Malibu Media Claims Fabrication Of Evidence And Seeks Sanctions, 2:12-cv-02078 (PA)

Posted on May 20, 2013 by

I reviewed the declaration/report of Patrick Paige, Computer Forensic Examiner, Computer Forensics LLC, concerning the examination of computer image files belonging to Doe #16, case # 2:12-cv-02078, Malibu Media LLC v. John Does 1, 6, 13, 14, and 16.   Doc 140-1_02078(PA)   His findings are not the best for Doe #16, but we haven’t heard from the Doe either.  

Examination

HD1Mr. Paige first examined the a 3TB hard drive that contained the image files of three computer systems – Windows Desktop, Laptop, and an Apple Mac. Mr. Paige was unable to access the images files on the 3TB hard drive and believes the partition on it was corrupt. Troll Lipscomb was informed of the problem and was able to get another hard drive containing the image files to Mr. Paige. Mr. Paige noted that the hash file number he calculated for the first 3TB hard drive (and contents) was different from the second one he received. Note: The exact reason for the difference in hash values is not known, but it means there is a difference in data between the two. As the first 3TB hard drive had partition problems (corruption), I would expect a difference in hash values.

Problems Arise

Mr. Paige examined the image files via EnCase Forensic software and noted a problem with the 1TB image for the Windows desktop system of Doe #16. Mr. Paige reports that there is no Operating System on this image file. Without the OS, the computer would only boot up as far as to tell the user that no OS was found; and then just wait for action from the user.

I don’t know if Mr. Paige looked for any evidence that the system was commonly booted up via CD/DVD, or USB device. It isn’t too common, but it does happen. I did find it interesting that the 1 TB hard drive had a “C” & “D” drive. Also of note is the “Boot” folder under the “C” drive. I will have to do some research, but it is possible this computer had the ability to boot into different OSs. The problem is that without any knowledge of this, it looks like the OS(s) was removed from the file system/hard drive.

Mr. Paige notes that the core system files have a creation date of 11 Nov 2012.

Based upon the foregoing, I can state with 100% certainty : (a) the 1 Terabyte Hard drive was not in use prior to November 11, 2012; or (b) all of the data that had previously been on the 1 Terabyte Hard Drive had been erased prior to November 11, 2012. Put another way, the 1 Terabyte Hard Drive was either new or reconditioned to a like new state.

Note: On 8 Nov 2012, Troll Lipscomb made a request for documents and images of hard drives belonging to the Does. This is not good for Doe #16. This makes it look like he deleted or wiped the OS (and possibly other files) from the 1 TB system and then reinstalled and removed files on 11 Nov 2012.  Reinstalling an OS is not usually an issue, but it appears to have occurred after the Troll said they wanted to do a forensic examination.  Computer systems do crash from time to time, but to do a reinstall at that point is bad.  As Plaintiff was not told of any systems issues, it makes it look as if the Doe possibly presented fabricated evidence.  In some ways, Troll Lipscomb would actually prefer this possible spoliation development instead of trying to explain why no evidence could be found on a Doe’s system. The fact that the expert  doesn’t mention the two other system images as having evidence shows what the findings were on these images – zip/nothing.

The report also states that for 99% of the unallocated space on the 1 TB drive, the only data found is ZEROs (Example). For a hard drive that has been in use for sometime, the unallocated space is going to normally have a variety of data, other than just Zeros (Example). The presence of only Zeros indicates the unallocated space of the hard drive was either freshly wiped (all data replaced with “0”) OR the existing data was placed onto a new hard drive (previously factory wiped). Mr. Paige states that the “other” 1% of the unallocated data appeared to only have data related to the “Steam” program.  Here is an interesting article about “carving” data out of the unallocated space of a hard drive.

Troll Lipscomb is of the opinion the Doe destroyed/hid evidence of copyright infringement and states his intention to seek sanctions based on this apparent fabrication of evidence.   Doc 140_02078(PA)

Bottom line

There is no direct evidence on the three hard drive images that show copyright infringement of Plaintiff’s movie(s).  No movie(s) of Plaintiff, no BitTorrent program, and no related files indicating possible copyright infringement.  BUT – It does appear that files/data has been removed from the 1 TB hard drive after the notice of forensic examination was made.

Not good. Of course Doe #16 will have the opportunity to explain why it appears he destroyed/hid possible evidence.  He can of course chose not to OR if it comes down to it, invoke his 5th Amendment rights.  This of course will likely have the same effect that it had for the Prenda crew in Judge Wright’s court.

