Malibu Media (X-Art) Isn’t That Bad (AKA: First Rodeo) – 2:13-cv-12217 (MI)

Yes I’m joking.  Sometimes people say that since a majority of the Does in BitTorrent (BT) Copyright Infringement cases are the true offenders (or their family members are), the Plaintiff’s in these cases are doing nothing wrong.  They say they are simply trying to stem the tide of piracy and recoup some money.  “Why do you call them Copyright Trolls?”  “They do not deserve that term.” “They work hard to make a real product and BT piracy hurts them.”  Beyond that is goes down the road of “You’re just thieving pirates,” or “You’re part of an Internet Hate Group that scares lawyers and Plaintiff to consider getting a guard dog.”  I acknowledge that Copyright infringement is an issue and AS the law is written, Troll/Plaintiffs are within their right to file these cases.  What I detest is the sleazy business model that squeezes money from people under the guise of “Combating Piracy.”  It is my opinion that this business model (BT Copyright Infringement) is nothing more than legal extortion based on greed of the highest level.

I recently told one Malibu Media/X-Art supporter that Brigham and Colette Field are  equally responsible for what the Troll attorneys do in their name.  They might have gotten in bed with Keith Lipscomb (and the Anti-Piracy Management Company (APMC)) with the best of intentions, but that does not justify the abusive practices.  Troll lawyers have the common view that if you are the ISP subscriber, you are responsible.  This fact is highlighted in a recent case filing of a Brief In Support Of Defendant’s Response To Plaintiff’s Amended Motion To Dismiss.  The document is at the bottom of this article.  This is a must read document on how Malibu Media/X-Art/Troll Lipscomb run these cases.  Fightcopyrighttrolls.com has covered this case and exposed much of the sleazy Troll practices.

The case at hand is 2:13-cv-12217, Eastern District of Michigan, against a single Doe/IP address.  It was initially filed on 17 May 13, based on Troll/IPP observation that public IP address 68.62.41.133 had downloaded/shared 21 Malibu Media LLC works between 16 Aug 12 and 26 Mar 13.  On 14 Aug 13, Troll/Plaintiff amended its complaint to named Mr. Gerald Shekoski as the Defendant.  Immediately following being named/served, Defendant hired Derek S. Wilczynski and Lincoln G. Herweye, Blanco Wilczynski to represent him. These attorneys tried to convince Troll/Plaintiff that Defendant was not the offender and asked for him to be dismissed.  Malibu Media LLC decided it knew better and spent considerable effort on deposing Defendant, as well as examining his computer hard drive.  The judge in this case even made it VERY clear to Troll/Plaintiff that if the forensic analysis failed to disclose any direct evidence of Plaintiff’s movies OR evidence of data destruction (spoliation), Plaintiff would dismiss the Defendant.  Sounds straight forward and simple doesn’t it???

Troll/Plaintiff had the forensic analysis conducted by the now-infamous Patrick Paige.   Doc_22-1_12217(MI)   Funny, it appears something is missing from Mr. Paige’s work history at the Palm Beach Sheriff’s Office  The forensic report is light on details AND there was NO mention of Paige finding – 1) a BT program/client; 2) Torrent files; 3) Plaintiff’s movies; 4) Evidence of Data destruction.  Mr. Paige did report that there was evidence indicating the Defendant’s daughter had used Limewire (file sharing program) years ago to allegedly download/share copyright protected music.  Nothing stating that Defendant or his son took part in BT file sharing.

Based on Mr. Paige’ inability to clearly disclose his finding, the judge directed Troll/Plaintiff to have Mr. Paige amend his report to specifically address the key issues.   Doc_23_12217(MI)

2.  Patrick Paige must supplement his affidavit by September 23, 2014. The affidavit must answer the questions: (1) Did Mr. Paige find evidence of copyright infringement as alleged in the Complaint? (2) Did Mr. Paige find evidence of deletion of infringing files?

NMFRB1The Paige supplement was NEVER presented to the court.  Go Figure.  Based off of the weak forensic report, Troll/Plaintiff decided to try to scare defendant into accepting a “walk-away” deal.  Here is the email chain between Troll Nicoletti and Wilczynski & Herweye.  WOW!  Let’s not mince words here!  I don’t think the Troll was expecting this response from Wilczynski and Herweye.   Doc_30-14_12217(MI)

{To Nicoletti} I understood your offer when you related it to me earlier today, and I am ethically bound to take it to the client.  And I don’t think it was out of order for us to ask for the expert’s report in conjunction with the same. But if you’re going to shake your fist (or your client’s fist) in a threatening manner (so to speak) so that we will be sufficiently intimidated to take your offer, it behooves you actually make it scary . . . you know, so that we can be afraid. Otherwise, it’s just embarrassing. Derek and I both litigate against Fieger regularly and he’s been perfecting his circus act for long time– so, you’ve really got to bring your A-game (I’ll let you decide what the A stands for) if you want us to buy into your theory that “bad things” are going to happen unless Gerry agrees to walk away. In point of fact, while this is clearly not our first rodeo, it is a “first” of sorts. Which is to say, it may be the first time we have collaborated on a case whether the risk of an actual downside is so low.

So after approximately a year and a half, a Defendant answer, limited depositions and discovery, it comes down to Troll/Plaintiff asking the court to dismiss the case against the Defendant “Without Prejudice,” so it can avoid having to pay Defendant’s attorney fees and cost.   Doc_30_12217(MI)   I would estimate the low-end attorney fees/cost Troll/Plaintiff is facing is $30,000 (probably much more).  Troll/Plaintiff of course pleads that they did nothing wrong, Defendant (or his family members) were the infringers, and they are only dismissing it because it is no longer cost-effective or practical to continue.  Not cost-effective to Troll/Plaintiff as they cannot prove anything, only make allegations.

In response, Wilczynski & Herweye filed the following response document showing why the Dismissal should be “With Prejudice” (allowing for fees/costs to be claimed IAW 17 U.S.C. § 505) and why Troll/Plaintiff’s claims are absurd.  The response is a no-holds-bar slam against the Troll and Plaintiff.  As I said, this is a must read.   Doc_31_12217(MI)

Indeed, Plaintiff’s business model and professed strategy appears to be that an innocent defendant should still have to pay if he or she can be smeared with “guilt by association” regarding the alleged but unproven acts of others for whom the defendant has no legal responsibility. Further, apparently Defendant was supposed to have (in Plaintiff’s view) acted as Plaintiff’s unpaid and involuntary investigator, with his entitlement to escape liability not being dependent on whether he was the infringer or not, but on whether he discovered who actually did the infringing and “ratted” that person out (so to speak) to Malibu. While that type of coercion might not be uncommon inside of a prison (e.g., “if you don’t stab that guy, then we’ll stab you”), it is hardly the type of behavior that should be endorsed or rewarded by a federal court.

What I found very interesting was in their filing, Troll/Plaintiff claims the most likely offender was the Defendants son.  This was based on of the fact the “Other” files being shared via BT (AKA: Exhibit C – “expanded surveillance”) had a “Dr. Who” and “Wii” file AND the Facebook page for Defendant’s son indicated he “Liked” these topics.  REALLY, a Facebook “Like???, that is your evidence…”   Troll/Plaintiff then “Forgot” to mention the “Other” files that were being shared that did NOT point to Defendant, his son, or daughter.

Secondly, even if this Court were to buy into the explanation that Plaintiff has offered other courts as to why it creates and attaches a record of its “expanded surveillance,” using it for that purpose exculpates your instant Defendant. Specifically, and as evinced in Defendant’s responses to discovery, your instant Defendant is a 54-year-old father and grandfather, Catholic of Polish descent who enjoys golf and using his computer to play Texas Hold’em. Nowhere on Plaintiff’s Complaint Exhibit C is any video or movie suggesting this profile (e.g, there are no golf videos or instruction videos for on-line poker). By contrast, the works listed on Complaint Exhibit C seem to describe an individual who speaks Arabic (and probably French) in addition to English, and is either Islamic or has an interest in Islam. They also describe an individual with substantial computer sophistication who would use materials as Linux – Teach yourself KDE in 24 hours and !! Programming – Write Great Code, Volume 2 Thinking Low Level Writing High Level. In point of fact, the person described by Plaintiff’s Complaint Exhibit C is NOT Defendant nor anyone in his family.

Please read the document and see what Malibu Media LLC is all about.  Malibu Media supporters may say, well that is just their attorney and not truly them.  Bullshit!  They signed up with Troll Keith Lipscomb & company and the cases are filed under Malibu Media LLC.  ALL the actions taken are in their name, and the money they receive is a direct result of their decision (regardless of how little they claim to get from it).  You can’t take the settlement money and then say you don’t agree with the methods used to generate it.  As the saying goes, “You lie down with dogs, you get up with fleas.”  Associating with those of low reputation may not only lower your own but also lead you astray by the faulty assumptions, premises, and data of the unscrupulous.  At least John Steele was honest enough about what he was doing and accepted the title of “Master Troll.”

