Thursday, November 15, 2012

Copyright Troll Ordered To Post $48,000 Or Its Case Will Be Dismissed

So as we know, AF Holdings, Malibu Media and the like have been filing hundreds of lawsuits all over the country naming Does and trying to extract settlements. The way they've handled this litigation has been described as everything from fraudulent to extortionate. The backlash against these copyright trolls is reaching a fever pitch.

Here's the latest development.

AF Holdings filed suit down in the Northern District of California against a Doe who turned out to be David Trinh. Interesting thing about California is they have this law that allows someone who has been sued in California by an out of state plaintiff to demand something called an 'undertaking.' If granted, an undertaking forces the plaintiff put up a bunch of money before the suit can move forward. If the plaintiff doesn't put up the money, the suit gets dismissed. The idea of an undertaking is to prevent California residents from being harassed by out-of-state plaintiffs.

So why doesn't everyone demand an undertaking? Well, it's because the Court doesn't just hand these out for the asking. Before the Court will order an undertaking, the defendant must demonstrate he is so likely to win that justice demands the plaintiff put his money where his mouth is before the suit can proceed. Despite what you might think, this is usually a very difficult burden to show.

You probably already figured out where this is going, so here it is. David Trinh (through his lawyer Nicholas Ranallo) filed such a request for an undertaking last month. On Friday, the judge granted the request and ordered MM to put up $48,000 or it's case will be dismissed.

This is HUGE news. I've never even heard of a Court ordering the plaintiff to put up money because not only is the plaintiff likely to lose, but the Court already knows it's likely to award attorneys fees.


In the order (see below) the Court said things like:

Defendant has also shown a reasonable probability that he will obtain a judgment in his favor . . . by noting that Plaintiff’s current evidence of infringement is weak


The Court rejects Plaintiff’s argument that attorneys’ fees are inappropriate here

This is a real come-to-Jesus moment for AF Holdings. Do you proceed with a lawsuit where the Court already told you that you're likely to lose and be sanctioned?

Who's betting that the next filing in this case is a voluntary dismissal? Anybody?
Trinh Undertaking Granted

Thursday, November 8, 2012

$5,000 Cap On Non-Commercial Copyright Infringement

The biggest threat facing the typical person who just improperly downloads movies or copyrighted material (like the bittorrent litigation cases) is statutory damages. Many people have discussed statutory damages before, so I'll just briefly recap.

There are basically two ways a copyright owner can be compensated for copyright infringement: actual damages and statutory damages.

Actual damages are the actual money you (the copyright owner) lost because of the copyright infringement. This means if you would have made $100 for selling the work that was infringed, then your actual damages are $100.

Statutory damages are a creature of law that have no basis whatsoever in your actual loss. It's just a number that the Court can pull out of thin air up to the maximum cap allowed by law.