I assume Troll Lipscomb will use this to further bolster his claim that he is nothing like the Prenda Law.  His operation is not the same as Prenda’s, but it still stinks of legal extortion (my opinion). The fact of the matter is as of this posting, NO cases (From all the Trolls) have been fully judged on their merits.  WHY?  Because this business model was not designed for this.  Success and profit is measured by the number and amount of settlements paid to the Troll, not on taking a case to trial. This particular case was forced by the judge and is going to cost Plaintiff/Troll far more than what they may likely recover from it.  Even if they are successful in getting sanctions/win the case against Doe 16, there is always the possibility they will not be able to recover any funds – or very little.  Their best outcome is likely to be that they can claim they actually do take people to trial (at least once) and they will conduct forensic examinations of Doe systems.

I will be interested to see what Doe #16 has to say about this report.

DieTrollDie :)

*** Here is a 20 May 13, filing from Plaintiff – PLAINTIFF’S NOTICE COMPLYING WITH
THIS COURT’S ORDER DATED MAY 8, 2013, [CM/ECF 134].  Doe #16 tells Plaintiff he will challenge the findings of Mr. Paige. ***

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Update – Subpoenas Quashed & More (Sloppy Copyright Trolls (ZEMBEZIA)) – 2:13-cv-00308/00309/00310/00311/00312 (WA)

Posted on May 16, 2013 by

16 May 13 – Update – Subpoenas Are Quashed!

Sorry but this is going to be a short update.  On 9 May 13, Judge Robert S. Lasnik, issued a Show Cause Order and Quashed Subpoenas relating to 48 cases (2323 Does) filed by Troll Symmes.   Doc31_SC_Quash_00308(WA)

The judge sounds like he has some concerns -

As the full extent of this assignment has become clear, the Court admits to some concerns regarding both the appropriateness of joinder and the possibility that the judicial authority of the United States may be used to wrest improvident settlements from pro se litigants under threat of huge statutory penalties.

After review, the court ordered the following -

Having reviewed defendants’ motions to quash the subpoenas, the remainder of the record in this and related cases, and relevant case law, it is hereby ORDERED as follows:

1. Any and all subpoenas issued in the above-captioned matter are hereby QUASHED. Plaintiff shall immediately notify the subpoena recipients that they need not respond.

2. To the extent plaintiff has obtained identifying information regarding one or more Doe defendants, whether through the service provider, defendant, or another source,it shall not utilize that information in any way. If plaintiff has already contacted one or more of the defendants, it shall file under seal all correspondence or other written communications (including emails) sent to defendants and a summary of any oral
communications. Plaintiff shall refrain from any further oral or written communications with defendants unless expressly approved by the Court in advance.

3. Plaintiff shall, within fourteen days of the date of this Order, show cause why the above-captioned matter should not be dismissed as to all defendants other than Doe 1 for improper joinder and/or pursuant to the Court’s inherent authority to control its docket.

4. Plaintiff shall, within fourteen days of the date of this Order, provide additional information regarding (a) Zembezia Film (Pty) Ltd.’s ownership of the copyright at issue and (b) Zembezia Film (Pty) Ltd.’s direct and indirect members/owners/stakeholders. Plaintiff shall provide a copy of any and all transfer statements and/or work-for-hire contracts supporting a determination that Zembezia Film (Pty) Ltd. has standing to pursue this action. Plaintiff shall also supplement the corporate disclosure statement filed in this action (Dkt. # 2) by providing the registration information for Zembezia Film (Pty) Ltd.
maintained by the Secretary of State and identifying all members/owners/stakeholders of Zembezia Film (Pty) Ltd., both direct and indirect, in the form of an organizational tree that reaches back far enough to reveal all individual members/owners/stakeholders and publicly-traded corporations.

5. With the exception of the actions specifically set forth in this Order, the above captioned matter is hereby STAYED.

hurt1Plaintiff/Troll now has until 24 May 13, to show cause.  Have fun boys!

DieTrollDie :)

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2 May 13 – Update – John Doe Files MTQ

Here is the 2 May 13, TorrentFreak article on this case.  Here is a copy of the Motion to Quash filed by the John Doe for the three cases.   JD_MTQ_3Cases_00308(WA)   Please take a read let us know what you think.