I hope the court makes a swift decision and awards the attorney fees/cost IAW 17 U.S.C. § 505, but I will not hold my breath.  We will see.  Thank you Mr. Shekoski, Mr. Wilczynski, and Mr. Herweye.  Well done gentlemen.

DieTrollDie :)   “The Defendants have libeled Plaintiff under the disguise of such childish and unsophisticated pseudonyms as ‘die troll die’.  {Prenda Law, Inc.}

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Why Mass Joinder in BitTorrent Copyright Infringement Cases Is Wrong

VD_ThankYouOn this Veteran’s Day I decided to rehash of a previous article with the addition of the wonderful declaration Mr. Delvan Neville provided in a recent ILND Copyright Troll case (1:14-cv-01142).  NOTE: Following the submission of the Motion to Sever (Motion_Sever_Doc_17_01142(IN)) and Mr. Neville’s Declaration (Decl_Neville_Doc_17-1_01142(IN)), Troll/Plaintiff dismissed (Doe_10_Dismissed_01142(IN)) the Doe.  With it dismissed, the Troll doesn’t have to address the issue.  We can only now hope the judge decides to bring the issue up and force the Troll to respond.  However this is probably unlikely knowing the Federal courts.  Sad….

For the Troll/Plaintiffs, joining together of multiple Does/IP address is simple and cost-effective way to run their cases.  Joinder rules allow a Plaintiff to group defendants together when there is justification based on a common action in which they ALL took part.  The problem is the Copyright Trolls are abusing the joinder rules to save money.  They file their cases with threadbare claims of proper joinder and technical explanations that most courts are not going to truly understand.  A simple understanding and a little analysis of how BT works clearly indicates that for a majority of these cases, joinder cannot be justified.

Since BT Copyright Trolling started in 2010, we have made advances and educated various courts on the “game” the Trolls are playing.  Malibu Media LLC has since stopped filing multi-Doe cases in favor of single Doe cases, as well as being a bit more selective as to who they file against.  Today’s multi-Doe cases follow the general rule of only grouping Does together which shared the same hash file (movie) via BT AND the IP address resolved back to a location within the jurisdiction of the court where the cases were filed.  Recently I have also noted some cases have had  a shorter time-period between the first and last Doe allegedly sharing Plaintiff’s content via BT.  I believe this is a Troll attempt to preclude any motions claiming the sharing of ALL Does could not have occurred over the entire period in the complaint.  A court may have an easier time granting early discovery to a case with only a Two-week period of sharing, verses a two-month period.

In 2014, multi-Doe BT copyright infringement law suits were filed in the following jurisdictions:  ILND, CO, HI, MIWD, MIED,WAWD, INSD, INND, TXSD, WIED, WIWD, and OHSD.  The jurisdictions that are a particular Troll favorite are Colorado and the IL Northern District.  These jurisdictions do not generally question the Troll’s justification for joinder and basically rubber stamp the Early Discovery template filed with the court.

Recently in a IN case (1:14-cv-01142), attorney Gabriel Quearry filed a motion to sever his client (Doe #10).  His main justification for severance was a declaration from Delvan Neville.  I wrote about this Motion/Declaration briefly in a previous article.

Mr. Neville’s analysis and declaration was based on two periods of time (“soaks”) in which he monitored BT swarms consisting of IPP International (IPP)monitored swarms, Crystal Bay Corporation (CBC)monitored swarms, or legal content swarm.  The first soak was for 24 hours/1 day and consisted of 17 monitored swarms.  The second soak was for two weeks and consisted 7 monitored swarms.

Mr. Neville found that for the one day analysis, the BT swarm members were only a “leecher” for .996 hours on average (let’s say 1 hour/60 minutes).  Once a “seeder,” the BT swarm members only stayed attached to the swarm for 3.117 hours on average (let’s say 3.2 hours/192 minutes).  These numbers also came with a variance of 3 times the average.  So let’s say for this one-day analysis, the range of time a BT swarm member is a leecher is .1 hour (6 minutes) – 3 hours.  Then the range of time the BT client was a seeder is .1 hours (6 minutes) – 9.6 hours.  Note: I used the “.1 hour/6min”, as some people may stop their participation in a swarm at the earliest moment of leeching or seeding.

For the two-week analysis, Mr. Neville found BT swarm members were only a leecher for .603 hours on average (let’s say .7 hours/42 minutes) and a seeder for 2.042 hours on average (let’s say 2.1 hours/126 minutes).  These numbers also came with a variance of 6 times the average.  The range time of a leecher is .1 hour (6 minutes) – 4.2 hours/252 minutes).  The range time of a seeder is .1 hour (6 minutes) – 12.6 hours/756 minutes.

I would also like everyone to note that the BT swarm members were NOT limited to a geographical location or single jurisdiction (like these cases).  This means the swarm members were world-wide and not limited to one particular jurisdiction.  This is important to note, as the current mass-Doe BT copyright troll cases are all filtered (by the Trolls) to a single court jurisdiction.  Mr. Neville’s analysis was on UNFILTERED SWARMS of BT clients.

These results show that mass-joinder BitTorrent litigation is not based upon any real likelihood that the joined peers have engaged in any series of transactions with each other. Even if one were to assume that all 20 peers named in this suit were at the high end of the distribution of connectivity (3.247%), the likelihood that there is any series of peer-to-peer connections that could link all 20 peers together in the same series of transactions is 0.01%6.   

Footnote – This probability was calculated on the basis that any arrangement of communication that links each peer in this suit to at least one other peer would be sufficient. The probability is even more unlikely if there must be a contiguous series of links connecting all 20 peers through each other.

As the range of “Hit Dates” in this case range similarly to those from the second soak (weeks, not a single day), the connectivity is almost certainly closer to the 0.05% average seen in the second soak, and thus the likelihood that there is any series of transactions that could link these 20 peers together in some fashion is 0.00000000000000000000000000000000000001% or a 1 in 10 duodecillion chance.   

It is also worthy to note that Mr. Neville declaration was based on his analysis of Peer Exchange (PEX), an extension of the BT protocol, in which peers in a swarm will notify each other of the IPs of all other peers they are currently connected to within the same swarm, and subsequently update in later messages when any of those peers have disconnected.

Mr. Neville determined that for every communication he had with IPP/CBC IP address, PEX was NOT in use by the Trolls.  This shows there is NO way the Trolls could justify joinder even IF it was appropriate (IT ISN’T).

As every communication between an EUPSC2k node and IPP/CBC demonstrate that they do not support PEX messages, even if the 20 named peers in this case did engage in the same series of transactions together, Plaintiff will not be able to demonstrate that this occurred.

So what does this mean?  It means Troll/Plaintiff is very likely to dismiss a Doe/Attorney who submits this declaration in support of severance.  The Trolls do NOT what to take a chance that a court could agree and sever all the Does.  Until a court decides to address this issue seriously Troll/Plaintiff is going to continue to use IPP/CBC/APMC justification to obtain ISP subscriber information.

Now Troll/Plaintiff could dismiss and then refile against any Does who file such a motion/declaration.  The advantage of refiling is there is no long a joinder issue to contend with.  This was exactly what Malibu Media/X-Art did when they moved to single Doe cases.  Still, the Trolls are not going to want to risk going up against a defendant who doesn’t appear to be afraid of them finding anything on his computer OR open source searches disclosing a possible links to the “other” files they recorded as being shared via BT/Defendants IP address.  The second draw-back is if Troll/Plaintiff dismisses the Defendant a second time, it is considered adjudicated on its merits and the Defendant is the prevailing party – time for attorney fees and costs!

The Trolls are going to be forced to address this issue in the future, that or stop filing mass-Doe cases like Malibu Media LLC did.  The declaration will not stop BT copyright troll law suits, but it will put a dent in their business model and profitability.  As all of the mass Doe cases this year are non-porn, they do not have as strong a social stigma and embarrassment.  So where Malibu Media LLC may have Does more willing to avoid public disclosure of their porn habits/tastes, simply downloading Dallas Buyers Club may only subject a person to ridicule for bad taste (my opinion).

DieTrollDie :)   “Honor to the soldier and sailor everywhere, who bravely bears his country’s cause. Honor, also, to the citizen who cares for his brother in the field and serves, as he best can, the same cause.”  [Abraham Lincoln]

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Halloween Horrors (Copyright Troll Tricks) – Three Topic Post

Things have been a little busy for me, but I wanted to get a couple of things out to the masses.

