Copyright Troll Gets Fed; Resumes Torrent Lawsuits After Multiple Dismissals Led To A 19-Month Pause In Filings
from the well,-you've-got-to-lose-money-to-make-money...-or-something dept
OPINION AND ORDER granting in part and denying in part 20 21 the Motions for Default Judgment. Philip Spain and Heather Dew are permanently enjoined from infringing plaintiff’s copyrighted work, as outlined in the Opinion and Order, and are ordered to destroy all copies of plaintiff’s motion picture “Killer Joe,” as outlined in the Opinion and Order. Plaintiff is awarded damages against Phillip Spain in the amount of $6,000 and attorneys’ fees and costs in the amount of $950 and damages against Heather Dew in the amount of $6,000 and attorneys’ fees and costs in the amount of $950. The Clerk is directed to enter Judgment in accordance with this Opinion and Order. Signed by Chief Judge Edmund A Sargus on 03/16/2015.
With this order, Killer Joe Nevada, LLC is back in the copyright trolling business. Its last Doe lawsuit was filed August 28, 2013. Since March 16th, it has filed eight Doe lawsuits. More are likely on their way.
Who is “Killer Joe?” It’s actually a what — an apparently well-received 2011 film that just didn’t make much money. A budget of $10 million only produced $3.7 million in box office receipts. Part of this is due to director William Friedkin’s refusal to recut the film to earn a more box office-friendly R rating, resulting in its release being limited to 75 theaters. Another part of this is due to the general public finding other movies to spend their money on. But according to producer Nicolas Chartier, it’s piracy that’s killing his box office receipts, almost single-handedly.
Hurt Locker ended up winning six Oscars, but at the same time we had 8 million illegal downloads on the movie. And I was like, “Wow, you know, we barely reimbursed the movie and we had 8 million illegal downloads.” Well, if everybody had given me one dollar, that would be 8 million dollars, and the movie cost 11, so we lost 80 percent of the movie to piracy. That cannot hold.
Chartier’s math is so suspect it should be held without bail. Chartier is the CEO of Voltage Pictures — an entity more well-known for its mass copyright infringement lawsuits than the movies it produces. Killer Joe is one of Chartier’s babies and his legal reps spent a great deal of 2013 trying to “recoup” its losses by suing large numbers of torrenting Does.
The action commenced on April 16, 2013, with Killer Joe Nevada, LLC filing six lawsuits “targeting” 114 Does. This pace continued for a few months before coming to a halt in late August. Here are the numbers:
April 2013 – 27 lawsuits, 824 Does
May 2013 – 23 lawsuits, 875 Does
June 2013 – No lawsuits filed
July 2013 – 6 lawsuits; 152 Does
August 2013 – 1 lawsuit; 15 Does
And then… nothing.
Killer Joe may have been suing en masse and saving on its $350 filing fees by naming multiple Does to each suit, but it wasn’t seeing any return on this investment. Some judges just weren’t buying it.
In the Western Tennessee District Court, a judge dismissed five of its lawsuits because it failed to serve even a single defendant out of the 95 Does it sued.
On March 19, 2014, the Court ordered Plaintiff to submit a status report informing the Court about the steps that have been taken up to this point, what additional information Plaintiff requires, and what additional steps Plaintiff needs to take before it will be ready for a Rule 16(f) conference. Plaintiff’s response to the Court’s order was due within ten (10) days of the entry of the order. Plaintiff never responded to the Court’s order. Thereafter, on April 4, 2014, the Court entered an order to show cause as to why Plaintiff’s Complaints should not be dismissed without prejudice under Federal Rule of Civil Procedure 4(m). That Rule provides that “[i]f a defendant is not served within 120 days after the complaint is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against the defendant or order that service be made within a specified time.” Plaintiff filed its Complaints one year ago yesterday, and more than 120 days since the entry of the Magistrate Judge’s order granting Plaintiff’s request for discovery. However, there is no evidence that Plaintiff has successfully served any Defendant named in any of the cases before the Court. To date, no Defendant has answered or appeared to defend, and Plaintiff has failed to take any further action against any Defendant.
In an Ohio district court, four more cases were voluntarily dismissed by Killer Joe — again because it couldn’t produce any defendants or otherwise respond to the court’s order to show cause.
It also voluntarily dismissed four lawsuits (against 99 Does) in Illinois. A Georgia District Court judge ordered it to withdraw subpoenas issued to ISPs, only to find out Killer Joe had apparently decided to ignore her instructions. [Emphasis in the original. Also of note, famous troll fighter Blair Chintella was the attorney bringing this fact to the judge’s attention.]
Although the correspondence and e-mails do not conclusively show that subpoenas were being sent after May 28, at the least, they strongly suggest that plaintiff has yet to contact the ISPs to inform them of the Court’s decision nullifying all subpoenas except for those directed at John Doe #1. For these reasons, the Court REMINDS the plaintiff that discovery should have been discontinued and rescinded as to all defendants who were severed and dismissed. The Court DIRECTS the plaintiff to immediately contact the ISPs in each case to rescind and withdraw previously-issued subpoena for each such defendant. Further, any information that plaintiff may have obtained through these subpoenas must be returned.
The same court also called out Killer Joe for the shady logic it deployed to justify suing Does en masse.
[P]laintiff’s own evidence illustrates the unlikelihood that many of the defendants identified in this action were online and “sharing” at the same time. For example, John Doe 2 was observed to have been in the BitTorrent swarm on April 7, 2013. (Activity Log, attached to Pl.’s Compl.  as Ex. A.) John Doe 10, however, was observed to be participating on January 22. (Id.) Therefore, John Doe 10 needed to stay online for over two (2) months in order to be involved in the same transaction as John Doe 2. This seems implausible at best.
But now Killer Joe is back in business. All it took was one default judgment against a few defendants it actually managed to track down before the lawsuits collapsed under their own ridiculousness. It has successfully managed to wrest $13,900 from two defendants — out of a possible pool of 1,866.
This is “success” as defined by copyright trolls. A hit rate of .107%. Only being ~$6,000 in the hole after nearly two years of “litigation.” (Based on the $350 filing fee only: 57 lawsuits at $350/per is $19,950.). The lawyers still need to be paid, which means the $6,000 net loss is likely much larger… unless the lawyers are working on a contingency basis, in which case they apparently have too much free time.
Killer Joe seems to have learned something from its previous experiences. It’s now targeting one Doe per lawsuit. That won’t make it more successful, as it still believes it can turn an IP address into a named defendant, but at least it won’t be voluntarily or involuntarily dismissing dozens of potential defendants at a time and is less likely to be called out by judges for its questionable logic and mass filing schemes.
But all the same, trolls shouldn’t be fed. And these defendants allowed it to happen, when even the most minimal of defensive efforts likely would have seen Killer Joe drop the case and quite possibly stop trying to convert torrent hashes into “lost” ticket sales.