DTD Update and Manny Film LLC Update (Troll Keith Lipscomb)

DieTrollDie Update

I have been rather busy of late and my clones are unable to keep up with all the things I want to write on concerning BitTorrent (BT) Copyright Trolls.  Sorry   :(   No, this doesn’t mean I’m going away anytime soon.  I just need to adjust what I’m doing and some things will drop off my “To Do List.”  I will continue to write on the various BT Copyright Troll antics and especially respond to the Does that post and email me questions.  The frequency and timing of my posts/response may suffer, but I still plan to do it.  As I will not be able to search for topics as much as I would like, I invite any Does and attorneys who have any “interesting” case to send me a “tip-off” (dietrolldie@dietrolldie.com).  No promises of course, but if it warrants a story, I will write one.  This of course also goes for my non-US readers.  BT Copyright Trolls span the globe and more often than not, their actions are from the same general how-to manual.

Manny Film LLC Update

LipscombAs of 26 Mar 15, There have been over 200 filing of Manny Film LLC case in multiple jurisdictions (FL, OH, MI, NJ, & PA).  I expect the Trolls will continue to file these cases as long people keep downloading/sharing this otherwise unremarkable movie.

Side Note: Here is the newest Troll filing for “Plastic The Movie Limited,” by the newest BT Copyright Trolls, Daniel F. Tamaroff, David F. Tamaroff of Tamaroff & Tamaroff.

As these are Troll Keith Lipscomb run operations, I don’t expect to see any settlement demand being sent out.  Troll Lipscomb likes to have the Does/ISP subscribers make first contact (with or without an attorney) before there is any mention of a settlement.  He seem to believe that by not sending out demand letters, it somehow raises him above “dirt bags” – AKA: John Steele, Paul Hansmeier, & Paul Duffy (The Prenda Law crew).  That of course in MY opinion.  :)   If there is anyone who know what settlement amounts are being offered for the Manny film, please drop me a message.

In response to the BT Copyright Troll lackeys statements of “So a plaintiff shouldn’t go after infringers?“  Yes, BT copyright infringement is wrong, but what the BT Copyright Trolls/Plaintiffs are doing is worse.  This isn’t a concerted effort to stop/reduce piracy, it is simply a money-making operation targeting people who are well off enough to pay, but cannot afford to really fight back.  In my opinion, this is legal extortion rationalized by gloom and doom claims that piracy is killing various industries.  How about something fair; like “Actual” damages, not Statutory Damages.  For a movie like “Manny,” the actual damages from a single person non-commercial instance of infringement would likely be less than $50.00 (and I think I’m being generous at that).  Add attorney fees and costs, and you are likely in the $2-3K range.  The trouble with such a low-level settlement is the people and organizations running the operations (Anti-Piracy Management Company (APMC)) would then lose their profits.

As I have said before, these cases are nothing special in their design.  They are template based to make the repeated filings easier.  What does change from time to time is the motions/justification for early discovery of the ISP subscriber information. This aspect is the keystone of their operation.  If they cannot identify the ISP subscriber, then their case and any settlement is lost.  As most Federal judges simply take the Troll/Plaintiff at their word, early Discovery is basically a rubber stamp in most cases.

Here are some early discovery filings for a Manny Film LLC case Troll Jordan Rushie is part of.  It is what I expected – a statement that early discovery is the only way the Troll/Plaintiff can move the case forward and the technology and people involved are credible.

MotionLeave_01490(NJ)      Support_ED_01490(NJ)     Paige_Decl_01490(NJ)     Susac_Decl_01490(NJ)     Rushie_Decl_01490(NJ)

Further, Plaintiff’s allegations of infringement are attested to by Plaintiff’s investigator, Excipio’s employee, Daniel Susac. See Declaration of Daniel Susac in Support of Plaintiff’s Motion For Leave to Serve Third Party Subpoenas Prior to a Rule 26(f) Conference (“Susac Declaration”) at ¶¶ 13 – 16, attached hereto as Exhibit “B”. And, during the first ever BitTorrent copyright lawsuit to reach trial, Judge Baylson concluded this technology was valid. See Malibu Media, LLC v. John Does 1, 6, 13, 14, 950 F. Supp. 2d 779, 782 (E.D. Pa. 2013) (“I concluded that [plaintiff] had expended considerable effort and expense to determine the IP addresses of the infringing parties, and the technology employed by its consultants—both of whom were located in Germany and who testified at the trial of June 10, 2013—was valid.”). The same technology has been used in this case. Accordingly, Plaintiff has exceeded its obligation to plead a prima facie case.  {Document 5-1, Pages 8-9}

So you can see it is once again “Excipio,” “Daniel Susac,” and the ethically challenged (my opinion) Patrick Paige.  Troll Rushie/Lipscomb even go so far as to try to bolster their case by mentioning their Holy Grail, The PA Bellwether trial/ joke.  Now during the PA Bellwether trial, Troll Rushie was the defense attorneys for one of the Defendants.  Troll Rushie and the other defense attorneys/Defendants made confidential agreements with Troll/Plaintiff prior to the trial taking place.  Please see page 160 in the PA Bellwether trial transcript.   Page_160_Transcript2_12-02078(PA)   The agreement appears to have been that in exchange for the Defendants NOT cross-examining/attacking Plaintiff’s Witnesses/Experts (term used VERY loosely), they would get a reduced settlement amount they would pay.   Zero minutes for ANY cross-examination.   Full  Trial Transcript – TrialTranscript_12-02078(PA)

Now prior to the start of the Bellwether trial, Troll Lipscomb knew he had a good deal more than a preponderance of evidence to secure victory against all three Defendants.  Still he decided to make a deal with the Defendants and not destroy them.  WHY?  It wasn’t because he is such a nice guy and goes to church.

Please understand a major goal of Troll Lipscomb in the PA Bellwether trial was to try to appear that they were not afraid to take people to trial (there had NEVER been one) and that their evidence collection methods and personnel were beyond reproach.  Troll Lipscomb knew that even if they won a fully confrontational trial, substantial damage to their future operations would have occurred.  By making a deal they didn’t have to answer any tough questions and their secrets stayed hidden that much longer.  They spent way over any amount they will ever get from the three Defendants.   Doc_198-1_Stip_Fees_02078(PA)   To the Trolls, it was the cost of doing business and an investment in their future cases.  We still haven’t seen a real BT Copyright Infringement trial since the Bellwether – Go Figure.

I will leave you with a “Freudian Slip” from Troll Rushie during the last bit of the PA Bellwether trial when the Judge Bayless asked if he was going to cross-examine Collette Field, Malibu Media/X-Art.

