Friday, August 31, 2012

Happy Birthday to DieTrollDie

The DieTrollDie blog turned one-years old today. The mystery man who keeps so many people so well informed of how best to deal with these frivolous mass bittorent cases has thanked many people for making the last year so much fun.
DieTrollDie defender of the wrongfully accusedIf you haven't been to the site, it's a must read for anyone dealing with the pain-in-the-ass that is the copyright troll cases.
Happy Birthday DTD!! Keep fighting the good fight.

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

Monday, August 27, 2012

Why Contingent Fee Attorneys Are Right For Your Copyright Case

The WHITAKER LAW GROUP frequently accepts copyright infringement cases on a contingent fee basis. Here are a few good reasons why using contingent fee lawyers, like us, may be right for your copyright infringement case:

  1. When we agree to take your case on a contingent fee basis, it means we believe in the strength of your case. Unlike hourly-billing attorneys who will take any case with a paying client, we only take cases that have a strong chance of winning. Why would we waste our time litigating a case that does not have a good chance of making us money? So if we take your case, you know it means we believe in it.
  2. You do not pay up front legal fees or a big retainer. There may be some initial costs for filing the case and getting the defendant served, and you will be responsible for those, but for the most part, you do not have to come up with a large up-front retainer to retain our firm.
  3. We share your incentive to make as much money as we can on a case, and the more money we make, the more money you make. For example, if your attorney is working on a 33% contingency fee, we keep a third of the final recovery, and you get two thirds. So the more money we can recover, the more money both we and you realize.
  4. The contingency fee cases tend to be settled quicker and work their way through the courts faster than hourly billed cases. Why? Because as contingent fee lawyers, we don't get paid until we achieve victory, so we work hard to achieve that victory as soon as possible. Lawyers working on an hourly basis are paid for each hour they spend on a case, and this means the incentive is to “rack up billable hours” rather than promote quick and efficient resolution.
  5. With a non-contingency fee attorney you typically get a monthly invoice itemizing all the time spent on your case, and the bill may result in “payment shock” as those $250-$650 per hour fees add up pretty fast. When you hire us on a contingency fee basis, you may never see a monthly invoice, which means you do not have to panic every time you see a letter or email from us.

Thursday, August 23, 2012

"Does" Start To Strike Back In Bittorrent Litigation

Over at FightCopyrightTrolls, they put together a great listing of cases where the hunted has become the hunter. "John Does" as they are called frequently crumble and settle under the pressure of the plaintiffs in mass bittorrent cases. Sometimes the Does just ignore the cases, but that too has its dangers. Rarely, but more and more frequently, those Does are deciding to fight back and file their own claims back against the plaintiffs.
The most recent example is the case of Discount Video Center v. Does 1-29 (12-cv-10805) where Doe #22 just filed an Answer with several counterclaims. Doe 22, represented by Samuel Perkins, has made claims for Unfair and Deceptive Acts and Practices in Commerce, Malicious Prosecution, and Abuse of Process.
I'm anxious to see how these new counter-suits will affect the plague of bittorrent extortion cases. The complaint and Doe 22's Answer are below.

Tuesday, August 21, 2012

Viacom Sued Over Photo of Demi Moore

National Photo Group is a company that licenses photographs of celebrities. They claim to own the copyrights on a multitude of photographs of celebrities. Licensing those photographs to online and print publications is the 'bread and butter of its business.' Viacom is the parent company of VH1, which as we all know is a television channel that shows music videos and shows about popular culture.
TMZ Article About Demi Moore's Release From Treatment Facility
Allegedly, some time in March, Viacom published some pictures of Demi Moore on VH1's website with an article titled "Welcome Back, Demi Moore, Now Please Stay Away From Ashton." Others are reporting that the article is a play off an earlier TMZ article about Demi Moore's release from a medical treatment facility (see left). NPG alleges that the photographs on VH1's site were copied from TMZ's site, and sure enough, the pictures on TMZ's site bear the NPG logo.
Let this be a lesson: Just because it's easy to copy a photograph off the web does not mean that it's legal. Just ask Apple.
Read the complaint in NPG v. Viacom below.

