TCYK v. Does 1-17 – ISP Subpoenas OKed by Court

This case is one of the few “John Doe” copyright cases filed in Minnesota recently. In an order dated August 14, 2013, Magistrate Judge Keyes allowed subpoenas to be served on various internet service providers.

This case is one of many nationwide that use so called “swarm joinder” to allege that anyone who downloaded the same file using bittorrent acted in concert. This is presumably to allow plaintiffs in these cases to file only one case and there is rarely any allegation that the defendants actually knew each other. To my knowledge, courts in Minnesota have not addressed the issue as to whether “swarm joinder” is appropriate, but other courts have increasingly been rejecting joinder based only on common file being downloaded.

TCYK v. Does – Order granting leave

If you receive a notice from your ISP, I would be glad to work with you and help you understand what options you might have for responding.

Copyright “negligence” in Minnesota

The phenomenon of filing copyright lawsuits against anonymous “John Doe” internet users has been going on for several years now. While very few of these type of cases have been filed in Minnesota, there seem to have been about a dozen or so cases filed in the past couple of months. There are several different cases titled AF Holdings v. Doe and several more titled Quad Int’l v. Doe. All presumably with different unidentified defendants.

These cases all seem to allege that someone infringed the Plaintiff’s copyright in a movie by sharing it on BitTorrent. Whether or not they can identify the true infringer will be a problem as all that is known is an IP address and a time of alleged infringement. At best, this might lead back to a particular connection point, but not always to a specific user.

Perhaps because of this problem in identification, these cases also allege a claim of negligence. The “negligence” here is that by leaving a connection to the Internet available to others, the owner of the ISP account should be responsible for any infringement that occurred. This is absolute nonsense. And to the best of my knowledge, it is a claim that has never been recognized in court. The supposed “negligence” claim because it is essentially a reworked copyright claim, is preempted by the Copyright Act.

The courts that have addressed this issue of “negligence” have shot down the claim as well.
Here are two stories about claim being dismissed by a court in New York and another in California.

It may be that if they find the right person, these plaintiffs would have themselves a copyright case. However, by filing these negligence claims, they are merely hoping to extract a settlement from whoever they find, whether or not that person did anything wrong.

Free Speech Victory in Minnesota

On August 20, the Minnesota Court of Appeals overturned the district court verdict in Moore v. Hoff. This was a strange case but ultimately the question turned on whether the First Amendment protects true statements that cause someone to be fired. We won at trial on the issue of defamation, but the jury returned a verdict that essentially said that what Mr. Hoff wrote on his blog was true, but it interfered with Jerry Moore’s employment contract.

Tortious interference is the tort that involves interfering with someone else’s contract. But to be “tortious,” it the interference has to be wrongful. We successfully argued that no matter what the result, telling the truth about a public figure is protected speech and therefore it can’t be “tortious.” The Court of Appeals agreed with us that the jury’s tortious verdict violated existing tortious interference case law and the First Amendment.

This was a big first for me in several respects. It was my first jury trial, my first appeal, and my first case that attracted any media attention. Most trademark, copyright, or business matters don’t attract attention and don’t go to trial. I also took the case just a few weeks before trial. The appeal would not have been successful without the support and help of others, especially my co-counsel Mark Anfinson and counsel for the amicus parties, John Borger. Both of them had substantially more First Amendment experience and I needed every bit of help I could get.

The opinion is here.
The post that started it all is still online at The Adventures of Johnny Northside.

UPDATE: The case now has a reporter number and can be cited as Moore v. Hoff, 821 N.W.2d 591 (Minn. Ct. App. 2012).