Rushie_Fool_02078(PA)

 

DieTrollDie :)

“Mr. Mojo Risin’, Mr. Mojo Risin’
Mr. Mojo Risin’, Mr. Mojo Risin’
Got to keep on risin’
Mr. Mojo Risin’, Mr. Mojo Risin’
Mojo Risin’, gotta Mojo Risin’
Mr. Mojo Risin’, gotta keep on risin’
Risin’, risin’
Gone risin’, risin’
I’m gone risin’, risin’
I gotta risin’, risin’
Well, risin’, risin’
I gotta, wooo, yeah, risin’
Whoa, oh yeah”  {LA Woman, The Doors}

 

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Troll Keith Lipscomb And Crew File New BT Copyright Troll Law Suits (Manny Film LLC)

13 Mar 15 Update

tameroff_TrollsWell the activity of Troll Lipscomb and crew has riled up a notable Doe Defender, Robert Cashman, Cashman Law Firm, TX.  He just published an article on the Manny Film LLC cases that is well worth a read.   TorrentLawyer Article   Of particular note is something I didn’t notice – it appears that Doe Defenders “Daniel F. Tamaroff, David F. Tamaroff of Tamaroff & Tamaroff, have decided to now become BT Copyright Trolls.  Enjoy the title boys; and the smell that comes with it.

DTD :)

manny-copyright-troll

 

9 Mar 15 Update

***  As of today, the number of Manny Film LLC cases has increased to 127 in the following jurisdictions.  FLMD (20); FLSD (38); OHND (6); NJ (41); & PAED (22).  I also expect to see additional Manny Film LLC cases to be filed in ILND, MD, VAED, OHSD, NYSD, MIED, and possibly DC.  I don’t think we will see any CO cases filed, as Jason Kotzker appears to stopped working for Troll Lipscomb.

———————————————————————————————————

Starting on 27 Feb 15, we started to see a new Plaintiff file BitTorrent (BT) copyright infringement cases through the newest member of the Keith Lipscomb crew, A. Jordan Rushie.  The Plaintiff in these cases is Manny Film LLC, 1175 East Lincoln Ave., Anaheim CA 92805. The movie is “Manny,” a feature-length documentary depicting the life of boxing champion Manny Pacquiao. Here is the CA business record for Manny Film LLC.

As of publication, there have been a total of 87 Manny Film LLC cases filed in NJ (41) and in FL (46), by Troll Jordan Rushie (Flynn Wirkus Young) and Keith Lipscomb.  I also expect to see future Manny Film LLC cases to be filed in the jurisdictions Troll Lipscomb and crew file in.  Here is the complaint for one of Troll Rushie’s cases verse a single ISP subscriber – 3:15-cv-01490.   Complaint_EX_AB_01490(NJ)

The case is nothing special in terms of format (template based) and its content. It simply claims that this movie which “cost millions of dollars to produce,” was leaked onto BT (likely by an insider with access to the movie – not the Defendant) and the ISP subscriber (Defendant) downloaded and shared it to other BT users.

Each infringing transaction between Defendant’s IP address and Excipio is recorded in a PCAP. A PCAP is akin to a video recording. Here, the recording is of a transaction between the infringer’s computer and Excipio’s computer. Through each transaction, Defendant distributed a piece of the Infringing File. The PCAP shows Defendant’s IP address, and the piece that was distributed. Excipio verified that the piece that was distributed belongs to the Infringing File by calculating its hash value.

Troll/Plaintiff makes a single claim of direct copyright infringement and asks the court to award statutory damages, attorney fees, and costs.

One thing Troll Rushie forget to add (most like because he rubber stamped his signature) is the second Copyright record associated with this movie – PAu003725703, dated 4 Nov 13.

CopyR_Manny1

Also of note is the statement on the copyright registration the Troll is using – Regarding material excluded: credits on copy indicate some preexisting footage and photographs from various source.

How much “preexisting footage” is included in the updated version is unknown. Now we know that the Anti-Piracy Management Company (APMC)/Excipio/ IPP (insert shell Co. name here) only takes a very small snap-shot of data collection from each IP address with its “PCAP.” Now depending on WHAT portion of the data is recorded in the PCAP, it is possible that the data they collected is part of the preexisting footage from the first copyright registration. This isn’t going to help most of the Does, but it might be of value to a Doe who is fighting back.  It would make their “expert” (term used loosely) have to try to explain how they know the PCAP data was part of the updated movie (PAu003744511) and not from the preexisting material which is not part of this case (PAu003725703) – a valid question based on the complaint.

Also of interest is who they are using to justify their early discovery efforts to obtain the ISP subscriber information of the public IP addresses they recorded. Will this be Daniel Macek, Daniel Susac, or some new stooge?  I haven’t seen the Early Discovery request for any of these cases yet – which is odd in my opinion.  The PCAP data was already recorded and used as a basis for the complaint against the specific public IP addresses.  It should be dead-simple for the APMC to have the declaration ready the same time as the complaint.  Maybe they are having trouble trying to make up a fictitious name???  Try “Biggus Dickus” or “Incontinentia Buttocks.”

DieTrollDie :)   “You know, Burke, I don’t know which species is worse. You don’t see them fucking each other over for a goddamn percentage.”  {Ripley, Aliens}

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Dallas Buyers Club, LLC, In Australia (iiNet v. DBC) – Bugger Off APMC/Macek

australia_stencil2In case you were not following events from the Dallas Buyers Club case in Australia (iiNet v. DBC), there were some interesting developments.  The central point of this case is if a group of Australian Internet Service Providers (ISP) will have to disclose the personal information of 4726 subscribers who are alleged to have downloaded/shared the movie Dallas Buyers Club via BitTorrent (BT).  The court is reviewing all the testimony/facts and should make a decision in a couple of weeks.  Here are some of the stories.

Of particular interest was the testimony of German Citizen Daniel Macek, Maverick Eye UG, employee.  Macek used the Maverick Eye software to record the public IP addresses that are alleged to downloaded/shared the movie.  iiNet’s attorneys attacked Mr. Macek’s credibility and experience.

Under cross examination by defence barrister Richard Lancaster, SC, representing iiNet, Mr Macek said he did not prepare his own affidavit.

“It was provided,” Mr Macek said, referring to the film’s rights holder Dallas Buyers Club LLC preparing it.

The statement was “pretty much complete[d]” for him and he could not remember if he made any changes.

“You provide affidavits and statements in lots of litigations all around the world,” Mr Lancaster said. “Is it your practice just to sign what is put in front of you?”

“No,” Mr Macek replied.

Mr Macek could not say whether he was authorised via email or letter to use the MaverickEye software to identify those who allegedly shared Dallas Buyers Club.  (Taken from The Sydney Morning Herald story)

Daniel_Macek_APMC

The reason Macek was cross-examined so forcefully was because it was his declaration DBC used to justify the release of the AU ISP subscriber information.  Now many of you already know that Daniel Macek is a central figure in a multitude of US BT Copyright Troll cases.  In the US his declarations were also used to justify the release of ISP subscriber information to the Trolls.

