Judge Shuts Down Copyright Troll's Cut-And-Run Effort; Hits It With $40K In Legal Fees

from the striking-three-to-a-match dept

The art of copyright trolling is completely artless. There's no subtlety to it. Flood federal courts with filings against Does, expedite discovery requests in hopes of subpoenaing a sue-able name from a service provider, shower said person with threats about statutory damages and/or public exposure of their sexual proclivities, secure a quick settlement, and move on.

It doesn't always work. At the first sign of resistance, trolls often cut and run, dismissing lawsuits as quickly as possible to avoid having to pay the defendant's legal fees. This isn't anything new. And there are very few courts left that treat the rinse/repeat cycle as novel. Judges are calling trolls trolls with increasing frequency and more than a few trolls and their legal representation have turned to theft and fraud to make ends meet.

Via Fight Copyright Trolls comes another decision where a porn-based copyright troll is getting its financial ass handed to it by a federal judge. Strike 3 tried to dismiss a lawsuit when it became obvious it couldn't prove infringement, opting for a voluntary dismissal without prejudice in hopes of dodging a bill for legal fees. It didn't work.

After some discussion of the technical aspects of Strike 3's aborted discovery attempt -- which involved Strike 3's experts failing to find evidence of infringement on the defendant's hard drive -- the court gets down to the business of cutting the troll off at the knees to prevent it from escaping the costs of its bogus litigation.

The court [PDF] says Strike 3 can't have everything it wants -- the cake, the celebratory disposable plate, the opportunity to consume the cake at its leisure, etc. Arguing that this is cool because some other troll tried it doesn't impress Judge Thomas Zilly.

Unlike in LHF Productions, in which an alleged BitTorrent user’s counterclaim for a declaration of non-infringement was dismissed as moot in light of the plaintiff’s dismissal with prejudice of the underlying copyright infringement claim, in this matter, Strike 3’s voluntary dismissal was without prejudice, see Notice (docket no. 53), and in contrast to the plaintiff in Crossbow, Strike 3 has not provided any covenant not to sue. Indeed, not only has Strike 3 preserved its ability to pursue further litigation against John Doe, it has indicated that it will not consent to a declaration of non-infringement unless John Doe is precluded from receiving attorney’s fees and costs and Strike 3 is explicitly permitted to bring copyright infringement claims against John Doe’s son.

Then the court quotes another case involving yet another copyright troll (Malibu Media) to shut down Strike 3's "heads we win, tails you lose" exit strategy.

In essence, Strike 3 is attempting to thwart John Doe’s efforts to obtain attorney’s fees and costs by, on the one hand, refusing to dismiss its Copyright Act claim with prejudice and thereby denying John Doe “prevailing party” status, while on the other hand, deploying its dismissal without prejudice as a jurisdictional shield against John Doe’s declaratory judgment claim. The Court will not permit Strike 3 to use such “gimmick designed to allow it an easy exit... [now that] discovery [has] reveal[ed] its claims are meritless.”

The court is going to hand the defendant the victory, as well it should. The burden of proof for infringement rests on the accuser and Strike 3 failed to show any infringement occurred. Since Strike 3 can't prove this -- and its attempt to dismiss the case makes it clear it has no intention of proving infringement occurred -- the defendant's declaration of non-infringement is the default winner.

Consistent with Strike 3’s lack of proof of copying, John Doe’s expert has indicated that John Doe’s computer does not contain any of the motion pictures described in Exhibit A to the Complaint. No genuine dispute of material fact exists, and John Doe is entitled to judgment as a matter of law. John Doe’s motion for summary judgment is GRANTED, and a declaratory judgment of non-infringement will be entered.

Since Strike 3 lost -- and engaged in a bad faith dismissal to dodge paying Doe's legal fees -- the defendant and his representation are getting almost everything they've asked for. That's $40,000 in legal fees and $7,000 costs Strike 3 will have to pay for two years' of failed litigation. But mostly Strike 3 paying because it tried to forfeit rather than take the L.

As the court notes, the tide of trollish litigation may be slowing, thanks to the Ninth Circuit's Cobbler Nevada decision. It's not over yet. This isn't the last time we'll see a troll light itself on fire in its haste to escape a losing lawsuit. But it's enjoyable all the same.

Filed Under: copyright, copyright troll, copyright trolling, sanctions
Companies: strike 3


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  • icon
    Stephen T. Stone (profile), 14 Feb 2020 @ 10:52am

    Seeing a competent judge shut down a copyright troll and force the troll to pay for their trolling brings a tear to my eye. This should be the norm, not the exception.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Feb 2020 @ 11:08am

      Re:

      It seems to be moving that way, thankfully.

