Objector ISPs and Doe Defendant add some “Flava” to lawsuit

Flava Works, Inc. v. John Does 1-293, case no. 1:12-cv-07869, N.D. Ill., has been an interesting and controversial case from the very day it was filed.

First, a quick review of where we’ve been:

It started when Flava filed their complaint, alleging that BitTorrent users infringed its copyrighted pornographic work “Thugboy V11″. When Flava entered their Motion for Discovery, it was accompanied by a Declaration from none other than the Flava Works CEO and Webmaster himself: Phillip Bleicher. The declaration revealed that Flava relied on VUZE software in combination with other proprietary software to monitor the BitTorrent swarm.

After their Motion for Discovery was granted, Flava sent incredibly broad subpoenas to ISPs, demanding personal and privileged information, including bank account information, payment information, and credit card information. ISPs Suddenlink Communications and Comcast Cable entered appearances shortly after in objection to the subpoenas.

What has happened since then?

First, Flava Works entered motions to compel ISPs Suddenlink and Comcast to comply with the subpoenas. From those motions, we learn that Flava is no longer seeking payment information, such as bank and credit card info, for the ISP subscribers:

Flava withdraws its request for the Media Access Control address, credit card and other payment information.

We also learn that Flava is battling at least one of the ISPs over cost.

On February 21, 2013, counsel for Flava objected to reimbursing Comcast “$90.00 for each positive IP address identification and $60.00 for each negative IP address identification” but left the issue open for discussions [...] Flava is only willing to pay $30 per subscriber.

The Motion to Compel Comcast, in its entirety:

Comcast is fighting the Motion to Compel, and on 04/09, entered a a memorandum in opposition to the motion to compel. The memorandum makes a number of legal points: that they haven’t received a valid court order, improper joinder of defendants by Plaintiff, and unfair litigation tactics. In addition, Comcast accuses Flava of using “shakedown” tactics:

Flava should not be allowed to profit from unfair litigation tactics whereby Flava uses the offices of the Court as an inexpensive means to gain Doe defendants’ personal information and coerce “settlements” from them. As shown by the extra-territorial sweep of its subpoena, Flava has no interest in actually litigating its claims against the Doe defendants…

The memorandum in entirety:

Flava has more than the ISPs to battle in this case. One Doe – who apparently is a subscriber of an ISP that complied with the subpoenas – is fighting back. On 03/28, the Doe defendant entered, through counsel, a motion for protective order and dismissal of Plaintiff’s complaint. The Motion argues lack of personal jurisdiction, improper joinder, improper use of VUZE software, and raises privacy issues.

The basis for this motion is that DOE IP address 173.17.92.42, who is a resident of Northern California, hereby moves that this Court to dismiss this complaint and to issue a protective order so that defendants can use “DOE 173.17.92.42” to avoid the potential damage of his/her name associated with the pornography industry. Further, this Court should dismiss the entire complaint with prejudice since the means of obtaining the IP addresses exceeded the terms of the license agreement between Vuze and Flava Works, Inc. Defendant further seeks a protective order to protect his/her identity through these proceedings.

Perhaps most intriguing is the arugment and allegation that Flava misused VUZE software to monitor the BitTorrent swarm:

In short, Flava Works, Inc. has breached the terms of the Vuze license agreement by collecting personal information from Bittorrent Swarms and using this information in a business commercial use. Given Flava’s breach of their Vuze license agreement, it would be inequitable for this court to enforce an action for infringement when the party alleging the infringement itself exceeds the scope of its copyright license used to monitor the Bittorrent swarms.

Here is the Motion in full. Note that the VUZE terms of service and an opinion from Judge Otis Wright are attached as exhibits.

It looks like Flava has an uphill battle with this case.