Judge Bites BitTorrent Lawyer in Butt

DENTON, Texas—Attorney Evan Stone may believe he was born to litigate copyright infringement cases on behalf of producers of adult content, but he’s having a hard time convincing U.S. District Judge Royal Ferguson that the tactics he is using to achieve that end are legal. Last week Ferguson, citing improper joinder, all but decimated most of the remaining cases Stone has filed in the Northern District of Texas. In 13 of the 16 cases, all of which originally targeted hundreds if not thousands of anonymous alleged John Doe offenders, only one unnamed defendant remains.

Defiant to the end and apparently beyond, Stone told CNET, “This isn't over. There are numerous other tools for obtaining the names and addresses of pirates, and we're not going to stop until justice is served." He told the site the judge had “improperly” severed the defendants, and insisted that BitTorrent users must work together to achieve their file-sharing ends.

In one case, however—LFP Internet v. Does 2,619—Ferguson wrote, in his opinion severing all but one of the Does and quashing subpoenas issued to ISPs, “Plaintiff makes no allegation in this case that the claims against the joined defendants ‘arise out of the same transaction, occurrence, or series of transactions or occurrences.’ Instead, it seems that the copyright infringement claim against each Defendant is based upon the individual acts of each Defendant. Plaintiff only alleges in its Complaint that each defendant uses the same method for committing the infringement, but ‘merely committing the same type of violation in the same way does not link defendants together for purposes of joinder.’”

Ferguson then referenced the fact that several courts have agreed that where there is no allegation that multiple defendants have acted in concert, joinder is improper. Indeed, Ferguson rejected outright the salient claim in these cases that the very use of BitTorrent software systems by end users ties them together in a conspiratorial act of piracy that is legally binding. If this is the prevailing view of judges regarding the technology behind BitTorrent sites, it is hard to see how any of these mass defendant lawsuits will survive.

The judge added one last slap down to his decision, ruling that even the subpoena for the final sole Defendant, Doe 1, should be quashed, “pending this Court’s determination that as to whether an attorney ad litem should be appointed to protect Doe 1’s interests.”

The federal Rule of Civil Procedure 21 does not allow the court to dismiss a case for improper joinder, so all of the 16 Stone cases remain alive, as long as individual complaints against the Does are filed within 30 days of the date of the order. It remains to be seen, of course, whether that will happen, but in the mainstream that is exactly what is happening.

According to CNET, Dunlap, Grubb & Weaver, a law firm that was also slapped down last year for trying similar tactics on behalf of the producers of The Hurt Locker, has begun to file individual lawsuits around the country.

“To do that,” wrote Greg Sandoval, “Dunlap established a network of lawyers who are licensed to operate in different federal districts.”

The firm has also begun filing lawsuits against named individuals, reported CNET, including suits filed in the U.S. District Court for the Southern District of West Virginia against residents who live there.

"Filing in Florida in about 10 minutes," Thomas Dunlap, one of the firm's founders, e-mailed CNET Thursday. "I am driving to courthouse now, should have cases already in Illinois. We will file in California, Texas, Washington, and Oregon in the next two weeks."

While penalties for copyright infringement convictions can go as high as $150,000 per violation, Dunlap will usually offer an alleged infringer the chance to settle out of court for an amount between $1,500 and $3,000.  Attorneys filing on behalf of adult producers have cited similar amounts that they are offering alleged pirates, if and when they can get a hold of indentifying information.

Adult companies that Evan Stone has filed lawsuits on behalf of include LFP Internet Group, Lucas Entertainment, VCX Ltd., Mick Haig Productions, Harmony Films, Adult Source Media, D & E Media, Serious Bidness, Steve Hardeman, Justin Slayer International and FUNimation Entertainment.