Mass P2P Porn Lawyer Tries Filing A Class Action Lawsuit… In Reverse

from the against-the-class? dept

Wow. We’ve noted that the various lawyers who have jumped on the mass copyright infringement shakedown bandwagon (mostly for clients in the porn business) have been running into some serious problems on the issue of “joinder” — tying all of those defendants into a single group. You’re only supposed to be able to do that if they were all involved together in breaking the law. So far, the courts haven’t been buying it for the most part. However, it appears one of the lawyers involved in these cases, John Steele, is trying a bit of a novel strategy: a class action lawsuit in reverse.

Normally, a class action lawsuit involves a “class” of related people as the plaintiffs. Steele is arguing that you can lump all of the defendants into a class as well:


This Court has personal jurisdiction over the Class because the putative named class representative Defendants are residents of Illinois. This Court has in personam jurisdiction over absent class members because due process is satisfied by providing them with best practicable notice, an opportunity to opt-out, and adequate representation. In addition, the Court may exercise personal jurisdiction over individual Defendants because their infringing activity should have reasonably been anticipated to violate the Copyright Act in this jurisdiction. Therefore, due process is satisfied because any person engaged in such activity could reasonably anticipate being haled into this jurisdiction where he or she violated the Copyright Act.

Now, there have been a few examples of such defendant class action lawsuits in the past, but they’re very rare, and usually require a pretty damn good reason. I’d be surprised if the judge grants it here. As in other cases like this, judges have pointed out that the mass group of defendants sued are not really comparable, as they each may have extremely different defenses, and were not really connected to each other in any way at all.

On a totally separate note, what is it with the lawyers bringing these mass P2P porn cases all having names out of some bad novel? Evan Stone. John Steele. Ken Ford. Is there some rule that you need a forceful, single syllable last name to be one of these lawyers?

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Comments on “Mass P2P Porn Lawyer Tries Filing A Class Action Lawsuit… In Reverse”

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92 Comments
Anonymoussays:

Re: Re: Could invoke a law change

I am not sure this is the straw that would break the camels back, but seeing lawyers trying end-around plays to try to get some legal recourse is pretty telling. I tend to think that section 230 protections for hosts is going to be narrowed to permit copyright holders to issue a DMCA that requires that the host, in short order (10 working days) produce the name of customer connected at that time, and make logging of IP use (but not content carried) mandatory.

The costs and efforts required to enforce a single copyright claim are out of touch with reality.

average_joesays:

Re: Re: Re:2 Re: Re: Re: Re: Could invoke a law change

That’s because copyright is out of touch with reality.

Is it? Aren’t people in fact incentivized to create via copyright, and don’t we all enjoy really nice things thanks to copyright? I enjoyed the Super Bowl last night, brought to me via copyright. I’m enjoying some tunes right now on MOG, brought to me via copyright. The joys of copyright are all around us. πŸ™‚

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re: Could invoke a law change

The guy who loves the government also enjoys a government-enforced monopoly?

Point take, but I feel like it’s “Hate the Government Week” or something. I love the government, so I’m probably in the minority around here.

http://www.techdirt.com/articles/20110203/22422912958/homeland-security-tries-fails-to-explain-why-seized-domains-are-different-google.shtml#c365

ccsays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

Oh please. Copyright is a suspension of the rights of the many to grant a privilege to the few.

That’s entirely based on the assumptions that creation needs incentives from the government, and that the privilege granted won’t interfere too much with the rights of the public (with computers and the internet, definitely no longer the case).

Your bias is that you are convinced the need for copyright is self-evident, while most people here are highly skeptical about that.

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

Yes, I’m biased towards people not having their rights violated by others. This bias is clearly not shared by most who post here.

I would argue that’s simply not true. You seem to have no issue whatsoever with people’s free speech and due process rights being trampled regularly.

All because of a small gov’t granted monopoly privilege that has been extended way beyond its initial purpose.

average_joesays:

Re: Re: Re:8 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

I would argue that’s simply not true. You seem to have no issue whatsoever with people’s free speech and due process rights being trampled regularly.

All because of a small gov’t granted monopoly privilege that has been extended way beyond its initial purpose.

