For more than a decade, file-sharers around the world have been pressured to pay significant settlement fees, or face worse in court.
The practice is particularly common in the United States. While there is only a small group of independent companies involved, thousands of people are taken to court each year.
These efforts, often characterized as “copyright trolling,” share a familiar pattern. After the film companies acquire a subpoena to get the personal details of an alleged pirate, they contact this person with a settlement request.
These cases are not intended to go to trial, however. Instead, the copyright holders often drop their complaint when the accused person fights back.
This was the case when Darren Brinkley was sued in a Utah federal court last year. In a complaint filed by Criminal Productions, he and 31 others were accused of illegally sharing a copy of the movie Criminal.
Brinkley denied these claims and rejected the settlement offer but the film company still didn’t back off.
“Plaintiff persisted, forcing Defendant to retain counsel and incur significant attorneys’ fees and costs. Yet Plaintiff had no intention of litigating its claims,” Brinkley’s lawyers write.
“Rather, these filings are shameless efforts to extort inflated settlements from infringers and non-infringers alike.”
The above is quoted from a recent motion for attorney fees, because things changed significantly when Brinkley lawyered up. While Criminal Productions initially refused to let the case go, recently it voluntarily dismissed the case.
According to Brinkley’s lawyers, the film company dropped the case like a hot potato when it discovered that the defendant was attempting to look into its business.
“As expected, when Plaintiff realized a Motion to Compel discovery was in draft, Criminal sought voluntary dismissal of both its affirmative claims and Brinkley’s counterclaims, which this Court granted, with prejudice, on July 6, 2018.”
The dismissal came after nearly a year and all this time Criminal Productions failed to produce any evidence. The defense argues that, while the filmmakers had no intention to litigate the “baseless suit,” their client was forced to run up significant costs.
The same also happened in other cases, where so-called copyright trolls quickly bailed out when defense attorneys sought discovery. Brinkley’s attorneys see this as a typical example of “cut and run” litigation, and argue that Criminal Productions must pay their client’s legal bill.
“These tactics should at minimum require that Defendant Brinkley be made whole for Plaintiff’s filing of litigation it clearly had no intention of pursuing and that may have had no basis in the first instance. This is the very definition of ‘cut and run’ litigation,” the motion reads.
The defendant requests compensation for the attorneys’ fees and costs to the tune of $62,818.35, providing a detailed accounting of the costs it made.
Fees and costs
This request is warranted and not unprecedented, the defense team states, pointing to a recent order in the District of Nevada where a defendant was awarded more than $48,000 compensation in a similar case filed by this same movie outfit.
Finally, the attorneys add that they see this case being part of the larger “BitTorrent litigation model,” noting that Criminal Productions had no basis for the lawsuit.
Companies such as Criminal Productions are “special purpose entities” (SPE) which are allegedly used to shield the true beneficiaries. The lawsuits are presumably being run by the German investigating firm Guardaley and the lawyers.
In a separate testimony, defense attorney Lisa Clay writes that Guardaley and the lawyers are the ones that benefit financially from these cases.
“In short, if this case had continued, Defendant is confident it would have established that Plaintiff lacked a good faith basis for its filing in the first instance, and that the claims were brought in bad faith,” the motion concludes.
A copy of the motion for attorneys’ fees and costs is available here (pdf).