Brooklyn Federal Court Faults ‘Abusive Litigation Tactics’ in Porn Copyright Suits, Bans ‘Swarm Joinder’

"So as to avoid unfair outcomes, improper joinder and waste of judicial resources, and to ensure the proper payment of filing fees,” all future cases in Brooklyn by K-Beech, Malibu Media and Patrick Collins, Inc. should only be accepted if filed against individual defendants, Brown recommended to his colleagues. The plaintiffs have filed another 19 suits against more than 250 defendants in the Brooklyn district alone, he said. Brown’s order and recommendations may be the most sweeping rejection yet of the tactics increasingly employed by copyright owners -- often smaller film companies, both mainstream (WID May 25/11 p12) and porn -- to quickly draw settlements on the cheap. His reasoning closely follows that of U.S. District Judge Howard Lloyd in San Jose, Calif., in denying discovery to another porn company, Hard Drive Productions (WID April 19 p5).

The defendants who moved to quash subpoenas to their ISPs by K-Beech raised “vastly different and highly individualized” defenses against the allegations against them, Brown said. One said he had already closed his hacked EarthLink account, another is an “octogenarian with neither the wherewithal nor the interest” in downloading Gang Bang Virgins, and a third who used an unsecured router and lives near a “municipal parking lot” said downloading porn violated her religious views. The assumption that the Internet service subscriber is the person who downloaded porn is “tenuous, and one that has grown more so over time,” Brown said. He cited similar concerns raised by judges in New York and California federal courts that the defendants identified in porn downloading cases may be innocent account holders.

There’s evidence K-Beech used “improper litigation tactics,” Brown said: One of the defendants said he offered “unfettered access to my computer, my employment records, and any other discovery” to a self-described “negotiator,” who turned down the offer and justified a settlement of “thousands of dollars” because the defendant would have to pay legal fees in any case. That account, unopposed by K-Beech, “directly mirrors” claims by other defendants in separate K-Beech and Patrick Collins cases, some of whom said they received “harassing telephone calls” demanding $2,900 settlements, Brown said. Quoting the judge overseeing one of those cases in which defendants settled, Brown said: “This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and coerce payment from them."

Beyond the fact that K-Beech doesn’t yet have copyright certification for its title alleged to be infringed -- only an application for copyright registration -- the discovery motions fail the so-called Sony Music test articulated by the 2nd U.S. Circuit Court of Appeals, which governs the district, Brown said. The proposed discovery “does not establish a reasonable likelihood it will lead to the identity of defendants who could be sued,” he said, distinguishing BitTorrent cases involving a single work from those against college students, whose university is the ISP, and who have “at least been aware” of someone illicitly downloading many works on their computers. The motions also request more identifying information than necessary to serve the defendants, such as telephone numbers, which “seems calculated to further plaintiffs’ settlement strategies ... rather than advancing their claims,” Brown said.

It’s “highly probable” that Patrick Collins and Malibu will engage in similar tactics as those of K-Beech if allowed to continue with the mass lawsuits, Brown said. “It would be unrealistic to ignore the nature of plaintiffs’ allegations -- to wit: the theft of pornographic films -- which distinguish these cases from garden variety copyright actions,” because there’s more embarrassment surrounding porn allegations -- and willingness to settle -- than around allegations of illicit music downloading, he said. The Federal Rules of Civil Procedure deny discovery when it’s used for “annoyance, embarrassment, oppression, or undue burden or expense,” and “this situation cries out for such relief,” Brown said.

The “swarm joinder” theory that BitTorrent defendants are “acting in concert” to download a particular file, and thus can be sued in a single suit, uses “highly questionable factual assumptions” that fall apart upon scrutiny, Brown said. Much of BitTorrent’s operation is “invisible” to the user, and the program continues uploading if a user doesn’t close it, he said. Because the dates of downloading are “often weeks or months apart ... the assertion that defendants were acting in concert rests upon a thin reed,” he said. Responding to K-Beech’s argument that swarm joinder has been “thoroughly analyzed” in 40 known court opinions and permitted in federal courts nationwide, Brown said such plaintiffs largely avoided “review on the merits” and those approving judges were “unaware of the highly individualized, fact specific defenses raised on the motions to quash, or evidence of strong-arm tactics” by plaintiffs.

Lastly, Brown called the plaintiffs cheapskates for filing a single court fee to sue many defendants. The filing fee serves a “gatekeeping” role against frivolous or meritless lawsuits, and yet the three plaintiffs in the Brooklyn district alone have avoided paying more than $25,000 in fees just in the four cases under review and more than $100,000 in all their swarm-joinder suits, he said. Similar plaintiffs nationwide “have availed themselves of the resources of the court system on a scale rarely seen.” Brown approved the motion to quash by defendants in the K-Beech suit, owing to the missing copyright registration, and put limits on discovery for Malibu and Patrick Collins -- the name and address alone of the first defendants in their three cases. Brown also told ISPs to return information on identified account holders to him alone, not the plaintiffs.

The plaintiffs largely gave up following Brown’s order and recommendations. K-Beech on Tuesday voluntarily dismissed its suit against all remaining defendants, while on Saturday, Malibu dismissed all but the first defendants in its two cases, and Patrick Collins did the same in its case. The companies all dismissed without prejudice, meaning they reserve the right to again sue those same defendants.