Show me someone clearly getting their free speech and due process rights trampled on, and I’ll show you my outrage.

ccsays:

Re: Re: Re:9 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

Here’s a good place to start looking.

http://righthavenvictims.blogspot.com/

Or, would a shameless copyright maximalist* such as yourself have the audacity to claim that quoting part of an article on the Democratic Underground forums justifiably warrants the invocation of copyright law?

* Really, just a wannabe lawyer who wishes the litigation never ends.

average_joesays:

Re: Re: Re:10 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

Here’s a good place to start looking.

http://righthavenvictims.blogspot.com/

Or, would a shameless copyright maximalist* such as yourself have the audacity to claim that quoting part of an article on the Democratic Underground forums justifiably warrants the invocation of copyright law?

* Really, just a wannabe lawyer who wishes the litigation never ends.

Righthaven’s suit against Democratic Underground wasn’t frivolous. How did that suit violate anyone’s constitutional rights? Even if the copying is fair use, it doesn’t violate anyone’s rights to bring the suit in the first place.

Anonymoussays:

Re: Re: Re:11 Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

Just as importantly, fair use is an “affirmative defense”, which cannot really be claimed until such time that infringement is accepted as fact. It is “We violated your copyright, but we claim fair use”. That becomes a topic for a decision by the courts, and is rarely if ever frivolous.

Ron Rezendessays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

Take a good hard look at what the government has done to personal freedoms especially those dealing with the first, second, fourth and fifth amendments since 9/11/2001 – it’s not surprising that trolls don’t understand how loving an incompetent government is a character defect.

You LOVE something that inherently doesn’t work well with reality! What is so odd about that that others don’t equally see you as a defective character?!

Any Mousesays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

Complaining about the system, stepping up and discussing it openly, is the first step to changing the system. What you are telling us is that we shouldn’t discuss it, we should change it, but to do one without the other is to avoid any coherency or direction in the changes.

ccsays:

Re: Re: Re:3 Re: Re: Re: Re: Re: Could invoke a law change

“Is it?”

Yes. It’s a law that tells me which files I’m not allowed to copy, because that makes a lot of sense in this day and age.

“Aren’t people in fact incentivized to create via copyright”

[citation needed]

“and don’t we all enjoy really nice things thanks to copyright?”

Copyright lets you enjoy the art that some corporate execs decided is worth releasing. Meanwhile, there’s about a hundred years worth of culture rotting away because people copyright prevents us from copying it.

“I enjoyed the Super Bowl last night, brought to me via copyright”

Wasn’t it advertising?

“I’m enjoying some tunes right now on MOG, brought to me via copyright.”

Streaming services are essentially a hack to get around the interference of copyright with users’ ability to make copies. Moreover, the actual artists make no money from streaming even though streaming services pay through their nose for licensing content from the labels.

“The joys of copyright are all around us.”

Quoth the copyright fanboi, who is looking forward to a career in copyright litigation and hopes the current preposterous situation lasts forever for him to take advantage of.

Anonymoussays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re: Could invoke a law change

Did you watch the super bowl? You only could because of copyright. Without the ability to sell the broadcast rights, without the ability to sell advertising… none of that would happen without copyright.

The ability to exclusively assign rights, to parcel out rights, to grant access… those are all things that allow content creators to earn income from their product. Without copyright, everyone and their dog could drag cameras into the stadium and “broadcast”, effectively removing the income.

Did you go see a movie lately? Watch network or cable TV? Did you download something? All of those exist because of copyright.

There is so much in it. It isn’t anywhere near as simple as it is made out to be.

ccsays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

“Did you watch the super bowl?”

No.

“Without the ability to sell the broadcast rights, without the ability to sell advertising”

BS.

Selling live broadcast rights is a matter of who you let bring a camera crew through the door, which is not a matter of copyright but a matter of contract law.

The ability to sell advertising is amplified by broadcasting to a wider audience, because advertisers get more bang for their buck. Limiting views also limits your ability to sell advertising (and merchandise).

“those are all things that allow content creators to earn income from their product”

Copyright is ONE of the ways to do that, but not THE way. In today’s world copyright is certainly the most intrusive way to remunerate creators.

“Did you go see a movie lately? Watch network or cable TV? Did you download something?”

Actually, no. I don’t like to waste much time on things like that. I do download open source software and visit techdirt and twitter and such, but I couldn’t claim those exist because of copyright. Actually, I could say they exist in spite of it.