TorTreat1

  1. Dallas Buyers Club (DBC) LLC Settlement Demand Letter (Troll Hierl)
  2. Khumba Film Pty. LTD, tries to justify mass joinder BT copyright infringement cases (Troll Hierl)
  3. New BT Copyright Troll Plaintiff – Millionaire Media LLC

Dallas Buyers Club (DBC) LLC Settlement Demand Letter

The settlement demand letter from Troll Michael Hierl/DBC is nothing special.    Settle_LTR_DBC_Oct2014   It is the standard letter with settlement amounts of $3,800 & $4,800.  Now of course Troll Hierl makes a point of telling the recipients that if they do not settle, he “may” add their names to a list of people to be served with a complaint summons (named & served).  Now I will admit that this does happen from time to time, but it is not really what the Troll/Plaintiff want to do.  Here is some court document from another ILND case (1:14-cv-02158) in which Judge Gary Feinerman doesn’t appear to be too happy with Troll Hierl.   Doc_40_StatHearing_02158(IL)

MINUTE entry before the Honorable Gary Feinerman:Status hearing held and continued to 12/10/2014 at 9:00 a.m.  Any Doe Defendant not named in an amended complaint by 11/14/2014 will be dismissed with prejudice for want of prosecution.  Plaintiff shall file a status report by 12/4/2014.Mailed notice.(jlj, )

The judge basically got tired of the same old excuses for not moving cases forward and told the Troll to name and serve people OR he will dismiss then WITH PREJUDICE (they cannot be sued again over this matter).  That was “Put Up Or Shut Up.”  The fact that this happened in an ILND court is telling.  Note: Troll Hierl did immediately start to name and serve these people.  It may work out to his advantage, but he eventually run up against someone who has a will to fight.  It is just a matter of time.  I’m sure Troll VanderMay/Elf-Man LLC and Prenda Law thought that serving people was a great idea at first.  Also, even if he does get some people to settle, he will dismiss the remaining Defendants or seek default judgements on others.  Their intent and supporting actions will become clearer to more people and hopefully the courts will take notice.

Khumba Film Pty. LTD, tries to justify mass joinder BT copyright infringement cases

I previously reported that Troll Khumba Film Pty. LTD., filed copyright infringement cases in IL and CO.  I took a look at the justification they used to support Early Discovery (obtaining ISP subscriber information) in case 1:14-cv-06609 (ILND) against 41 Does.   Supp_EarlyDisc_06609(IL)   Supp_EarlyDisc_EXs_06609(IL)   I of course was not at all shocked to see that Troll/Plaintiff was using the SD Shelf Company, Crystal Bay Corporation (CBC), and German technician, Daniel Macek (Anti-Piracy Management Company (APMC)) to justify early discovery.  What was different, was Troll Hierl looked like he was trying to prevent any sua sponte court action (on the courts own decision – no motion involved) to sever everyone and make this a single Doe case.  To aid him in this, he attached two exhibits (Report and Recommendation, 5 Apr 12 & Memorandum Opinion and Order, 20 Feb 14) supporting mass joinder).  Of course Troll Hierl failed to mention the fact that the DC court of appeals adopted the EFF’s Blackjack analogy and that mass joinder was wrong.  Not a big surprise he didn’t address that decision.  What will be interesting is if some Doe makes a motion to sever/dismiss/quash the subpoena based off of the very recent technical report of Mr. Delvan Neville, Amaragh Associates, LLC, detailing how improbable it is for Does in the same jurisdiction to actually shared the movie/file in question – One in 10 duodecillion chance OR 0.00000000000000000000000000000000000001%.   Motion_Sever_Doc_17_01142(IN)   Decl_Neville_Doc_17-1_01142(IN)

Hopefully we will see this issued raised in some of the ILND and CO cases in the future.

New BT Copyright Troll Plaintiff – Millionaire Media LLC

I know the APMC is constantly on the lookout for new clients and new jurisdictions to ply their sleazy business model (My opinion), but it is always a bit of a surprise when some new plaintiff decides to sign on with them.  On 29-31 Oct 14, Troll Mary (Don’t Call Me An @$$hole) Schulz filed 10 BitTorrent copyright infringement cases for Plaintiff, Millionaire Media LLC.  The cases were filed in the IL Northern District (Go Figure) and the defendants are single Does/public IP addresses accused of downloading/sharing Plaintiff’s works.  Cases are 1:14-cv-08641, 1:14-cv-08644, 1:14-cv-08648, 1:14-cv-08649, 1:14-cv-08652, 1:14-cv-08574, 1:14-cv-08575, 1:14-cv-08576, 1:14-cv-08577, 1:14-cv-08578, and 1:14-cv-08570.

Millionaire Media LLC is owned and operated by Timothy Sykes, who according to the complaint is a renowned stock trader.  The copyright protected media in question is a combination of seven videos/text files that Millionaire Media LLC sells to people wishing to become millionaires by selling penny stocks.  I only found one report (Unhappy customer) in which the person said he paid approx. $2,000 for the program.  NOTE: I do not endorse any of the views/opinions of people posting on the Ripoffreport site.

Now at first glance, this may not seem like a BT copyright Troll case.  BUT, two things raised my suspicions.  First, we have the well-known BT Copyright Troll attorney Mary Schulz, handling these cases.  Second, we have the complaint which has the feel (and smell) of a Troll template.  Most notable (and telling) are these sections from the complaint.

Plaintiff’s infringement detection company, Excipio GmbH (“Excipio”) established a direct TCP/IP connection with Defendant.

Excipio downloaded from Defendant one or more bits of a digital media file (the “Infringing File”). The Infringing File was given the name the Timothy Sykes Collection by the initial seeder.

Excipio downloaded from Defendant one of more bits of the Infringing File.

Excipio further downloaded a full copy of the Infringing File, unzipped it, and reviewed each of the seven works contained in it. Excipio also reviewed the original seven works as provided by Plaintiff and confirmed that each of the works from the Infringing File is identical, or substantially similar, to its corresponding original work.

At no time did Excipio upload Plaintiff’s copyrighted content to any other BitTorrent user.

Although there are multiple infringing transactions from Defendant’s IP address, the most recent infringing transaction recorded by Excipio (as of the date of this filing) is set forth on Exhibit A.

Excipio GmbH…..  Now where have we heard that name before???  Yes, it appears this is the same German firm used by APMC, under one of its many Troll names.  See the Declaration of Michael Patzer in this previous article.

Now if Troll Schulz can run these cases like Malibu Media, there is some potential high-dollar settlements due to the multiple files nature of the cases.  This of course assumes the people who would download/share Millionaire Media LLC files via BT have the money to pay.  I would be willing to bet they will find out that some of the people responsible are not rich.  They may have simply wished to be rich and bought into the salesmanship skills of Timothy Sykes.  I can’t wait to see if their motion for early discovery is the same old tired template form.  Maybe they will even use CBC and Daniel Macek.  No surprises here, just greed and stupidity – my opinion of course.  Jerks!

Hey Mr. Sykes! I don’t think you did enough research on BT Copyright Trolls, APMC, CBC, or Troll Schulz, when you decided to invest.

Happy Halloween To All!!!

DieTrollDie :)

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Copyright Troll Dallas Buyers Club LLC and the One in Ten Duodecillion Odds (Mass Joinder) – 1:14-cv-01142 (IN)

BHOF_Chips1Poker is a game of luck and skill. The best poker players understand the odds of their hand, as well as analyzing the other players to determine what their hand is.  In the realm of BitTorrent (BT) Copyright Infringement (Copyright Trolling), knowing the odds is equally as important.

In this case, Dallas Buyers Club LLC (DBC) has filed suit against 20 Does (public IP addresses) accused of downloading/sharing the movie, Dallas Buyers Club, via BT.  Case # 1:14-cv-01142, Southern District of IN, filed on 8 Jul 14.   Archive Docket   Complaint_01142(IN)   IP_address_Doc_8_01142(IN)

The case is your standard template-based copy/paste effort from the Trolls.  For this case, Troll Keith Vogt is the attorney for DBC.  It even still uses the SD shelf-company, Crystal Bay Corporation (CBC) and Daniel Macek, to justify the early discovery of ISP subscriber information.   EarlyDisc_Support_Doc_11_01142(IN)   Granted_EarlyDisc_Doc_12_01142(IN)

Now after the Does in this case were notified by their ISPs, Doe #10 decided to retain an attorney – Gabriel Quearry, Quearry Law, LLCIt is then that things start to get “interesting.”

