Copied pleadings show there’s no honor among antipiracy lawyers

On September 29, Chicago divorce lawyer John Steele filed a case far outside his usual realm of family law and custody dispute; he represented First Time Videos, LLC, which an attached declaration calls “a leading producer and distributor of adult entertainment content within the transsexual niche.” Internet users had been sharing First Time Videos’ porn through BitTorrent—but what did Steele know of BitTorrent or file-swapping litigation?

The answer: who cares? After all, you can just copy large portions of your complaint from some other P2P lawyer like US Copyright Group, which has been filing similar complaints since January. While reading Steele’s complaint earlier this week, certain phrases jogged my memory—hadn’t I seen this before? For instance, Steele had this:

In recent years, federal district courts throughout the United States, including this Court have granted expedited discovery in Doe Defendant lawsuits that are factually similar, if not identical, to this instant lawsuit.¹ In these cited cases and others like them, copyright holder plaintiffs have obtained the identities of P2P network users from ISPs through expedited discovery using information similar to that gathered by Plaintiff in the instant case, and they have used that information as the basis for their proposed subpoenas to these ISPs.

I went back, checked the US Copyright Group’s June lawsuit against alleged Hurt Locker file-swappers, and found this:

In fact, for the past few years, federal district courts throughout the country, including this Court, have granted expedited discovery in Doe Defendant lawsuits that are factually similar, if not identical, to the instant lawsuit.² In these cited cases and others like them, copyright holder plaintiffs have obtained the identities of P2P network users from ISPs through expedited discovery using information similar to that gathered by Plaintiff in the instant case, and they have used that information as the basis for their proposed subpoenas to these ISPs.

Note the subtle alterations; no mere verbatim transcription here! Commas are altered, footnote numbering is changed, “the” becomes “this.”

This sort of borrowing permeates the document, even in lengthy sections. Here, for instance, is a chunk from the Hurt Locker suit:

And here’s Steele’s transsexual porn version:

Such examples are legion. For instance, here’s Steele again:

To the extent that any ISP, in turn, identifies a different entity as the ISP providing network access and online services to the Doe Defendants, Plaintiff also seeks leave to serve, on any such later identified ISP, limited discovery sufficient to identify the Doe Defendant prior to the Rule 26 conference.

US Copyright Group had much the same take on the matter:

To the extent that any ISP, in turn, identifies a different entity as the ISP providing network access and online services to the Doe Defendants, Plaintiff also seeks leave to serve, on any such later identified ISP, limited discovery sufficient to identify the Doe Defendant prior to the Rule 26 conference.

We’ll spare you more such examples, which abound so fruitfully that some of my past, plagiaristically inclined freshman writing students might have swooned with envy.

Tom Dunlap, who wrote the US Copyright Group filing, doesn’t sound too bothered about the, err, affectionate imitation. He tells Ars, “I don’t know Steele but I am flattered he likes my pleadings.”

Corynne McSherry of the Electronic Frontier Foundation handles copyright cases regularly. She notes that, while legal documents are copyrighted, “it is common for lawyers to ‘borrow’ language from other filings and rare for another lawyer to complain about it. For example, we saw language from our class action complaint in the Sony rootkit case replicated in other Complaints. Taking too much, however, is frowned upon.”

Standing on the shoulders of giants

Indeed, copying can be widespread because so many filings are making similar points or arguments; much easier to grab someone else’s writeup and customize than to reinvent the wheel with every pleading, right?

Dunlap seems to think so. Numerous statements in his own filings borrow from an even older source of P2P lawsuits: the RIAA.

In a 2008 West Virginia case against some Doe defendants at Marshall University, the recording industry warned the judge that ISPs delete information quickly:

If that information is erased, Plaintiffs will have no ability to identify Defendants, and thus will be unable to pursue their lawsuit to protect their copyrighted works. Where “physical evidence may be consumer or destroyed with the passage of time, thereby disadvantaging one or more parties to the litigation,” good cause for expedited discovery also exists.

Here’s the US Copyright Group’s Hurt Locker declaration:

If that information is erased, Plaintiff will have no ability to identify the Defendants, and thus will be unable to pursue its lawsuit to protect its copyrighted work. Where “physical evidence may be consumed or destroyed with the passage of time, thereby disadvantaging one or more parties to the litigation,” good cause for discovery before the Rule 26 conference exists.

The RIAA tells the judge:

As alleged in the complaint, the Doe Defendants, without authorization, used an online media system (e.g., a peer-to-peer or “P2P” system) to download Plaintiffs’ copyrighted works and/or distributed copyrighted works to the public.

The US Copyright Group finds much to like in this. Here is their version:

As alleged in the complaint, the Doe Defendants, without authorization, used an online peer-to-peer (“P2P”) media distribution system to download the copyrighted Motion Picture and distribute them to other users on the P2P network….

Whole sentences sometimes get shuffled around. The RIAA tells the judge:

Courts regularly grant expedited discovery where such discovery will “substantially contribute to moving th[e] case forward.” Semitool, 208 F.R.D. at 277. Here, the present lawsuit cannot proceed without the limited, immediate discovery Plaintiffs seek because there is no other information Plaintiffs can obtain about Defendants without discovery from the ISP.

In the Hurt Locker filing, we find this arrangement inverted: