Dissecting a Remarkable Ruling
* The blog title is a reference to this Order of the Stick comic. (It’s safe for work, so long as you don’t read it out loud.)
Last time we surveyed the forces that lead to this recent extraordinary magistrate’s opinion. It was handed down May 1, but already it’s become notorious for its almost gleeful taking down of the four porn-industry rights-holding plaintiffs. The key is to read the snerk-inducing footnotes. Highlights include these gems:
Footnote 7, in which the concept of “moral high ground” is discussed:
Plaintiff K-Beech’s rambling motion papers often lapse into the farcical. In its papers, counsel for K-Beech equate its difficulties with alleged piracy of its adult films with those faced by the producers of the Harry Potter books, Beatles songs and Microsoft software, and compare its efforts to collect from alleged infringers of its rights to the efforts of the FBI to combat child pornography. In an ironic turn, the purveyors of such works as Gang Bang Virgins, explain how its efforts in this matter will help empower parents to prevent minors from watching “movies that are not age appropriate” by ensuring that viewers must
Are Pornographers Ruining it for Everyone? Identifying and Outing Anonymous Online Copyright Infringers
Judges: Courts Aren’t Litigation Clearinghouses
Last summer, I started to blog about mass-defendant bittorrent cases pending in Washington, D.C., some of which involved over 10,000 anonymous defendants. Since the plaintiffs didn’t know who the defendants were, but they did know to IP address to which a bittorrent was sent, they would sue the defendants as “John Doe,” then ask the court for permission to send subpoenas to the defendants’ internet service providers. The subpoenas would ask for the contact information of the subscriber who was assigned that particular IP address at that particular time.* In theory, the subscriber would be your defendant, or at least someone who knew the real defendant (e.g., a family member).
* Since most consumers are dynamically assigned an IP address by their ISP for each internet session, and that IP address will likely change from session to session, you need to know not only the IP address but also the exact time the IP address was being used.
Recall that the first hurdle that the plaintiff must clear is a request for early discovery. Normally, discovery in federal court can’t start until there’s been a conference among the parties’ lawyers, which is … Read More»
…and One Seriously Undefined Term
Order Granting in Part and Denying in Part Defendant’s Motion to Dismiss with Leave to Amend, In re Google, Inc., Street View Electronic Communications Litigation, Case No. 10-MD-02184 JW (June 29, 2011).
Google had moved to dismiss for failure to plead a claim for which relief may be granted. After a lot of legal hair-pulling (the judge’s own), Google’s motion is denied as to the Wiretap Claim (which is the subject of this post).*
* It was granted as to the state-law claims, some on grounds of preemption (which is not without controversy), and one for a straight up failure to state a claim. Google is currently trying to lodge an interlocutory appeal. There is no automatic right for such appeals, though–it’s up to the Court of Appeals, preferably with the lower-court judge’s blessing. Last I heard, it had received the judge’s blessing, and the Court of Appeals is now considering whether to take the appeal.
I have fought my way through this decision, and, despite all the criticism I’ve read about it, I think the judge did a good job with an impossible task. The question is whether Wi-Fi signals a … Read More»