“Now I’m coming to gobble you up,” said the troll armed with a Florida-law pure bill of discovery. Photo of Seattle Fremont Troll courtesy of Flickr Creative Commons, credit Roshan Vyas,
BY ROSS CHAFFIN — Florida, meet trolls. In response to recent federal judicial intervention, and with the help of some obscure legal weapons, copyright trolls are now plying their dubious trade en masse in the courts of the Sunshine State.
“Copyright trolls” are entities that purchase intellectual property rights to a wide variety of media, from computer program code to pornographic images, to sue for infringement. Though trolls generally have no intention of actually using their copyrights for creative purposes, they are remarkably inventive when it comes to enforcing their intellectual property rights in court. In particular, trolls have resorted to mass-defendant lawsuits in which the trolls launch complaints against large numbers of IP addresses in the hope of ensnaring a few deep pockets.
And an increasing number of these so-called “John Doe” suits are being litigated in Florida courts.
Normally, copyright trolls’ “John Doe” suits occur when a troll plaintiff names dozens, and sometimes hundreds, of allegedly infringing IP addresses as defendants in a single federal court action. But to obtain the identities behind the individual IP addresses, the trolls must first obtain a court order to subpoena the Internet Service Provider (ISP) that holds the personal information behind its subscribers’ IP addresses. If the trolls are successful in obtaining the identities of the “John Does”, most named defendants are more likely to settle rather than bear the expense of a defense or, in some circumstances, risk the embarrassment of association with illegally downloaded (and occasionally sexually explicit) materials.
Fortunately, some federal judges have taken action against copyright trolling and have judiciously intervened in the scheme. Some have held that the joinder of numerous defendants into a single suit is improper, while others have required that the trolls demonstrate a good-faith showing that the named defendants are subject to the personal jurisdiction of the court.
In response to the rise in federal judicial intervention, copyright trolls are now targeting Florida state courts. The pivot to Florida may seem strange—copyright law is federal. However, these copyright trolls have dusted off an archaic Florida law known as a pure bill of discovery to bring their claims to Florida courts. According to the Florida Bar Journal, a pure bill of discovery is an equitable remedy designed to seek the discovery of facts within the defendant’s knowledge before the actual filing of a lawsuit. Now, copyright trolls are using (or abusing) the pure bill of discovery to effectuate their “John Doe” lawsuits by naming IP addresses as “John Doe” defendants and requesting discovery of their identities.
Clearly, copyright trolls are abusing the outdated pure bill of discovery by naming the IP addresses as “John Doe” defendants but actually seeking discovery of the “John Doe” identities from the ISPs. This scheme permits nationwide identification of John Doe defendants in a single lawsuit while circumventing procedural safeguards for normal civil suits such as service of process, personal jurisdiction, and venue requirements.
Yet the gambit appears to be working. After naming the “John Does” as defendants in the pure bill of discovery action, the copyright trolls are then successfully filing ex parte motions for expedited discovery for the “John Doe” identifications against out-of-jurisdiction ISPs. By naming unknown “John Does” domiciled in unknown jurisdictions as defendants while arguing to the courts to grant ex parte motions of discovery for the “John Doe” identifications on third-party Internet Service Providers that are not subject to the courts’ jurisdictional requirements, trolls are bypassing the procedural safeguards set forth in the Florida Rules of Civil Procedure.
Without doubt, the rise of copyright litigation in Florida should be a cause for concern in our local legal community. In fact, last year Miami-Dade Circuit Judge Marc Schumacher attempted to address the issue. However, Judge Schumacher’s decision was vacated because of a misunderstanding between the parties. That particular case remains to be decided.
Meanwhile, Florida’s antiquated “pure bill” rule continues as an enticing reason for copyright trolls to file expensive and frivolous suits in the courts of this state.
