Thursday, August 30, 2012

Court's Patience With Bittorrent Litigation Wearing Thin

As both FightCopyrightTrolls and DieTrollDie have recently reported, the Courts are growing increasingly impatient with plaintiffs in mass bittorrent litigation. Orders severing the defendants are becoming commonplace, and the plaintiffs are finding those cases substantially less lucrative.
First, Judge Hill is reported to have killed many of the porn-related bittorrent suits down in Louisiana. Effectively, Judge Hill ordered that all the Does be severed from the one lawsuit that was filed there. That means that 1340 defendants have been released, and all the subpoenas for their personal information have been quashed (see order below). Judge Hill went on to inform the plaintiff that there would be no further suits proceeding or subpoenas issued until the filing fees for those John Does are paid.
What does that mean? Effectively the end of those suits. The amount of money required to file all those cases is about $469,000. I think it's safe to say that those Does are off the hook.
In the other case, Judge Wilson down in Florida went about it a different way. Judge Wilson did not sever the Does (there were only 18 in that case) but he did put numerous conditions on those subpoenas. The ones that strike me as most interesting are these: If the plaintiff contacts any of the "Doe" subscribers once they are identified, all the subscriber has to do is tell the plaintiff "Please do not contact me again prior to serving me in this matter."
What does that mean? It means that until the plaintiff goes through the trouble and expense of actually serving the subscriber, that plaintiff cannot contact the subscriber again. Given that it has been reported in the past that almost none of the subscribers in these cases actually ever get served (which is why it's frequently called extortion), this means the case is effectively over.
And even more eye-opening is Judge Wilson's order to the plaintiff that it must inform the Does that the plaintiff is subject to being sanctioned under Rule 11 if the plaintiff gets it wrong and mis-identifies any of the Does. That's big. It has become common for lawyers to threaten each other with Rule 11 sanctions for doing this or that. But lawyers threatening it is meaningless because judges so rarely award Rule 11 sanctions. So when the judge himself threatens Rule 11 sanctions, that's huge. I predict this case is dead.
(Both orders are below)
Judge Hill's Order

Judge Wilson's Order