In light of the blogosphere’s favorite attorney John Steele having a new article in Forbes, the >100 (just multiple-Doe) cases which were filed in various courts across the country in August/September/October, and the deluge of ignorant vitriol pouring every which way in cyberspace, now appears to be an appropriate time to revisit the exacerbated state of file-sharing / hacking litigation and highlight just how acrimonious the situation has become.

Two years ago, 10-cv-5606 Hard Drive Productions, Inc. v. Does 1-1000 was just a .pdf’ed gleam in then-Steele|Hansmeier’s eye. Nu Image, Inc’s 11-cv-0301 case against 23,322 individuals for downloading The Expendables was still eight months out and about nine months from being tossed (i.e., its claims being dismissed without prejudice). The soap opera that was to become the 11-L-0683 Lightspeed Media case was still incubating as Lightspeed Media’s 10-cv-5604 case. The Malibu Media / K-Beech / Patrick Collins trifecta had yet to come on the scene and begin setting their records for litigant prolificacy.

The prevailing wisdom of the time was that, in the face of these massive lawsuits, there simply was no logistical way, even given the three-year statute of limitations for copyright infringement, for plaintiff’s firms to individually name and pursue all of the identified John Does even presuming they could obtain the Does’ identifying information by defeating the clusters of motions to quash/sever which were invariably (and often successfully) filed. The 2010 suits were largely filed in Illinois and D.C.; more a result of the plaintiff firms’ residencies (then-Steele|Hansmeier and Dunlap, Grubb, and Weaver, respectively) than the residences of the John Does themselves.

As the plaintiffs – mostly adult film companies but also some indie music/film and software outfits – suffered litigious setbacks with their initial mass-suit strategy, they first tried filings in different jurisdictions. Illinois and D.C.’s prominence first gave way to California, Texas, and Ohio before Kentucky and even Hawaii entered the picture in early 2011. Additionally, the sizes of the lawsuits began to shrink. With a few very notable exceptions, several hundred to several thousand-Doe strong lawsuits largely fell out of favor with courts across the country. Seeing this trend, K-Beech, Malibu Media, and Patrick Collins have largely stuck with 15-35 Doe-strong suits filed in many jurisdictions but seemingly focused on Florida, D.C., Colorado, and perhaps New Jersey. Most other plaintiffs followed the same strategy though not necessarily to the exclusion of at least attempting the larger suits.

As mentioned in our blog earlier, D.C. is special not only because it has remained ground zero for these types of suits since 2010 (somewhat beginning with Achte/Neunte Boll Kino Beteilingus GMB & Co. KG v. Does 1-4,577, No. 10-cv-0453, continuing through Call of the Wild, LLC v. Does 1-1,062, No. 10-cv-0455 and AF Holdings, LLC v. Does 1-1,058, No. 12-cv-0048, and recently noting Hard Drive Productions, Inc. v. Does 1-1,495, No. 11-cv-1741) at the latest, but that D.C. should produce the first contextually relevant appellate opinion on the matter. While such an appellate opinion would not necessarily control courts in other circuits, it would do everyone’s motion practice a favor. Indeed, however the appeal is resolved; it should allow attorneys to refrain from entering into the somewhat unavoidable horse race that is cite-as-many-memorandum-district-court-opinions-as-possible.

The plot also thickened once plaintiffs, notably Lightspeed Media and now Guava, LLC, introduced state-based cases involving not bit torrent-related copyright infringement, but “hacking” claims predicted on alleged violations of the Computer Fraud and Abuse Act and breach of contract. Claims under the Lanham for trademark infringement and unfair competition have also been raised.

With the proliferation of plaintiffs, subject matter, types of claims, and jurisdictions in which those claims were brought – all against these faceless “John Does” – the prevailing wisdom continued to, well, prevail. Indeed, the default option of anyone faced with a subpoena notification letter is to do nothing, wait to see if the plaintiff sends demand correspondence and, ignoring that as well, wait to see if the plaintiff decides to, sometime in the next ~2-3 years, spend $350 initiating an individual suit against the recipient. As the magnitude of this litigation was bemoaned (100,000 John Does!! 50,000,000,000 John Does!! Curse you trolls!!), the spectre of being an actual you-just-got-served-and-you-better-show-up-at-court-in-30-days named defendant was diminishing.

