opinion

Beggars Can’t Be Forum Choosers

Lawrence Walters

Given the distaste expressed for similar suits in other jurisdictions, when John Steele brought yet another “Doe” copyright infringement case in September of 2010, one would think that he would quietly file his case and let the judicial process take over. Instead, theChicagoattorney — who previously focused on divorce cases — continued making headlines left and right by employing litigation tactics that are “novel” to say the least.

In attempt to circumvent the inevitable misjoinder issue that comes hand in hand with “Doe” litigation, meaning the attempt to combine hundreds of individuals devoid of any relationship to the place where the case is filed, in a single lawsuit, in mid-February Mr. Steele filed a “reverse class action” copyright infringement suit in the Southern District of Illinois.

Without rehashing the exhilaration that is first semester Civil Procedure class in law school, class action suits are usually brought by plaintiffs that qualify as a “class,” meaning they are all related for the purposes of the suit at hand. Steel tried to make the defendants the putative “class.” Keeping with the unorthodox strategy of the claim itself, Steele argued that, This Court has personal jurisdiction over the Class because the putative named class representative Defendants are residents ofIllinois.

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. Time will tell whether a rabbit will appear from the hat in this case.

The most recent Doe debacle; a dismissal in the Northern District of Illinois, began when Steele decided to try his luck with a forum “fishing expedition” and ended with a judicial tongue-lashing that will undoubtedly prove to be a cautionary tale for lawyers considering this type of litigation, for years to come.

Steele had sued 300 “Doe” defendants, alleging that they illegally downloaded and shared his client’s copyrighted material. However, because of the fact that IP addresses were the only identifying information possessed by the Plaintiff’s, the case was dismissed due to the Plaintiff’s not personally serving all of the defendants within the required 120 day window.

As expected, Federal Judge Milton Shadur had a jurisdictional bone to pick with Mr. Steele and made his opinions known when granting a motion to quash brought by one of the defendants and ultimately dismissing the entire suit. In addition to categorizing the joinder of over 300 defendants as a clever mask to save a buck, Judge Shadur stated that; Among other things, the newest motion demonstrates that there is no justification for dragging into an Illinois federal court, on a wholesale basis, a host of unnamed defendants over whom personal jurisdiction clearly does not exist and — more importantly — as to whom CP’s counsel could readily have ascertained that fact.

After denying his motion for reconsideration, Judge Shadur summoned Steele to his court room to inform him that if his client, CP Productions, intended to continue the “ill-considered” mass lawsuit, then they could do so inArizona, where the production company is headquartered. The subsequent berating by the judge ran the gambit from assaulting Steele’s work product to calling the entire spectacle an “abuse of the litigation system” and culminated with Judge Shadur proclaiming with unwavering certainty that the case was dismissed as he saw no “justification at all for this action.” Steele was quoted afterwards as saying that he respects the judge’s decision although he disagrees with it and that he will “certainly continue to fight on behalf of CP Productions in its war on piracy.”

Whether he simply moves his act to the next venue or again decides to reinvent class action law as we know it, one thing is for sure, we haven’t heard the last of this “creative” mass “Doe” litigation, as content producers become increasingly desperate to replace their revenue that has been drying up from both piracy and general marketplace conditions. As has been noted by an experienced adult industry attorney in a previous XBIZ article, end user litigation may have its place, but should only be pursued with caution by seasoned adult Internet attorneys.

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