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Texas chainsaw massacre: senior judge "severs" most P2P lawsuits


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Texas no longer welcomes mass Internet file-sharing lawsuits.

Last month, we profiled Evan Stone, the Denton, Texas attorney who has brought nearly every Internet file-sharing lawsuit in the state since getting into the business in mid-2010. Stone sues a few hundred to a few thousand anonymous defendants on behalf of his client, has Internet providers look up their real names and addresses, then asks them to settle for a couple thousand bucks before he files a federal lawsuit against them personally. Most cases have involved pornography distributed by BitTorrent, but Stone recently convinced the anime distributor FUNimation to adopt the technique after much hesitation on the part of the FUNimation.

Stone's name is currently attached to 16 cases in the Northern District of Texas, where he brings his suits, but 13 of those cases now show only a single anonymous Doe defendant. Why? Senior US District Judge Royal Ferguson went on a judicial clear-cutting expedition throughout last week, whacking away at nearly all of Stone's cases, "severing" the hundreds of defendants and quashing Stone's subpoenas to Internet providers. Even named defendants who were already listed as being in default for not showing up to court got a reprieve.

If Stone wants to pursue file-sharing litigation, he can do so—but only by filing "individual complaints against those Does" in the next 30 days. That means a $350 filing fee per defendant, plus mountains of paperwork for each case.


Stone's cases have been pruned

In his FUNimation order severing 1,336 of the 1,337 defendants, Judge Ferguson objected, saying that the defendants had nothing material in common. "There are no allegations in Plaintiff's Complaint that the Defendants are in any way related to each other, or that they acted in concert or as a group in their allegedly infringing actions… Indeed, it seems that the copyright infringement claim against each Defendant is based on the individual acts of each Defendant."

Simply saying that everyone used BitTorrent isn't enough to join defendants, and the judge notes that each defendant "will also likely have a different defense." He then cited a judicial decision from West Virgina in which a judge took an axe to a host of P2P porn cases filed there last year.

Not a game

That's certainly bad for Stone's business, but it's not his only problem at the moment. One of the cases that was not severed only escaped judicial scrutiny because Stone recently dismissed it—apparently over the claim that he had issued subpoenas in that case without the judge's permission and was caught with his hand in the cookie jar. The judge in that case had asked the Electronic Frontier Foundation and Public Citizen to step in on behalf of the case's anonymous defendants; when these two groups learned that Stone had issued subpoenas to (at least) Comcast and Verizon, they were furious.

On February 11, they sought sanctions against Stone. "Discovery is not a game, nor is it a tool to be wielded irresponsibly as a means in and of itself to coerce extra-judicial concessions from litigation opponents," they wrote. "Moreover, given the nature of the material about which this suit was filed, it was entirely predictable that many of the Does who received notices of subpoena from their ISPs as a result of the improper subpoenas would experience serious distress at the prospect of public accusations of having some involvement in the distribution of pornographic material… Mr. Stone and other lawyers who file cases of this sort are obviously aware of the anxiety that notice of their discovery can cause."

They also included an e-mail from Stone to Public Citizen's Paul Levy, stating, "It's hardly in your best interest to pursue sanctions against me at this point, but I'm sure you'll do it anyway since this has become so personal for you. Either way, you're not going to stop my clients from seeking justice so long as their content is being pirated."

Stone had no comment.

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