Triller’s widely publicized $100m lawsuit against sites that allegedly streamed the Jake Paul vs. Ben Askren fight on April 17 has hit complications.
In its complaint, Triller identified several domains and what appears to be individuals, describing them as “business entities” that breached its copyrights. The lawsuit also referenced 100 John Does.
This week, Triller offered an amnesty package to those who watched the fight without permission but the main lawsuit is already facing some pushback from the court.
Triller Provided No Evidence to Show That Defendants Acted Jointly
Triller’s initial targets included FilmDaily.com, AccessTVPro.co, Online2LiveStreams.us, CrackStreamsLive.com, Sports-Today.club, My-Sports.club, BilaSport.com, Trendy Clips, Mike, Your Extra, Eclipt Gaming, and ItsLilBrandon. The company later added the H3 Podcast and H3H3 Productions in an amended complaint but the court isn’t convinced they should all be included in one lawsuit.
In an order to show cause, Judge Percy Anderson highlights Triller’s claims that the defendants’ actions were “undertaken jointly and with the consent, conspiracy, cooperation, and joint participation of all defendants” and that “each defendant was the agent, joint venture, and/or employee of each and every other defendant.”
The Judge isn’t convinced, at least from the evidence at hand, that is actually the case, stating that the defendants have no apparent connection to one another.
“Other than these conclusory allegations, the Complaint does not contain any well-pleaded facts that plausibly support even an inference that Defendants acted jointly,” he writes.
“For these reasons, the Court orders Plaintiff to show cause in writing no later than May 10, 2021, why one or more of the Defendants should not be dropped from this case for improper joinder.”
Triller Believes The Defendants Are Properly Joined
In its response to the order to show cause, Triller argues that the defendants are properly joined because they are jointly and severally liable for Triller’s claims under the Copyright Act and that Triller’s claims against the defendants arise from the same transaction, i.e the broadcast of the Jack Paul boxing event.
Triller says it is also “aware of certain facts” that demonstrate that the defendants had knowledge that other defendants illegally uploaded and distributed the broadcast.
“For example, while unlawfully re-distributing the Broadcast, certain Defendants informed their viewers, subscribers, and fans of other Defendants’ unlawful redistributing of the Broadcast,” the company writes.
However, Triller seems to acknowledge that at least at the moment, it will have difficulty showing other connections between the defendants because it doesn’t yet know who they are. As a result, Triller is asking the court not to dismiss any defendants from the lawsuit before it has had a chance to identify them. And it wants to do that quickly.
Ex Parte Application for Expedited Discovery
In an application filed Wednesday, Triller says that it is seeking limited discovery on an expedited basis in order to learn more about the “nature and extent” of alleged ongoing infringement by the defendants. The company says that it needs this in order to obtain evidence to support an imminent request for a preliminary injunction.
“In particular, Triller seeks to serve subpoenas upon various online platforms — including YouTube LLC and Google LLC — and domain name registrars to learn Defendants’ true identities,” the company writes.
“Registrars are required to maintain records of the individuals who and entities that register domain names. Such records will assist Triller in ascertaining Defendants’ true identities. Without the discovery in order to unearth Defendants’ true identities from behind their online aliases, Triller will be unable to seek an injunction halting Defendants’ unlawful conduct.”
While observers will note that the fight card began and indeed ended on April 17, Triller says it needs to act quickly to prevent the defendants from rebroadcasting its original broadcast, infringing its copyrights. As such, it needs permission to conduct discovery quickly in order to avoid irreparable harm. The company adds that since the court acknowledges that additional evidence is required to show that the defendants acted jointly, granting discovery before the court’s May 10 deadline is a good reason to press ahead.
Triller Wants to Subpoena Google and YouTube
In its application, Triller provides a pair of proposed subpoenas – one targeting Google and the other YouTube. They are substantially the same in respect of the information demanded, i.e “All personal identifying information, including, but not limited to (i) name, (ii) mailing address, (iii) email address, (iv) phone number, and (v) history of credit card purchases” related to the defendants.
What is curious about the first request to Google is that Triller does not identify any specific Google accounts, users, URLs, or other identifying information specific to its platform. It merely demands that Google hands over all information it holds on the various domains listed in the original and amended complaints.
The proposed YouTube subpoena is more specific. While demanding the same personal information, it lists various YouTube channels such as Trendy Clips, Mike, Your Extra, Eclipt Gaming, ItsLilBrandon, the H3 Podcast, and H3H3 Productions. The request is not without its issues.
The URLs supplied for Your Extra, Eclipt Gaming, and ItsLilBrandon are all the same and point to the Mike channel, so will presumably lead to the same entity. However, the URL for the Mike channel itself is wrong and in fact leads to absolutely nothing.
While the proposed subpoena to YouTube seems like it could yield more fruit than the one targeting Google, Triller appears to have left out an important aspect of its expedited discovery application. The company mentions domain registrars as having the ability to assist Triller in ascertaining the defendants’ true identities but has filed no request to subpoena any.
Triller’s response to the order to show cause and its application for discovery can be found here and here (pdf)