It is understandable, then, that the rumblings of individual suits went largely unnoticed earlier in 2012 when AF Holdings, LLC began file single-doe cases by the dozen and across the country. Part of updating TorrentLitigation.com’s extensive library involves a lot of federal docket searching, so we are able to track the frequency with which individuals – though still unknown – were singled out usually as a result of their severance from a previous lawsuit. While we don’t post many individual suits (it would be far more expensive than maintaining our library already is), the frequency with which individuals, unknown or otherwise, are being singularly named went from perhaps one or two to dozens per month. Indeed, Prenda Law, the source of much of the single-defendant suits (Malibu Media, Patrick Collins, and K-Beech seem to have yet to take this step, 11-cv-1121 aside), proudly publishes its lineup of individual cases on its website. The motivation on plaintiffs’ part is probably twofold: (i) in subsequent John Doe cases they can illustrate that yes, indeed, they pursue people individually and no, the joinder isn’t simply a way to cut corners and shake people down; and (ii) named individuals, once served with process and exposed, will settle for higher amounts.

So with D.C. making motion to quash practice in some jurisdictions almost a waste of time and Prenda Law broadcasting its victims on its website for the world to see, the litigious rubber is finally starting the meet the road. Internet message boards frothing with opinion but quite short on actual facts, academic qualifications, or truly objective legal analysis have seized upon this paradigm shift and turned the once-amicable fora into a mud pit itself still falling short of just how bizarre and acrimonious the legal environment surrounding these cases has become.

Take an unfortunate exchange in the Arte de Oaxaca v. Mullen, No. 12-L-9034 case in the Circuit Court of Cook County. The case involves a named defendant facing a contextually novel claim of negligence and, in the alternative, novel claims of aiding and abetting and conspiracy to do so. Pursuant to an agreed, though limited, order allowing the plaintiff to attempt to find evidence of the nonexistent conspiracy, plaintiff issued subpoenas to ISPs which operated IP addresses alleged to have been involved with the conspiracy. The defendant is of course abjectly denying plaintiff’s allegations and not only looks forward to establishing the absence of any evidence supporting plaintiff claims but also seeking relief from the plaintiff under Illinois Supreme Court Rule 137 for what we predict will be an entirely meritless case.

We received a desperate phone call from one such subpoena notification letter recipient on Tuesday October 2nd while en route from Chicago to Detroit. We spoke with the individual who expressed his serious anxiety over the fact that October 2nd was his ISP’s deadline. When faced with the standard choices befalling all subpoena notification letter recipients, the individual – who was aware that we were representing the named defendant from our own statements as well as our appearance in his ISP documentation – authorized us, after agreeing to the simple terms of such representation, to attempt to quickly arrive at a settlement and keep him anonymous. To this end, he provided us his IP address and timestamp such that we could identify him to plaintiff’s counsel. Over the next two hours we worked out an arrangement with plaintiff’s counsel, had a redaction letter issued pre-payment (which plaintiffs almost never allow) and delivered to this individual’s ISP, and provided him proposed settlement terms. Mission accomplished: the client will remain anonymous and, as we collectively intended, the matter will not escalate.

Or so we thought. Not hearing from the individual ever again (much less getting paid for the considerable effort), the following day we received an un-noticed (i.e., unscheduled) motion from an attorney purporting to represent the same individual whom we had the day before succeeded in effectively ejecting from the case. The attorney – who has all of our contact information and could have easily avoided the problem with a simple phone call, as the individual never mentioned having spoken with, much less retained, any other attorney – took it upon herself to draft, sign, and, Illinois Supreme Court Rule 137 be damned, file three pages of completely false and unsupported allegations of malpractice on our part. Due to the attorney’s apparent ignorance of Judge Egan’s emergency motion protocol, Judge Egan did not read the motion and understandably was not going to entertain two attorneys squabbling at the bench. The motion being moot as a result of our efforts the previous Tuesday, we of course would not object to the protection of information that was not even disclosed.