Anonymoussays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

Selling live broadcast rights is a matter of who you let bring a camera crew through the door, which is not a matter of copyright but a matter of contract law.

Sorry, that argument has been discussed and failed already. One of the great pressures is the idea of live blogging of sport events by non-media. The next step is people using their cell phone cameras to broadcast live. After that, it’s a group of people buying double seats and putting HD cameras with wireless networking to more the signal outside.

Trying to stop cameras from getting in to an event only woks if it is considered a “private event”. If it is, then they should also have the right to sell the exclusive rights – hence why we have copyright.

Copyright is at the end of the day a structure for getting things done, a common set of rules. It’s like agreeing that all cars should drive on one side of the road or the other, but not both at the same time. It’s a way of getting things done. The alternate is kaos in business, sort of like driving in India πŸ™‚

Any Mousesays:

Re: Re: Re:7 Re: Re: Re: Re: Re: Re: Re: Re: Re: Could invoke a law change

Err… The Superbowl was on broadcast television, so we didn’t have to pay any monetary amount to actually watch it. Also, take the choice between a professionally-shot broadcast or something off someone’s crappy little phone in the middle of a screaming mob without commentary, and which would people choose? Not a copyright issue.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Could invoke a law change

How will these tools help? Say Comcast says Joe User was at IP aaa.bbb.ccc.ddd on said date during infringement. That doesn’t tell you the entire story of infringement. There could be an open wifi behind that IP, and the responsible party isn’t aware of how to lock down their router. Then discovery must occur, and a lengthy trial. There’s really no modern, cheap way to automate this to everyone’s satisfaction, not to mention the courts move like molasses and technology changes so quickly. In 5 years, for example, encryption will likely be standard on most media, and proving infringement to a single machine will become astronomically more difficult.

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re: Could invoke a law change

There could be an open wifi behind that IP, and the responsible party isn’t aware of how to lock down their router.

Each of those is a defense, but one that is starting to strain crediblity. Even more so when they seize the drives out of their computers and find all the files and the P2P software installed.

The issue is that companies like Comcast are very reluctant to provide customer information even for a lawsuit, effectively giving the end user a shield. Some here on TD have suggested that the entire copyright case be tried without naming the plaintiff, to convict “nobody” before the ISP should give up the information. That is terrible.

At the end of the day, the ISP should not be allowed to argue anything in court, they should be required (as the phone company is required) to release phone records on a court order, warrant, or summons, and to do so in a timely manner. There should be no simple way to users to hide behind their internet providers.

Dark Helmetsays:

Wasn't our fault...

“This Court has personal jurisdiction over the Class because the putative named class representative Defendants are residents of Illinois.”

What else were we supposed to do while being snowed in by that ridiculous blizzard other than have a beer, a download, and some fapping time?

I think that if these lawyers took part in some of their clients’ goods and services, they’d be a little less uptight….

Mike C.says:

I can see the results if granted now...

Are you being sued by a copyright attorney?
Do you believe you’ve been falsely accused?
Are you part of the defendant class in a class action copyright lawsuit?

Then call Wegonna, Fightem & Getrich to sign up for our class defense package and join the hundreds who have already signed up. Share the burden of your expenses with others in the same situation. Depending on your circumstances, we may even work on a pro bono basis if you assign fees and damages to us!!!

Call today and don’t go it alone!!

Scott Gardnersays:

Could it be this easy?

“This Court has in personam jurisdiction over absent class members because due process is satisfied by providing them with best practicable notice, an opportunity to opt-out, and adequate representation.”

So were the people they’re trying to sue really given the chance to “opt out” of being a defendant?

average_joesays:

I’m taking a seminar class this semester in complex litigation/class actions. I had a conversation a couple weeks ago with my professor about the possibility of using a defendant class action to go after infringers… And here we’ve got one. I’m excited to show my prof the complaint to see what he thinks.

I actually don’t think this is such a bad idea. I think it’s fairly simple to establish the elements of the class under Rule 23(a) (numerosity, commonality, typicality, and adequacy) and 23(b)(3) (questions of law and fact predominate over class). Such a class promotes judicial economy, and it also promotes uniformity of adjudication. The arguments for it are pretty strong, IMO.

