Copyright

by Mike Masnick


Filed Under:
copyright, copyright trolls, judges

Companies:
patrick collins



Yet Another Judge Blasts Copyright Trolling Operation

from the down-goes-another-one dept

While copyright trolling cases keep popping up, it's become quite impressive how many courts are dumping such cases often while slamming the trolls' strategy. It's now happened again. A judge in Massachusetts has called out a troll for its "lack of interest in actually litigating." The case involves porn company Patrick Collins, Inc., which has been involved in a ton of these trolling cases -- including some of those linked above -- along with another company, Discount Video Center, represented by the same lawyer.

The full ruling (pdf) is worth reading. Basically, the judge (like many others) is completely onto Patrick Collins and the fact that it wants to use the court system as a part of its business model rather than for a legitimate judicial purpose. After noting that in an ordinary case against an unknown defendant, the purpose of seeking early discovery is to find out how to amend a lawsuit to include an actual named defendant. But here, the company seems to have no interest of doing such an amended filing since, instead, it just wants contact info to send out "pay up settlement" letters.
Ordinarily, a Plaintiff suing a John Doe Defendant would seek narrow discovery ex parte in order to identify the Doe Defendant for purposes of filing a motion to amend the Complaint to name the Doe, followed by service of the Complaint. The Plaintiffs in these cases evidence no interest in such a pursuit. They have not proposed a discovery plan aimed at identifying the infringers they have sued. Rather, the Plaintiffs request that the Court order disclosure of the third-party subscribers' names so that the Plaintiffs might settle or dismiss their cases on an informal basis. The discovery they seek cannot provide the Plaintiffs with sufficient information to identify the Doe Defendants. Nor have the Plaintiffs requested leave in their submissions to take depositions, either orally or upon written questions – the only discovery mechanism available to Plaintiff under the Federal Rules of Civil Procedure when seeking information from third parties, as is the case here....

... the omission of any written request for depositions in the Plaintiffs' renewed motions for discovery speaks volumes about the Plaintiffs' lack of interest in actually litigating these cases. That the Plaintiffs' counsel now assert a willingness to take depositions if that is the only option ... only confirms that the Plaintiffs' interest in litigating the cases, or in following the governing law, arises only in response to the Court's express command.

Not only have Plaintiffs failed to articulate a discovery plan that would lead to identifying the infringers they have sued, but the Plaintiffs cannot even articulate the specific information they need or require in order to identify the infringers (or, to determine that such identification is not reasonably possible).
Yeah, the judge isn't pleased. He explains that their plan to get the names and then "figure out the rest" through settlement letters "is unacceptable." Also not good for Patrick Collins -- back in July, its lawyer had told the court that it would be filing actual lawsuits against individuals the following week... but "no such lawsuits against individual defendants were subsequently filed." In other words, the company was misrepresenting its intentions to the court -- a big no-no.

It doesn't end there. The judge calls out Discount Video Center for seeking to "harass" a defendant and also engaging in judge shopping:
With respect to John Doe No. 22..., the Plaintiff Discount Video has stated an intent to dismiss Doe No. 22 from the pending action and file a new, separate individual complaint against this Doe, even though it does not know the identity of the infringer. Such an action smacks of an bad faith effort to harass the third-party subscriber by causing him or her to expend further legal fees in a brand new action, which would merely repeat all that has occurred to date. The Federal Rules specifically address this situation and authorize an award of fees and costs.... The course of action the Plaintiff has stated it intends to pursue also suggests an improper effort to engage in judge shopping and evidences a disregard for the Court's limited public resources.
Finally, the judge calls the plaintiffs out on the settlement letters they sent, noting that they falsely claim that the account holder has been sued, rather than the actual infringers, who may not be the same.
Finally, the Plaintiffs have repeatedly said one thing and done another. The Plaintiffs plainly sued only the infringers in these actions. Yet the Plaintiffs proposed and served notices upon the subscribers informing them they had been sued. The Plaintiffs' counsel stated to the Court that in his opinion, subscribers are "always going to . . . be secondarily liable "..., but he also stated that he would not assert secondary liability claims against subscribers as such claims would not pass muster under Rule 11.3

Now, the Plaintiffs have filed lawsuits against subscribers asserting secondary liability on the theory that, upon information and belief, discovery will reveal the subscribers to have known of the infringement via their account, or, that discovery will show the subscribers to be the parent of an unemancipated minor between the ages of 7 and 18.... While those cases are not before the undersigned (though some are before the district judges assigned to the captioned cases), the Court may permissibly consider them in assessing the reliability and veracity of counsel's statements. The Plaintiffs' counsel has also repeatedly said to the undersigned, and to other judicial officers of this Court, that he intends to litigate the claims he has brought. Yet to date, counsel has sued well in excess of one thousand Doe Defendants in this District, and as far as the Court is aware, he has never served a Complaint upon a single individual defendant.
What's amazing is that these rulings keep happening... and such cases keep getting filed as these trolls keep hoping to get a sympathetic (or clueless) judge to let them go through.

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  1. identicon
    The Real Michael, 15 Nov 2012 @ 5:48am

    Well that's the thing about copyright, IP and patents: they're designed to encourage extortion and litigation. It's funny how many of the trolls don't actually want to go through the motions -- they're just interested in a quick settlement.

    Unless our copyright system is fixed (with generous public oversight), abuse of the system will persist.

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