On 9 Oct 14, Doe #10 discloses his identity to the court.  Why?  Because attorney Quearry also filed a Motion to Vacate the Early Discovery for the ISP subscriber information for Doe #10.   ID_Disclosed_Doc_14_01142(IN)   MotionVacate_ED_Doc_15_01142(IN)

Plaintiff now knows Defendant’s true and actual name and that he is a real person; and, Counsel for Defendant is authorized and agrees to accept service of the summons and complaint on Defendant’s behalf. Defendant voluntarily satisfied the purposes of the Order as to himself, and aided Plaintiff in advancing its asserted claims and moving this case forward. As such, Plaintiff’s third party subpoena to Comcast is unnecessary and requests discovery prior to the time permitted by Rule 26 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 26(d).

Why do this?

For all of the foregoing reasons, this Court should vacate the Order and Plaintiff’s subpoena as to Defendant, and allow both parties to conduct discovery on equal footing according to the timing and sequence prescribed by the Federal Rules of Civil Procedure. Fed. R. Civ. P. 26(d).

So it appears that Attorney Quearry wants to start out on an “equal footing” as far as discovery.  You may have observed in all of the BT Copyright Troll cases we have seen (to date – to include Malibu Media), the Troll/Plaintiffs do NOT like to disclose their internal information concerning who is running these operations, the various parties that receive payments from the settlements, the BT monitoring firms, the Anti-Piracy Management Company (APMC), etc.  So in effect, Doe #10, has told the Troll, “let’s dance!”  DBC doesn’t like to dance.

On 21 Oct 14, Attorney Quearry further throws a monkey wrench into this case by filing a motion to sever Doe #10.   Motion_Sever_Doc_17_01142(IN)   Decl_Neville_Doc_17-1_01142(IN)    Take a read of the motion and the accompanying declaration by Delvan Neville, Amaragh Associates, LLC.   According to research conducted by Mr. Neville, the chance that these 20 Does/IP addresses were actually sharing pieces of Plaintiff’s movie is incredibly slight.

As the range of “Hit Dates” in this case range similarly to those from the second soak (weeks, not a single day), the connectivity is almost certainly closer to the 0.05% average seen in the second soak, and thus the likelihood that there is any series of transactions that could link these 20 peers together in some fashion is 0.00000000000000000000000000000000000001% or a 1 in 10 duodecillion chance.

For all of the math-challenged people (like me), a duodecillion is 10 to the 39th powerThat is a lot of zeros.  Note: The odds of winning the Power Ball lottery is 1 in 175 Million (1 in 175,000,000).  Let’s put these numbers in prospective.  You have a better chance of winning the Power Ball Lottery three times (1 in 5,359,375,000,000,000,000,000,000 – That is 5.359375 Septillion!!! – 10 to the 24th power) than the chance any of these Does shared data between themselves via BT.

GooseCooked1This is the time when a poker player with the odds calls “All In.”  So what will Troll Plaintiff do?  IF they were a good poker player, they would simply fold the hand – dismiss Doe #10 and render the motion to sever “moot.”  As there is so much more at stake, I’m wondering what stupid stunt/move they will try.   Now the judge could allow a dismissal, but it sends a clear message to the other Doe Defenders and Pro Se Does on what angle to use.  The judge may also see such a move by the Troll as clearly avoiding the issue of joinder.  This could lead to the judge issuing a show cause order (on his own) for Troll/Plaintiff justify joinder of the Does.  Disputing Mr. Neville’s declaration is another possibility, but an unlikely one in my opinion.  What is Troll/Plaintiff going to do, present some garbage declaration from Mr. Macek or a copy of Patrick Paige’s declaration from the PA Bell Whether trial???  It is time to stick a fork in it, because the Mass-Doe BT Copyright Troll cases are “done.”  That is unless they can somehow refute the core of Mr. Neville’s findings.  Good luck on that!

Previously I stated that the chance of Does in the same jurisdiction actually sharing data via BT was extremely slight.  Thanks to Mr. Neville, we now have the details on just how slight.

DieTrollDie :)   “Sometimes the only thing more dangerous than a question is an answer.”  [Ferengi Rule of Acquisition #208]

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Copyright Troll Dallas Buyers Club LLC Goes To Japan – Part 2

This is the second part to the Dallas Buyers Club (DBC) LLC in Japan article.  Here are the documents/translations I have received from a couple of people (Thank you).  DBC_Japan_POA   Japan_ISP_Page1   Japan_ISP_Page2_3

 次のドキュメントは、この資料の日本語訳です。  DTD_Part2_Japan

Troll_EDO_Japan1First, for my new readers (in Japan and elsewhere), I want to make it clear that I do not condone copyright infringement and suggest that if it is happening on your home/network, the activity should stop (and not start back up).  Saying that, I certainly do NOT condone the actions of the Copyright Troll (DBC & others), which I see as a disgusting business model to legally extort money from people under the threat of a law suit (my opinion).

If you are one of the affected ISP subscribers – I suggest you take steps to stop the infringing activity by you, family members, roommates, or unknown personnel.  I would document any unusual network activity you observed, as well as unknown/unauthorized computers that have used your network (if possible) during the period of alleged infringement.  If you were running your WiFi Internet connection “Open,” I suggest you secure it with a password and don’t freely give it out.

The translated documents are an ISP Disclosure Request Form and an Inquiry Demand Form from DBC.  The Inquiry Demand Form tells the ISPs that the copyright of DBC was violated and the attorney representing DBC in Japan (Hiroki Kawagishi), is requesting the identities of the ISP subscribers who were assigned the public IP address they recorded as infringing on a certain date/time.  The stated reason for the request is to stop the infringement and to seek a settlement.  The Disclosure Request Form informs the ISP subscriber that in accordance with Japanese law (Compensation-Law), a copyright holder is requesting your personal information based on an allegation of online copyright infringement.  The ISP is asking the ISP subscriber for permission to release the following information (what Troll DBC is asking for).

  • ISP subscriber name (who pays the ISP bill)
  • ISP subscriber address
  • ISP subscriber email addresses
  • IP address used by the ISP subscriber (They already have this…)
  • Cellular phone internet connection user discernment code that is linked to the violated data (not sure about this)
  • SIM Card discernment number and information that has been transmitted through the cell phone internet services (Unknown…)
  • Year, Month and Day /Time List of the violated information transmission (I assume they already have this…)

The ISP does note that even if an ISP subscriber does not consent to the release, the ISP may disclose this information in accordance with the law.  They also ask the ISP subscriber to state a reason for non-consent.  I would certainly make the non-lawyer suggestion that any ISP subscribers receiving this request NOT consent.  Even if Troll/DBC is going to get the information, I would not make it easy for them.  Here are some possible reasons for non-consenting ISP subscribers (“IF”applicable to you):

  • I didn’t download/share the movie in question.
  • I have not used any file sharing programs, such as BitTorrent to download/share the movie in question.
  • At the time of the alleged infringement, I ran my WiFi Internet connection “Open,” and other people have used it.  I do not know who downloaded/shared the movie in question.  I have since secured my WiFi Internet connection and have ensured no infringing activity is occurring.
  • I object to the release of my personal information based on the fact that the foreign entity, Dallas Buyers Club LLC, is what is known as a “BitTorrent Copyright Troll.”  DBC is currently engaged in a large-scale abusive litigation campaign in the USA, where it has filed over 100 copyright infringement law suits (over 3000 people are affected) in which they threaten legal actions against ISP subscribers who do not pay a settlement demand of thousands of dollars.  DBC has recently expanded its operation into Japan and makes only threadbare claims of infringement to obtain ISP subscriber/sender information to attempt to force settlements.
  • In accordance with Article 4, Clause 3, of the Law Concerning the Limits of Liability for Damages of Specified Telecommunications Service Providers and the Right to Request Disclosure of Identification Information of the Senders, Dallas Buyers Club LLC, is prohibited from using “Sender” information (ISP subscriber) to “defame” or “disturbing tranquility of life.” Based on the well-established history of DBC law suits in the US, this is exactly what DBC will do in Japan.  DBC will use the sender’s information to forward a settlement demand letter for thousands of Yen based only on the fact that the ISP subscriber pays the bill.  DBC has conducted no additional investigative steps to try to determine if the ISP subscriber was the actual infringer.  DBC has demonstrated this in the US and will threaten further legal action unless the ISP subscriber pays a settlement.  As the legal costs of defending against such an allegation are more than simply settling, some innocent people will settle.  According to one US lawyer representing copyright holders (Mike Meier), “roughly 30% of names turned over by ISPs are not those who actually shared or downloaded the videos.”  This fact has not stopped DBC from sending settlement demand letters to ALL US ISP subscribers they can identify – claiming that they are the infringer and need to pay a settlement of thousands of dollars.