One interesting thing to note about Daniel Macek is his lack of experience.  The issue of his experience came up in the AU case.  The “experience” was also an area of concern for the Anti-Piracy Management Company (APMC), who is actually running these BT Copyright Troll cases around the world.  Here is what the APMC (via their Prezi presentation) thinks of Mr. Macek.

APMC_D_Macek1

If you look at the full transcript (text) of the presentation (link is on the bottom of the presentation page), there is an entry concerning Mr. Macek and his “experience.”

This of course is not a shock to me and others who follow the BT Copyright Trolls.  What is also interesting is another name that was used by the APMC prior to Mr. Macek – Darren Griffin, Crystal Bay Corporation (CBC).  Mr. Griffin and Mr. Macek’s declaration are essentially identical, with changes only to cases titles/case numbers.  As Mr. Griffin is almost certainly a made-up person, working for a SD “Shelf-Company” run out of a mail drop, the credibility and reliability of these people and Company are in question.  Here are some additional stories on Mr. Griffin, CBC, and what WA attorney Christopher Lynch was able to dig up.  His information was key to getting Elf-Man LLC, to dismiss his client (with prejudice), leading to a fees/costs award of approx. $100,000.00.  Article 1   Article 2   Article 3

One of the more frustration aspects of these cases is how the Troll/Plaintiffs are able to obtain early discovery of the ISP subscriber information with template based declarations from Mr. Macek and Mr. Griffin.  When these cases are initially filed, there is NO opposing view/argument to their claims.  The Troll simply presents the court a declaration from a person they claim (or infer) is an expert or technician.  Most courts follow a general rule that if an attorney presents some document/declaration, they take it at face value unless someone objects or presents evidence to the contrary.  This makes it extremely easy for a Troll to obtain the ISP subscriber information most of the time.  For a majority of the cases, the court simply rubber stamps the request and the Troll happily gets the ISP subscriber data in a month or so.  In the unlikely chance that a Doe tries to fight the early discovery request, most US courts simply take the word of the Trolls and not ask for additional information.

I can only hope the AU court sees what the APMC/DBC is doing and puts a stop to it.  I will not hold my breath, but I’m confident that even if the AU ISPs have to give up the ISP subscriber information, there is going to be a few Aussies who fight back.  I think APMC is going to find out “down under” isn’t going to be an easy score.

For us in the US, the AU developments will be used to target the “questionable” people APMC uses to justify early discovery.  Who knows, maybe Mr. Macek will just fade away.  If that happens, APMC will simply replace him with another stooge willing to put his name down on legal documents.  We will wait and see; adaption is the key.

DieTrollDie :)  I will accept the rules that you feel necessary to your freedom. I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do.”  [The Moon Is A Harsh Mistress, Robert Heinlein]

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Malibu Media (X-Art) Cases In Colorado (Little Bo-Peep Has Lost Her Sheep)

Bo-peep1As  life moves on and we are faced with a multitude of changes, sometimes the “little things” escape our attention.  In the BitTorrent (BT) Copyright Troll realm, the continual filings of Malibu Media LLC/X-Art/Keith Lipscomb, is seen as a relative norm.  Recently a nice person commented that in the State of Colorado, Malibu media LLC/X-Art hasn’t filed a case since 10 Oct 14 (over 130 days).  Now I don’t believe local CO Troll Jason Kotzker has somehow persuaded BT users not to share their movies.  Not that the people behind the law suits really want the activity to stop.  So what is going on?

I will note that on 26 Nov 14 (over 80 days ago), Troll, Jason Kotzker, filed 11 Good Man Productions, Inc. (GMP), and 3 Poplar Oaks, Inc. (POI), cases in CO.  Since then, the only activity I have seen in CO, is for Dallas Buyers Club (21 Jan 15 – Troll Stephenson) and Countryman NV (5 Dec 14 – Troll Kannady).

I know Keith Lipscomb (and the behind-the-scene-Germans) have not grown a conscience and decided to stop filing these cases, so I’m intrigued.  I know they are still busy as Malibu Media, GMP, and POI, have filed cases as of 18 Feb 15 (MI, MD, & PA).   Here is a news story.

Malibu Media QuoteIt is also worthy to note how busy Malibu Media/Lipscomb are in trying to force an innocent Defendant to settle or walk-away.  Fightcopyrighttrolls Article.

It may be that the CO court has started to tire of the constant filings and repeated delay requests/extensions by the Troll and the obvious avoidance tactics used when a Defendant want to conduct Discovery against Troll/Plaintiff.

I will say I thought I did notice something small while reading over the various documents in the now-dismissed Malibu Media LLC v. Butler case, 1:13-cv-02707.   I can’t put my finger on it, but the court did not seem as open and accommodating to the Troll.  I will have to do further review.

Here are some other things that may be making Malibu Media/X-Art rethink its filing in CO

Early Settlement Conferences (ESC) – More defense attorneys are requesting early settlement conferences with the courts.  If an ESC is approved, all parties have to physically come to court and hash out a reasonable settlement in front of a mediator (can be the magistrate judge).  In CO it is often Judge Hegarty for these cases.  In general, the Troll/Plaintiff is not likely to get as large of a settlement from an ESC – in comparison to one obtained from threatening the Defendant with financial ruin.  The mediator is going to evaluate a Defendant’s financial situation and push the Plaintiff to play fair.  This is a very viable tactic for any Defendant who will most likely be settling anyway.  This of course cuts back on Troll Lipscomb’s profit margin.

Innocent Defendants Fight Back – Malibu Media/X-Art/Troll Lipscomb’s business model is built on the keystone of being profitable.  Remember this has nothing to do with “Stopping Piracy.”  Having to spend time and money dealing with a non-settling Defendant is exactly where the BT Copyright Troll business model does not wish to be – as can be seen by their past efforts to avoid discovery and trial so strongly.  The PA Bellwether was a “show trial.” Even as a show trial, it wasn’t cheap for the Trolls.  Both Colette and Brigham probably also don’t want to have to repeatedly travel to various jurisdictions for depositions and trials – they have their lives and these law suits are only supposed generate some money for them.  Even if it only reaches the discovery phase, Troll/Plaintiff is not going to be happy when a Defendant wants to examine Malibu’s operations, finances, and the BT monitoring/collection apparatus run out of Germany.  Troll/Plaintiff can only sidetrack, delay, and threaten before a court realizes what they are up to.  A trial, even a simple one takes a considerable amount of time and money to prepare for and run – estimate a minimum $50K per side.  Plus there is no guarantee the Troll/Plaintiff will come out on top or be given all of its requested costs/fees.  If it turns out bad (Like Elf-Man v. Lamberson (WA)), the Plaintiff could have to pay the Defendants cost/fees.  Even if the Troll does obtain a huge default award (i.e. $150K+) against a Defendant, collecting the money is going to be hard at best – much easier to collect a few thousand dollars and move on to the next case.  The various default judgments are mostly for show, as collecting money from people who default can be difficult.

Being A BT Copyright Troll Attorney Must Test Your Conscience – Even if the local Troll attorneys truly believe they are fighting piracy (a delusion IMO), most people are not going to enjoy repeatedly squeezing settlements out of people for downloading/sharing X-Art movies.  Many of the Troll attorneys only started up with Lipscomb because they needed money to survive.  Once the Troll money is in your pocket, it can be very hard for an attorney to walk away.  It will also be hard to find other work once an attorney’s name is soiled by working these cases and associating with Lipscomb.  Here is my advice to any attorney who thinks the smell and stain of association with Lipscomb and company will not last.  Think again – think real hard.  And make sure you ask Kotzker if it is worth it.  I understand many young attorneys are simply trying to make ends meet, but this is probably not the way to go.  Unless you at the top of this business model – Lipscomb/Anti-Piracy Management Company (APMC), you are just a little fish and paid accordingly.  I’m sure A. Jordan Rushie will beg to differ – comments are welcomed.

Flawed Business Model – The genie is out of the bag when it comes to file sharing via BT.  Copyright infringement is clearly against the law, but there is NO way anyone is going to stop it either.  Going after people who cannot afford a monthly Web site subscription is not going to prevent it.  Even if a Troll/Plaintiff does believe this, their actions are clearly ineffective as they do NOT file in most of the US jurisdictions or in other parts of the world.  The best they do is collect settlement money from some of the BT users.  This may seem acceptable to Malibu Media, but it will also drive people away from their brand and others to employ Web Proxys/VPN to continue to run BT.  Plus if they were truly interested in reducing the number of infringements, they would watermark their movies with a code tied back to the purchasing customer (name, email, IP address, credit card info, etc.).  They could also send out DMCA take-down notices to the ISP subscribers – something they do NOT do.  Not a perfect solution, but it is better than what they are currently doing.  BUT then Lipscomb/APMC will lose out.  Go Figure – follow the money.

Who knows, maybe I completely wrong and Malibu Media LLC is going to file more cases in CO.  We will see.  To all the Troll lawyers (past & present) the comment section is open and waiting.  I promise I will not edit or delete them.  You can also make them anonymously if you please or email me directly – Dietrolldie@dietrolldie.com.

DieTrollDie :)   “Look, let’s start with some tough love. You two suck at peddling meth. Period.”  {Saul Goodman, Breaking Bad}

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Dallas Buyers Club, LLC, Versus The Gaslight Coffee Roasters – 1:14-cv-04010 (NDIL)

TrollMug_GCRThis Dallas Buyers Club (DBC) case (1:14-cv-04010) was filed in Northern District of IL on 30 May 14, against 45 John Does alleged to have downloaded/shared DBC during 12-16 Feb 2014. What makes it different from the standard mass-Doe BitTorrent (BT) Copyright Troll cases is the Defendant, Defense Attorney, and the work of Mr. Delvan Neville.

The copyright infringement complaint and motion for early discovery (seeking ISP subscriber information) are the standard Troll templates, claiming joinder of the 45 John Doe IP addresses is appropriate because the infohash/torrent file for all the Does is the same.   Complaint_04010(IL)   Complaint_Exhibits_04010(IL)   Motion_ED_Doc_10_04010(IL)   Docket_2Feb15_04010(IL)  

Now I will say I was a bit surprised that the court did tell Troll Michael Hierl to provide additional information concerning joinder.   Motion_SupportJoinder_Doc_21_04010(IL)   In their support document they claim that joinder is appropriate and the District of Columbia Court of Appeals in AF Holdings, LLC v. Does 1-1058, 752 F.3d 990 (D.C. Cir. 2014), was wrong. The Trolls states that in the Prenda Law case, there were 1058 Doe from multiple jurisdictions and the time-span was approx. five months. This case only had 45 Doe in the same jurisdiction and a time-span of only 5 days. The Troll of course did not inform the court that there was additional information showing that joinder of Defendants based on the infohash was not justified. Here is a previous declaration in a DBC case in IN. Decl_Neville_Doc_17-1_01142(IN)  As there was no dissenting view provided, the court granted early discovery. Here are some previous articles of interest regarding Troll Hierl/DBC, DC Appeals Court ruling, and Mr. Neville’s Declaration.

As the ISPs started to notify their customers of the law suits and pending release of their information, one John Doe was in a little different situation from most. This John Doe (#26) was not a residential ISP subscriber, but a small business – Gaslight Coffee Roasters (GCR), 2385 N. Milwaukee Ave., Chicago, IL 60647 (corner of Fullerton Ave & Milwaukee Ave).  GCR provides WiFi Internet access to over 200 customers each day. Note: The identity of GCR was voluntarily disclosed to the court by their attorney (see below). BTW, the coffee, food, and atmosphere at GCR look great – I will have to stop in sometime. 2nd Note: There were two additional Comcast Business customers listed – Doe # 24 & # 36 (see Complaint IP listing).

The owners of GCR decided not to give into extortion (my opinion) and sought the services of attorney Scott Kane Stukel, Kane Community Law, Logan Square, Chicago, IL.

Attorney Kane opted to defend his client by attacking the issue of mass joinder in BT Copyright Infringement cases. The Trolls claim mass joinder is appropriate because the torrent file for all 45 Does had the same infohash number and all the Does resided in the same jurisdiction. Attorney Kane hired Delvan Neville, Amaragh Associates, LLC, to look at this particular case and tell him if the joinder of 45 Does was justified. What Mr. Neville provided was similar to his findings in another mass-Doe DBC case I reported on previously.  Previous article

Mr. Neville’s assessed the chance that ALL 45 Does shared the same file (via BT) amongst themselves during the 5 day period was “astronomically small.” Well, Mr. Nelville, how small is that?

Decl_Neville_04010(IL)

There is a 1 in 7 tresviginitillion (1 in 1072) chance that ALL 45 Does are linked together by some actual data sharing, NOT just a hash file number. WOW! You have a better chance of winning the Power Ball lottery three times in a row than being able to link up all 45 Does and show that joinder is proper!

Mr. Neville also makes the point that EVEN if the 45 Does were properly linked, Troll/Plaintiff would not be able to show this, as their monitoring apparatus (CBC/IPP/APMC) does not have the ability to record such data, as well as not all the Doe BT clients provide information concerning the other peers (other Does) they are communicating (sharing data) with.

I would also like everyone to note that the BT swarm members in the analysis were NOT limited to a geographical location or single jurisdiction (like this case of 45 ILND Does).  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. This is important, as I believe the filtering makes it even more likely that any BT client in a swarm shared/received data from a BT client from OUTSIDE of the jurisdiction.