Astonishing.

This exchange, being the last of several “strategic” motion decisions from this attorney, led to the plaintiff in another case, Guava, LLC v. Case, No. 12-L-7363 to voluntarily (though apparently in retaliation) withdraw from the case all the IP addresses the same attorney represented in that case such that the plaintiff could simply sue each individually. A bizarre exchange with an individual, purportedly a former client of this attorney and behind one of the withdrawn IP addresses who was upset with the turn of events, clarified just how unprofessional things have become. The Guava case continues unabated. Predictably, Plaintiff’s responses to Defendant’s discovery requests are outstanding, and the deposition of Plaintiff’s Rule 206(a)(1) corporate designee is scheduled for November 28, 2012. Various motions to quash were denied as moot at today’s status hearing, though final determination on the previous stay of subpoenas is scheduled to be made on December 12, 2012.

In light of recent memorandum opinions from Judge Howell and Judge Facciola in the United States District Court for the District of Columbia - and judging by the glut of case filings therein - D.C. has become somewhat of a Mecca for file-sharing plaintiffs. Judge Howell's position on the ability of John Does to remain anonymous in these file-sharing cases goes back to her memorandum opinion in Call of the Wild, LLC v. Does 1-1,062, Case No. 10-cv-0455. The opinion - which was combined addressing motions filed in her cases Maverick Entertainment Group, Inc. v. Does 1-4,350, Case No. 10-cv-0569 and Donkeyball Movie, LLC v. Does 1-171, Case No. 12-cv-1520 - recognized that in light of the plaintiffs' allegations of the use of bit torrent protocol (i.e., every “node” or peer user who has a copy of the infringing copyrighted material on a torrent network must necessarily also be a source of download for that infringing file) "while the defendants may be able to rebut these allegations later, the plaintiffs have sufficiently alleged that their claims against the defendants potentially stem from the same transaction or occurrence, and are logically related." She goes on to opine that the "Court recognizes that each putative defendant may later present different factual and substantive legal defenses but that does not defeat, at this stage of the proceedings, the commonality in facts and legal claims that support joinder under Rule 20(a)(2)(B)."

Judge Howell's treatment of other privacy and jurisdiction-based arguments are, in retrospect, less controversial. Judge Howell directly referred to her holding in Call of the Wild in her recent opinion in AF Holdings, LLC v. Does 1-1,058, No. 12-cv-0048, though importantly certified the matter of immediate interlocutory appeal considering the split. In AF Holdings, Judge Howell, in reiterating her reasoning in Call of the Wild, that the "ISPs’ objections to the plaintiff’s subpoenas have no merit." Judge Howell, somewhat depressingly, goes on to hold that "consideration of personal jurisdiction and joinder of unknown individuals, who are not yet named defendants in this case, is premature and, indeed, inappropriate...In circumstances where the plaintiff knows only the IP addresses associated with computers being used allegedly to infringe its copyright, the plaintiff is entitled to a period of discovery to obtain information to identify the ISPs’ customers who may be using those computers in order to determine whether to name those individuals as defendants."

Soon after Judge Howell's opinion in AF Holdings, Judge Facciola reiterated Howell's reasoning in Facciola's long-awaited Hard Drive Productions, Inc. v. Does 1-1,495, Case No. 11-cv-1741. Hard Drive Productions has lost about one year of any statute of limitations that may have been relevant should it decide to proceed en masse against any of the 1,495 John Does individually. While much of the blogosphere thinks those days will never, ever come, D.C. is, for the moment, entertaining the notion on paper.

Drew Wilson, writer for ZeroPaid.com, interviews TorrentLitigation.com about the state of file-sharing and hacking litigation in the U.S. and with what the unsuspecting internet-going populace might want to concern itself. Read the front page article after the jump.

In addition to our social media satellites on Twitter and Facebook, we will be posting more-substantial musings on, and observations of, the file sharing litigation landscape.