Tuesday, August 14, 2012

Google Now Using DMCA Takedown Notices To Affect Search Ranking

Google recently announced that it will begin using the number of DMCA takedown notices that a site receives. "Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site," said Amit Singhal, Google SVP of engineering. "Sites with high numbers of removal notices may appear lower in our results."
Google to adjust search rankings based on alleged copyright infringement
This news is both exciting and unsettling at the same time. First, it just makes sense that if a particular site has a problem with copyright infringement, I mean a real, actual problem with copyright infringement, then I believe those sites should be demoted in the Google search results. It only makes sense that decent, honest people should be promoted more than dishonest people doing something improper. Too easy. the problem comes from the fact that it is too easy to send bogus DMCA takedown notices with impunity.
Consider for example the folks over at Shakedown Takedown Piracy. That group issues more DMCA takedown notices than pretty much any other entity on the planet, and it looks like it's pretty much a one-man shop doing so. By my estimate, this one guy issues about one takedown notice every couple of seconds. So if that is true, then there is absolutely no way every one (if any) of those notices is being vetted for accuracy. So here we have a situation where the number one generator of DMCA takedown notices could influence the Google search results for countless sites without ever having done any due-diligence or evaluating the accuracy of those notices. That concerns me. That concerns me a lot.
So as I see it, we have a potentially good thing in that people who are, in fact, conducting themselves improperly by violating others' copyrights could be punished in a way that seems proportional--make their sites harder to find. However, unless we enact some serious repercussions for baseless DMCA takedown claims, we run the risk of serious abuse. A company could try to impact the search ranking of its competitors by launching a baseless DMCA takedown notice campaign. The last thing that any company needs is some guy at home in his underwear sending out a new DMCA takedown notice every two seconds just to negatively impact your search ranking. Are we in danger of creating a new cottage extortion industry?

Monday, August 6, 2012

Another Game Company Alleges Copyright Infringement

EA Games has sued Zynga for copyright infringement over Zynga's The Ville. EA alleges that Zynga's game is a near-identical copy of EA's The Sims Social. This is the latest in a recent spate of lawsuits by game makers, such as Atari and SpryFoxx, against other game makers for copying the "look and feel" of their games. Even Zynga itself sued another game maker for copying Zynga's own game. Now, it seems, the shoe is on the other foot.
The Sims Social is a Facebook game that lets you build your own little virtual social world. Ironic, really. A virtual social world inside another virtual social world. There's a movie in here somewhere.
There are varying opinions on how strong a case EA has against Zynga. Eric Goldman, a contributor to Forbes Online, doubts that EA has a compelling case of infringement and thinks EA has an uphill battle. In contrast, Prof. Greg Lastowka has a more favorable opinion of EA's chances.
In my opinion, and as I have said many times before, software copyrights are a thing whose time has come. Copyright law is very strong and getting stronger. Software patents are weak and getting weaker. Protecting software developers from blatant copying is an idea that just makes sense. In fact, I would argue that it's the most American thing we can do--this country produces more software than any other country. We need to protect that advantage.
EA Sues Zynga For Copyright Infringement
In addition, unlike software patents where there is no requirement that the infringer have actually copied anything, software copyrights do in fact require proof that the infringer copied the first developer's work. While I can understand the opposition to making someone pay a penalty even when they did nothing wrong, there is just something distasteful about letting someone get away with actually making a copy of someone else's hard work without any compensation.
So software patents continue to gain steam, especially in the game industry. I say, that's a good thing. Software copyrights are just more aligned with both the legal and moral motivators behind protecting innovation in the software industry.

