CHICAGO—Illinois attorney John Steele is a happy (and relieved) camper following a 23-page order issued today by Judge Ruben Castillo in FTV v Does 1-500 that denied every motion filed by 20 John Doe defendants seeking either a dismissal of the charges levied against them or the quashing of subpoenas that have been issued to ISPs seeking their actual identities.
Aside from feeling vindicated, Steele told AVN that his phone has been ringing off the hook all morning as attorneys in this case and other cases have been calling him to settle the copyright infringement charges levied against their clients for allegedly downloading adult films on BitTorrent networks.
“What’s happened is that a lot of [the lawyers] have told their clients, ‘Don’t worry about this. Let’s see if the judge allows this once it gets to a full hearing',” he said. “The judge literally took nine months to go through all of the pleadings. They did all this research. I talk to one of the clerks who told me they were working around the clock on this case.”
The original complaint in FTV v Does was filed Sept. 29, 2010. It alleged that the 500 John Doe defendants, identified only by their IP addresses, “used BitTorrent to reproduce and distribute eight of FTV’s videos without FTV’s authorization or license, thereby infringing FTV’s copyright.”
The court dismissed the original complaint in Oct. 2010 without prejudice, allowing for the filing of “a proper amended complaint which names individual defendants,” and on the same day the court granted limited discovery so that FTV could learn the identities of the Doe defendants through the subpoena process with the intent to “reveal their names, addresses, telephone numbers, email addresses, and Media Access Control (MAC) addresses.”
Following the issuance of the subpoenas, 33 “putative defendants” responded with motions to either quash the subpoenas, dismiss the charges altogether or sever the defendants from the other Does. Motions were also filed to have the court levy attorneys’ fees and costs “as prevailing parties upon the quashing of subpoenas or their dismissal from this action.”
Following the dismissal of charges against certain defendants by FTV in June 2011, 30 out of the 33 defendants who had filed motions remained, and it was in response to these motions to quash, dismiss or sever that Castillo ruled today, denying all.
Of the 20 remaining motions to quash subpoenas, the defendants asserted three principal arguments, said the judge. First, they claimed the subpoenas should be quashed under Rule 45 (c) of the Federal Rules of Civil Procedure, which requires the quashing of a subpoena if it “requires disclosure of privileged or other protected matter.” The defendants had alleged that the disclosures would infringe on their First Amendment right to engage in anonymous speech.
The court disagreed, arguing that the identifying information being sought does not qualify as “privileged” and is not protected under the First Amendment. Among other reasons, the court found that the courts have “consistently held that Internet subscribers do not have a reasonable expectation of privacy in their subscriber information—including name, address, phone number and email address—as they have already conveyed such information to their ISP.”
On this point, Judge Castillo added, in a footnote, “Indeed, the Putative Defendants moving this Court to quash subpoenas served on their ISPs for their identifying information while filing under their own name and addresses reveal just how little reasonable expectation of privacy may exist when conveying such information to any third party. Having failed to file anonymously or pseudonymously, these Putative Defendants have nearly rendered moot their own motions to quash.”
Finding slightly more merit to the First Amendment claim, Castillo nonetheless found for the plaintiff, explaining that while “civil subpoenas seeking information regarding anonymous individuals does raise First Amendment concerns,” that anonymous speech, like that from identifiable sources, does not enjoy absolute protection. Rather, certain classes of speech, such as defamation, libel, and obscenity, are deemed to be beyond the purview of the First Amendment. Indeed, copyright infringement is not protected by the First Amendment.” The right to engage in anonymous speech on the internet, therefore, “must give way to plaintiff’s right to use the judicial process to pursue what appear to be meritorious copyright infringement claims.”
In support of that decision, the court also found that FTV had met the five-part threshold the court must consider in weighing the need for the disclosure by subpoena of identifying information from an ISP, which include 1) a concrete showing of a prima facie claim of actionable harm; 2) specificity of the discovery request; 3) the absence of alternative means to obtain the subpoenaed information; 4) a central need for the subpoenaed information to advance the claim; and 5) the party’s expectation of privacy.
Some defendants also claimed that the subpoenas subjected them to undue burden, but the court was not convinced that they were subjected to any burden at all. Rather, wrote Castillo, “If anyone may move to quash the subpoenas on the basis of an undue burden, it is the ISPs themselves, as they are compelled to produce information under the subpoena.”
Because the defendants “are under no obligation either to produce information under subpoena or to litigate in this jurisdiction,” he concluded, they had failed to “assert any hardship due to the subpoenas, let alone undue hardship.”
Other defendants had sought to quash the subpoenas on the basis of a general denial of liability, but Castillo brushed that aside, arguing that such an argument “should be presented and contested once parties are brought properly into the suit.” Doing so, he added, “would deny FTV access to the identifying information critical to bringing the Putative Defendants properly into the suit to address the merits of both FTV’s allegations and the named defendant’s defenses and denials.”
The court next considered motions to dismiss. Four defendants filed based on a lack of personal jurisdiction, but the judge said such assertions will only be relevant once the individuals are named as parties in the action, and not before. “Defendants,” he wrote, “cannot be dismissed under the Federal Rule of Civil Procedure 12(b)(2) from a lawsuit to which they are not yet parties.”
