DALLAS, TX—The decision by Texas attorney Evan Stone to file a Notice of Dismissal Friday in Mick Haig Productions v Does 1-670 was today hailed by the Electronic Frontier Foundation (EFF) as “another victory in [the] battle against flawed copyright lawsuits.” The lawsuit was filed in September of last year, accusing unnamed end users of illegally downloading Haig’s Der Gute Onkel.
Stone, who recently said he “was born” to litigate these types of cases, was also labeled a “copyright troll” by EFF, which, along with Public Citizen (PC), was appointed by the court to act as counsel for the unnamed defendants in the case. In his two-page filing, which is roundly being characterized as “petulant” and whiny,” Stone took equally sharp aim at EFF and PC, implying that they were incompetent in terms of intellectual property law, and referring to them as “a trio of attorneys renowned for defending internet piracy and renowned for their general disregard for intellectual property law.”
According to Stone, he had to dismiss the case, explaining, “Four months after the initial filing of this case, with little chance of discovery in sight, Plaintiff feels it has lost any meaningful opportunity to pursue justice in this matter.” Stone places the blame for insurmountable delays not only on opposing counsel, but also the court.
Writing that he had filed a Motion for Expedited Discovery shortly after the initial filing, Stone complained, “Instead of instructing these attorneys to engage Plaintiff’s counsel in a Discovery conference which would allow the case to move forward, the Court ordered attorneys for the defense to respond to Plaintiff’s Motion, for which the Court has yet to make a ruling.”
Stone further complained that the response by the defense was “absurd” as well as “beyond the scope of the Discovery Motion at issue… Moreover, the Defense provided no alternatives for Plaintiff to cure the harm inflicted on it by Defendants.”
According to EFF and PC, however, Stone is personally responsible for doing in his own case. In a letter sent Jan. 26 to Stone by Paul Alan Levy of the Public Citizen Litigation Group, who, along with EFF’s Matt Zimmerman and Corynne McSherry, was one of the defendant’s counsel appointed by the court, Levy accused Stone of committing a serious abuse of the discovery procedure by subpoenaing ISPs before the court had even issued a ruling on Stone’s Motion for Expedited Discovery.
“We intend to ask Judge Godbey to order you to provide a sworn accounting of your actions as described above,” wrote Levy. “And, in the meantime, we have in mind to ask the Court to order you to contact every ISP to whom you have sent a subpoena in this case to tell them that the subpoenas have been withdrawn, to order you to cease making use of any identifying information you have received, and to stop communicating with your clients unless we give you permission to do so or pending further order of the Court.”
In his filing Friday, Stone wrote, “Plaintiff has notified all relevant internet service providers that this case is being dismissed and hereby notifies the Court of the same.”
Whether that action satisfies Levy or the court remains to be seen, but Zimmerman, in a quote provided today, said that concerns remain.
"This dismissal is wonderful news for the 670 anonymous defendants in this case, but troubling questions remain about the behavior of Mick Haig Productions," he said. "Given the extremely invasive power of subpoenas, plaintiffs have a duty to ensure that subpoenas are not misused. EFF is committed to ensuring that litigants are held accountable for taking shortcuts around the due process rights of their opponents, especially in cases such as this one where the very act of obtaining someone's identity could be improperly leveraged into pressure to settle a claim."
The EFF statement also claims that this latest “victory” indicates a major shift in how mass copyright litigation is being perceived by both attorneys and courts around the country.
“Lawyers around the country are discovering that mass copyright litigation is not such a lucrative business model if you have to pursue your cases fairly,” the statement read. “In December and early January, federal judges in West Virginia and California recognized that it is improper to join thousands of people in one lawsuit based solely on the fact that they all allegedly used the same software protocol to share one or more copyright works. As a practical matter, this means that copyright owners in those cases must file separate lawsuits against each alleged infringer and must have a reasonable basis for believing that they are filing in the right court.”
According to EFF Legal Director Cindy Cohn, courts are finally catching up and taking a closer look at the rash of such lawsuits that were filed in 2010 and into 2011.
"There is often a gap between when cases are filed and when judges have the opportunity to look at them closely," she said. "But that time appears to have arrived. Judges around the country are waking up to the dangers of mass copyright litigation and taking action to make sure the process is fair for the thousands of people who have been targeted in these suits."
Another potentially problematic wrinkle in the case for Stone was whether the company ever owned the copyright to Der Gute Onkel in the first place. According to Torrent Freak, the title was never registered with the Copyright Office, a requirement under U.S. law before a copyright infringement lawsuit can be brought.
“Since the lawyer, Evan Stone, failed to properly inform the Court that the movie in question is not registered with Copyright Office, he has not [pleaded] the case properly,” wrote Torrent Freak. “For the alleged 670 downloaders this misstep is good news. If any of the defendants challenges the complaint through a motion to dismiss or motion to quash, it should be dismissed.” In the end, the case never got that far.
That alleged impropriety aside, EFF believes the mass litigation business model as it is being practiced—or malpracticed—is fatally flawed, arguing, “Given the additional expense of filing and litigating these cases fairly—expenses the plaintiffs were likely hoping to avoid by ignoring the court rules and due process requirements—these cases may not go much further.”
There are many companies and attorneys in the adult entertainment industry who still believe that end-user litigation, if done properly, has a big role to play in the overall strategy to address the pirating of copyrighted content.
Time will also tell whether Stone—who as early as late December said, “It’s my tech background that has saved me from making the same mistakes [other attorneys] made. Either way, this trend of BitTorrent litigation is a long way from over”—will continue on as aggressively as he has thus far or whether a tactical change in his legal strategy is forthcoming.
Mick Haig v Does Notice of Dismissal can be read here.
Paul Alan Levy letter to Evan Stone can be read here.
