Of the hundreds of file-sharing suits brought by producers of pornographic movies against groups of John Does across the country, the first to go to trial might be in the Eastern District of Pennsylvania.
U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania chose a case filed by Malibu Media, challenged by five defendants, to serve as a bellwether trial that could set a framework for handling similar cases.
Following the typical course for cases of this nature, Malibu Media sought the names attached to various Internet protocol addresses that had been part of a peer-to-peer file-sharing network called BitTorrent that had allegedly made available videos to which Malibu Media holds rights. Five of the John Does who are defendants challenged their obligation to comply with the subpoenas requesting their names.
Typically, after the company that owns the shared video gets the names, it sends letters to the defendants alerting them to the suit and offering a settlement, lawyers for Malibu Media told the court during a hearing last month, according to the opinion. Michael Keith Lipscomb said this week that they typically call defendants, rather than sending letters.
“Although the court cannot prevent the parties from settling these claims, the court assumes that plaintiff will welcome this opportunity to prove its claims promptly pursuant to the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the copyright laws, which may, if plaintiff is successful, lead to an injunction enjoining the practices about which plaintiff complains,” Baylson said in Malibu Media v. John Does. “If plaintiff decides instead to continue to ‘pick off’ individual John Does, for confidential settlements, the court may draw an inference that plaintiff is not serious about proving its claims, or is unable to do so,” he said.
Among the defenses from the Does is a sworn declaration from John Doe No. 6 stating that he has a wireless Internet router from which he runs two networks — one is secure for six authorized users and the other is open for the use of his guests. The router has a range of 100 feet, which allows his guest network to reach his neighbors, the street in front of his building, and the property behind his building.
“If the statements in the sworn declaration of John Doe No. 6 … are true, then John Doe No. 6, as well as any other similarly-situated defendants, would not be liable and, as prevailing parties in a copyright infringement suit, would be entitled to attorney’s fees and costs from plaintiff,” Baylson said.
As he weighed whether or not to quash the third-party subpoenas and sever the defendants, Baylson looked to an opinion issued earlier this year in the Eastern District from U.S. District Judge Mary A. McLaughlin, with which he largely agreed. Baylson denied the defendants’ motions to quash and sever, but he granted them anonymity in the proceedings.
“The court finds good cause for ordering such discovery because plaintiff has demonstrated that a subpoena seeking the subscriber information associated with allegedly infringing IP addresses is possibly the only way for plaintiff to identify the proper defendants in these cases and proceed with its claims against them,” Baylson said.
He opened his opinion with a reference to the Giuseppe Verdi opera, A Masked Ball, in which a king seeks the names of conspirators plotting to kill him from a gypsy fortune-teller.
“Now that the Internet and the Federal Rules of Civil Procedure have replaced fortune-tellers as a means of securing information, plaintiff has invoked Rule 45 to secure the identities of the defendants from their respective Internet service providers,” Baylson said.
“The court acknowledges, however, that the information provided by the ISPs in response to the subpoenas will not necessarily reveal the identities of the actual infringers, but may, with other discovery, lead to the infringers’ identities,” Baylson said.
On the issue of severability, though, Baylson noted that there is a split among district judges across the country as well as within the Eastern District. Two Eastern District judges have recently found joinder to be proper in similar cases and two other Eastern District judges have recently found joinder to be improper, according to the opinion.
He denied the defendants’ motions to sever without prejudice.
“The purpose of the joinder rules is to promote efficiency, not to use federal district courts as small claims collection agencies, by putting economic pressure on individuals who do not have substantive liability,” Baylson said.
“A bellwether trial is the best means of testing the viability of plaintiff’s claims, as well as plaintiff’s sincerity in pursuing them,” Baylson said.
The plaintiffs have made a reasonable argument alleging copyright infringement and the defendants have produced factual material and memoranda to dispute the theory, Baylson said. He concluded, “The court cannot decide substantive issues on these conflicting documents. Discovery and, ultimately, a trial are necessary to find the truth.”
Ronald Smith of Ronald A. Smith and Associates in Philadelphia is representing some of the defendants and said of the opinion, “At the end of the day, it’s an encouragement.”
It will “put the plaintiff to the test,” Smith said, “instead of just firing their shotgun against anything that might be standing.”
Lipscomb of Lipscomb Eisenberg & Baker in Miami is representing Malibu Media. When asked about the possibility of settling the case, he said of Baylson, “He didn’t say we couldn’t.” Although, he said, defendants are often eager to settle out of court.
One declaration submitted in this case asserts, among other things, that “plaintiff has brought suit against numerous unnamed defendants simply to extort settlements,” according to the opinion.
Baylson issued a protective order to keep the names of the defendants from becoming public, saying, “The incidence of adult pornography being downloaded onto someone’s computer is not earth-shattering in this day and age, although it can be obscene and embarrassing to many people.”
When asked about the phrase in the opinion referring to “picking off” John Does for settlements, Lipscomb said, “What is the purpose of that? To litigate when both sides want to settle?”
He said that he and his clients “will try to try this case,” but they would be open to entertaining a settlement offer if it is put forward by the defendants. “I am not currently planning on making settlement offers,” Lipscomb said.
(Copies of the 21-page opinion in Malibu Media v. John Does, PICS No. 12-1934, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •