Openmind Solutions, Inc. v. Does 1-2925

Filing 31

Transcript of MOTIONS HEARING held on 4/11/2011, before Judge G. Patrick Murphy. Court Reporter Molly Clayton, Telephone number 618.482.9226. NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/10/2011. Redacted Transcript Deadline set for 5/20/2011. Release of Transcript Restriction set for 7/18/2011. (mnc)

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IN THE DISTRICT OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF ILLINOIS
_________________________________
)
OpenMind Solutions, Inc.,
)
)
Plaintiff(s),
)
)
vs.
) Case No. 11-92-GPM
)
DOES 1-2925, Individually, and
)
as Representatives of a class,
)
)
)
Defendant(s).
__________________________________)

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MOTIONS HEARING

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BE IT REMEMBERED AND CERTIFIED that heretofore on 4/11/2011,
the same being one of the regular judicial days in and for the
United States District Court for the Southern District of
Illinois, Honorable G. Patrick Murphy, United States District
Judge, presiding, the following proceedings were recorded by
mechanical stenography; transcript produced by computer.

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APPEARANCES:
FOR PLAINTIFF: John L. Steele of Steele Hansmeier PLLC, 161
North Clark Street, Suite 4700 Chicago, IL 60601 and JoDee
Favre of Favre Law Office, LLC, 5005 West Main Street,
Belleville, IL 62226

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FOR ELECTRONIC FRONTIER FOUNDATION AMICUS: Julie P. Samuels of
Electronic Frontier Foundation, 454 Shotwell St, san Francisco,
CA 34110

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REPORTED BY: Molly N. Clayton, RPR, Official Reporter for
United States District Court, SDIL, 750 Missouri Ave., East St.
Louis, Illinois 62201, [phone],
[e-mail]

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INDEX OF WITNESS EXAMINATION
DX

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CX

R-DX

R-CX

No witness testimony.

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INDEX OF EXHIBITS

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EXHIBIT

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No exhibits identified or received.

DESCRIPTION

Id'D

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MISCELLANEOUS INDEX

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PAGE
No miscellaneous index entries.

Rcv'd

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COURTROOM DEPUTY:

Openmind Solutions, Inc. versus

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Doe, Case No. 11-92-GPM, is called for a hearing on all pending

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motions.

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Will the parties identify themselves for the record.

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MR. STEELE:

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John Steele, S-T-E-E-L-E, on behalf of

the plaintiff Openmind Solutions.

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THE COURT:

Mr. Steele, good afternoon.

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MR. STEELE:

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MS. FAVRE:

JoDee Favre for the plaintiff.

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THE COURT:

JoDee, good to see you again.

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MS. SAMUELS:

Good afternoon, Judge.

Julie Samuels, S-A-M-U-E-L-S, on behalf

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of the Electronic Frontier Foundation, which has filed as

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amicus curiae.
THE COURT:

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I think you're the amici I let in the

case.
The reason I wanted to talk to everyone today about

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this case is, as you know, the Seventh Circuit has taken a much

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different approach to class litigation than most of the other

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circuits have.

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case here.

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a John Doe but either we don't know what their name is -- it

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appears often in the prisoner litigation and it goes something

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like this:

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was a member of The Crush -- that's the SWAT team -- he and

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some other fella, who had a black mustache, grabbed me and

And you have got your case, you have got your

Ordinarily when you sue John Doe, we know there is

He was six, eight, he had on an orange jumpsuit, he

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swung me against the bars of the jail cell.

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tell you about them now.

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that and we use John Doe.
Now, about all you know about your potential class is
that you know some IP addresses.
MR. STEELE:

Well, we know the exact IP address that

was assigned to them at a certain segment in time by their ISP.
THE COURT:

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MR. STEELE:

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But I don't know their name.

Or we have a child who was assaulted or something like

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That's all I can

Right.
And of course, the ISP has the record of

exactly who that is at that time.
THE COURT:

So...

That tells you who the computer is or who

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registered.

Now, the problem you've got, of course, is -- you

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have thought about it is the issue of commonality.

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telling someone, I can't recall precisely the demographics but

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the largest subscribers to legal pornography are teenage boys

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and diabetic men over 50.

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MS. FAVRE:

Is that a fact?

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THE COURT:

I think that's right.

