Opposing Severance Is Now In Vogue – Using the Battlefield to Your Advantage in Bittorrent Litigation

Use the battlefield to your advantage. Do not simply charge the English heavy cavalry head on.

Back 100 years ago this July, Marc Randazza gained some attention for defending a bittorrent case a little differently. What was different? Randazza opposed severing all of the defendants. It was the first time anyone had opposed severance, as common knowledge dictated that one should always try and sever defendants in a mass bittorrent action.

The “anti-severance strategy” caused Randazza to get flack from Fightcopyrighttrolls and Ray Beckerman. Beckerman stated:

Said attorney has sued hundreds of BitTorrent users in the last year on behalf of copyright holder plaintiffs which raises the question of how and why he came to be making a motion, purportedly on behalf of a Doe defendant in that case, that clearly goes against the interests of the defendants in that case.

I mean, the ONLY way to defend one of these cases is to file a motion to sever, and a motion to quash, right? Right? That’s what the EFF said!!

Errrr… not so much. It looks like a few people owe Randazza an apology, because it’s becoming more and more apparent that severance may not be in the best interests of the Doe defendants in the current climate. In my opinion, it’s probably not in a Doe defendant’s best interest to sever a case in today’s climate.

Here is why.

A quick history of bittorrent litigation…

About 100 years ago Up until about a year ago, bittorrent cases followed a fairly similar model. Sometimes the actions were filed against hundreds, thousands, or even tens of thousands of Does at a time. The early cases were often filed against Does who did not reside in the state where the suit was filed. The Does would get a letter from their ISP telling them their information was going to be disclosed. It usually followed up with demand letters and telephone calls from plaintiff’s counsel. Some would settle, others would fight it.

To fight it, several of the Does would move to sever the case, meaning they wanted to be tried as individuals. In some cases, the motion to sever was granted. In other cases, the motion to sever was denied. The issue has never been decided by an appellate court, so the decision to sever a case varied from jurisdiction to jurisdiction.

Until fairly recently, if the case was severed or dismissed on procedural grounds, the plaintiff would normally move on to a friendlier jurisdiction and find other targets. Winning a motion to sever was arguably considered winning the case. Although the Doe defendants were dismissed without prejudice (meaning the plaintiff could re-file against them), the likelihood was slim.

That is why the plaintiffs attorneys were branded as “copyright trolls” — they had no interest in taking these cases to trial. (for a more in depth history, read this motion written by Nick Ranallo).

The accepted playbook was thus to file a motion to sever the case, and if you won, declare victory. Hell, you could simply ignore a mass Doe action and there was a good chance the plaintiff would go away. At this point, no bittorrent case had ever been taken to trial. The closest was Joel Tenebaum, who was successfully sued by the RIAA.

At the time, moving to sever made a lot of sense because if the trolls had face any sort of judicial scrutiny whatsoever, chances are they would just move on.

Blogs like Fightcopyrighttrolls.com, DieTrollDie, Houston Lawyer Blog, and Anons of Liberty helped point out the obvious deficiency – the chance of a case going to trial was slim to none. More and more Does started to ignore these lawsuits, and more and more courts began to sever them. (Side note: it’s pretty amazing when a few bloggers manage to change the legal landscape all over the country.) I’m guessing this hurt the profitability of mass torrent suits quite a bit.

Since there was no real threat of a case being taken to trial, why settle the case? Why not have it severed, or at least move to the jurisdiction where you live?

If they have to do a little work, they’ll just go away, right…?

Then things started to change…

The trolls didn’t go away. They adapted.

DieTrollDie couldn’t have put it any better: the plaintiffs began to adopt the mantra of “fly low and avoid the radar.” In a relatively short period of time, suits began to pop up reflecting anywhere between 10 – 30 John Doe defendants. Cases rarely named large numbers of Doe defendants. The vast majority of the cases were also filed in the jurisdiction where the subscriber / defendant lives. These cases were more difficult to get thrown out on procedural grounds.

But there was more…

Rather than move on if a case was thrown out on procedural grounds, the plaintiffs started naming more and more individual defendants. They also began pursuing default judgments against people who simply ignored the lawsuits.

Like it or not, some Doe defendants are going to trial. (though I suspect Malibu Media is not happy their case is going to be tried.)

These new developments prompted Rob Cashman to ask a great question: At what point does a copyright “troll” stop being a troll? Rob’s answer:

Where John Steele loses the status of “copyright troll” is when he starts going after individual defendants in the courtroom. Once he files a First Time Videos, LLC v. James Swarez (a fictitional name), and James is now dragged into a lawsuit kicking and screaming and is forced to hire an attorney to file an “answer” with the court, and then James needs to give up his computer to some sleazy digital forensics experts hired by the attorneys (or he can hire his own), and he has to actually fight a real copyright case on the merits of whether or not he actually downloaded the copyrighted works he was accused of downloading in the lawsuit, well, at this point, John Steele is no longer a copyright troll, but rather, John Steele becomes merely a predatory attorney who is suing someone on behalf of his client for the violation of his client’s “copyright rights.”