One defendant argued improper joinder, but the judge said the proper remedy for misjoinder is severance, which had been sought by eight other defendants, and which the judge addressed separately.
Indeed, as AVN has previously noted, judges around the country overseeing similar John Doe copyright infringement cases have ordered the severance of all the defendants, essentially forcing the plaintiffs to file individual lawsuits instead of the mass lawsuits that have become so common. The latter is far more expensive and time-consuming, not only for the litigants but also for the courts, but the argument that corralling so many defendants with potentially different situations and defenses has swayed judges and could easily have swayed this judge, too. It was not to be.
Finding that “FTV has made well-pleaded allegations that the relief they seek arises out of the same transaction, occurrence, or series of transactions,” and despite the fact that the defendants are “alleged to have copied and distributed eight separate [FTV] copyrighted works,” it determined that the “factual inquiry into the method used in any alleged copyright infringement will be substantially identical, as the methods FTV will use to investigate, uncover, and collect evidence about any infringing activity will be the same as to each Doe Defendant.”
But the burden that would ensue if severance were granted was also very much on Castillo’s mind. “Joinder at this stage is consistent with fairness to the parties and in the interest of convenience and judicial economy because joinder will secure the just, speedy and inexpensive conclusion for FTV and any future named defendants,” he wrote, adding, “Joinder does not create any unnecessary delay nor does it prejudice any party. Rather, severance is more likely to cause delays and prejudice FTV and future named defendants alike.”
In denying the motions to sever, however, the judge allowed defendants to raise the issue once they become named defendants, and included in his ruling the reminder that “the case against them will yet be individually considered for purposes of any ruling on the merits.”
In other words, John Steele may have prevailed in the battle over ISP subpoenas, but the merits of the charges still need to be litigated in court, assuming there are any defendants left who want to bring their challenges into court.
The numbers are already dwindling, according to Steele. “There were a lot of attorneys representing people in the early stages that just settled the matter. We settled a good portion of the 500 already, and then there were about a hundred that said no, we’re going to fight this, let’s roll the dice. So now, my clients are saying, great, the settlement is not going to be the same as it was nine months ago.
“The interesting thing is,” he continued, “now my office is getting all these calls since the ruling came in this morning from attorneys in other cases who saw this order and went, ‘Let’s get my client out of this.’”
Currently, he added, his office is working 123 copyright infringement cases on behalf of 20 individual adult entertainment clients, and claimed that that number accounts for almost all of the 128 such cases that are ongoing throughout the country.
“Some of the newer clients we haven’t even released yet,” he told AVN. “We don’t name them until we sue on behalf of them, because right now, for instance, I’m collecting on behalf of a ton of people that no one knows we represent. And I don’t want them to know until I’ve got their information.”
Steele also spoke about the effort undertaken by the Electronic Frontier Foundation in the FTV case to undermine his efforts in court. “This is one where the EFF filed an amazing amount of correspondence and paper work, and pleadings; they’ve appeared in court and flown people in from California to Illinois to fight us tooth and nail.
“It’s not like I got a default judgment on someone who didn’t show up in court,” he added. “This was a major decision, and like I said, the phones are going crazy. The other thing is that this judge’s boss, the chief judge [James Holderman] of the division, also has one of our cases (Hard Drive Productions v Does 1-44) and issued an order two days before this one essentially saying that everything is okay. He carried a lot of weight.”
When asked if he was surprised by the order, Steele said, “I’m not really surprised but I am relieved. We were seeing some of the earlier judges [in other cases] saying, ‘We don’t think this is fair to the little guy, so we’re going to kick this out,' and none of them have ever given an analysis. We’ve had a total of three judges out of almost 130 cases say they didn’t like what we were doing. And all three just said no, denied. And we were like, with all due respect, what’s your reasoning? And I don’t think they had any. I think they just don’t like porn and they don’t like our case. But we’ve gotten over a dozen rulings in the past month that are all in our favor and not a single one against since we tweaked our complaints a little bit. Since we did that, in fact, even the judges who didn’t like the case before have been granting our motions. We’ve been waiting a long time for this.”
One of the tweaks to the complaints has been in the area of jurisdiction, an area of concern for many judges. “Now,” Steele said, “we’re suing people only in the state in which they live. For instance, our Illinois suits only target Illinois residents; California suits are only California residents.”
Regarding the increased cost to clients brought on by more filings in far-flung jurisdictions, Steele said, “It’s no big deal. We’ve just raised the settlement amounts. Now the end-users are paying more. So congratulations, they’ve driven up the cost of settlement. Our clients are actually making more money, so they’re happy.”
EFF has yet to weigh in on the FTV order by Judge Castillo, but it is very likely that they will disagree with his findings. Time will tell whether this one order truly does represent a tipping point in the way judges view these cases, but with respect to this individual ruling, it is clear that Castillo found John Steele’s work to be nothing less than diligent in covering all the bases he needed to cover in order to keep the ISP subpoenas valid and enforceable.
Now, finally, the case itself can begin in earnest, and as mentioned earlier, it remains to be seen how many alleged pirates out of the original 500 who were sued feel so strongly about their innocence or the perceived unfairness of the end-user legal tactic brought against them that they take the time and spend the money necessary to fight the charges in court.
Judge Castillo’s order can be accessed here.
Chief Judge James Holderman’s order can be accessed here.