DTD :)

30 Apr 13 – Update

Just a quick update on the Frontier Law Group.  It appears they have set up a WordPress Web site.  frontierlawgroup.wordpress.com  *** Please note that if you visit this site, you IP address could be recorded.  I doubt it, but your never know.  ***   It appears they are using it as a FAQ page for people they are suing.  WordPress is great, but it shows how cheap these guys are.  Me being cheap as a single person running a site is fine.  A law firm specializing in Copyright Infringement should present a better image.  They didn’t even have sense enough to pay for a domain name without “WordPress” in the Web address.

DTD :)

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First off, thank you ongchotwi for your help with the sorting & filtering of the data.  After looking more closely to the Zembezia cases, 2:13-cv-00308/00309/00310/00311/00312, it became clear that it was a sloppy mess.  Initial posting on this case.  A notable finding was that there were multiple repeat IP addresses listed (some in the same case!). This appears to be because the BitTorrent software version was updated and the Troll failed to notice the repeat entries after sorting/filtering.  The other repeat IP addresses were also due to the software version changing over time.  So we now have a total of 305 Public IP addresses/Doe involved in this case.

IPsZembFinal

So in addition to the solid linkage of all the cases together, we can see the Troll and his technical monitoring personnel are sloppy in their case management.  Not a big surprise.  This calls into question their accuracy AND the reason for splitting up the IP addresses into separate cases when they should all be joined – jointly and severally liable.  I haven’t looked into the other Zembezia cases, but I expect they are of the same caliber.

In my initial post I said these cases appear to be of the old-school variety with some variance.  One thing that didn’t vary from the first porn copyright troll cases is the sloppiness.  As no porn copyright troll case (to date) has gone to full trial (judged on the merits), I serious doubt these will go either.  Still, do not ignore any summons or subpoenas that could come your way.  Please contact me when the Trolls start to call, write, or email.

Hopefully we will see some Doe and/or Doe defender make some motions to bring this to the attention of the court.

DieTrollDie :)

TC1

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Second Update – 16 May 13 – AZ Case (2:13-mc-00030) – PRENDA SUBPOENA QUASHED

Posted on May 16, 2013 by

On 16 May 13, Judge Susan Bolton, issued the following order.   Doc19_00030(AZ)

IT IS ORDERED granting Defendant-Movant’s Motion to Quash the Subpoena to Wild West Domains Seeking Identity Information. (Doc. 1)  

IT IS FURTHER ORDERED quashing the subpoena issued by Plaintiff on February 27, 2013 to Wild West Domains.

DieTrollDie :)

Confine yourself to observing and you always miss the point of your own life. The object can be stated this way: Live the best life you can. Life is a game whose rules you learn if you leap into it and play it to the hilt. Otherwise, you are caught off balance, continually surprised by the shifting play. Non-players often whine and complain that luck always passes them by. They refuse to see that they can create some of their own luck.

———————————————————————————————–

On 15 May 13, the following documents were filed in Arizona case 2:13-mc-00030, (Prenda Law Incorporated v. Godfread et al).   Doc16_00030(AZ)   Doc17_00030(AZ)   Doc18_00030(AZ)   This case was opened in AZ to quash the subpoena for subscriber information for the domain “DietrollDie.com” (Wild West Domains).   Archive Docket

Document 16 is a NOTICE OF NON-OPPOSITION TO MOTION TO QUASH SUBPOENA; REQUEST FOR RULING

PLEASE TAKE NOTICE that Plaintiff-Respondent Prenda Law, Inc. has failed to serve or file the required answering memorandum in response to Defendant-Movant John Doe, a.k.a “Die Troll Die” (“DTD”)’s Motion to Quash the Subpoena to Wild West Domains Seeking Identity Information (Dkt. No. 1). Pursuant to Local Rule of Civil Procedure 7-2(i), this failure to file an opposition constitutes Prenda Law’s consent to the requested order (Dkt. No. 1-2). Therefore, for the reasons stated in DTD’s previous filing (Dkt. No. 1), as well as the reasons set forth below, DTD respectfully asks this Court to grant the Motion to Quash.

