Public Citizen & EFF Plan To Continue Pursuing Evan Stone Over Questionable Subpoenas

from the keeping-it-going dept

We recently wrote about the odd situation in which mass copyright letter sender lawyer Evan Stone hastily, but petulantly, dropped a case, after the lawyers representing the defendants (from Public Citizen and the EFF) noticed that he appeared to have totally ignored the fact that the court had not allowed him to issue subpoenas, and had gone ahead and issued them anyway. Rather than respond to any of the questions that Public Citizen lawyer Paul Alan Levy asked Stone, he just dropped the case. Levy has now put up a blog post digging into the details, including why this move was more or less an admission by Stone that he’d made a huge mistake. The key point, though, is that Public Citizen and EFF appear to be planning to continue to pursue the motion to make sure that Stone did not contact any of those sued directly.

But there are some oddities here — he claims that as a result of our filing, he has lost the opportunity to take discovery; does that mean that he believes our arguments are meritorious, and hence that his motion should be denied? After all, the judge ordered the ISP’s to preserve identifying information for the Does, so it is not as if that information was going to disappear while he was waiting for a decision. And previously he claimed that these were 670 people who had seriously damaged his client by obtaining its copyrighted product illegally and then re-distributing it illegally. If his client has been injured, why has he dismissed the claims with prejudice, which means not only the client cannot bring suit in a proper jurisdiction but also that the Does are now prevailing parties who are entitled to seek an award of attorney fees under the Copyright Act?

My guess is that this is all about Evan Stone and not at all about his client. Stone’s business model depends on easy settlements in the four figures, and he must have recognized that a win would not come easily. In my view, it is also fair to read the dismissal as an admission of our argument that he has no claim for fees and statutory damages. Thus, the litigation of the case on the assumption that he could use the threat of litigation to demand four figure settlements was no longer possible, and Stone may just have been unwilling to continue to represent his client without that possibility. Moreover, it seems likely that Stone worried about the possibility of a sanctions motion, and about having to answer questions incident to that motion about his communications with the ISPs and with the Does, and that he dismissed with prejudice in an effort to cut off such inquiries. The very fact that he is dodging the questions makes me worry that he may have already made some profits from our clients for which he does not want to be accountable. What he may not have recognized is that dismissal of a case not only sets up a motion for attorney fees, but does not deprive the court of jurisdiction to consider sanctions. And because we have an obligation to protect our Doe clients, we are going to have to pursue such a motion until we are satisfied that none of them has been abused.

Levy also highlights a bigger point, which is that more judges when confronted with these mass infringement lawsuits should act like the judge in this case did, and not just rubberstamp subpoenas for identifying information:

The larger lesson is that, no matter how clearly meritorious the plaintiff’s claim may be from a first review of an ex parte motion for early discovery, more judges should emulate Judge Godbey and Judge MacKenzie by deferring a ruling on the motion for leave to take immediate discovery until there has been an opportunity for consideration and adversary litigation. Judging from the panicked calls that my EFF colleagues and I received after the notices of subpoena went out, the mere receipt of notices of subpoena alarmed a number of innocent people until they got word that the ISP’s were going to hold off on production. The mere need to decide on a short schedule whether to respond to a subpoena may be harmful, and sad to say there are ISP’s out there who just assume when they receive a subpoena that their clients are likely criminals who should be identified as soon as possible (I’ll have more to say soon about the scoundrels at Bluehost). Judges should demand some evidence of wrongdoing before they allow discovery to identify the alleged wrongdoers, and if they are not sure of their ability to evaluate the papers in their own chambers, they should consider appointing pro bono counsel to respond to the motion.

Demanding this sort of inquiry does not protect those whose online conduct is tortious, because plaintiffs with valid claims have little difficulty making the showings that are demanded under the Dendrite standard, especially in copyright suits over downloading. But it holds out the prospect of protecting some innocent people.

Hopefully more judges will agree.