And I was

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The last I read in

one of the blurbs.
Now, there is going to be a lot of mothers and fathers

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who it's going to show up -- of course it's going to be their

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kids on the computer, which is what happened in that regard to

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the downloading of music, whatever the kids use to download

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music, right, and not pay for it with these file sharing

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things.

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So I have a few questions for you and then I'm going

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to let you address the issue.

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here yet.

But in a class -- you have the class of defendants?

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MR. STEELE:

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THE COURT:

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I'm not going to toss you out of

Yes.
How would you go about describing your

class?
MR. STEELE:

Well, right now our initial description

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of the class is the people that were observed downloading or

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uploading this content at a particular time from our client's

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content, people that had accounts in which they've -- when they

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first signed up signed an agreement not to do that exact thing

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with their ISPs and against any third parties.

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And you know, as we have in our complaint, we list

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out -- we're not alleging that they've violated any rule

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because I think that's -- or violated the law just yet because

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that is a matter of a fact for the courts to determine after

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class certification.

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classes, it would be people that have engaged in this conduct.

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And then we're going to later on determine -- obviously after

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class certification, when we get to the evidentiary phases, you

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know, did they have a license for that content.

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for instance, someone had taken using BitTorrent -- which is

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almost exclusively used to steal content, I think that's pretty

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common knowledge based on the studies we have.

But as far as who the prospective, if any

Because if,

But they also

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happen to have an account with our client and so I just felt

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like downloading it this way.

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a scenario.

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copyright infringement.

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later.

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I'm just trying to come up with

Then they would not obviously have committed

THE COURT:

So that's the question that would come

Aren't you really putting the cart before

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the horse?

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did it -- but what would you do about Mrs. Jones' 51-year-old

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diabetic husband, who when she is not around, gets on her

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Certainly if you can say this person on this time

computer and watches pornography?
MR. STEELE:

Well, we're not claiming that every

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single person who happened to own that account is going to be

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the person that's eventually part of the class.

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do our discovery investigation.

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that they, you know, were or not the ones, that they, for

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instance, the husband, then that would be the person --

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THE COURT:

That's why we

I mean if a person can show

They don't have to show anything.

And therein lies the rub.

You've

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sued them.

What you described

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really is a case where we are going to have to try every one of

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these cases one at a time.

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help us in this case, in a case like this.

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you have a class of defendants, because what you have done is

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really you have filed a case -- and certainly on an individual

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case you could file a case against, say Mrs. Brown is licensed

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and you could do a little investigation and see that she lives

And the class device really doesn't
Particularly where

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by herself.

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this for these reasons and she downloaded our software.

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may be able to say then -- raise the defense, well, that my

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teenage kid was here and I certainly never authorized him to do

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this, correct?

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And say, well, on information and belief I think
She

So how does the class device as you see it work in
this situation?
MR. STEELE:

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Well, first just to separate and briefly

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respond to that question, I mean we're still saying that the

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person who has an account that's promised, you know, in our

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agreement with the ISPs and whatnot against third parties not

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to do that, they're still vicariously liable.

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Internet -THE COURT:

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Who says they're vicariously liable?

In

other words --

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If you set up an

MR. STEELE:

Well, we are alleging that they're

liable.
THE COURT:

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You can't allege a legal theory.

You have

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to say is there some law that would say that?

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is this a statutory claim that you are asserting or a contract

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claim.

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MR. STEELE:

In other words,

Well, no, we're asserting under a

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copyright infringement and everybody in the process.

So it's,

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you know, just like the getaway driver drives a car, they're

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just as responsible.

So if someone opens up an account, they

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can't say, hey, that's not my problem, it was my husband.

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Well, no, it's your problem because you were part of the

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infringing activity.

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THE COURT:

Everyone, everything -There is no such thing as negligent

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infringement, though, under the copyright.

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copyrighted material or whatever it may be and, without my

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authority or without my knowledge, someone illegally makes a

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copy of that and even sells it, I'm not strictly liable for

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that.

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MR. STEELE:

No.

If I have some

But what we're saying is that you

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are liable because you -- it's not about negligence, it is

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about when you create an account, you have to click on a box

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and you have to say certain things like I won't allow this to

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happen.

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this account.

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know, just leave a loaded handgun running around and say, well,

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I knew what would happen in East St. Louis, I knew what would

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happen, but you know what, I don't care, whatever.