Document 17 is the DECLARATION OF NATHAN CARDOZO IN SUPPORT OF NOTICE OF NON-OPPOSITION

Doc17_EXA_00030(AZ)

Doc 18 is DEFENDANT-MOVANT JOHN DOE “DIE TROLL DIE”’S REQUEST FOR JUDICIAL NOTICE

Pursuant to Rule 201 of the Federal Rules of Evidence, Defendant-Movant John Doe a/k/a “Die Troll Die” (DTD) respectfully request that the Court take judicial notice of the attached Order Issuing Sanctions (the “Order” attached hereto as Exhibit A), issued by Judge Otis D. Wright II of the District Court for the Central District of California on May 6, 2013 in the case of Ingenuity 13 LLC v. John Doe, No. 2:12-cv-8333-ODW(JCx). This request is made in connection with DTD’s Notice of Non-Opposition to Motion to Quash Subpoena; Request for Ruling, filed concurrently.

 Judge Otis Wright, 6 May 13, Order

Reminder – On 7 May 13, Judge Bolton issued an order directing Prenda Law to file a corporate statement (required by FRCP 7.1 & 7.1.1) by 21 May 13.   CorpDiscl_Order_00030(AZ)    The order also directed Plaintiff to do the following.

In addition to the information required by F.R.Civ.P. 7.1 and LRCiv. 7.1.1, the Disclosure Statement shall also contain a list of each member of each LLC.Failure to file the Corporate Disclosure Statement and a list of the members of the LLCs shall result in sanctions being imposed.

DieTrollDie :)

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Case is Stayed Pending Prenda Answering Some Tough Questions – AF Holdings LLC v. Harris – 2:12-cv-02144 (AZ)

Posted on May 14, 2013 by

NALIYBI117 May 13 Update

Quick update – On 17 May 13, Judge Murray Snow, stayed this case due to concerns based on the sanctions laid down in Judge Otis Wright’s order, 6 May 13.   Doc_51_02144(AZ)   WrightPhoton_Torpedo_08333(CA)

IT IS ORDERED that Plaintiff show cause within seven (7) days of the date of
this Order why this Court should not dismiss this case. To the extent that Plaintiff asserts a right in the continuation of this case, Plaintiff is ordered to identify: (1) the persons who signed Exhibit B in the names of Raymond Rogers and Alan Cooper; (2) all persons who hold any interest in Plaintiff; and (3) if Exhibit B to the Complaint is in fact not signed by Alan Cooper and/or Raymond Rogers why Plaintiff and/or counsel should not be sanctioned pursuant to the Court’s inherent power and Fed. R. Civ. P. 11 for filing a fraudulent document with this Court. In the interim, this action is stayed until further Order of this Court.

Is it O’4:Beer thirty yet Prenda?!  Have a great weekend.

DieTrollDie :)

—————————————————————————————————

On 10 May 13, Mr. David Harris (Pro Se Doe) filed a Motion for Show Cause Order and Sanctions against Plaintiff (AF Holdings LLC/ Prenda Law, etc.).   Doc_50_Harris_RFS_02144(AZ)   Mr. Harris was apparently absent from this case for a time, but has now returned to file this motion.  I hope you are well Mr. Harris.

Reading this motion is hard.  Not because it has any real problems – But because you can feel the frustration and stress that Mr. Harris is under by having to fight this.  With this stress and frustration come the truth concerning this case.  I wish Mr. Harris could have toned down his response, but in the same respect, I hope the court can see into the facts of this case and understand where Mr. Harris is coming from.  The facts in the motion are there and I challenge Plaintiff to disprove them.

In the following part, Mr. Harris tells the court that the public IP address assigned to him by his ISP has changed multiple time and there is no way Plaintiff could reasonably claim he conspired with the 71 Arizona Cox Communications subscribers.  Previous Harris posts on this issue – Fall Out   Prenda Response   Spin-Off (initial post).

Defendant is assigned a static IP address from his ISP, a cable company. Every time that I reboot my modem I am assigned a different IP address. Since the date of the alleged copyright infringement I have been assigned no less than five new and different IP addresses and on the dates that Troll Goodhue alleges I conspired with 71 people in a bit torrent swarm to infringe upon the copyright of Plaintiff’s precious little film, there is no way on God’s green Earth Troll Goodhue could possibly know what, if any IP address was assigned to me as it is different than the IP address Plaintiff based this case on (70.176.202.3) at the time and date of the alleged conspiracy. These IP addresses may be involved in a conspiracy with the aforementioned IP address, but it has nothing to do with Defendant or this case whatsoever.

Mr. Harris goes on to cites Judge Wright’s 6 May 13, order and asks the court to make troll Goodhue show cause as to why sanctions should not be imposed from an attempted fraud upon the court.