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Companies: eff, public citizen

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Comments on “Public Citizen & EFF Plan To Continue Pursuing Evan Stone Over Questionable Subpoenas”

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Dark Helmet (profile) says:


“So what EFF and Public Citizen are going to do is just as bad as Mr Stone, they are going to chase him with legal misdirection to try to shout him down.”

Er, he did something WRONG. EFF and PC are NOT doing what Stone did, because they are CONTINUING to represent their clients rather than cutting and running at the first sign of an out. You need a theme song. I suggest Ludacris:

Troll out! Troll out!
So much funny, you know that… (troll out!)
We shill for the money, in our top hats…(troll out!)
We’d do it for a penny, so get back…(troll out!)
We get killed like Kenny, in comments Jack…(troll out!)

Now look at your article, I didn’t read it,
All logical and whatnot, I just don’t see it,
Who these people in these comments that be comin’ through,
Man, I got nothing for you, I pity the fool, who I makes lose they cool, while they take me to school,

Tell me what’s your button man, cuz I’ll get you pissed,
Large chunks of the text, I purposefully missed,
What the world is in my head, what I got in my head,
A couple a cans of nothin’, you did a good ass job,
of just punkin’ me, stumpin’ me,

So much funny, you know that… (troll out!)
We shill for the money, in our top hats…(troll out!)
We’d do it for a penny, so get back…(troll out!)
We get killed like Kenny, in comments Jack…(troll out!)

Okay, that’s enough. Irish boys can’t write rap….

average_joe says:

Mr. Levy, (if you’re reading this) I’m curious about this statement:

“Judges should demand some evidence of wrongdoing before they allow discovery to identify the alleged wrongdoers . . . .”

Is there not prima facie evidence in these cases that when balanced against a defendant’s right to privacy would allow production of their identifying information to help redress the plaintiff’s injuries?

If you’ve got a brief of your position, or if you’ve got time to explain, I’d love to hear your arguments against production.


Ray Beckerman (profile) says:

It's about time we saw the judiciary scrutinizing this stuff carefully

For the past 6 years I’ve been writing about the tendency of so many judges to give the RIAA a pass, and to fail to adhere to the Federal Rules of Civil Procedure, or to legal precedent, in scrutinizing the ex parte applications. 15 neglected pressure points — areas which judges should have been, but usually were not, scrutinizing — were pointed out by me in my 2008 article : “Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations“, The Judges’ Journal, Summer 2008 Edition (American Bar Association, Judicial Division) (Reprinted with Permission)

I’m glad to see Public Citizen being involved in this issue.

Thomas (profile) says:

Just wondering..

if the judges who are so lenient to the RIAA/MPAA/etc are simply ignorant about the internet OR if they are getting paid under the table? If Congress gets money under the table, then it’s perfectly possible that judges do the same. After all, judges tend to be lawyers before they become judges, and most modern lawyers worship money far above the law or morality or ethics.

Anonymous Coward says:

Just wondering..

Judges are elected not on merits, but on who had the scariest campaign ads.
Appointed Judges are appointed by those who get large “contributions” to support what business needs.

Intellectual Property is the hot new watch word, and it is the only way we can possibly make money in America so we must defend it. After all this report right here made out of lies and really flawed math said we are loosing Gazillions of dollars and everyone is going to end up laid off unless we act now. Every time someone gets a clip that we did not get paid for they cause a kitten to die! Won’t you think of the kittens?

And technology is the devil, so these Judges can not use it or understand it or else they would become tainted by its evil!

Technology has been marching on for a very long time and they suddenly are deciding how to apply laws from 1875 to technology people back then could never imagine. The problem is the current view that rights are trumped by we have to protect industry interests at the expense of people.

As to Stone… as I said before… ever seen a fat man run? Sometimes they stumble and fall. Its not polite, but sometimes you just have to laugh.

Anonymous Coward says:

It's about time we saw the judiciary scrutinizing this stuff carefully

Mr. Beckerman,

I’ve missed you since the RIAA stopped giving you things to get Slashdotted. 🙂

I might only have a Matlockesque understanding of the law, but even I could understand the points you raised time and time again. Shame so many Judges seem to just default to the idea that the RIAA lawyers must understand the law and use it correctly.

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