defendant. DBC alleged that Mr. Reale was “observed” downloading the Dallas Buyers Club movie on or about June 14, 2014. 

If you look at those listings, sure enough you see tons of movies being downloaded with bittorrent.  In most cases, there is a listing that starts months before the Dallas Buyers Club movie shows up.  But still, the listings always include the Dallas Buyers Club movie in there somewhere.

Or do they?

When I started writing the brief that I mentioned in an earlier post, I started looking through the tables because I was very troubled by the fact that DBC was apparently monitoring all these people for months before the Dallas Buyers Club movie is apparently "observed" being shared.  I believe that is a pretty clear violation of the Federal Wiretap Act, and as soon as any case I have moves forward I want to make sure I have my evidence marshaled.

So as I was looking through those listings, I got to the listing for Mr. Anthony Reale.  The first thing I noticed is that DBC apparently started "observing" his IP address on October 31, 2013, which is about seven months before he is even alleged to have downloaded the Dallas Buyers Club movie.  That greatly concerned me.  Why was his bittorrent activity being monitored for seven months?  Who are these people who just record all the bittorrent activity for everyone regardless of what they are downloading?  That CAN'T be legal.

The second thing I noticed about Mr. Reale's listing is that I didn't find the Dallas Buyers Club movie may first pass through the list.  Not the second pass through it either.  Nor the third or fourth.  The text is really small so I did a "find" with the software and it didn't show up then.  So I actually printed the whole listing for Mr. Reale and painstakingly walked through each individual movie.

Guess what?  Mr. Reale didn't download the Buyers Club Movie.  At least not at any time during the ten months that DBC was "observing" him. 

This is troubling.  Very troubling.  DBC is so brazen in its litigation tactics that it will shamelessly name someone in a Federal lawsuit, throw in some massive table of downloads to try and make Mr. Reale look like the next Jimmy Hoffa or something, and in doing so admit that it doesn't have a shred of evidence that Mr. Reale did what he is being accused of.

And understand that this is just the first table like this I have even reviewed.  DBC hasn't filed any more like this to my knowledge here in Seattle.  But if you are aware of similar situations, please let me know.  I'm compiling these instances in order to support that Federal Wiretap Act claim I mentioned earlier.

If you want to take a look at the table and try to find the Dallas Buyers Club movie yourself, I pasted it in below.

Wednesday, February 3, 2016

Dallas Buyers Club: Amicus Brief re: Default Judgment

So we just filed the amicus brief on statutory damages awards that I mentioned earlier.  The brief is below.

If you're reading, you should pay particular attention to the "Curious Case of Anthony Reale."


Friday, January 29, 2016

Did this really just happen?

So I represent quite a few defendants in the Dallas Buyers Club and Cobbler Nevada cases here in Seattle. These cases are going pretty much the same way they go everywhere else. One case got slightly interesting today.

One subscriber ignored everything, so of course he got a default entered against him. [Don't do that!] And then DBC filed a motion for a default judgment today, which I just couldn't abide. It came with a proposed order that is nothing except a ridiculous marketing document filled with extreme results in other cases set out like they are the norm. But it's a default judgment so the guy can't defend it. But I've had enough, so I filed a simple request to the Court to let me submit a short brief to give the Court more context than the slanted, one-side monstrosity that is DBC's proposed order.

A little surprising, DBC's lawyer *opposed* my request! DBC's lawyer is actually telling the judge that he should deny my request because there's no authority for me filing such a brief. Like the judge doesn't have the authority to accept briefs in his own courtroom from whomever he wants. Crazy!
The back and forth is below.



Wednesday, December 23, 2015

AMAZON KNOCK-OFFS: A SUCCESS STORY


I want to share a feel-good success story, but first a little background. 

Success Selling Online


The new economy has enabled mom-and-pop shops that have created their own unique stuff to sell it anywhere in the world very easily. Online retail has stripped away the capital-intensive barriers to selling unique products to everyone. Today, if you come up with a clever little gadget that solves a long-felt, common problem, then you too can market that product to practically everyone in the world almost instantly with very little effort. Everyone might not buy your product, but you can pretty easily get it in front of them.

And sometimes everyone does buy it. Sometimes you end up with a minor hit on your hands and all of a sudden, your basement side-project turns out to be a lucrative business. You are an overnight success. But success breeds imitation. If you come up with a clever little gadget that is easy to make and that becomes successful online, guess what: Other people want to steal your success.