On 29 Dec 14, Attorney Kane filed a Motion to Sever (including the Neville Declaration) and a notice disclosing that Doe #26 was GCR.   Motion_Sever_Doc_28_04010(IL)   Decl_DelvanNeville_Doc_28-1_04010(IL)   DBC_NDIL_Cases_Doc_28-2_04010(IL)  GaslightCR_Doc27_04010(IL)

On 15 Jan 15, Troll Hierl filed a motion to dismiss all remaining Does in this case.   Motion_DismissAll_Doc_34_04010(IL)   According to the docket, there were 14 Does who were dismissed by the Troll prior to the full dismissal that ended the case. So it looks like 32 Does (including GCR) didn’t pay Troll/Plaintiff a dime. On 21 Jan 15, the court (Judge Sara Ellis) authorized the dismissal and closed the case. The dismissal (without prejudice) mooted attorney Kane’s Motion to Sever and allowed Troll/Plaintiff to avoid having to address the joinder issue (again) with a Judge who previously raised concerns. The Troll was probably concerned that even if they only dismissed GCR, the court would have sue sponte (on its own) required the Troll to respond to the Neville Declaration.

What Does It Mean?

I believe this means the Trolls do not want to have to defend their claims of joinder. Fighting the Neville Declaration is too risky in my opinion. Dismissing the case and moving onto new ones removes the threat to their operation. As many of these cases never have a motion to server raised, it is safer to dismiss and not risk a court severing all the Does. As the Troll/Plaintiffs do nothing to try to limit the spread of their movies via BT (like sending DMCA notices to the ISPs of the Does), they know they can simply file more cases.

If I was an attorney representing a Doe in one of these mass-Doe suits, I would hire Mr. Neville to provide a declaration, as well as attaching the previously filed declarations and the fact that the Trolls dismissed the cases instead of addressing the issue.   Decl_Neville_Doc_17-1_01142(IN)   Decl_DelvanNeville_Doc_28-1_04010(IL)   Even if I was a Pro Se Doe Defendant, I would file a Motion to Sever based on both of these declarations.  Note: The Troll can still refile against any dismissed Does, but I doubt this will happen.

Mass joinder of BT Copyright Infringement Defendants is bound to die as more and more courts see how the Trolls are simply avoiding the issue when forced into a corner. Even in the Northern District of IL, the Trolls would rather not have to answer the hard questions. Hopefully we will begin to see Mr. Neville’s declaration used in other jurisdictions.

Give Thanks

If you are one of the dismissed IL Does that didn’t have to pay a settlement, do me a favor and drop attorney Kane and GCR a thank you note. Better yet, treat him to lunch or to a great cup of coffee at GCR. Also don’t forget Mr. Neville at Amaragh Associates, LLC.

DieTrollDie :)  Always yield to temptation, It may never pass your way again.  [Lazarus Long – Time Enough For Love, Robert Heinlein]

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Where is Waldo (Darren M. Griffin/CBC/APMC)? – 8th Circuit Court Of Appeals, 14-3274 (Killer Joe NV)

Darren Griffin, CBC

Darren Griffin, CBC

Well things just got a little bit more interesting in appeal of Leigh Leaverton against the ruling of the Northern District of Iowa, Killer Joe Nevada (KJN), 5:13-cv-04036.  Please see my previous post on this for background – Since my previous post, the Troll filed a response and claimed that there was nothing wrong with the decision of the lower court in deciding not to award attorney’s fees to Leaverton.   KillerJoe_Brief_(14-3274_8th)   Here is a copy of the docket.   Docket_29Jan15_14-3274(8thC)

It looks like sometime after I wrote the initial article, attorney Christopher Lynch (Elf Man v. Lamberson – case # 2:13-cv-00395, contacted attorney Ray Johnson and informed him that “Darren M. Griffin, Crystal Bay Corporation (CBC),” was a fictitious person/company.   Here is my article on thisThis is important, as the declaration from Mr. Griffin/CBC, was the reason early discovery was granted AND it was included in the appeal brief filed by KJN.

14-3274_motion

Attorney Johnson immediately contacted the Troll attorneys who were working this case and asked for an answer to the allegations by attorney Lynch. What he got back was not too surprising from the Trolls. Troll Keith Vogt told Johnson that when they filed the case, he had no information to suggest that Mr. Griffin/CBC was a fraud and thus there was no “ethical concern.“ What troll Vogt DID NOT do is contact Mr. Griffin/CBC, Plaintiff, or the Anti-Piracy Management Company (APMC) to verify/dismiss the allegations. Instead he decided to leave the Griffin declaration in the Joint Appendix submitted with this appeal.

Now the other troll attorney who WAS working for this Troll/Plaintiff – Jay Hamilton, had something else to say. Attorney Hamilton told Johnson that his law firm had ENDED “its engagement with APMC.” He also stated that they would proceed with an investigation on the matter and get back to attorney Johnson.  Note: as of attorney Johnson’s latest filing, this was not done.  Here is a copy of a briefing on APMC’s business model and strategy – The fact that Hamilton admitted that APMC was at the center of this BT Copyright Trolling effort is telling – but not really that shocking to those of us that follow their antics. As the APMC is an interested party in these operations/Federal cases, they have FAILED to notify the court of their financial interest in these law suits. It could spell trouble for the Trolls. I would also be interested in finding out why Hamilton’s law firm ended their work for APMC. Was it due to ethical concerns??? Did they know of the various frauds and finally decide the risk to them was too great for the money they were paid??? Mr. Hamilton, please feel free to email me on the issue, especially if you feel I have gotten something wrong.

Attorney Johnson did not hear anything else from the Troll/Plaintiff and filed a Motion For Additional Time To File Appellants Reply Brief.   Motion_MoteTime_14-3274(8thC)   The file contains the Motion, Emails between Johnson and Trolls Vogt and Hamilton, as well as a Declaration of Attorney Johnson.

On 27 Jan 15, The court granted Johnson extra time to file his Reply.   MoreTimeGranted_14-3274(8thC)   The Reply can be filed no later than 2 Feb 15 (Monday). We can only hope the Appeals court will see what a clear fraud this case (and others) have been and asks some hard questions.

I would also like to point out that in the docket, the court makes it clear that this cases is set for an oral argument. This is something I believe Troll Vogt and the APMC really don’t want to happen. Besides allowing attorney Johnson to highlight the Troll’s slimy behavior, the Appeals Court Judges are likely to have some hard question of their own. If anyone has some tap dancing shoes, please send them over to Troll Vogt’s office – he may need them.

Prior to oral brief expect the Trolls will try to make some sort of deal with Johnson/Defendant, but I believe they are too cheap make a reasonable offer. Plus, I believe attorney Johnson has the advantage in this appeal, as the lower court was in error – my non-lawyer opinion. So this Monday I expect to see a nice Reply filed and then an oral briefing in the future.