Now there is no guarantee that the ISP subscriber information will not be released, but I feel this is better than doing nothing at all.  As the Japanese ISPs do not know the Trolls, they may find it is easier for them to simply give up the information and not fight.  This may change if over time the number of Troll requests for ISP subscriber information increases.  Time is money and the ISPs may start to feel the effect in terms of increased costs and loss of employee man-hours in handling these requests.  If Japan works out to be a Troll-friendly location, I would expect an increase in activity after the Trolls/Anti-Piracy Management Company (APMC) find new clients (Copyright owners of movies, TV shows, etc.) in which Japanese IP addresses are downloading/sharing.  As this is a business model designed to make money cheaply and easily under the guise of copyright protection, it does have the potential to explode in Japan.

Now I have not seen anything that shows any copyright infringement law suits have been filed by DBC in Japan.  The current activity appears to be the initial Troll actions to obtain ISP subscriber information as easily as possible.  I suspect that some sort of settlement demand letter to the ISP subscribers will be the next step.  One thing I did note in the previous section about Japanese copyright law is that in accordance with Article 4 Clause 3 of the Law Concerning the Limits of Liability for Damages of Specified Telecommunications Service Providers and the Right to Request Disclosure of Identification Information of the Senders, the Troll is prohibited from using the ISP subscriber information to “defame” or disturb the “tranquility” of the ISP subscriber.  This could get the Troll in trouble.

(3) Any person who received disclosed identification information of the sender in accordance with the provisions of paragraph (1) shall not, by indiscriminately using said identification information, unduly commit any act defaming said sender or disturbing tranquility of life.

So now we wait and see what the involved parties do.  For those of you involved, please send me copies of the settlement demand letters when they start to arrive.  I will make sure they are redacted and no personal information is disclosed.  I’m not sure if DBC will take anyone to trial, but I really doubt it based on their previous history in the US.

DieTrollDie :)    “Guard your honor.  Let your reputation fall where it will.  And outlive the bastards.”   [Lois McMaster Bujold, A Civil Campaign]

CTBC_parody1

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Ichi, Ni, San – Copyright Troll Dallas Buyers Club LLC Goes To Japan

VolPic1

以下の文書はDieTrollDieの記事の翻訳です。翻訳のために事前に謝罪 こんにちは DBC Japan – DieTrollDie

“Konnichiwa”   The business model of BitTorrent (BT) Copyright Trolling is one that requires the controlling actors to adjust and expand to keep the settlement generators producing.  Probably the most active non-porn BT Copyright Troll is Voltage Pictures (AKA: Nicolas Chartier).  The Voltage pictures movie that is currently being exploited is Dallas Buyers Club (DBC).  Currently in the US, I estimate that there have been OVER 140 DBC copyright infringement cases filed in multiple jurisdictions.  The number of Does in these cases is in excess of 3300.  The largest number of DBC cases have been filed in the States of IL and CO.  As the settlements from these cases generally stay in the $3,000+ range, the amount of money to be made is HUGE.  If the Troll/Plaintiff’s can get 50% of the 3300 people to pay a settlement of $3,000, the profit is $4,950,000!

Now BT Copyright Trolling is not exclusive to the US, but as our copyright laws allows for claims of statutory damages (up to $150K plus fees/costs) against non-commercial individuals, the environment is well suited for the Trolls.

Now it appears that DBC/Anti-Piracy Management Company (APMC) is trying to expand it business model to locations outside of the US.  I was able to obtain a couple of documents that show Troll DBC is attempting to obtain ISP subscriber information for IP addresses in Japan.   DBC_Japan_POA   The document is a Power of Attorney, US Copyright Office Certificate of Registration for the movie, and a Certificate of Corporate Nationality and Representative.   ***  The second document is in Japanese and I’m working on getting it translated.  I will post it once this is accomplished.  Here is Page 1 of it – Japan_ISP_Page1

From this 25 Jun 14, document you can see that DBC’s representative Nicolas Chartier, has authorized Japanese Attorney Hiroki Kawagishi, Kawagishi Hiroki Law and Patent Firm, to be his legal representative in Japan.  DBC’s power of attorney is in support of their effort for a “Request for Disclosure of Information of Senders.

Godzilla_Troll2As I have no knowledge and experience with Japanese copyright law, I looked for some English reference material.  Luckily I did find the Japanese Law Translation Web site.  From there I was able to find the Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders, as well as their Copyright Act.

Here are a few articles on Japanese copyright law, as well as a June 2012 change to it that would allow illegal Japanese downloaders to be fined up to Two Million Yen (approx. $25K) or face up to two years in prison.

So until I get a translation of the second document, I will not be sure if Troll Kawagishi/DBC has filed a Japanese copyright infringement law suit or is simply trying to obtain ISP subscriber information on alleged infringers of their movie.  Either way, I fully expect some sort of settlement demand letter to eventually go out to an unknown number of Japanese ISP subscribers.

While looking at Japanese copyright law, I did not find any statutory damages provisions.  I probably missed it.  :(   What I did find is that the Troll/Plaintiff is required to show what the damages are.  Actual damages are not something the Trolls are particularly found of, as they have NO evidence to show how many people ACTUALLY shared the movie, with whom it was shared, as well how much was shared (in terms of data/copies of the movie, etc.).  So I would expect them to try to use Article 114-5, to claim at least thousands of Yen/Dollars of damages per ISP subscriber.

Article 114-5 Where, in a lawsuit pertaining to an infringement on a copyright, right of publication or neighboring right, it is found that damages have been incurred, but it is extremely difficult to prove the facts necessary to establish the amount of damages due to the nature of such facts, the court may determine an appropriate amount of damages on the basis of the entire import of oral proceedings and the results of the court‘s examination of the evidence.

More to come on this I’m sure.  I would also expect DBC/APMC to be exploring this in other counties.  If you are a Japanese ISP subscriber who has received any of these DBC or ISP paperwork, please feel free to contact me at dietrolldie@dietrolldie.com.  Also feel free to pass on any Japanese BT copyright trolling cases or stories of interest.  Thank you.

“Sayonara

DieTrollDie  :)  “I will not hurt or harm you. Just give me back the board, Lance.  It was a good board… and I like it.  You know how hard it is to find a board you like…”   [Lt Col Kilgore, Apocalypse Now]

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Malibu Media (X-Art) And The Ouija Board Forensic Analysis – Butler case – 1:13-cv-02707 (CO)

First I want to draw attention to the recent Fight Copyright Troll article concerning Malibu Media/X-Art’s Prenda-like behavior – Malibu Media blackmail: deep in the Prenda territory.   Archive Docket   The article shows how reluctant the Troll/APMC/Plaintiff is to release a Defendant for fear that others Defendants will be emboldened to fight back.  Troll/Plaintiff claims the Defendant in this case destroyed his computer shortly after being notified of the law suit.  This claim is based on the fact that their ‘Expert,’ Patrick Paige failed to find any of the following direct evidence on the computer.

  • Evidence of Plaintiff’s movies
  • Evidence of ANY BitTorrent program
  • Any Internet Web searches for Torrents (Malibu Media/X-Art or ANYTHING else)
  • Evidence of data destruction (deletion/wiping) of the hard drive

The forensic report by Patrick Paige is SAD in format and especially content.

The best Troll/Plaintiff could do is state the follow. “I do not know if this is the only computer Mr. Shekoski used at his residence.”  NOTE: When this is the first thing a forensic report mentions, you can bet they failed to find any direct evidence.  Mr. Paige states he did find an old Peer-To-Peer (P2P) file sharing program (Limewire) and over 200 references to music files (Non-Malibu Media/X-Art) that were search for and allegedly downloaded.  Mr. Paige’s main report omits the dates of these Limewire files: 2009 – 2010 (Four+ Years Ago! – see the attachment to the forensic report).  It is also worth noting that Mr. Paige’s report states nothing about any findings of data destruction.  Still with all this, Troll/Plaintiff has the gall to threaten the Defendant with further expanding the case (to include two other family members) unless Defendant agrees to walk-away AND waive his ability to seek attorney fees and costs.  Would you consider this Blackmail??? – My opinion YES.

Nonetheless, rather than agreeing to dismiss its case as required by the July 21, 2014 Order, Plaintiff’s counsel attempted to use the “evidence” of Amber Shekoski’s file sharing to bully Defendant into a coerced settlement whereby Defendant would agree to pay a $15,000 judgment if his IP address were ever again to be used for copyright infringement, and that Defendant would give up his right to recoup his costs and attorneys’ fees under the provisions of the Copyright Act. (My Emphasis) {ECF#22, Page 3, Section 6.}

Butler Case – Colorado

This brings me to another similar Malibu Media case of interest – Malibu Media LLC v. Butler, case #1:13-cv-02707 (CO).  Here is my previous article on it.  This is the case where Troll/Plaintiff was unable to conduct a forensic analysis because the computer in question was not under the control of the Defendant.

