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.