What comes of this and the filings of Doe defender Paul Ticen should be interesting.  The court has been rather silent in regards to how this cases has unfolded.  Even if the judge is not happy with Mr. Harris’ tone, the filings of Attorney Ticen are very clear and raise the question of Plaintiff’s behavior in this and other AZ copyright troll cases.

DietrollDie :)

P.S.  Take a read of the Arstechnica article -  Prenda can’t find that darned “Salt Marsh” signature

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Prenda Law Mess – AKA: Tiger By The Tail

Posted on May 14, 2013 by

HangAC1

20 May 13 Update

On 20 May 13, the US Court of Appeals, 9th Circuit, denied the Prenda Law Crew’s emergency motion to stay Judge Wright’s 6 May 13, Order/Sanctions.   Prenda Stay Denied_08333(CA)   Tick-Tock Prenda – time to write that check.  :)

Arstechnica Article on this development – Prenda lawyer gets kicked off 9th Circuit case.

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In his 6 May 13, Order, Judge Otis Wright stated the Prenda Law operation was so vast that they were unable to maintain a consistent (and believable)  “explanations” of its operations (“Sanctions” section, bottom of page 8).  Judge Wright described the “Plaintiff” as Ingenuity 13, AF Holdings, Prenda Law, and the related personnel who ran and supported its operation.   An operation of this magnitude does require people with a keen eye and attention to detail.  The problem with this for a ‘questionable’ operation is that records required to maintain the required control often end up in the hands of investigators and prosecutors.  I believe the Plaintiffs here are not terribly stupid, but more greedy and foolhardy (to an extreme).  This goes so far as that hurting people to make a profit is all part of doing business.  It is even rationalized as “Pirates get what they deserve.”  Well, here is another old saying Prenda is learning about, “The chickens have come home to roost.”

One source of information recently pointed out to me that my site was visited by an IP address associated with Prenda Law and one of its adult content Web sites.  The IP address and Web site are 75.72.88.156 & naughty-hotties{.}com (NSFW!!!!!!).  The Web site appears to have been placed on hold once the Alan Cooper issue came to light.

Back on 1 Oct 12, IP address 75.72.88.156, made a comment on my site that had the smell of a Troll.  A quick review disclosed the IP address was for COMCAST out of Minneapolis, MN.  I made a note of the comment and went on with other tasks.  A recent check of the IP address did disclose it was used for the adult content Web site, naughty-hotties{.}com, which is likely one of the Prenda Law crew’s Web sites they set up to sell adult content.    The Web site was registered on 20 Dec 12, a GoDaddy.com domain, with a registrar by Domains By Proxy, LLC, out of AZ.  I bet seeing who is the true registrar behind the proxy would be interesting and not that shocking.  :)

There is also the possibility that in addition to selling subscriptions to their site/adult content, it could also act as bait for subscribers who might decide to share the content via BitTorrent.  This is just my opinion, but can’t you see the Prenda crew trying to run with this plan?

  • Sell subscriptions to adult content you legally own
  • Mark each legal download with a hidden subscriber code inside the movie (Tells who purchased this copy – they have name, address and credit card information)
  • Monitor BitTorrent for the movie in question
  • Collect IP addresses of people illegally sharing the movie
  • File Federal Copyright infringement law suits against the various defendants sharing the movie via BitTorrent, to include the initial seeder of the movie (the subscriber)

In fact you could also contact the initial seeder of the movie and pressure him to assist in the case with a promise of a reduced settlement and/or release of liability once it was over.  Again this is just my thoughts and opinion on this matter; It will be interesting to see what come out of all of this.

Please also read the 13 May 13, Techdirt article, where among other things, it is disclosed that in November 2010, John Steele/Prenda Law, etc…, registered various Internet domain name with an alias of “Alan Cooper.”  This information comes from the Russell/Sweet filing on 10 May 13.   Doc25_main_00207(IL)  Doc25_EXA_00207(IL)  Doc25_EXB_00207(IL)  Doc25_EXC_00207(IL)  Doc25_EXD_00207(IL)  Doc25_EXE_00207(IL)   Exhibits C, D, & E contain the domain registration information.  These registrations of Internet domains started in November 2010 which is approximately the time Steele|hansmeier PLLC, started to file their first round of copyright troll law suits in IL.  What is flabbergasting is to read the 10 May 13, Arstechnica interview of John Steele and then see the evidence that Erin Russell and Jason Sweet present that shows things are not as Mr. Steele claims.

