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Last week we discussed options when a copyright troll sues you. Specifically, when a hardcore gay porn troll sues you. Now, I’m assuming you’ve decided to do the honorable thing, fight back!

In the law, there are two ways to win most cases: (1) on the merits, and (2) on a “technicality”.

Winning on the merits means the finder of fact (the judge or jury) found, applying the law to your facts, that your actual case was more meritorious than your opponent’s case. Winning on a technicality means that you won without addressing some or all of the facts of the case — usually based on a rule of procedure. You can beat a copyright troll like the one described in Part I on the merits and on technicalities. Winning based on a rule of procedure is usually better for the client because: (1) it’s quicker and therefore cheaper, (2) there’s less risk of losing since the a decision based upon the merits is usually the last resort, and (3) the facts, and therefore, the client, are potentially less public. There’s nothing quite like the feeling of defeating your adversary in a full-fledged trial, but each day in court costs thousands of dollars, and you’re putting your hopes in the hands of 1 judge or 6 strangers. So . . . let’s try to win on a technicality, if we can.

First, copyright trolls add dozens or even tens of thousands of defendants for one reason. It’s cheaper. Filing fees in the Circuit Courts of Florida average about $300.00, so each defendant they join to a single case is savings. Since trolls often rely upon form pleadings, they can also, literally, file one document with the clerk instead of one per defendant. Again, big savings. But, we can turn their cheapness into a big advantage. In any case, there must be a reason to sue multiple defendants at the same time. Let’s examine the similarities alleged in these cases:

• Same plaintiff (e.g. Boy Racer)
• Same cause of action (Copyright Infringement)
• Allegations that the same work was downloaded by each defendant
• Allegations that BitTorrent was used by each defendant

So, there are similarities between the defendants. But it’s not enough. Not even close. Let’s analogize to tangible theft, say, from Wal-Mart. Countless shoplifters are caught pilfering from Wal-Mart each year. Wal-Mart would love to have a reputation for “prosecuting shoplifters to the fullest extent of the law”. Simple economics make this a difficult proposition. Filing fees, attorney’s fees, and the internal staff required to administer thousands upon thousands of lawsuits would cost ungodly sums. For items that cost from a few dollars to even a few hundred dollars, it’s impossible to justify. A demand letter is all you’re likely to see (criminal prosecution aside — but taxpayers, not Wal-Mart, foots that bill), because those letters can be generated en masse for little more than the cost of postage. But, what if Wal-Mart sued all shoplifters in each state once a year, in one (fifty, actually) giant lawsuit? One filing fee, combined damages that are actually worth litigating over, and Wal-Mart gets a reputation for being tough on shoplifting. If this practice were legal, surely, Wal-Mart, a company as familiar with the benefits of scaling up as anybody, would have figured this out long ago. But, it’s against the rules.

A troll was recently chastised practice before dismissal for improper joinder:

[I]f the 300 unnamed defendants have in fact infringed any copyright . . . each of those infringements was separate and apart from the others. No predicate has been shown for thus combining 300 separate actions on the cheap — if [Plaintiff] had sued 300 claimed infringers separately for their discrete infringements, the filing fees alone would have aggregated $105,000 rather than $350.

See CP Productions, Inc. v. Does 1-300, case 1:2010cv06255 (N. Dist. Cal.).

After one of the defendants’ motions to quash was granted, other defendants continued to file motions to quash. The judge order Plaintiff’s counsel to appear in court to discuss how to inform all the “Doe” defendants that “they will not be subject to any further trouble or expense as a result of this ill-fated (as well as ill-considered) lawsuit. Id.

Plaintiffs relied on Rule 20, which allows permissive joinder of claims by plaintiffs or against defendants if the claims “aris[e] our of the same transaction, occurrences, or series of transactions or occurrences and if any question of law or fact common to all these person will arise in the action.” Fed. R. Civ. P. 20(a). The determination of whether claims arise out of the same transaction or occurrences for purposes of Rule 20 is determined on a case-by-case basis. Mosley v. General Motors Corp., 497 F. 2d 1130, 1333 (8th Cir. 1974). Joinder based on separate but similar behavior by people using the internet for copyright infringement is improper. LaFace Records, LLC v. Does 1-38, No. 5:07-CF-298-BR, 2008 WL 544992 (E.D.N.C. Feb. 27, 2008).  It’s not enough to do the same thing the same way. So Wal-Mart can sue all those people who stole shirts by wearing them under their clothing while exiting the store.

Applying the transactional test for permissive joinder, which requires that the parties must assert rights (or have rights asserted against them) that arise from related activities, the court should find that the troll’s claims in such cases are not reasonably related or properly joined.

On this basis, courts have usually dismissed the whole case, or dismissed or severed as to all but the first Doe defendant.

Next week, another procedural defense, just for you!

PS – Remember to call a lawyer if you actually get sued, before doing ANYTHING! And don’t call plaintiff’s counsel before talking to your own lawyer. They really want your name and that’s the last thing you want (hence the subpoena to your ISP).