BitTorrent cases ran wild all year. The first file sharing case was filed on January 4, 2013 (Vision Films). As of December 20, 2013, well over 300 hundred cases had been filed against thousands of Doe Defendants, and that does not count the “state court” cases that Chicago-based Prenda filed before it imploded. The pace of filings was way higher than in 2012, and even though one major copyright plaintiff switched from filing multi-Doe cases to single Doe cases, a lot more people were caught up in these cases in 2013 than in 2012. In addition, as we discuss below, the tone of these cases shifted from nuisance to deadly serious. Nonetheless, for a variety of reasons, the pace of filings may well be slowing. So far this year, only two mass torrent cases have been filed, and prior to that, the last mass Doe filings had been in October. While Malibu has been active, they consistently sue only a single Doe at a time.
One factor that may be behind the slowdown in torrent filings, and coincidentally, the biggest file sharing story of the year, is the destruction of Prenda Law and the other entities operated by its principals; i.e., John Steele / Paul Duffy / Paul Hansmeier . These attorneys, who pioneered the extremely aggressive mass torrent lawsuits that have become so common, ran into a major obstacle in the form of a sanctions order from Judge Otis Wright of the Central District of California. Until then, they had been one of the most active mass torrent plaintiffs (and probably the only one that more or less everyone agrees deserves the moniker “troll”). They had even become known for using what some would call inventive (and others would term as clearly preempted and frivolous) State Court cases to uncover the identifying information of thousands of file shares, all of whom received letters seeking thousands of dollars in payment to avoid a lawsuit. After the sanctions order, however, Prenda appears to have completely ceased its “enforcement efforts.” Nonetheless, legal issues still linger for this Chicago firm – less than a week before retiring the well regarded Judge Murphy of the Southern District of Illinois found time to write another blistering sanctions order against the Prenda principals.
Another potential cause of the slowdown in filing may be that the courts are becoming less friendly to file sharing plaintiffs For example, it appears to be the practice of Judge Guzman to immediately sever any mass torrent cases that are assigned to him. Yet another possible cause for the slowdown may be that the cases have become too unpopular – sites like dietrolldie.com and fightcopyrighttrolls.com keep a close eye on every transgression that torrent plaintiffs make, and quickly publicize every bad act (intentional or not) that such plaintiffs make.
However, the author believes that single biggest cause of the slowdown is that the economy is improving, and other, more profitable work is likely becoming available to some of the litigators that previously had been filing mass-torrent cases. The author estimates that on average a firm representing a standard “mass-Doe” plaintiff (i.e., not Malibu Media) that plays by the rules (i.e., not Prenda) in a case like this probably generates around $150 per hour; while this may seem like a lot of money, it is actually fairly low for intellectual property work. As the economy improves, it can be expected that the attorneys who pursue torrent cases will be able to get more traditional IP work and make considerably more money with considerably less headaches – trying to collect settlements from working class file shares is difficult at best. Plain and simple, an improving economy will make these cases a lot less attractive to competent IP attorneys.
On the other hand, even if some of the skilled attorneys presently representing plaintiffs in these cases can find other, more profitable work, the result may only be that other attorneys, perhaps with practices entirely outside of the IP space, will take over the filing of these cases. To lawyers with family law or criminal law practices, these cases may look like easy money. Furthermore, even if every other mass copyright plaintiff calls it quits, Malibu Media has shown that it will continue to pursue people who share its content no matter what. And this is despite paying substantial filing fees (it only sues one defendant at a time), and employing a vast network of attorneys as well as IPP to support its enforcement effort. The trends on these cases in 2014 will certainly be interesting.