And for those who wish to mount their own defense, they can opt out of the class and do that if they wish. I doubt many people would actually do that though, since the cost would be really prohibitive.

Michaelsays:

Re: Re:

“they can opt out of the class and do that if they wish. I doubt many people would actually do that though, since the cost would be really prohibitive”

Actually, all of the smart ones would opt-out. In fact, if there was a lawyer for the class, it would probably be their best approach to tell everyone to opt out. In that case, we would be back at hundreds of individual cases that the plaintiffs would have to drag into court. This would not be nearly as cost prohibitive for the defendants as it would be for the plaintiff – who would have to file individual petitions (the thing he is trying to get out of with this stunt).

The Infamous Joesays:

Re: Re: Re: Re: Re: Re:

Wasn’t it just determined that it won’t work? If they are allowed to opt out, and the only reason they are going to be lumped together is because it’s “too expensive” to attack them as individuals, then the defense’s best advice would be for everyone to opt out. Welcome back to square one, except someone has to pay the lawyers to file the class action suit. So, square – 3.

But, I’m sure your professor will be so proud that you came up with an idea that won’t work. πŸ™‚

AJsays:

Whats the difference?

I don’t get how this is different than just suing 10 thousand people in the same suit. Are you not lumping them all together either way? Did “lumping them together” not already get shot down and this is just an end run around it? There could be hundreds of different reasons why an individual may have been falsely accused.. will a class action address these reasons individually? I really don’t understand how this would workout well for the defense, even if they won….

Understanding that the legal leaches can’t seem to stop sucking innocent people dry with false accusations and extortion, I really hope this isn’t allowed…..

http://tech.blorge.com/Structure:%20/2008/10/31/innocent-computer-users-falsely-accused-of-file-sharing/

http://www.pcpro.co.uk/news/355090/150-falsely-accused-of-illegal-file-sharing

http://www.wired.com/threatlevel/2008/01/judge-orders-ri/

average_joesays:

Re: Re: Re: Re: Re: Re: Whats the difference?

Exactly – it is the absolute worst case scenario for the prosecutor who is trying to get ’em all in one fell swoop; because if a single defendant can raise doubt then they (the defendants) would all be off the hook!

They’d only have to prove their case against the class representatives. Considering the thousands of potential representatives, I don’t think it’d that hard to find ones that they could make a successful case against.

btr1701says:

Re: Re: Re:2 Re: Re: Re: Re: Whats the difference?

They’d only have to prove their case against the
class representatives.

So let’s say I get swept up along with thousands of other defendants and I don’t even realize it because I’m on vacation, don’t read the paper, whatever, and I’m completely innocent. But because the prosecution manages to prove a case against one of the other defendants who is guilty, I’m shit out of luck?

Yeah, that’s the justice system the Founders envisioned.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re: Whats the difference?

That could be another major disruptor, seems like: properly notifying all parties of the accusations against them. Just a change in address could throw a wrench in it.

I’m still not getting how you can start this action up with just IP addresses, but I’m also a quart low on caffiene. πŸ˜‰

average_joesays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re: Whats the difference?

That could be another major disruptor, seems like: properly notifying all parties of the accusations against them. Just a change in address could throw a wrench in it.

I’m still not getting how you can start this action up with just IP addresses, but I’m also a quart low on caffiene. πŸ˜‰

I’m on my fifth cup. πŸ™‚

You’re right that there can’t be a class until an IP address gets turned into a named defendant over whom the court has personal jurisdiction.

I don’t think a change of address would be a monkey wrench since you don’t have to absolutely contact each and every person in the class–that would usually be impossible anyway. You just have to give adequate notice. What constitutes adequate notice is decided (and argued) on a case-by-case basis.

tekasays:

Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re: Whats the difference?

So..

Justice is now decided on the idea that “We are more or less certain you might be part of this group of people and have therefore tried you (not Actually you, simply some person we also think is in the group) in your absence. You are declared guilty due to our choice to compare you with these other people and your inability or lack of notification to choose not to be part of this class”

Some amazing justice there, joe. It is amazing that you are hungering to be a part of it.

average_joesays:

Re: Re: Re:3 Re: Re: Re: Re: Re: Whats the difference?