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I'm taking a proactive guarantee, that's why you get
And when you thus break it -- you can't, you

I mean but to step back and answer your larger

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question that I didn't get to and that is about the class

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action, you know, framework.

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THE COURT:

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You know, this the --

Who would be the class rep in such a case

as this for the -MR. STEELE:

Well, in defendant class actions, the rep

is appointed, is chosen.

You know, we suggest one, our rep.

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The Judge has to, you know, obviously determine if that's

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appropriate class representative based on various factors.

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in defendant class actions, although much less common than

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plaintiff class actions, have certainly gone on for the last

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150 years.
THE COURT:

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I understand that.

And

I'm just saying what

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would be looking for in an adequate class rep in a case like

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this?

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MR. STEELE:

Well, first of all, it would be someone

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who would wish to, you know, be aggressively fighting and

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addressing this issues raised in court --

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THE COURT:

Someone who is in a situation, for

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instance, where they would have a defense and say, well, my

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husband did it without my consent, or knowledge or my teenage

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son did it without my consent, or my teenage son's friends did

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it without my consent or knowledge.

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defendants uniformly across the class?

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MR. STEELE:

And then they assert these

It's possible but we don't have that

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occurring nearly as much as in -- I've personally dealt with a

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lot of, you know, defendants in these kind of actions.

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most part I hear, yeah, I did it, I want to settle or --

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especially after the release is there, they are like, well, you

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know, I had to make a decision whether to a hire an attorney,

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you know, this or that.

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get releases for any other activity they may have done with our

For the

And they want to make sure that they

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other clients and so on.

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But the issue with the class action process is, you

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know, this is to designed for cases -- and I'm not preaching to

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your Honor, I know you are aware of Rule 23 and how it works

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and all.

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litigation because the infringer is not committing a massive

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tort against a particular person.

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asbestos litigation where, you know, asbestos, if they would

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like to sue individually, sure, they may have no money and they

But this is a very perfect vessel for this type of

It's kind of like, you know,

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may not be able to, oh, well.

The cost of litigation to our

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client, who is getting their stuff ripped off is prohibitive if

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they were to sue 3,000 people individually.

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room -- well, every advocate in this room I think knows that.

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And which is why and they're essentially not being allowed to

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include in class action would essentially be a total victory

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for the infringers.

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THE COURT:

Everyone in this

So the idea is that -In this circuit that's routinely what

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happens where someone -- we're told that, you know, you are

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going to have to prove this as individual reliance.

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that JoDee could write us a quick law review article on that

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very problem in these cases where they say, you know, it sounds

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pretty actionable except how do you prove that each individual

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plaintiff in this case relied upon the fraudulent statements --

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MR. STEELE:

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THE COURT:

I'll bet

Sure.
-- of the defendant.

And they say, well,

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you can't.
MR. STEELE:

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But we are almost putting the cart before

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the horse a little bit because all we are doing now is getting

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the discovery of these people.

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certification.

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prove our case.

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people are specifically but yet you are expected to put on your

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case.

We're not dealing with class

We're not dealing with how are we going to
And to say, well, you don't know yet who these

That's not where we are at.

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I would respectfully suggest that all we're asking for

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here is to get the information, which is very time sensitive.

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Most of these ISPs they drop these people's names within months

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or certainly within six months or eight months depending on how

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big they are.

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What we know is someone's name and address, that's all we know.

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We are not asking for bank account records or anything truly

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private.

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parties.

So we need go and find who these people are now.

This is stuff they have already told to third

THE COURT:

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But when you do that, though, there's a

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very powerful presumption in the federal system that if you

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invoke the federal courts, if you are here, it's presumably

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open.

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records, or someone's recipe for Coca-Cola, or how to make a

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bomb, all this becomes public information.

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So unless you are talking about the -- someone's medical

MR. STEELE:

So...

Well, the subpoena responses that we get

we take great effort -- for instance, our firm knows, for

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instance, a name and address and so on.

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know who they are.

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anyone.

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you know, let's discuss this case.

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Our own clients don't

We don't share this information with

We simply first reach out and say, look, would you --

But here's the important thing:

We're just asking for

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these people's basic, non-private information.

Stuff that they

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have told ISP, so they told third parties who they are.

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know all this information about them.

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person at this ISP did this, this, this and this.

And we

We say we know this
We just need

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to know from the ISP who that was.

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fishing expedition, we are not saying:

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people that you think were doing this at this time.