DieTrollDie :)  “This was a revolution ignited with nothing more than a camera and some questions. Questions that led a man, once revered as a god among mortals, to cry and shit his pants.”  {Dave Skylark – The Interview}

 

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BT Copyright Trolls Love To Fish; Malibu Media (X-Art) v. Cuddy – 1:13-cv-02385 (CO)

This is an interesting Malibu Media/X-Art case in which Troll/Plaintiff is having a big
problem with agreeing to a Protective Order (PO) in relation to a forensic examination of
a Defendant’s computer hard drives.  The case is Malibu Media LLC v. Mike Cuddy,
1:13-cv-02385, Colorado.  The local Troll for this is Jason Kotzker.   Archive Docket
Some of the case documents:   Doc_28_02385(CO)   Def_Answer_Doc_29_02385(CO)   Doc_38_02385(CO)   Doc_48_02385(CO)

Bottom Line: Troll/Plaintiff is not happy that it is NOT being allowed to conduct a free-range “Fishing Expedition” of the Defendant’s hard drives.

So What Does Troll/Plaintiff Do When They Don’t Get Their Way???

They file a Motion To Compel Defendant to produce the hard drives in direct opposition to the courts standing order.

The Court ordered production of Defendant’s hard drives for limited searching purposes, but only after a Protective Order was in place. [CM/ECF 50].

As the PO has NOT been agreed upon, Defendant has not provided the hard drives.  It would be a serious mistake to allow Malibu Media’s “Expert,” Patrick Paige to have access to the hard drives without the PO in place.  Sorry, doing that is not a mistake, it is just plain stupid.  So on 9 Jan 15, Mr. Cuddy’s attorney filed a combined motion in opposition to Troll/Plaintiffs motion to compel and their proposed PO.   Note: I only have a couple of the Exhibits from this motion; please feel free to RECAP them if possible.   Doc_67_02385(CO)   Doc_67-2_02385(CO)   Doc_67-3_02385(CO)   Doc_67-12_02385(CO)

So What Are The Limits On The Search?

Defendant’s attorney, Carolyn Lindvig, Godin & Baity, LLC, wants the forensic examination to be limited to the relevant areas based off the specific claims of the Plaintiff.  Which is:

  1. 31 Malibu Media/X-Art movies
  2. Use of any BitTorrent (BT) applications
  3. Anything showing that evidence was destroyed (spoliation)

The court agreed to this and told both sides to work out the specifics of the PO.

Doc #67-2 (01/09/15)

Doc #67-2 (01/09/15)

Based on the case specifics as present by Troll/Plaintiff, this is a “no-brainer” in my opinion.  Troll/Plaintiff claims the public IP address associated to Defendant Cuddy (ISP subscriber) was recorded sharing 31 Malibu Media LLC copyright protected works via BT on a specific date/time.  The results of such a limited scope search are going to be:

  1. Evidence is present on the hard drive(s)
  2. No evidence is found
  3. There is evidence that evidence was destroyed or the presence of data wiping application

Now based on what (if any) evidence is found, Troll/Plaintiff can request additional court authority to expand the search parameters to the relevant areas.  Example: The examination discloses that “CCleaner” was on the computer.  Troll/Plaintiff could request the court authorize a deeper look into the files/registry associated with CCleaner to determine IF it was used to wipe/destroy any files.  Note: CCleaner by itself is NOT an indicator of data destruction, ONLY the possibility.  Further examination will be needed to determine how/when it was used.

So What Is Troll/Plaintiffs Problem With The Search?

Paige_HardDrives1The problem is Troll/Plaintiff wants to have free range in HOW conduct the search and nothing is off-limits.  They would rather be given the hard drive copies and allow Mr. Paige to have a free-for-all into Defendant Cuddy’s private affairs.  The best they can do is simply say “trust us,” we would never abuse the parameters of the search.  Laughable simply laughable

Here is the proposed limits to the search from the Defense

(1) Keyword searches will be developed by Plaintiff and Defendant in order to capture the Works, the removal of the Works, and the use of BitTorrent.

(2) Mr. Paige will identify how and disable all preview functions in his forensic software, in order to avoid viewing the content of the hard drives while he performs the keyword searches.

(3) After performing the agreed upon keyword searches, Mr. Paige will produce a file list of the files containing the results of those keyword searches.

(4) After creation of a privilege/relevance log by Defendant, Mr. Paige will be permitted to view the contents of the remaining file contents.

(5) Mr. Paige will produce a log of all search activities he performed so that to the extent evidence of the Works, deletion thereof, or BitTorrent use is found, Defendant will be able to duplicate exactly what Mr. Paige did to find such information. 

encaseThis is not a difficult (or unreasonable) thing for Troll/Plaintiff/Mr. Paige to do.  EnCase is a very versatile forensic application which unless I’m mistaken, will automatically log ALL search activities from start to finish.  The proposed keyword list will cover the titles of the X-Art movies, BT applications, and the possibility of data destruction.  The Defendant even obtained the services of a very experience forensic consultant (Robert Kelso, Forensic Pursuit, CO) to support Defendant’s PO.   Doc_67-12_02385(CO)

Now I’m sure troll/Plaintiff is going to make some sort of reply that states “Well If Defendant did this… or this…Mr. Paige needs to be able to do this…” in an attempt to expand the search as far as possible, but I can’t see the court giving in at this time.  Hell, they haven’t even deposed the Defendant (as of the filing of Doc #67).

The Question Of Credibility

One thing I did notice in Exhibit C (Doc_67-3_02385(CO)), was that attorney Lindvig, told the court she has some concerns with Mr. Paige’s credibility (but it hasn’t been raised at this time) – bottom of Page 6, EX. C.  She mentions it deals with his drug arrest – top of Page 7.  Please see my previous post on this.  On 8 Mar 2011, “Detective Paige” was booked for possession of a control substance without a prescription.  Yes, he was a Detective with the Palm Beach County Sheriff’s Office (PBCSO), FL.  Note: The judge did say that this issue might not be relevant to the case.

That will most likely depend on how attorney Lindvig presents it.  If she focuses ONLY on the alleged criminal act (buying drugs), then it is certain to be brushed aside.  The point I would focus on is Mr. Paige’s credibility and trustworthiness in regards to HOW he allegedly made an illegal purchase of a controlled substance.  Based off of the limited news report and arrest mug shot, Detective Paige allegedly used an Official PBCSO online undercover account (and undercover persona) to order Vicodin.  The drugs were mailed to a PBCSO undercover post office box his office used to investigate criminal activity.  Who knows, maybe he even used the “Silk Road” to do this???  The drugs were allegedly sent by a UPS Next Day Air package.  It appears that following the arrest, Detective Paige was placed on administrative leave and eventually left employment with the PBCSO – it is possible he was asked to retire and spare the PBCSO further embarrassment.   If anyone can obtain a copy of the arrest report (and if an investigation was done), it would be greatly appreciated.  I would not be surprised to learn that Mr. Paige was given a sweet deal if he simply retired.