So let’s say I get swept up along with thousands of other defendants and I don’t even realize it because I’m on vacation, don’t read the paper, whatever, and I’m completely innocent. But because the prosecution manages to prove a case against one of the other defendants who is guilty, I’m shit out of luck?

Yeah, that’s the justice system the Founders envisioned.

That’s how all class actions work. The general principle is that “there has been a failure of due process only in those cases where it cannot be said that the procedure adopted fairly insures the protection of the interests of absent parties who are to be bound by it.” Hansberry v. Lee, 311 U.S. 32, 42 (1940). In a class where opt out rights are afforded, adequate protections are representation by the class representatives, notice of the class proceedings, and the opportunity to be heard and participate in the class proceedings. Phillips Petroleum v. Shutts, 472 U.S. 797, 811-12 (1985).

Anonymoussays:

Re: Re: Re: Re: Re: Re: Whats the difference?

Actually, it may be the best case scenerio for proving that the plaintiff side of copyright cases is broken, and that laws need to be changed to rebalance the system. This is an end around to try to get past massive blockages in the legal road. If this fails, it is very likely the next step is legislation, and not something that many on Techdirt are going to like.

average_joesays:

Re: Re: Re: Re: Whats the difference?

If this was allowed to proceed as a class action, wouldn’t one, or several, incidences of false accusation kinda torpedo the whole case?

I don’t think so, not any more than a false claim by a plaintiff that they were entitled to be in the class in a regular class action.

The Infamous Joesays:

Re: Re: Re:3 Re: Re: Re: Re: Re: Whats the difference?

Wouldn’t that go directly opposite the way the legal system is supposed to work? (100 guilty men go free before one innocent man is wrongly convicted)

Seems like any sane and working-as-expected legal system would fine the legal brain trust that came up with this for wasting the court’s time. So, what I mean to say is it will probably be approved.

binkysays:

The entire p2p issue is absurd!!

We’re talking about pornography.. copyrights and unique intellectual property. Okay. Show me one porn flic that gives credit to the original story from which the movie was made. Guy meets girl.. they take clothes off.. have intercourse. The plot of the movie isn’t the crummy few minutes of idle chat before and after any number of sex scenes that have been duplicated over and over a million times on film since porn has been filmed. Stars appearing in these films are not usually unique in “ohhh” “ahhh” to be considered stellar performances, again same dialog over and over again.

The inverse is why are there not 1000’s of lawsuits for copying or violating other produced films with the same or similar scenes? In part or in total?

Secondly; The internet is not safe. It never has been safe, but there are methods to protect work. i.e. literary work is a 1000 times more common for theft than film. For film? If the originator doesn’t adequately protect his/her work using technology including secure ppv sites? Tough crap.. it probably isn’t worth protecting anyway.

Third.. If anyone believes that there is any value in porn movie piracy enough to make a profit distributing it illegally needs their heads examined.

average_joesays:

Re: Re: The entire p2p issue is absurd!!

First, boy meets girl/boy and girl make love isn’t copyrightable since it’s an idea. The unique expression of that idea, the movie, is copyrightable.

Second, it’s infringement no matter how strong or weak the copy protection.

Third, it doesn’t matter if the people distributing it illegally make a profit. It’s infringement even if those distributors lose money.

JohnSteelesays:

opting out

People are able to opt out (presumably after we have their information), hire an attorney, and experience federal court all by themselves. The problem is that since our clients are entitled to attorney’s fees (if they win), the cost of defending a suit all by yourself is expensive if you win, and really expensive if you lose. Of course, we would be able to pull them out of the class action anyway if we wanted and sue them in a separate action.

I won’t respond to every comment here, as I am about to file some new cases this afternoon, but I will point out that the cases in other states were ‘severed’ for joinder concerns. First, many cases were not severed, including all but one of mine. Second, class actions are immune to the improper joinder argument. Lastly, movie companies are going to keep coming up with new ways to go after pirates.

Anonymoussays:

Re: Re: opting out

Second, class actions are immune to the improper joinder argument.

Right, but class actions are subject to their own set of requirements under Rule 23 which are more restrictive than the joinder requirements under Rule 20. On reflection, I have doubts regarding whether you can satisfy the typicality, adequacy, predominance, and/or superiority requirements. I think there’s a reason we don’t see too many defendant (b)(3) class actions. Good luck either way, and I applaud you in your innovative way to fight piracy.

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