Specifically, while acknowledging that he was in possession of a Microsoft Dell Mini during the preceding two years, Defendant states that he is no longer in possession of any computer aside from his cell phone. Therefore, Plaintiff needs additional time to conduct further discovery as to the location and condition of the hard drives. {ECF# 38, page 1}

On 12 Aug 14, Troll/Plaintiff requested a 90 day extension to serve its “Expert” witness report.  The judge only gave Troll/Plaintiff 30 days (10 Sep 14) to serve expert witness reports – The judge also made it VERY clear that Plaintiff failed to show good cause for the extension request.  The Troll said it needed 90 days to review what Defendant told them concerning the disposition of the computer he previously had.  The judge clearly did not think 90 days was needed to check out Defendants story – Examples: “The computer was stolen” – police/insurance reports; “I donated the computer to Goodwill” – donation receipt & check with all the Goodwill location for it; “The computer broke and was thrown in the garbage” – check with his garbage company; “I gave the computer to friend” – check with the friend.  As we have not heard any allegations of spoliation/data destruction from Troll/Plaintiff, that likely means they are trying to determine how to get out of this mess.

I don’t know what Mr. Butler’s response to the initial discovery questions concerning his computer was, but I think an answer of “I don’t have a computer anymore,” Or “It was disposed of this date,” would have immediately generated Troll follow-up questions to locate and attempt to recover it.  Waiting months to make a request for more time is sloppy and telling.

New Case Filings Since The Last Article

PLAINTIFF’S SECOND UNOPPOSED MOTION FOR EXTENSION OF TIME WITHIN WHICH TO SERVE EXPERT WITNESS REPORTS (10 Sep 14)Please Note: This motion was filed on the last day Troll/Plaintiff had to file its Expert Witness Report – Go Figure!  The Troll made a second request for more time (60 days – 10 Nov 14) because it is still looking for the missing hard drive.   Doc_43_02707(CO)

MINUTE ORDER (11 Sep 14) – The judge granted the requested 60 day extension (10 Nov 14) to serve its Expert Witness Report.  Discovery will be completed by 16 Jan 15.   The Colorado courts are notorious for allowing Trolls to string along cases for stupid reasons (my opinion).    Doc_45_02707(CO)

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE (16 Sep 14) –  Doc_46_Order_02707(CO)   The judge affirmed the striking of the following affirmative defenses:  Failure to State a Claim, Assumption of the Risk, and Intervening Cause.  The following affirmative defenses were not stricken and could pose Troll/Plaintiff some discomfort: Estoppel and Copyright Misuse.  Even with the three affirmative defenses stricken, Troll/Plaintiff is going to have a hard time with no hard drive to examine.  Funny – I think Troll Lipscomb even told the PA Bellwether court that he never thought these cases would reach a trial because defendants would simply hide or destroy the computers/evidence (Closing Statement).  Audio Recordings from the PA Bellwether Trial

Part 1

Part 2

Patrick Paige Testimony

Lipscomb Closing Statement

Ouija_PaigeSo Troll/Plaintiff now has until 16 Jan 15, to complete Discovery.  Maybe Patrick Paige can conduct his analysis on the missing hard drive via a Ouija Board – That report would be as entertaining as the other reports we have seen from him.

SunSentinel_Paige_PillsNow let’s make this clear – I do have faith in the computer forensic software used.  Where my faith is lacking is in Mr. Paige’s ability to provide a “non-biased,” non-hired gun,” analysis, and report.  Any professional computer forensic examiner would simply conduct the analysis and provide a non-biased report on the findings.  The lawyers are the ones who determine how to use the findings.  To do otherwise hurts his credibility and calls into question all that he states.  Not that Mr. Paige’s credibility wasn’t already in question based on a 9 Mar 11, Sun Sentinel article.  It appears Mr. Paige left the Palm Beach Country Sheriff’s Office approx. 8 months after this article posted.  I assume he decided on early retirement from the Sheriff’s Office.  Very embarrassing for the Sheriff’s OfficeNote: Mr. Paige, please contact me if you think any of this is unfair or inaccurate.  :)

Hydrocodone_853_watsonUnless Troll/Plaintiff can reasonably claim the computer was destroyed or has been withheld by Defendant, their claims hinge only on what “Other” (non-Malibu Media/X-Art) files were recorded as being shared via BitTorrent by Defendant’s IP address.  That is ONLY if they can tie them back to the Defendant and/or the missing computer in question.  Not an easy task when Troll/Plaintiff does not want to spend the money on an investigation.  I expect there will be some sort of attempt to get Mr. Butler to accept a walk-away deal – freeing up Troll/Plaintiff from having to pay the Defendant’s attorney fees/costs.  Good luck on that one Trolls!

DieTrollDie :)   We took morphine, diamorphine, cyclizine, codeine, temazepam, nitrazepam, phenobarbitone, sodium amytal, dextropropoxyphene, methadone, nalbuphine, pethidine, pentazocine, buprenorphine, dextromoramide, chlormethiazole. The streets are awash with drugs you can have for unhappiness and pain, and we took them all. Fuck it, we would have injected vitamin C if only they’d made it illegal.  {Mark Renton, “Trainspotting”}

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Copyright Troll Michael Hierl (Dallas Buyers Club LLC) Dismisses ANOTHER Doe To Avoid Questions – 1:14-cv-02162 (IL)

The running of this one-man-band of a site can be hectic and I often find it hard to keep with the various cases.  While looking at some of the ongoing cases, I decided to revisit 1:14-cv-02162, Dallas Buyers Club (DBC) LLC v. Does 1-36, Northern District of IL.  The Troll in this case is no other than attorney Michael Hierl.   Previous post on this case.   Archive Docket

This is the case where Doe #17 filed a motion (Pro Se) and the Judge Gary Feinerman actually appeared to be open to exploring the request to sever all the Does.   MTQ_Doe17_02162(IL)   Troll Hierl responded to the motion and told the court that Electronic Frontier Foundation’s (EFF) “Blackjack” analogy that the DC Court of Appeals adopted in AF Holdings case (1:12-cv-00048 / 12-7135) was wrong.   Troll Response_02162(IL)   Troll Response_EXs_02162(IL)   The court gave the Doe until 29 Aug 14, to file a reply to the Troll response. On 24 Aug 14, Doe #17 made his reply.   Doc_31_Doe17_Response_02162(IL)

Doe17_Conclusion_02162(IL)

On 18 Sep 14, Troll Hierl filed a motion to dismiss Doe #17, which may mean that some sort of agreement was reached between the parties.   Doc_33_VolDismiss_02162(IL)   Doc_34_OrderDismiss_02162(IL)   The dismissal took place seven days after the 11 Sep 14, Status Hearing.   Doc_32_MinuteEntry_02162(IL)   It is worthy to note that the language in the dismissal states both parties will cover their own legal bills.  This is something we usually see when a settlement is reached.  Not that Doe #17 had any legal bill that could be claimed – Pro Se.  The “Without” prejudice dismissal tends to indicate the dismissal was done by Troll/Plaintiff to avoid having to address the motion and risk severing the Does.  This of course goes hand-in-hand with the recent dismissal of two Does from another Troll Hierl/Dallas Buyers Club (DBC) case in the ILND.  These two were also dismissed by the Troll to avoid having to defend joinder of the Does (1:14-cv-04940).  The main difference in the 04940 case is the Troll refiled single Defendant cases against both of the Does.

TrollBible_APMC2The dismissal of Doe #17 is indicative of a Troll/Plaintiff who doesn’t want to risk having to answer any uncomfortable questions concerning their operation and the people/organization behind it.  No Surprise!  As the saying goes, “Anything you say will be used against you.

Refile?

Now Troll Hierl could refile a single Defendant case against Doe #17, but that is pretty pointless in my opinion.  The only possible benefit would be to send a message to any Does filing motions that it is only going to cause you more stress and heart ache, as the Troll is not going away.  Doe #17 has shown he is willing to fight and has good head on his shoulder.  Troll/Plaintiff also does like the fact that Judge Feinerman is interested in the DC court of Appeals ruling against AF Holdings/Prenda Law – Mass Joinder IS NOT appropriate.  This Plaintiff claims it is not a “Copyright Troll,” but it clearly fails the duck test.

Now a single Defendant case would likely get the ISP subscriber information of Doe #17.  Even if this happens they would still need to tie the infringing activity back to the Defendant – beyond the fact he pays the ISP bill.  The Troll would need to conduct background checks to first determine who resides in the residence, possible family members, and of course if they have the financial means to pay.  Then they would have to conduct social media checks for any possible linkage of the “Other” BitTorrent files they recorded as being shared via Doe #17’s public IP address.  Unless they find something very telling, naming/serving Doe #17 is risky – a person may then hire an attorney and fight back.  It is much simpler (and profitable) for Troll Hierl to let such a case languish on the docket while working toward forcing settlements from the remaining Does in the mass case.  If a second cases against Doe #17 dies on the docket for lack of action (or 2nd dismissal), it will be deemed adjudicated on its merits (Doe #17 is the prevailing party) and this Doe/IP address cannot be sued again for this specific allegation.

