Before we go any further, it’s important to get all the cases straight. First, Hard Drive originally sued a bunch of Does (11-1567). Then, Hard Drive dropped that case and re-filed against only one Doe (11-5634). Although he wasn’t specifically named, that one Doe was Seth Abrahams. Seth didn’t like being singled out, so he filed his own counter-suit back against Hard Drive (11-1006).
So while Hard Drive’s case against Seth-Doe was pending (11-5634), the parties had what is called a case management conference with the judge in the other case (11-1006). I don’t know what exactly happened during that conference, but I do know that after it the judge issued an Order that required Hard Drive to dismiss the Seth-Doe case (11-5634) so the parties could duke it out in the Abrahams case (11-1006).
That’s where it gets interesting.
See, there’s this relatively-obscure rule that if you voluntarily dismiss a claim against the same defendant twice, then you can never bring that claim again. That’s called Rule 41(a)(1)(B), or the two-strikes rule. DieTrollDie wrote a good article about it.
In Seth’s case, he has now filed a motion to dismiss Hard Drive’s claims against him because Hard Drive has dismissed its claim against Seth twice (11-1567 and 11-5634). So, Seth Abrahams is trying to invoke the two-strike rule and have Hard Drive’s claim against him dismissed, which would–oddly enough–leave nothing except Seth’s claims against Hard Drive to litigate.
DieTrollDie has written an excellent piece about the weaknesses of Hard Drive’s opposition to Seth’s motion. Not to take anything away from DTD’s analysis, but in my view, Seth’s motion should be denied for at least a few reasons.
First, Hard Drive is kind of right. Hard Drive’s opposition points out that two judges in earlier cases already concluded that the dismissed cases were not sufficiently similar to Seth’s case to consolidate them. That’s a pretty good argument, since it’s true. But for some reason, Hard Drive didn’t give it any more than a mention in one footnote. I like to put my good arguments actually in the meat of the brief, but whatever. Prenda Law isn’t exactly known for good lawyering.
Second, Hard Drive seems to have completely missed the real point of the two-strike rule–to avoid actual Court oversight by dropping suits before the Court can get involved. In other words, the two-strike rule only applies to cases that are voluntarily dismissed without a Court order. Here, Hard Drive dismissed its second case as directed by a Court order. So in reality, the Seth-Doe dismissal (11-5634) was pursuant to Rule 41(a)(2) and not Rule 41(a)(1) like Hard Drive said in its Notice of Dismissal. The two-strike rule doesn’t apply to a 41(a)(2) dismissal. Hard Drive never even mentioned that small detail. Why would Prenda not even mention its best argument? Again, whatever.
Third, I want to see this case get resolved on the merits. A two-strike dismissal doesn’t even touch on the merits of the case, and I want to see the issues actually get litigated. Abrahams made some interesting points in his complaint, like whether hardcore porn is even subject to copyright protection and whether Prenda’s settlement tactics constitute copyright misuse. Those are good arguments that I want to see fleshed out properly.
Understand that I despise the copyright trolls just as much as anyone else. Well, maybe not as much as FightCopyrightTrolls, but quite a bit. But I really do want to see Judge Sparo deny Abraham’s motion because, as a matter of law, it should be. Plus, it’s time that the real issues get litigated properly and decided, once and for all.