For more than a decade, alleged file-sharers around the world have been pressured to pay significant settlement fees.
These so-called ‘copyright-trolling’ efforts are pretty straightforward. Copyright holders obtain a list of ‘pirating’ IP-addresses and then request a subpoena from the court, compelling ISPs to hand over the associated customer data.
This scheme can be rather lucrative. With minimal effort, rightsholders can obtain hundreds or thousands of dollars per defendant. These cases generally don’t go to trial. On the contrary, the copyright holders often drop cases when a defendant pushes back.
This was also the case when Bodyguard Productions, known for The Hitman’s Bodyguard, sued Ernesto Mendoza. The defendant, who is in his 70s and suffering from end-stage renal disease, denied that he downloaded the film and fought back.
The alleged pirate turned the tables with a list of counterclaims, accusing the rightsholder of running a “business model that cannot and should not be authorized by the courts.”
These type of lawsuits equate to a “sue then settle” or “cut and run,” scheme that is meant to “intimidate defendants into paying them money out of fear,” the defense argued.
In response, Bodyguard Productions appeared to “run,” as it swiftly filed for voluntary dismissal. However, Mendoza and his lawyer didn’t want to let the case go without being compensated for the legal fees they had already incurred.
This presented the court with an unusual situation where the accusing party wants to drop its case, but the defendant wants to continue. After hearing both sides, Illinois District Court Judge Robert Dow decided to dismiss the case, ordering both parties to pay their own fees.
This was a huge disappointment for the alleged file-sharer, who now has to bear the costs for a case that he isn’t allowed to fight. According to his attorney Lisa Clay, the Court should ensure that plaintiffs are ready and willing to prove their case.
“Unfortunately, the Court’s recent order does not,” Clay tells TorrentFreak.
“Granting the Plaintiff’s disingenuous motion to dismiss without penalty has the real consequence of strengthening the troll business model.
“The Order deprived Mr. Mendoza of the opportunity to prove his innocence and expose the Plaintiff’s extortion enterprise. What is worse, the Court’s denial of Mr. Mendoza’s request for reimbursement of costs and attorneys’ fees all but guarantees the continued success of the troll model.”
On a broader scale, there’s a positive note for future defendants. In the order, Judge Dow notes that the Court should re-evaluate how it handles these cases. In addition, the potential for abuse may also deserve the attention of the Rules Committee.
“[T]he points advanced by Defendant about the potential for abuse across the universe of peer-to-peer copyright infringement cases convince the Court that it should re-evaluate its own overall treatment of these cases and consider whether to suggest that the Rules Committee in this district look into the matter as well,” Judge Dow writes.
The order notes that special rules are already available in Oregon, where the number of defendants is limited to one per case, and where ISP subpoenas should alert potential defendants to the availability of pro-bono attorneys.
This is a significant statement for a Court that has generally been very ‘friendly’ towards rightsholders in these type of file-sharing lawsuits. That said, the defense isn’t celebrating.
While Clay would like to take solace in this statement, she and her client are still left with nothing. And there are no guarantees that anything will change.
“Promises of this nature do not compensate my client for the time and expense we were both forced to incur to defend a baseless lawsuit. Sadly, the Court’s ruling all-but ensures that even if such changes are implemented, there will be no pro bono attorneys left to handle this work.
“Knowing that I have no hope of being reimbursed my fees will make it that much more challenging for me (and others) to find the time and resources to do this growingly thankless work,” Clay adds.
But while the case has been dismissed, it may not be the end of the road quite yet. Mr. Mendoza’s attorney says that a motion for reconsideration is still an option. That would provide the Court with an ideal situation to re-evaluate its position.
Update March 21: Attorney Lisa Clay informed us that she indeed filed a motion for reconsideration.
A copy of Judge Dow’s order is available here (pdf).