Interesting Things in the Russell/Sweet Documents

While examining the Russell/Sweet Exhibits (Doc #25 – Ex C, D, & E), I decided to search for a group of IP addresses that have posted various troll-like comments to my site, as well as emailed me.  These comments and email are believed to be from John Steele, Mark Lutz, and possibly other Prenda crew members.  I ended up with one definite hit and one possible hit.

  • IP Address  174.140.100.242
    Shows up 4 time in Doc 25-4 (Exhibit D, pages 7 & 8), during 8-9 Aug 12.  The record shows the IP address is the customer IP address of 174.140.100.242, John Steele.

IP1IP address 174.140.100.242 has made comments on my Web site that leads me to believe it likely Mark Lutz.  This is also the IP address that emailed me on 1 Aug 12, with an audio file attachment (“How Mark Lutz Orders A Pizza….”).   Mark Lutz Makes A Funny Article    An examination of the email disclosed that it was sent from IP address 174.140.100.242.  Not a great shock as the voice is clearly Mark Lutz – my opinion.  So maybe the naughty-hotties{.}com Web site belongs solely to Mark Lutz….  Yeah, well I don’t believe that Lutz worked for free for AF Holdings LLC either.

  • IP Address 204.195.150.212 (possible)
    IP address 204.195.150.212 made a comment on my site on 1 May 12.  IP address 204.195.145.253 was seen once in Doc 25-4 (Exhibit D, page 8), as a customer IP address.  Note: It is NOT an exact match to IP address 204.195.150.212, but it is in the same netblock (204.195.(144-255).(0-255).  The IP address/netblock is registered to Atlantic Broadband Finance, LLC, out of Miami, FL.

I’m sure as more lawyers, investigators, and Does dig deeper into the Prenda mess we will come up more evidence.  It is only a matter of time.  In the mean time, I bet we will be continued to be blessed by the highly entertaining words of John Steele as he makes it his life cause to educate BDPs of the world.  Somebody get this guy a tin-foil hat.

TFH1DieTrollDie :)

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Update on AZ Case (2:13-mc-00030) – Motion to Quash Prenda Law Subpoena – Subscriber Information From Wild West Domains (DieTrollDie)

Posted on May 10, 2013 by

10 May 13 – Update

Just a short update to Arizona case 2:13-mc-00030 (Prenda Law Incorporated v. Godfread et al).  This case was opened in AZ to quash the subpoena for subscriber information for the domain “DietrollDie.com” (Wild West Domains).   Archive Docket

On 7 May 13, Judge Bolton issued an order directing the Plaintiff (Prenda Law) to file a corporate statement (required by FRCP 7.1 & 7.1.1) by 21 May 13.   CorpDiscl_Order_00030(AZ)    The order also directed Plaintiff to do the following.

In addition to the information required by F.R.Civ.P. 7.1 and LRCiv. 7.1.1, the Disclosure Statement shall also contain a list of each member of each LLC.Failure to file the Corporate Disclosure Statement and a list of the members of the LLCs shall result in sanctions being imposed.

On 8 May 13, Mitch Stoltz, Electronic Frontier Foundation (EFF), applied with the court to be admitted Pro Hack Vice for this case.  On 8 May 13, the court granted this request.   Doc14_StoltzProH_00030(AZ)

On 8 May 13, The following certificate of service was filed with the court.   Doc13_CertService_00030(AZ)   The certificate shows that the 7 May 13, Corporate Disclosure Statement Order (see above) was mailed to Paul Duffy at the Chicago, IL, address.

Previous post of this issue.

DietrollDie :)

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Impact Of Judge Otis Wright’s Order On Other BitTorrent Copyright Trolls – Next Generation?

Posted on May 9, 2013 by

As many of you have probably done, I have reread Judge Wright’s 6 May 13, Order blasting the Prenda Law crew.   WrightPhoton_Torpedo_08333(CA)   My last reread was with a pen and I turned it into a bit of an ink blot nightmare.

Sar2So what does this mean to all the other Porn Copyright Trolls, particularly Malibu Media and Keith Lipscomb.  Sorry Collette – you earned the title, so enjoy it.  I actually think it will also affect those non-porn BitTorrent cases that essentially use the same type boilerplate law suits and sub-standard investigations to reap the benefits of generating settlements from Does.