This was ALL allegedly done while Detective Paige worked in PBCSO’s Computer Crimes Unit.  He appears to have/had “trust” issues with abiding by rules/laws/ethical standards expected (and demanded) of a law enforcement officers and public servants.  The issue at hand IS does Mr. Paige have those ethical problems that would allow him to ignore the CO court’s order and exceed the scope of the search into areas and by methods not authorized?  I’m of the opinion that based on this incident and the fact he now works for a notorious BT Copyright Troll, that ethics are not his strong suit.   To Mr. Paige – If you would like to refute/correct any of this, please feel free to email me at dietrolldie@dietrolldie.com.  I think Mr. Paige does owe the court an explanation of the incident and set the record straight.  This issue is not likely to go away for Troll/Plaintiff.

What Is Next?

I assume Troll/Plaintiff will file some sort of response and then hopefully the court will lay down the law with regards to the PO.  Of course Troll/Plaintiff would love to have the hard drives to examine prior to any depositions or further discovery.  They are likely of the opinion that if evidence is found early on, they will have a better chance of forcing a settlement prior to having to make any discovery disclosures/depositions on their part.  This looks interesting and I expect more shenanigans from Troll Lipscomb’s camp.

DieTrollDie :)   “It’s not our job to—there was no evidence against us! I think everyone, even the people that dislike anti-piracy litigation, would agree that I don’t have to answer questions if I don’t want to. That’s my right. The fact that people take the Fifth Amendment, against compelled testimony, is not allowed to be a negative inference.”  [John Steele (Prenda Law) Interview, ArsTechnica]

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The 2014 Round-Up – Why BT Copyright Trolling Will Continue

BT_TrollGreed1I decided to have a little fun and do some filtering of the 2014 BT Copyright Troll cases I recorded.  I will assume I have missed some cases and there may some other minor errors – so take this data with that note.  After saying that – even with any small number of errors, the sheer number of overall cases, the jurisdictions involved, and what Troll/Plaintiffs are involved, is telling.   2014 BT Copyright Troll Cases   2014 BT Copyright Troll Cases – Jurisdictions   2015 BT Copyright Troll Cases

So I have the total number of BT Copyright Troll cases filed in 2014 at 1828.  Number of John Does/Defendants in these cases is 6354.

At a cost of $400 per case, the filing fees paid by the Trolls were $731,200.  Note: Even if you remove the 10 cases I have on the “Misc Plaintiffs” Tab, 1818 BT Copyright Troll cases is substantial.  I don’t have the total numbers for 2013, so I cannot determine if we have seen an increased in cases and/or Does.

The single largest Troll/Plaintiff filer is Malibu Media LLC with 1449 cases – single John Does.  Filing fees of $579,600.

Next largest filer is Dallas Buyers Club LLC (AKA: Voltage Pictures) with 178 multi & single John Doe cases; Total of John Does/Defendants is 3719.  Filing fees of $71,200.

The remaining Troll/Plaintiffs numbers are smaller.

Good Man Productions, Inc., 99 single John Doe cases.  Filing fees of $39,600.

Countryman Nevada LLC, 26 cases (mostly multi-Doe) with 596 John Does/Defendants.  Filing fees of $10,400.

Poplar Oaks, Inc., 24 single John Doe cases.  Filing fees of $9,600.

The Company You Keep (TCYK), LLC, 13 cases (single & multi-Doe) with 85 John Doe/Defendants.  Filing fees of $5,200.

Millionaire Media, LLC, 11 single John Doe/Defendant cases.  Filing fees of $4,400.

Khumba Film Pty, Ltd., 4 multi-Doe cases with 160 John Does/Defendants.  Filing fees of $1,600.

The Misc Plaintiffs and RightsCorp are small but interesting aspects to this business model.

So What Does It All Mean???

As each Troll/Plaintiff and their local attorneys are different, it is hard to give definitive answers.  I believe Malibu Media/X-Art are the more serious of the Trolls.  Master Troll Keith Lipscomb has got his game-plan down fairly well.  They appear to target BT users who actively share Malibu Media content (as well as other content) for an extended period of time.  The settlement amounts Malibu Media receives is a well-kept secret, but I would still expect nothing less than $4,000 (some will be more) per case.  For the 1449 cases they filed in 2014, which is a good amount of profit.  With a 50% settlement rate at $4,000, they will make $2,896,000.  I previously said I believe Malibu Media tailors/filters their single-Doe cases to increase settlement percentages overall.  At a 75% settlement rate at $4,000, they will make $4,344,000.  As you can see, this business model isn’t going away.

Akin to Malibu Media is the cases filed for the direct-to-DVD movies, “Puncture Wounds” and “A Good Man” (Poplar Oak Inc., & Good Man Productions Inc.)  I expect these cases will be run with the same ruthlessness as the Malibu Media ones.  As they are single movies, I would expect at least a $3,000 settlement, but I’m sure they will adjust their greed as needed.

The next major player is Dallas Buyers Club (AKA: Nicolas Chartier).  BTW: Voltage Pictures is previewing their next movie, “Good Kill.”  I expect this will also be their next big BT Copyright Troll case for them.  Even with the large number of Does/Defendants, this Troll/Plaintiff does not appear as serious as Malibu Media/Lipscomb – as far naming/serving Defendant.  Note: there have been a small number of single-Doe cases, limited serving of summons/complaints, and the occasional default judgment against a non-responsive Defendant.  What you do NOT see is ANY cases going to trial.  The Trolls (All of them) in general try to avoid this at all costs, as it is not cost-effective for their business model.  For 2014, DBC had 3719 John Does.  If they only received settlements from 50% of the US John Does at $4,000, the amount of money is staggering (1859 Does * $4,000 = $7,436,000).  Also don’t forget the DBC cases that are taking place in Australia, Finland, Denmark, and Japan.

Millionaire Media, LLC, will be interesting to watch to see what comes of the 11 single-Doe cases against people who downloaded/shared documents concerning Penny stock investments.

Also of interest will be what Microsoft does with its three – 10 John Doe cases in WAWD.

I was a little surprised that Khumba Film Pty, Ltd., only filed four cases – 160 John Does.  BUT, if they were able to get a 50% settlement rate, then that is still some nice profit – 50% rate: est. settlement of $4,000 * 80 Does = $320,000!  Hell, even a 25% settlement rate is nice – $160,000.

As you can see, the ability to make a profit from these cases is still a big draw.  In the jurisdictions that are still friendly to multi-Does cases, this is the easiest way to make money.  The single-Doe cases do take some additional work, but I still think it is profitable based on what we saw in 2014 and at the start of 2015.