      It's very easy to be pessimistic with all the awful laws and rulings that are made and hit the headlines, especially when the judicial system has a worrying level of corruption at both ground level and from the top down, but when you have, on average, over 1,000 federal court cases being closed every day, there's always going to be a few that get it wrong for some reason. Judges are human, too.

      There are plenty that quietly get it right on important topics. And quite a few that loudly get it right on important topics, too -- the recent Supreme Court decisions curtailing asset forfeiture and removing limitations on "scandalous" trademarks, for a couple notable examples.

      reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 14 Feb 2020 @ 11:37am

    Steeeeerrrrriiiiiiiikkkkkkke 3....you're outta here!

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 14 Feb 2020 @ 11:59am

    Mmmmm!

    Troll Cobbler.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 14 Feb 2020 @ 1:19pm

    Hard to run away when you've been nailed to the floor

    And that is exactly what judges should be doing to copyright extortionists, not only cut off the 'we might sue you later' threat of dropping a case without prejudice when it goes bad for them but also making them pay their victim's legal fees and extra for abusing the court system.

    The entire scam depends on getting people to pay out without having to pay anything more than pocket change themselves, make it so they actually face a risk of having to pay their victims and suddenly it becomes a lot less tempting a scam.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Feb 2020 @ 3:04pm

    Wonder how hard it will be to get the payments for the court costs out of Strike Three. Probably will require another lawsuit.

    reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 14 Feb 2020 @ 4:16pm

    cutting the troll off at the knees

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Feb 2020 @ 5:10pm

    That sound you hear is John Smith furiously writing up another mailing list to fleece.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 18 Feb 2020 @ 4:36am

      Re:

      "That sound you hear is John Smith furiously writing up another mailing list to fleece."

      I seem to recall old Baghdad bob once stating he wouldn't do that, out of fear of "pirates" "stealing" said list as well and putting it on Pirate Bay.

      Can't imagine who'd sit and seed that though. Rain Man?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Feb 2020 @ 6:26am

    Re: online bullshit

    The next time I read a weblog comment, I hope that it doesnt disappoint me as much as yours. I imply, I do know it was my choice to read, however I really thought youd have something to contribute. All I saw is a bunch of whining about something that you know little and you were looking for acceptance of your ridiculous opinions.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 15 Feb 2020 @ 8:35am

    Pay heed, gentlemen!

    You will notice that neither Gabbard, nor a Republican, many accused causally, as if by a dope-smoking Hillary HRC, here on tech dirt of filing frivolous suits, have been hit with legal fees like this.

    Why? The suits aren't frivlous, duh.

    reply to this | link to this | view in chronology ]

    • identicon
      Chuck Sod, 15 Feb 2020 @ 1:31pm

      Re: Pay heed, gentlemen!

      "dope-smoking Hillary"
      First I'd heard of this, got any evidence, link to a story .... anything at all?

      reply to this | link to this | view in chronology ]

      • identicon
        Bobvious, 15 Feb 2020 @ 2:46pm

        Re: Re: Pay heed, gentlemen!

        "dope-smoking Hillary" link

        Don't you remember where Bill said he tried dope but didn't inhale. Well that's because he got Hillary to inhale for him. Simple. Draw in a mouthful, kiss your loved one and they inhale it instead as you exhale.

        And don't forget that Hillary HRC changed her name from ROSWELL to Rodham at a special ceremony at Area 51.

        It's all here in this video, https://www.youtube.com/watch?v=Uj1ykZWtPYI

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Feb 2020 @ 6:58am

          Re: Re: Re: Pay heed, gentlemen!

          LOL - yeah, I was looking for a real story.

          Bill did not inhale, I remember that silliness but I had not read about Hillary being a part of it. They may have not even met yet, idk - and I'm not looking it up because I really do not care.

          reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 15 Feb 2020 @ 1:38pm

      The suits are frivolous. That judges don’t/have yet to deliver monetary damages to the defendants once the suits have been dismissed is hardly a sign that the suits are on solid ground. And if you want proof, look at Shiva Ayyadurai’s lawsuit: Both Techdirt and Shiva settled his particular pile of excrement disguised as a lawsuit without money changing hands.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Feb 2020 @ 12:57am

      Re: Pay heed, gentlemen!

      Not yet bro. Not yet...

      reply to this | link to this | view in chronology ]

  • identicon
    ryuugami, 15 Feb 2020 @ 10:21pm

    another decision where a porn-based copyright troll is getting its financial ass handed to it by a federal judge

    I expect there will eventually be a porn parody, with financial ass being replaced by a literal one.

    reply to this | link to this | view in chronology ]


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