I expect Judge Wright’s Order to be used by many Does and Doe defenders.  Even though the order was for Prenda Law, it has multiple parts that are Copyright Troll neutral and can be used with ease.

Even with blasting Prenda Law, the judge makes it clear that content owners have the right to protect their products – “so long as they do it right.”  Sounds good to me.  The judge goes on to highlight this business model was possible because of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs.  The judges states the copyright laws are being used by some lawyers to plunder citizens.  OK who is the Pirate now?

Here is part of the order in which he explains what is common for BitTorrent copyright infringement cases – “Findings of fact” section of the order (section 3. page 4) –

Their litigation strategy consisted of monitoring BitTorrent download activity of their copyrighted pornographic movies, recording IP addresses of the computers downloading the movies, filing suit in federal court to subpoena Internet Service Providers (“ISPs”) for the identity of the subscribers to these IP addresses, and sending cease-and-desist letters to the subscribers, offering to settle each copyright-infringement claim for about $4,000.

The statement is nothing shocking to anyone familiar with these cases.  Remove the mention of “pornographic” and it also covers all the new non-porn cases out there.

Under the “Rule 11 sanctions” section (page 6), the judge clearly lays out the reason why these BitTorrent Copyright troll cases are critically flawed.  Again not a shocking revelation, but it does help lay a solid defensive foundation backed up with an order from a Federal Judge.

Plaintiffs can only show that someone, using an IP address belonging to the subscriber, was seen online in a torrent swarm. But Plaintiffs did not conduct a sufficient investigation to determine whether that person actually downloaded enough data (or even anything at all) to produce a viewable video.  Further, Plaintiffs cannot conclude whether that person spoofed the IP address, is the subscriber of that IP address, or is someone else using that subscriber’s Internet access. Without better technology, prosecuting illegal BitTorrent activity requires substantial effort in order to make a case. It is simply not economically viable to properly prosecute the illegal download of a single copyrighted video.

The lack of any real investigation is key here.  Without one (regardless of the cost), there is no real way to show who is the actual infringer.  Even Prenda’s expert (Joshua Chin) had to admit this to Judge Wright -  Prenda Expert Declaration.  There are other parts of the order than can be applied to almost any BitTorrent copyright troll case – so enjoy.

So what will Lipscomb and the other Trolls do after this order?  I think we may see an initial slow-down on filing, as they assess what fall-out may come from this order.  Lipscomb has already been trying to take additional steps to make it look like they are not “Prenda.”  These steps are minimal and mostly superficial.  A Copyright Troll is a Copyright Troll.  One thing Malibu Media and Lipscomb are trying to do is get someone to believe their claims that they are taking people to trial because they have real evidence.  The only reason the PA Bellwether trial is ongoing is because the court is forcing it.  If Lipscomb backs down, the claims of defense and others (myself included – Torpedo #7) are confirmed.  We call this being between “A rock and a hard place.”

Exculpatory Evidence Letter – This is where they try to get the ISP subscriber to provide them with additional information.  The letter is not written with any exculpatory intent.  Any information provided will actually be used against the ISP subscriber.  The Trolls have made it extremely clear in their settlement demand letters and when people try to talk to them – you are responsible -  pay up or face a trial!   Exculpatory Evidence Letter Post    Here is a clue people – If their technical monitoring results are so good, why do they need you to respond to the letter and give them evidence???

Expanded Surveillance (BT Monitoring of activity on the identified public IP addresses) – this is their attempt to show that the ISP subscriber is a serial downloader/sharer of copyright protected movies via BitTorrent.  The problem with this is two-fold:   1) It is still the public IP address and the actual offender has not been identified.   2) The content they list (other movies and media) has not been shown to be protected content. Yes, it very well might be, but let’s do the investigation and show it – not just present it to the court and infer that it is fact.

DMCA Take Down-Notices – If they actually start doing this, it could benefit them a bit.  It shows they are actually trying to take some action to stop the infringement.  It will also allow them to subpoena the ISP records to show how many DMCA notices a subscriber has received.  This could be used to show that an ISP subscriber was notified of the alleged activity.  If it can then be shown that they did nothing, it could have an impact.  Note: You still need to do an investigation to show who actually did this and not make a statistical guess as to the most likely infringer.  As DMCA notices are actually detrimental to the settlement generating business model, I see this as only a last-ditch effort.

As I stated before – more to come.

DieTrollDie :)     “Somewhere a ship’s hull is being crushed as it sinks.”

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