It's an all-too-common story. Small company comes up with a really cool new gadget, starts selling online, becomes successful, and bam! There they are. Knock-offs. All over the place. Amazon's great marketplace for launching small businesses turns into a bazaar of cheap imitations from foreign companies just trying to steal the success of hard-working mom-and-pops. Why come up with your own neat new product? Just wait until someone else does the hard work and then knock it off. Easy money, right?

Amazon Knock-Offs


So now let's talk about Amazon.com. Amazon has done a great job of developing a platform that enables anyone in the world to go from online zero to hero in ten minutes or less. Anyone, anywhere in the world with a product to sell can start selling that product using Amazon's online marketplace in literally about ten minutes. That's a double-edged sword for our mom-and-pop sellers. Although it allows them to sell their cool new gadget with very little capital outlay, it also allows the knock-off artists to do the same.

So when your cool new product starts selling really well, and the knock-offs start showing up (as they inevitably will), Amazon's position is that's your problem. There are countless stories of Amazon selling knock-offs on its marketplace. Amazon's position is always the same: If you have a problem with knock-offs on its marketplace, contact the sellers. Don't bother Amazon, it's not their problem. Sure, Amazon pretends to care by recently putting up an online infringement reporting system. But Amazon doesn't take that system seriously. Why should they? As the law currently stands, Amazon is immune from responsibility for any of the products it sells on its own marketplace. That's right, Amazon doesn't care because they law says they don't have to care.

Not surprisingly, we represent quite a few companies in precisely this position. Their cool product became an online success, and then the knock-offs started showing up on Amazon. We even had a jury trial a couple months ago trying to hold Amazon's feet to the fire for this very problem. We're still fighting the good fight and hopefully, as Judge Martinez alluded to, the law will soon catch up with technology. But in the meantime, what can you do?

Fixing The Problem


Now on to the success story. There was a small company based in Texas that developed a really neat and cool household-goods product several years ago. It is the quintessential “why didn't I think of that” type of gadget. Very simple; very cool; very popular. So this company began selling them online using Amazon's marketplace. Overnight success. We're talking sales in the low millions of dollars very quickly.

So what happened next? Of course, the knock-offs showed up about a year ago. The company's sales fell off quickly to less than half what they had been. These knock offs were costing this mom-and-pop success story lots of money. These good folks were extremely frustrated because they thought they had done all the right things. They had secured patent protection for the product, both utility and design patents. They had secured federal trademark protection for their brand. Yet there they were: knock-offs. This company had spent over $80,000 to protect their product yet nothing they did could stem the tide of the knock-offs.

Out of utter frustration, the owner of this company had learned of us from our Milo & Gabby case, which has gotten some attention. She contacted me and asked if there was anything we could do to help. She was reluctant to spend even more money on lawyers after already dolling out more than $80,000 already. We spoke, and I suggested she wait and see if the efforts those other lawyers were putting forward would do anything. We promised to touch base in about two weeks.

Well about one week later, she called me back. She said that they were losing too much money every day to wait any longer. She asked if there was anything I could do that her other lawyers hadn't already done. I told her that we probably had a little more relevant experience with the problem given all we've learned over the last several years fighting this problem. She reluctantly agreed to let me take a shot at trying to help her out.

To prevent revealing client secrets, I can't provide too much detail about how we approached the problem. But what I can share is this. She paid me about $800 to work my magic, and about four days later all the knock off listings had been taken down. Literally overnight, all of them came down.

To say she was happy would be an understatement. I asked her, at the end of those four days, if they had seen any improvement in sales. I kid you not, she told me that their sales had literally doubled overnight. At the end of four days, the company's sales were already back to where they had been at their peak.

I tell this story because I firmly believe a lawyer's job is to help the client make money. If the client isn't making more money with your service than without it, you aren't doing your job. Typically, you can't draw a direct correlation between the lawyer's service and the client's success. Most often, the theory is that the lawyer's service is bearing fruit down the road. You can't see the immediate financial benefit, but a good lawyer at least hopes it's really there. So a story like this makes me very happy. I have never before represented a client for whom there was such an immediate and direct financial benefit. Bottom line, this client paid me about $800 to try and fix their problem. I did what I do, and my service to the client literally paid for itself in less than one day. That makes me feel good.

So there you have it. This feels like my own success story because I helped my client realize an immediate financial benefit that drastically exceeded the cost of my service. In my opinion, that is supposed to be every lawyer's highest ambition.

If your company is feeling the pinch of foreign knock-offs hobbling your sales, contact us and let's talk about whether we can repeat this success story.