In other words, once individuals are pursued to trial, it starts to get real. These are no longer “copyright trolls”.

According to Rob, they are now predatory attorneys. And while you might not like predatory attorneys, they are ignored at your own peril.

So Randazza changed the playbook…

Given that the copyright trolls had adapted, the old model of file a motion to sever / quash became outdated. Winning on procedural grounds is not necessarily enough. Randazza filed this motion:

View this document on Scribd

Currently, if Does are dismissed without prejudice on procedural grounds, the plaintiff is now more likely to pursue them individually. In my jurisdiction, the Eastern District of Pennsylvania, several Does have already been named individually.

Suddenly being severed from the action might not be not such a good idea. Instead, why not take them to trial, win, and then make them pay your fees?

Though criticized at the time, Randazza was the first to take a unique approach to this ever evolving litigation by opposing another Doe’s motion to sever. The move was genius in my opinion, as it shifts the advantage of the battlefield from the plaintiff to the defendants if the case proceeds to trial.

Why wouldn’t you want to sever the case?

Because we’re no longer dealing with trolls. We’re dealing with attorneys who are not going to give up simply because a case was dismissed on procedural grounds. They are filing suits against individuals who are severed and I sincerely believe some of the defendants will be taken to trial.

Think about the battlefield. When you are an individually named defendant, the plaintiff has the advantage.

Taking an individual to trial would be easy and not all that expensive. The plaintiff would propound a discovery request and demand a copy of the defendant’s hard drive. If the court allows it, the plaintiff search the hard drive for the pirated movie and the torrent file. The plaintiff could try and build the case with circumstantial evidence – i.e., there is bittorrent on the system, other copyrighted works on the system (and torrent files reflecting they were downloaded), and a torrent investigator is willing to testify that they saw the Doe in question downloading the file. Five day trial at tops, probably less. (whether you can build a torrent case based on circumstantial evidence is a different story)

In this scenario, the plaintiff has the advantage. Their case is easy to prove, it won’t cost them much money, and they’re probably willing to settle for far less than the cost of taking it to trial. The judgment could be astronomical, too.

As an individual going up against a well financed media company, you’re basically a small Scottish clan facing the English heavy cavalry with a sword.

But when an action involves numerous defendants, it inures to their advantage. Why?

Because joined together, now you’re a Scottish clan with a bunch of giant spears!

Trying a case against tens or hundreds of Does would be almost physically impossible. Trial would last over a year, as each Doe defendant would have separate defense. Second, it would be extraordinarily costly for the plaintiff – they would need to pay an expert to attend the trial each day, have an attorney ready to trial the case, etc. Comparatively, the Does would be able to pool their resources, combine their experts, and each Doe (and their attorney) would not need to be at trial every single day. Having several co-defendants also means being able to collaborate on motions, join in motions, and keep costs down. Third, having many Doe defendants also creates difficult proofs for the plaintiff. To try an individual, all the plaintiff needs to prove is that the defendant distributed the movie in question. To try mass Does, the plaintiff will also need to prove a conspiracy between several people who have never met each other, and they will probably need to win a negligence claim if a defendant simply had an unsecured wifi network.

That’s substantially more difficult than trying an individual.

While the plaintiff initially has the advantage by avoiding paying thousands of dollars in filing fees by joining the defendants, that advantage is completely lost at trial. Indeed, any advantage the plaintiff once had is nullified at trial if the Does are still joined.

So today I was pleased to learn that Rob Cashman agrees with Randazza’s strategy:

I’m changing my tone to give named defendants (the number of whom are growing) ammunition to protect themselves and to catch the plaintiff copyright trolls in their missteps. I call this strategy the “pro-joinder” strategy.

Rob’s article advocates forcing the plaintiff to take their entire case, meaning the entire swarm to trial. I agree with this.

Do I think all of the individual cases will be tried? Probably not. But I don’t think I would want to put my client potentially in harm’s way all alone, either. Severing an action does just that – it makes an individual an easier target. So, to steal a line from Marc’s motion:

In country where high roads intersect, join hands with your allies.
– Sun-Tzu, Art of War

Consider bittorrent litigation in the context of war and Braveheart. Common knowledge used to be that the guy with the strongest armor and most troops won. However, William Wallace used guerrilla tactics and turned the English’s perceived advantage of size and strength against them.

Same thing here. Copyright holders initially have the advantage at first by filing a mass John Doe action because they have many people to settle with. However, if the action proceeds to trial, that advantage becomes a huge weakness. The copyright troll now has case they can’t try, and if the Does win there is a good chance they are entitled to attorney’s fees.

By staying joined, the Does have the upper hand by leveraging the battlefield – just like a bunch of angry Scots with giant spears facing a charging English heavy cavalry.