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11 Cv 00531 JAG Document 31 1 Amicus

11 Cv 00531 JAG Document 31 1 Amicus

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Published by J Doe
Trolls in panic: Steele Hansmeier files an amicus brief trying to prevent sanctioning of his proxy.
Trolls in panic: Steele Hansmeier files an amicus brief trying to prevent sanctioning of his proxy.

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Published by: J Doe on Oct 18, 2011
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10/18/2011

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UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF VIRGINIARICHMOND DIVISION
PATRICK COLLINS, INC.,
CASE NO. 3:11-cv-00531-JAG
 Plaintiff,v.JOHN DOES 1-58,Defendants.
 AMICUS CURIAE 
BRIEF OF STEELE HANSMEIER PLLCINTEREST OF THE
 AMICUS CURIAE 
Steele Hansmeier PLLC is a law firm that is heavily involved in defending the rights of copyright holders against the veritable tidal wave of digital infringement that, if left unchecked,represents an existential threat to the for-profit creative arts sector of the United States economy.Steele Hansmeier has extensive experience litigating suits similar to this action and believes thatthese actions are the only feasible method for copyright holders to protect their rights against theonslaught of BitTorrent-based copyright infringement.After reviewing the Courts October 5, 2011 Order and witnessing the jubilation of pro-piracy groups, Steele Hansmeier believes it is important for the Court to consider certain aspectsof the decisions it cited in its order that may not have been apparent on the face of the decisions.Furthermore, Steele Hansmeier wishes to brief the Court on certain aspects of BitTorrentlitigation that it has learned through its own extensive practice in this area.Steele Hansmeier has reviewed the submissions of Plaintiffs counsel in this matter andhas made every effort to avoid duplicating the arguments raised therein. Further, SteeleHansmeier has no knowledge of the conduct of Plaintiffs counsel in this litigation and takes no
Case 3:11-cv-00531-JAG Document 31-1 Filed 10/17/11 Page 1 of 11 PageID# 208
 
position on the same. Finally, Steele Hansmeier has no relationship to Plaintiffs counsel and hasnot communicated with him or any party of interest in this litigation regarding this filing.
INTRODUCTION
Unfortunately by a kind of Greshams Law, the bad, or harsh,procedural decisions drive out the good, so that in time a rulebecomes entirely obscured by its interpretive barnacles.Charles E. Clark,
Special Problems in Drafting and Interpreting  Procedural Codes & Rules
, 3 Vand. L. Rev. 493, 498 (1950).
1
 This observation by Judge Clark remains relevant after sixty-one years. It still remains tobe seen whether harsh procedural decisions will redefine the Federal Rules of Civil Procedureaway from the pragmatic and liberal ideals that influenced their drafting. Although it is to beexpected that a lawsuit involving contemporary technology will raise novel factual issues, thetrue issue presently before the Court is a procedural oneand in interpreting procedural rulessuch as those regarding joinder, the Court should consider the broader effect that a giveninterpretation will have upon the purpose and function of the federal courts. Although a smallsubset of the judges in the Northern District of California are hesitant to allow joinder at theearly discovery stage of litigation, courts across the country have held otherwise. The decisionsof courts allowing joinderat least at the early discovery stage of litigationare consistent withthe letter of the Rules and the ethos of their chief drafter.
ARGUMENTI.
 
THE COURT
S DECISION RESTS ON OUTDATED AUTHORITY ANDAUTHORITY LACKING SUBSTANTIAL WEIGHT
In its October 5 Order, the Court rests its analysis on the decisions of other federal courts,primarily those within the Northern District of California. Most significantly, the Court agreeswith Judge Speros analysis in a recent decision, namely
 Hard Drive Productions, Inc. v. Does
1
Charles E. Clark, chief drafter of the Federal Rules of Civil Procedure, served on the United States Court of Appeals for the Second Circuit from 1939 to 1963, including service as Chief Judge from 1954 to 1959.
Case 3:11-cv-00531-JAG Document 31-1 Filed 10/17/11 Page 2 of 11 PageID# 209
 
1
  
188
, No. C-11-01566 (N.D. Cal. Aug. 23, 2011), ECF No. 26. However, this decision wasitself based on a finding that other decisions were persuasivedecisions which have sincebeen reconsidered or which lack substantial weight.
 Id.
at 18 ([T]he Court finds the reasoning in
 Boy Racer 
and
 Diabolic Video Productions
,
 Pacific Century International 
, and
Millennium TGA
persuasive.).In addition to citing Judge Spero, the Court also directly cites two of the decisions thatJudge Spero relied upon. These are
 Diabolic Video Productions, Inc. v. Does 1
  
2,099
and
Millennium TGA, Inc. v. Does 1
  
21
.
 Amicus
Steele Hansmeier wishes to provide the Court witha fuller understanding of these decisions, and would show the Court that the former was based ona limited technical understanding of the issues while the latter was, in fact, reconsidered andreversed after further briefing.
A.
 
 Diabolic Video Productions, Inc. v. Does 1
  
2,099
 
The Honorable Judge Grewals opinion in
 Diabolic Video Productions, Inc. v. Does 1
  
2,099
, No. 10-5865 PSG, 2011 WL 3100404 (N.D. Cal. May 31, 2011), cited previously by thisCourt, should be read as having limited precedential impact. Judge Grewal made clear that hisopinion in
 Diabolic
was tentative and based upon a limited technical understanding of the issues.Judge Grewal was refreshingly honest, concluding his order by announcing that the court islimited in its technical understandingadmitting, in effect, that future reconsideration of thepropriety of joinder might be appropriate in a less extreme case.
2
As such,
 Amicus
urges thatJudge Grewals reasoning should not be applied without qualification to a case with meredozens, rather than thousands, of Doe defendants.
B.
 
 Millennium TGA, Inc. v. Does 1
  
21
 
2
 
 Diabolic Video Prods., Inc. v. Does 1
  
2,099
, No. 10-5865 PSG, 2011 WL 3100404, at *34 (N.D. Cal. May 31,2011). In the previous sentence, Judge Grewal notes with apparent shock that Diabolic proposes to join not merelydozens, but thousands, of defendants in a single action.
 Id.
 
Case 3:11-cv-00531-JAG Document 31-1 Filed 10/17/11 Page 3 of 11 PageID# 210

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