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saying this specific person we need information.

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And we're not going on a
Comcast, name all the
We are

Now, if we don't have -- if we can't prove get our --

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they're class certified or we can't prove the facts that we

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allege -- and essentially this is, you know, what we are here

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on, it's not worded as a motion to dismiss but essentially, for

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all intents and purposes, what should be treated as such.

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mean we have to have some benefit of our complaint being

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treated as our allegations are true.

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prove, at least I would respectfully suggest --

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THE COURT:

I

I mean we don't have to

You don't have to prove your case yet.

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The problem you have got is in almost every other instance you

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have a defendant and then you get to do discovery.

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are wanting to do discovery to find a defendant.

Here you

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MR. STEELE:

Well, we already know the defendant.

And

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like you were mentioning I think in the beginning about the

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description of the John Doe cases where you had a 6'1" and so

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on --

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THE COURT:

If you know defendant, why is it that you

wish to do discovery to find out who the defendant is?
MR. STEELE:

Well, we know -- like the person that you

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cited, he didn't know their name.

But he knew all this

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describing information about him; 6'1", orange whatever.

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we know a lot of description information too.

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one person and it's that person who has the account.

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Well,

what we are asking for is this --

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THE COURT:

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MR. STEELE:

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THE COURT:

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MR. STEELE:

And so

Why haven't you sued that person?
How could we -- we don't know where to

send the complaint to.

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And it only fits

We don't have their address.

But you know the person.
We know all the descriptive information

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about them as far as, you know, their IP address at this exact

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time that they were using.

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information because they've given all their information,

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personal information, like name, address, and e-mail address

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to, you know, their ISP.

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type of technology that police officers use in going after

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pedophiles.

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isn't the first time this has ever been used where agents use

And that's an amazing piece of

The ISP -- and this is the same exact

I mean this is not kind of crazy -- you know, this

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software and say, okay, we just watched this guy, this IP

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address, send out and receive this bad information, let's find

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out who that is because we have got to go punish them.

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that's essentially what we're doing here.
THE COURT:

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All right.

And

Now, for the amici, I'll let

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you intervene in this case because this is such -- ordinarily

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the trial court would approve and we don't fool with amici but

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if you can at least have a purported class of those persons who

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you know not, I don't see how I could make things any worse by

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letting an amici come and speak.

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So who are you and what is your real point in all
this?
MS. SAMUELS:

Sure.

Well, your Honor, thank you for

letting us speak.
I am a staff attorney at the Electronic Frontier

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Foundation, which is a nonprofit organization in San Francisco.

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We do all kinds of digital civil liberties case work.

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we've been involved in many cases sort of like this but without

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the class action piece, these mass copyright litigations that

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have been taking place all over the country.

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And

In fact, just in the past couple weeks a bunch of

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defendants have been severed based on improper joinder in the

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Northern District in a similar type --

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THE COURT:

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MS. SAMUELS:

Northern District of what?
Of Illinois.

I'm sorry.

In Illinois.

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THE COURT:

You had named defendants who had been

joined but allegedly -MS. SAMUELS:

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No, it was styled as a similar complaint

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against hundred or thousands of anonymous Doe defendants, but

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without the class action vehicle, just as a joinder case.

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And there's been a trend across the country -- and

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we've gotten involved in many of these cases as amici at this

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level or this point in the litigation.
THE COURT:

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10

What is your foundation's real concern?

What is the problem?
MS. SAMUELS:

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Our biggest concern is we're worried

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about the due process implications to these individuals.

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That's frankly the kind of stuff we worry about.
THE COURT:

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By the way, can either one of you -- is my

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understanding of the demographics correct, have you studied

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that?

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MR. STEELE:

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MS. FAVRE:

No, but...

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THE COURT:

You have or haven't?

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MR. STEELE:

I haven't studded the demographics.

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MS. FAVRE:

But I did want to interject something,

No.

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John's had a lot of these cases, a lot of these Doe defendants.

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And I realize we had that problem immediately in this case

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where the mother wrote the letter.

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overall --

But it hasn't been an

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THE COURT:

Right.

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MS. FAVRE:

-- issue.

It hasn't.

And I mean they

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have had thousands of these Doe defendants.

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from experience, you know, if you look at his track record of

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how this happens when he actually gets the subpoena out there,

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he gets a very good response.