Friday, August 3, 2012

Anatomy of a Winning Motion to Quash

Emphasis on the word "winning." There are quite a few sites out there that offer you a sample motion to quash, but what good is it if it doesn't win. In other words, why file anything if it doesn't have a good chance at winning.
I mentioned before that I've started a survey of copyright cases where motions to quash have been filed, and I'm looking at which ones win and which ones lose. Below is a sample of one that won.
But before you go off and try to just copy it and use it for yourself, let me point out a couple things. This motion was filed in Celestial, Inc. v. Does 1 – 252; Case No. 2:12-CV-00082 (FLMD). There were a large number of motions to quash, dismiss, and/or sever filed. The order disposing of those motions only granted the motions to quash, and only then on the basis that the Court lacked personal jurisdiction over those Does who made a showing that they didn't live in Florida. The Court did not grant any of the motions to sever or dismiss.
So without further ado, here is the motion (followed by the Order granting the motion to quash portion):

Thursday, August 2, 2012

Prenda Law Lawyer Gets Hammered

Copyright Trolls Make You Want To Scream
It seems like these copyright plaintiff's lawyers for the porn industry just can't do anything right. Yesterday I blogged about a Federal Judge who ordered a copyright plaintiff's lawyer to show cause why he shouldn't be sanctioned for completely ignoring the Judge's order. Today, another judge drops the hammer on a different lawyer, Joseph Perea.
Copyright Trolls Make You Want To Scream
Looks like Judge Seitz had ordered all the Does but one severed from a case, and ordered Perea to destroy any and all information that he had gathered on the other Does. Well, Perea ignored the Judge's order and contacted at least one Doe anyway. We can't know how many other Does were also contacted, but this one Doe in particular complained to the Court.
Well, again, Federal Judges do NOT like it when lawyers ignore their direct and unequivocal orders. So Mr. Perea has been ORDERED to file a response to the Doe's complaint and explain his actions.
If there is one thing Federal Judges like even less that lawyers who file frivolous lawsuits, it's lawyers who violate the Judge's orders. I expect bad things to happen to Mr. Perea unless he can come up with a very compelling excuse, like aliens beaming down and eating his brain. . . or something like that.
Thanks again to FightCopyrightTrolls for breaking this news.
   Order to Destroy by   J Doe

Wednesday, August 1, 2012

Judge Brown Drops The Hammer*

Wow! There are a pair of bittorrent suits pending over in New York. Counsel for Malibu Media and Patrick Collins had asked for early discovery so they could, one assumes, try to extort the traditional settlement out of the defendants. In a unique twist, Judge Brown ordered that the identities of the Does be revealed by their ISP, but only to the Court and not to plaintiff's lawyers. Actually a great idea. The plaintiff's lawyer was supposed to issue a subpoena that instructed the ISP to provide the identities of the Does directly to the Court.
But guess what. Rather than do what the Court ordered, Jason Kotzker issued those subpoenas and directed the ISP to send that information to him instead of the Court. Wow.
The Court found out and to say that Judge Brown was upset is an understatement. There is one sure way to get the goat of a Federal Judge--do exactly the opposite of what he ordered you to do. So that's where Mr. Kotzker now finds himself. In a nutshell, Judge Brown has demanded that Mr. Kotzker justify his actions. Kotzker has to provide a sworn declaration basically telling the Court why it should not sanction him for this goof.
I have a fair amount of experience with Federal Judges, and I will say that I expect some fairly serious sanctions to result from this. Unless Kotzker has a very good reason why he did exactly what the judge told him not to, then he better get his checkbook out.
Thanks to the good folks over at FightCopyrightTrolls for this timely and eye-opening report. Read the entire order below.

* UPDATE:  I am compelled to post an update to this post because I have learned more about the situation. There apparently was a show-cause hearing, at which it appears Mr. Kotzker was able to satisfy Judge Brown that this occurred as an inadvertent clerical mistake.  Judge Brown did not impose any sanctions, and Mr. Kotzker assured the Court that it was a mistake which would not reoccur. I should also mention that I am updating this post at the request of Mr. Kotzker, who asked me quite professionally and reasonably. I do my best to accommodate reasonable requests made professionally, so there it is.