As predicted, On The Cheap, LLC vs Does 1-5011 is proving to be a must-read case for anyone interested in mass anti-filesharing lawsuits in the United States.
The case is one of the porn-based BitTorrent lawsuits filed in 2010 by Ira M. Siegel using evidence from the Copyright Enforcement Group. The ‘work’ in question is Danielle Staub Raw – a sex tape featuring reality show star Danielle Staub.
The case has become particularly interesting during the last couple of weeks. Judge Bernard Zimmerman’s criticism has been developing on a number of fronts including a general lack of progress, issues of jurisdiction, joinder, and the nagging feeling that the court is being used a collection agency – i.e a means to an end of achieving cash settlements from BitTorrent users.
Now, following Ira M. Siegel’s late and incomplete filing in response to a court order in late August, Judge Zimmerman has dealt a crippling blow to the case by dismissing all but one of the 5,000+ defendants.
“Having reviewed plaintiff’s response to the order to show cause as well as an amicus brief filed by the Electronic Frontier Foundation, and having considered the arguments of counsel, I find that almost 5,000 remaining Doe defendants are improperly joined..[..],” Zimmerman writes.
In short, just because BitTorrent users may have participated in the same swarm at varying points in time it does not follow that they worked in concert. Furthermore, Judge Zimmerman ruled that having around 5,000 defendants in one case would not promote judicial efficiency, not least because many defendants will have their own unique defenses to the accusations.
Of course, to keep costs down Ira M. Siegel and his client want to process defendants all at once and in common with almost all of these settlement-driven cases, avoid taking defendants to court. But in keeping up appearances to the contrary, that defendants will be taken to court, the whole premise begins to look ridiculous when the logistics are examined.
“No courtroom in this building can hold over 200, let alone 5000,” said Judge Zimmerman.
He then went on to bemoan the issues of jurisdiction which have plagued this and similar cases.
“Plaintiff, well aware of the difficulties out-of-state and out-of-district defendants would face if required to appear in San Francisco, has nonetheless sent them settlement demands which apparently inform them they have been sued in this District.” This, notes the Judge, is incompatible with “principles of fundamental fairness.”
Finally, and perhaps most importantly, Judge Zimmerman added an interesting footnote to his ruling which shows that he has a very clear understanding of what these mass anti-filesharing lawsuits are all about.
“The Court’s concerns are heightened by plaintiff’s refusal to file under seal a copy of its settlement letter and related information about its settlement practices. The film sells for $19.95 on plaintiff’s website. According to public reports, plaintiffs in other BitTorrent cases, rather than prosecuting their lawsuits after learning the identities of Does, are demanding thousands of dollars from each Doe defendant in settlement,” Judge Zimmerman begins.
“If all this is correct, it raises questions of whether this film was produced for commercial purposes or for purposes of generating litigation and settlements. Put another way, Article 1, section 8 of the Constitution authorizes Congress to enact copyright laws ‘to promote the Progress of Science and useful Arts’.
“If all the concerns about these mass Doe lawsuits are true, it appears that the copyright laws are being used as part of a massive collection scheme and not to promote useful arts,” he concludes.