Richmond, Virginia lawyer D. Wayne O'Bryan runs, as his website puts it, "a small law firm designed for personalized and professional legal services for dog attack injury and negligence claims." O'Bryan is quite clearly a personal injury lawyer, which is why it made perfect sense for him to file federal copyright lawsuits this summer on behalf of the pornographic film Gangbang Virgins... or not.

Yesterday, O'Bryan's cases went wrong as a federal judge demanded that O'Bryan show cause for why he should not be sanctioned by the court for running a “shake down” on the anonymous defendants.

"An improper purpose"

O'Bryan brought the cases on behalf of K-Beech, Inc, makers of the less-than-virginal film in question. He sued a few dozen IP addresses for allegedly sharing the film on BitTorrent networks, and even tried to cover his bases a bit by using geolocation technology to ensure that the anonymous defendants actually lived in Virginia.

But the court was still having none of it. Judge John Gibney, Jr. severed all of O'Bryan's cases to a single defendant yesterday, saying that the Doe defendants were improperly joined in the case.

While most judges to date have stopped with this sort of ruling, Gibney went on to say that "the plaintiffs' conduct in these cases indicates an improper purpose for the suits.” Like most mass-copyright lawsuits of this kind, the plaintiffs file lawsuits using only IP addresses, get permission to subpoena Internet providers for the real names and addresses of those users, and then attempt to settle with defendants for a few thousand dollars.

In this case, O'Bryan allegedly went even further, dismissing defendants from his three cases if they objected to the judge—all in order to prevent them from getting their day in court. As the judge put it:

According to some of the defendants, the plaintiff then contacted the John Does, alerting them to this lawsuit and their potential liability. Some defendants have indicated that the plaintiff has contacted them directly with harassing phone calls, demanding $2,900 in compensation to end the litigation. When any of the defendants have filed a motion to dismiss or sever themselves from the litigation, however, the plaintiffs have immediately voluntarily dismissed them as parties to prevent the defendants from bringing their motions before the Court for resolution.

One of the Doe defendants who complained to the court was Doe #7—O'Bryan's former computer repairman.

"Doe #7 in the case at bar operates a computer repair business from home," wrote the unnamed defendant to the judge, protesting that an IP address was not meaningful information. "Doe #7 connects clients’ computers to the internet through the home router. In fact, Doe #7 previously provided computer repair services to plaintiff’s attorney, who nonetheless refused to voluntarily dismiss John Doe #7."

After the objection was filed, Doe #7 was dismissed.

This sort of behavior suggested to Gibney that "the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants' personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does."

To sum up Gibney's decision: he severed each case to a single defendant, quashed all outstanding subpoenas he had previously authorized, and gave O'Bryan and K-Beech just 10 days to convince him that they had not violated Rule 11(b) on "representations to the Court."

The EFF praised the ruling, saying that such mass copyright cases are "little more than a shakedown scheme" in which plaintiffs run "roughshod over due process in order to extort settlements."