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saying it wasn't me.

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MS. SAMUELS:

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MR. STEELE:

So I don't think

He doesn't get a lot of people

If I may -If I could address -- if you are worried

10

about due process, you can continue but I can address the

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procedure.

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MS. SAMUELS:

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THE COURT:

Can I just --

Due process is something we are generalist

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about here.

Like tomorrow we will try a prisoner case.

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know, last week we'll try -- we'll have class questions.

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we don't even purport to be experts in all facets of life, but

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we are generally familiar with the concept of due process

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because that's, after all, we're an Article 3 court and the

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Fourteenth Amendment and the Fifth Amendment is not new to us.

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So I can understand all that.

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MS. SAMUELS:

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THE COURT:

And

If I can -- I'm sorry.

Here's what I'm going to give both of you

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a chance to do:

24

first of all read the Seventh Circuit precedent.

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judge.

Okay.

You

I want -- and you can weigh in on this, but
I am a trial

Our Seventh Circuit has written a lot on the

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subject of class litigation.

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thing.

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Commonality is a very, very big

You have both got two weeks to weigh in on how it's

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feasible and helpful to proceed with this case under Rule 23.

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I'll read it carefully.

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read that.

Now, nobody is doing anything until I

But I want to read it first.

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MS. SAMUELS:

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question about some logistics.

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10

I do know that even after you stayed discovery, some
discovery had gone out and some names of -MR. STEELE:

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Your Honor, if I may ask just a quick

Absolutely not true, your Honor -- and I

don't mean to interrupt.

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MS. SAMUELS:

I'm sorry, I don't mean inappropriately

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but stuff had probably issued and maybe you had gotten those

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names.

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THE COURT:

I just said nothing is going to happen for

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14 days, until I get your briefs.

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we are going to proceed.

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Now, as you know, no one almost ever, ever goes behind

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my orders.

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people will.

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And then I will tell you how

And it just never happens.

And I don't ever expect

It just doesn't happen around here.

MS. SAMUELS:

I'm sorry, I didn't mean to interfere

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that Mr. Steele was going behind your orders.

I was simply

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saying that I think there's, you know, in the day-to-day

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business, subpoenas had gone out before that -- that order

Case 3:11-cv-00092-GPM -SCW Document 31

Filed 04/19/11 Page 18 of 19

Pg. 18

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because they were permitted.

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moved maybe before that order.

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record, but I didn't mean to infer --

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THE COURT:

And you know, stuff has been
So I just wanted to clarify the

If it happens we will take a look at it.

But he is not in a position to make his initial disclosures.

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MS. SAMUELS:

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THE COURT:

Sure.

There are a number of things here that

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this type of litigation -- you might say it -- I don't want to

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say it unnecessarily complicates things.

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little out of joint.

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Everything is just a

make my ruling.

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But I want to read everything and then I

Now, the only thing I ask is both of you both, besides

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you as an amici, you are here, read the Seventh Circuit

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precedent.

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context of what you are asking the Court to do.

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will read it.

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You, too, John.

Read it and then place it in the
And then I

Now, if the Court were of a mind to certify this

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class, it is going to Chicago immediately.

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you or ordering you to do anything that you wouldn't -- you are

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not going to have to do anyway.

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So I'm not asking

And the questions that their honors on the Court of

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Appeal are going to ask you are going to be much more

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challenging and difficult than questions I've put here today.

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So I will read what you have in 14 days and we will
get back here.

Case 3:11-cv-00092-GPM -SCW Document 31

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Pg. 19

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Everybody have a good day.

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This court is in recess.

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MR. STEELE:

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MS. SAMUELS:

Thank you.
Thank you.

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-oOo-

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REPORTER'S CERTIFICATE

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I, Molly N. Clayton, RPR, Official Court Reporter for the
U.S. District Court, Southern District of Illinois, do hereby
certify that I reported with mechanical stenography the
proceedings contained in pages 1 - 19; and that the same is a
full, true, correct and complete transcript from the record of
proceedings in the above-entitled matter.

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DATED this 19th day of April, 2011.
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`ÉÄÄç VÄtçàÉÇ
____________________________________
Digitally signed by Molly Clayton
DN: cn=Molly Clayton, o=USDC/SDIL, ou=Court Reporter,
email=[e-mail], c=US
Date: 2011.04.19 13:55:32 -05'00'