MARTINSBURG, W. Va.—In what may be a fatal blow to the litigation strategy used by the West Virginia-based Adult Copyright Company on behalf of adult production studios, Judge John Preston Bailey yesterday issued a series of orders that upended seven copyright infringement lawsuits by ‘severing’ all but one of the John Doe defendants in each of the cases.
In a series of lawsuits mimicking those being brought on behalf of mainstream films, attorney Kenneth Ford had filed massive lawsuits in which hundreds or thousands of John Does were lumped in together in single lawsuits. Collectively, a little over 5,400 John Does had been sued. Thursday, Judge Bailey declined motions by John Does to dismiss the cases, but dropped the charges against all but one of the defendants in each lawsuit while giving Ford the leeway to refile individual amended complaints against the remaining Does within 30 days. Each refiled complaint would come with a filing fee of $350, however.
Somewhat ironically, lawyers in cases involving the mainstream film Far Cry and The Hurt Locker are also experiencing significant road blocks in their efforts to name multiple John Does in a single lawsuit. The firm of Dunlap, Grubb & Weaver (DGW) on Dec. 6 dropped more than 4,400 defendants from a lawsuit filed earlier this year in federal court. The judge was set to rule unfavorably for the plaintiffs on the question of whether Washington, D.C., was the proper place to hear a case involving thousands of people who resided outside the court's jurisdiction.
In the orders issued Thursday, Judge Bailey found a series of flaws in the adult John Doe suits brought by Ford. In one—and they are all pretty much identical—he wrote, “Plaintiff Third World Media, LLC, is the alleged owner of the copyright of the hardcore film “Tokyo Teens.” The plaintiff brought this suit for copyright infringement against John Does 1-1,243, individuals who allegedly illegally downloaded and distributed “Tokyo Teens.” When the suit was filed, the plaintiff did not know the names of the alleged infringers, but had identified the Internet Protocol (IP) addresses of the computers associated with the infringement.
“To discover the actual names of the Doe defendants in this case," he continued, "the plaintiff subpoenaed the Internet Service providers (ISPs) who provide service to the IP addresses, and the ISPs gave notice to their customers of the subpoena. On receiving notice of the subpoena served on his ISP, John Doe moved to dismiss the claims against him for, inter alia, improper rejoinder.”
According to the order, “Federal Rule 20(a)(2) of Civil Procedure allows a plaintiff to join multiple defendants in one action if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions; and
(B) any question of law or fact common to all defendants will arise in the action.
To remedy improperly enjoined parties, the court should not dismiss the action outright, but ‘the court may at any time, on just terms, add or drop a party.’”
Bailey found that there had been no showing that the multiple copyright infringement claims had arisen from the same transaction, that sharing the same ISP “does not link defendants together for the purpose of joinder and that several courts had agreed that “where there is no allegation that multiple defendants have acted in concert, joinder is improper.”
The judge added, “Further evidence of misjoinder is found in the undeniable fact that each defendant will likely have a different defense.”
Despite Bailey's finding that joinder in the cases was improper, he also followed Rule 21's directive that such a finding is not grounds for dismissal, and instead "chose the route of severance." The sole exception in each of the cases was John Doe 1, whose case was allowed to proceed. The actions against the remaining Does was kept at the time of the filing of the original complaint, and counsel was provided with thirty days to file amended complaints with the court. The subpoenas issued to the various ISPs to "unmask" the remained John Does were quashed by the judge.
The cost of severing so many defendants won't come cheap if Ken Ford decides to pursue each of the alleged John Doe pirates and file amended complaints. Each individual filing comes with a $350 filing fee. 5400 filings times $350 equals $1,890,000, an amount that could be prohibitive for the Adult Copyright Company unless individual studios want to foot the bill upfront.
"This is the next nail in the coffin of the copyright trolls," said EFF Legal Director Cindy Cohn. "Now that judges are starting to reject the shoddy and unfair tactics being used by the attorneys filing these cases and force plaintiffs to play by the rules, this type of mass litigation will no longer be a good business model."
AVN has contacted Adult Copyright Company for comment, but had not heard back by the time this story posted.
The orders can be read here.