No Facts Support Joinder

The mass Doe BT copyright infringement cases common to IL and CO, are an abuse of process to both the courts and Does (my opinion).  It would be nice if the courts in these jurisdictions took note of the historic actions of the Troll/Plaintiffs and started to ask harder questions about what they are doing, who is driving these operations, and exactly how these Does are properly joined.  If the actions of the Troll/Plaintiffs are completely above-board, then their evidence shows this, I will stand corrected.  As it stands now, there is NOTHING to show that any of the Does are properly joined (In Any Of The Cases) – this is the best the Trolls can claim:

The individual public IP address associated with each Defendant (who pays the ISP bills) was recorded as sending a small amount of data to the Troll BitTorrent monitoring firm.  This data was tied back to a hash file which correlates to Plaintiff’s movie.  There is NO information/evidence that shows any of the Does/IP addresses shared any part of Plaintiff’s movie amongst themselves.  The Does in these cases are simply lumped together (wrongfully joined) based on their location within the appropriate jurisdiction.  The joinder of Does is only done to reduce filing fees/costs to this business model.  The hash file only shows that it is the same movie/file, NOT who shared it with whom.  The BitTorrent protocol is not designed to share this type of information and thus the Trolls are unable to obtain it.

DieTrollDie  :)    “We have an old saying in Delta House: don’t get mad, get even.”  {D-Day, Animal House}

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17 Oct Update – Troll Michael Hierl (Dallas Buyers Club LLC) Refiles Cases On Two Does Who Filed Motions – 1:14-cv-04940 (IL)

17 Oct 14 Update

It has been over a month since Troll Michael Hierl dismissed Does # 15 & 22, and then immediately filed single-Doe cases against them (details below).  I surmised that this was done to remove the possibility that the court would sever all Does except for #1.  The Troll dismissal mooted the motions and allowed the Troll to continue threatening to name people in the case unless they pay a settlement.

As of today (17 Oct 14), there has been no real movement in any of the cases (1:14-cv-04940, 1:14-cv-071281:14-cv-07129).  For the main case, I expect troll Hierl is still trying to get people to pay-up.  For the two single-Doe cases, I believe the Troll will keep them open until the court closes them for lack of action.  Troll Hierl could have easily resubmitted his template-based Early Discovery request for Does #15 & 22 (and possibly gotten it).  BUT as these Troll/Plaintiffs/APMC do not want to waste time and money fighting, it is cheaper to just pay $400 per case and essentially keep a trouble-making Doe/Attorneys out of their business for the time being.  They might even get lucky enough that a court will not award attorney fees/costs to the Defendant after the second dismissal.

The second dismissal for Doe #15 (1:14-cv-07128) could actually come about next month.  On 25 Sep 14, the Judge Gary Feinerman, set a status hearing at 0900 on 10 Nov 14.   Stat_Hearing_07128(IL)

More to come.  AND Go Giants!

DTD :)

 

————————————————-

This article concerns the rampant Dallas Buyers Club (DBC) cases, most notably in the IL Northern District.  Since these cases started in February 2014, I count over 3100 Does in over 125 cases in various jurisdictions.  One case of interest is 1:14-cv-04940, Dallas Buyers Club LLC v. Does 1-44, Northern District of IL, Troll Michael A. Hierl, Hughes Soco Piers Resnick & Dym, Ltd.

It appears to be the standard DBC Copyright Troll Case against 44 ISP subscribers/public IP addresses.  Early discovery of ISP subscriber information was granted and the Does have started to get notices from the ISPs.  What I wanted to draw attention to is that two Does (Does #15 & #22) hired attorneys and motions were filed (4 Sep 14) seeking to quash the subpoena, as well as vacate the early discovery, and proceed anonymously.   MTSVQ_Doe22_09490(IL)   MTQ_Doe15_09490(IL)   Both motions are good, but I really like the one from attorney Ross Drath, Davis McGrath, LLC.

Subsections of interest in Doe #22’s Motion

  • This Court Should Vacate its Order as to Defendant and Quash Plaintiff’s Subpoena as to Defendant, Because Plaintiff has not Shown Good Cause to Take Early Discovery and Issue Such a Subpoena under the Sony Music and Semitool Standards.
  • Plaintiff’s Subpoena is not likely to advance the case because Defendant’s counsel is already willing to accept service of process on Defendant’s behalf, and because the subpoena targets subscribers rather than infringers.
  • Plaintiff has not set out a prima facie case of copyright infringement, because it has only alleged that Defendant downloaded imperceptible data, which is not “original” and therefore not copyrightable material.
  • In Addition, the Court Should Grant Movant Leave to Proceed Anonymously Through Discovery and Dispositive Motions.

Take a read and you will see attorney Drath wrote a very good motion.  The main points in the motion were backed up by sound logic and case-law.  Responding to this motion would not have been very much fun for Troll Hierl.

So on 12 Sep 14, Troll Hierl decided to simply dismiss (without prejudice) Does #15 & #22 from the case.   Doe15_Dismiss_09490(IL)   Doe22_Dismiss_09490(IL)   Order_Motion_Moot_04940(IL)   The dismissal removes the possibility of severance for the remaining Does, as well as mooting the claim that Plaintiff has not plead even a prima facie case of copyright infringement.  Then in true Troll fashion he immediately filed single Defendant cases against both of the Does (links to archive docket below).   The move to dismiss and file single Defendant cases was likely done to send a message to any Does who are considering filing a motion or fighting back.

This tactic can work well for a Troll/Plaintiff – that is until someone decides to fight back.  Elf-Man LLC found this out the hard way when Mr. Lamberson and attorney Lynch put the hurt on them.   Troll/Plaintiff has essentially said, “Put up or shut up.”  I must say this is the reputation I have heard of concerning Troll Hierl.

CTBC_parody1As it stands, the early discovery against Does #15 & #22 is no longer in effect, as they have been dismissed from the mass case.  Troll Hierl may resubmit the early discovery request for these Does in the future.  As he still has multiple Does remaining in the main case, I expect him to focus most of his efforts on settlement collection.  I would not put it past Troll Hierl to string out the cases against Does #15 & #22 for as long as possible.  Quite possibly not even making an early discovery motion until the very last moment; or not at all.  By removing these two “trouble-makers,” he can focus his efforts on getting as many settlements as possible.  This is exactly what the controlling interest (Anti-Piracy Management Company (APMC)) wants.  The two Does might even get voluntarily dismissed by Troll/Plaintiff or the court for lack of action.

So Why Would There Be No Action Taken Against These Does?

By taking no action, Troll Hierl does not have to respond to any motions or risk an adverse ruling by the court.  This of course saves him time and money.  The remaining Does see that filing a motion will not resolve the issue and even may cost them more money than simply settling, regardless of culpability.   We all know that Troll/Plaintiff/APMC (What is APMC? Presentation) does not want to disclose the inner working of their operation, as it would likely first kill the mass-Doe cases and eventually the single Doe cases would be harder to work.  Even Troll Lipscomb/Malibu Media/X-Art understand what such a disclosure would do to their operations.

Now I could be wrong that Troll Hierl will not immediately seek early discovery against Does #15 & #22 (I haven’t seen it as of publishing this article).  Maybe Troll Hierl and APMC actually believe they will obtain the identity of the Does and then force a settlement or “walk-away” deal (cost of doing business decision).  I’m sure that is what Troll Maureen VanderMay thought when they named/served Mr. Lamberson in WA.  It didn’t work out as planned.  Troll/Plaintiff will try to avoid any/all case activity that will raise their costs and risk their operation.

What Would A Denied Early Discovery Mean To Doe #22?

Troll/Plaintiff will not have the advanced knowledge of who the ISP subscriber is and thus will be unable to conduct any background checks on him/her, their residence, other people in the residence, etc.  They may eventually get this information, but it will likely require Troll/Plaintiff to first serve the Defendant and move forward with Discovery.  Serving the Defendant based only on the IP address is risky (and rash) in my opinion, as they are claiming the Doe is the “infringer” ONLY because his/her name is on the ISP account.

Moving forward with normal two-sided discovery is what Troll/Plaintiff wants to avoid.  Based on all the previous work that has been done by attorneys such as Morgan Pietz and Christopher Lynch, attorney Drath would have a great starting point upon which develop his own line of inquiry into this Plaintiff/APMC.  Such as the BT monitoring shelf-company, Crystal Bay Corporation (CBC) and Daniel Macek.

Where Is This Likely To Go?

My opinion is the most cost-effective course of action for Troll/Plaintiff is to string the cases along with little to no action.  Collect as many settlements as possible from the remaining Does and then dismiss the cases.  As I have previously stated, the amount of profit made in these cases is large.  If approximately half of the Does in this case settle for $4,000, that works out to be $80,000 (20 Does X $4,000 = $80,000).  Case filings ($1,200) and ISP charges probably cost them under $2,000.  So then it is just a matter to pay out the interested parties (Troll Hierl, APMC, and Plaintiff) from $78,000.  Even if they on get 10 Does to settle, that is $40,000!  Note: These amounts will only be realized if they are able to eventually dismiss the case and avoid having to pay attorney fees/costs for Does #15 & #22.

Case Adjudicated On The Merits

This is the part that will make things interesting.  As both of these Does were dismissed from the main case, Troll/Plaintiff has to know that a second dismissal essentially mean the Does have been cleared of the allegations and are the prevailing party.  See FRCP 41(1)(B).   Prevailing parties in Copyright Infringement law suit are (in most cases) allowed to motion the court for an award of reasonable attorney fees and costs.  Now if the Troll can keep the case activity to a minimum, the fees/costs portion could be low enough not to eat away too much of their profit margin.  If they decide to play hard (and stupid) they will simply run up the defense bill up just like Troll VanderMay/Elf-Man LLC did (approx. $200K and rising/Not to mention the two motions for sanctions).

PUSU_Cat2I have said it before and will say it again; the BT Copyright Troll business model is much like playing poker.   You’ve got to know when to hold ‘em.  Know when to fold ‘em.  Know when to walk away.  Know when to run.

DieTrollDie  :)   Run Troll Run!

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RightsCorp Shuffle (one step forward – two steps back) – Information On 30,000 ISP Subscribers Sought (1:14-MC-00848(TX))

First I want to thank all the people who push me ideas for my articles.  I can’t promise I will write anything, but I at least try to provide some feedback.  This article concerns some recent RightsCorp activity.  Previous RightsCorp Article

So what do you get when you combine Arrogance, Greed, and Stupidity?  Well, when you mix this trio in the Federal courts, the result could be bad for the people/organization with these faults.

RightsCorp Voicemail

RightsCorp has been calling ISP subscribers to obtain settlements for alleged copyright infringement of content owned by customers who subscribe to their services.  They are able to obtain the telephone number of the ISP subscriber in two ways:  1) From the ISP subscriber when they enter their personal information into their Web site;  2) From ISPs in response to a subpoena issued by a Federal court.

Once RightsCorp obtains a telephone number of an ISP subscriber, the information is passed to one of their collection personnel.  The collection personnel then start to call the ISP subscriber to try get then to pay a settlement.  The ISP subscriber telephone number is also added to an auto-call system (Robo-Call) and set to call the ISP subscriber until a settlement is reached.  Here is one voicemail left by a RightsCorp collection agent.

Take a listen and tell me what you think.  I have had one person comment that the call might not be seen in the best light by the Federal Communication Commission (FCC) or Federal Trade Commission (FTC).

RightsCorp Shuffle (one step forward – two steps back)

RightsCorp_Stupid1In my previous RightsCorp article I mentioned that RightsCorp has been using the Federal Courts (limited jurisdictions) to obtain subpoenas for ISP subscriber information.  These are not “Copyright Infringement” law suits, but simply a “Misc” cases that are opened and closed on the same day to issue a subpoena.  I noted these cases were limited and appeared to be against individuals with large numbers of alleged infringements.

On 6 Aug 14, RightsCorp attorney, Dennis J. Hawk, opened a Misc. case in the Central District of California, case #2:14-mc-00627 (CDCA).  Case documents are at the bottom of the article.  The purpose was to ask the court to grant RightsCorp a subpoena for ISP subscriber information for an undisclosed number of people they claimed were infringing.  The subpoena was granted and RightsCorp proceeded to send out the subpoenas to the affected ISPs.  One of the ISPs was Grande Communication Networks LLC, Texas.  As Grande uses Neustar Inc., to handle subpoena requests, they started to look into this request.  I think Grande/Neustar was a bit surprised to find the list of IP addresses RightsCorp was seeking ISP subscriber information was approx. 500 pages and comprised over 30,000 IP addresses.

Neustar calculated that to accomplish this request, it would take approx. two months (by dedicated personnel) to accomplish and would cost RightsCorp $32,026.  Neustar repeatedly tried to contact RightsCorp concerning the cost; time requirement; and the lack of a valid court order.  RightsCorp/Mr. Hawk eventually responded to Neustar in what can only be described as a totally rash/stupid move (my opinion) and stated,

Our client does not pay to obtain the address details on infringers.

Now Mr. Hawk has obviously failed to see how you should deal with the ISP legal departments.  He should have taken a lesson from Troll Lipscomb/Malibu Media LLC and observed how to kiss a little ISP butt to get what you want – as well as pay for a service.

On 5 Sep 14, Grande filed a motion to quash the subpoena in the Texas court, case # 1:14-MC-00848 (TX).   Grande informed the court that RightsCorp is simply trying to avoid judicial review on a litany of issues (joinder, personal jurisdiction, & venue) this case raises.  Grande even cited AF Holdings v. Doe 1-1058 (Prenda Law), appellate case in which the court said that When the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied.

The following day (8 Sep 14), RightsCorp emailed the attorney representing Grande and withdrew their request for ISP subscriber information.

On 10 Sep 14, Grande filed an Advisory to the Texas court concerning RightsCorp’s questionable activities.

As detailed in Grande’s Motion, the Subpoena presented an extraordinarily undue burden (over 30,000 subscriber lookups) and was issued to a cable operator without an order as required by the Cable Communications Act. (Mot., at 7-8.) Even more egregiously, it appears that the Subpoena is only one of approximately one hundred (100) or more similar subpoenas issued by Rightscorp to regional Internet service providers located across the country2 (presumably chosen because they are less likely to contest the subpoenas than national Internet service providers with larger in-house legal departments) upon the signature of the Clerk of the U.S. District Court for the Central District of California, seeking the personally identifiable information of thousands of individuals beyond the jurisdiction of the California courts, despite the fact that such subpoenas may not be sent and issued under 17 U.S.C. § 512(h) to an Internet service provider acting as a conduit under law that has been established for a decade. (See id., at 5-7, citing cases including In re Charter Commc’ns, Inc., 393 F.3d 771, 776-77 (8th Cir. 2005).)

Under the circumstances, this Court or the U.S. District Court for the Central District of California may consider ordering Rightscorp and its counsel to show cause why they should not be sanctioned for misusing the federal court’s subpoena powers. Such an order would be appropriate in connection with Grande’s request for costs and attorney’s fees in the Motion (Id., at 9; see also Fed. R. Civ. P. 45(f) (challenge to subpoena may also be addressed by the court of issuance)).3 Beyond any doubt, Rightscorp and its counsel failed and refused to “take reasonable steps to avoid imposing undue burden or expense” on Grande. Fed. R. Civ. P. 45(d)(1).

On 11 Sep 14, The Texas court closed this case because RightsCorp had withdrawn the subpoena.

I don’t know if the CA Central District court will get involved, but one can only hope. RightsCorp must be seriously hurting to pull such a bone-head move that puts it in for consideration for the Next Prenda Law “Equine Excrement Award.” I will admit they are at least smart enough to back down and not take this into a court.  Note: I wonder if the CACD local rule limiting the maximum of “John Does” in a case to 10, applies here???  If so, Rightscorp may have another violation to worry about.

I don’t know how many other regional ISP simply gave into RightsCorp, but I would expect a few at least.  I’m still of the opinion that you shouldn’t pay RightsCorp.  Don’t waste your time or money; Ignore the calls.  I will advise you to make sure any infringing BitTorrent activity on your network stops, as it could possibly lead to a real copyright infringement case.  Also, if you do get a recording of RightsCorp calling/voicemails, please email me a copy.  *** Late Addition – If you want some additional information on the RightsCorp Misc cases/Affected ISPs, please see Attorney Morgan Pietz’s Web site.  ***   

Case Documents - MTQ_GrandeComm_00848(TX)   MTQ_GrandeComm_Exhibits_00848(TX)   Order_Referring_00848(TX)   Advisory_00848(TX)  Advisory_Exhibits_00848(TX)   Order_CaseClosed_00848(TX)

DieTrollDie :)   The Dude abides.  I don’t know about you but I take comfort in that.  It’s good knowin’ he’s out there.  The Dude. Takin’ ‘er easy for all us sinners.  Shoosh.  I sure hope he makes the finals.”   {The Stranger, The Big Lebowski}

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