2015_BT_CT_cases

DieTrollDie :)

“And our credo: “Sic gorgiamus allos subjectatos nunc.” We gladly feast on those who would subdue us. Not just pretty words.”  [Morticia Adams, The Adams Family]

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Malibu Media (X-Art) Fails In Its Call For Sanctions (No Bad Faith) – Harrison Case – 1:12-cv-01117 (IN)

Some of you may have seen the recent article on Freezenet where Malibu Media took a hit on its attempt to obtain a default judgement and sanctions for spoliation of evidence against Michael Harrison, case # 1:12-cv-01117 (IN).  This is an older Malibu Media case that was originally filed on 14 Aug 2012, against 11 John Does.  I have a few posts on the Harrison case and will not go into too much background here.

HD_Gone1Suffice it to say that Mr. Harrison had Two computer systems: One gaming system and One general purpose laptop.  Mr. Harrison was notified of the law suit and subpoena for his ISP subscriber information by COMCAST in October 2012.  At that time, the hard drive in Mr. Harrison’s gaming system was having performance issues (to include crashing) and Mr. Harrison replaced it in the January 2013 time-frame.  In February 2013 the old hard drive was sent to GGI Recycling LLC as scrap (destroyed).  After finding out this fact (Mr. Harrison was deposed on 7 Aug 14), Troll/Plaintiff filed a motion for sanctions against Mr. Harrison for destroying evidence (the hard drive).  Note: On 25 Jul 13, Troll/Plaintiff was provided copies of Mr. Harrison’s computer hard drives.  On 24 Dec 14, the court issued its Report and Recommendation on Plaintiff’s Motion for Sanctions.   Doc_294_RandR_NoSanctions_01117(IN)

Two Factors For Sanctions – Duty To Preserve & Bad Faith

By simply looking at the above dates, it doesn’t look good for Mr. Harrison.  But wait…   The court said there were Two key points to determining if sanctions for spoliation were warranted.

  • Did Mr. Harrison have a duty to preserve the hard drive as evidence?  YES
  • Did Mr. Harrison destroy the hard drive (evidence) in bad faith, wilfulness, or at fault?  NO

The duty to preserve the hard drive as evidence was established when Mr. Harrison first received notification from COMCAST in October 2012.  What Mr. Harrison should have done was secure the hard drive for possible examination by Troll/Plaintiff’s expert at a later date.  Mistakes happen and this goes to show you how this Troll/Plaintiff will try to bend facts to their advantage.

“…Plaintiff asks the Court to enter default judgment against Defendant, [id. at 7], or “at minimum,” issue “an adverse inference instruction requiring the jury to infer that Plaintiff would have found its copyrighted movies on the destroyed drive.”

Troll/Plaintiff had the gall to ask the court to instruct a potential jury that Plaintiff’s movie WAS on the destroyed hard drive.  No facts support such a stupid request and the thankfully the court got to the heart of the matter. 

The court conducted an evidentiary hearing and based off all of the evidence, could not find anything to show bad faith from Mr. Harrison.

  • Mr. Harrison destroyed the hard drive approx. five months after he was notified by the ISP of the law suit.  The judge concluded that a person wanting to destroy adverse evidence would likely not wait that long to do so.
  • Troll/Plaintiff did not serve Mr. Harrison with its amended complaint until April 2013 (after the hard drive was destroyed).  Mr. Harrison testified that until he was served in April 2013, he was unaware that “He” personally was being sued.  The judge said this fact makes it less likely that Mr. Harrison was trying to destroy evidence.  Note: I also loved the following footnote in which the judge tell Troll/Plaintiff that they screwed up by not following his orders.

The Court notes that its previous order, [Dkt. 18], stated that “[w]ithin seven days of the identification through discovery or otherwise of any putative Defendant, Plaintiff shall file an Amended Complaint naming that Defendant and shall undertake immediate efforts to effect service of process upon that Defendant.” [Id. ¶ 4.] Had Plaintiff complied with the Court’s order and “immediately” undertaken efforts to serve its amended complaint on Harrison, Plaintiff’s current motion for sanctions would rest on firmer ground: in such a case, Defendant’s destruction of the hard drive would have occurred after service of the amended complaint, and it would be much easier for the Court to infer that Defendant’s conduct was an attempt to hide information that could have been adverse to Defendant in the present litigation. As it is, however, Plaintiff did not serve Harrison for approximately five months after mending its complaint, and thus cannot benefit from such an inference.

  • The purchase of the replacement hard drive by Mr. Harrison’s friend (Mr. Harlan) is not suspicious or indicates bad faith.  Mr. Harlan owed Mr. Harrison some money and he (Mr. Harrison) ask Mr. Harlan to purchase the replacement hard drive for him.  Mr. Harlan testified to this fact and corroborated the explanation.  The court felt that if Mr. Harrison wanted to hide the fact that the hard drive was replaced, he would not have disclosed this fact or provided a copy of the receipt for purchase by Mr. Harlan.
  • Mr. Harrison testified that he used the gaming computer to play on-line games and very light Internet usage, such as Facebook.  He stated that the gaming computer never had BitTorrent installed on it.  He further stated the laptop was used to run other applications, to include BitTorrent.  Note: Plaintiff’s movies were not found on the laptop computer.   The court also found Mr. Harrison’s statement concerning the gaming computer usage to be credible.

For these reasons, then, the Court concludes that Defendant did not destroy the hard drive in bad faith. No direct testimony establishes that Defendant did so, and the circumstances of the destruction as outlined above do no warrant an inference that Defendant destroyed the hard drive for the purpose of hiding adverse information. As such, Plaintiff has not carried its burden to prove bad faith destruction of evidence, and Plaintiff’s motion for sanctions is DENIED.

Relevance Of Destruction At Trial

The court did say the fact that Mr. Harrison destroyed the hard drive from the gaming computer could be relevant at trial.  Not that I think Troll/Plaintiff wants to risk a trial on this one.  So Troll/Plaintiff can use this fact to show why finding no evidence on the gaming computer does not exonerate Mr. Harrison.

What Now?

So what Troll/Plaintiff is left with is no direct evidence to show that Mr. Harrison downloaded/shared Plaintiff’s movie.  They also CANNOT claim spoliation following the court’s report and recommendation.  I bet Troll Lipscomb is wishing they didn’t make the motion for sanctions.  I can only see them clinging to the fact that Mr. Harrison did run BitTorrent on his laptop and there were various files downloaded/shared from it.  They could try to use these BitTorrent files to support their view that Mr. Harrison could have done this.  Note: I haven’t seen anything to suggest that Troll/Plaintiff is claiming the other non-Malibu Media/X-Art files (Exhibit “C”/Expanded Surveillance) shared via Mr. Harrison’s IP address (via BitTorrent) somehow are tied back to him.  As Mr. Harrison has no problem with providing testimony and the court found him credible, the best Troll/Plaintiff can do is “Hope” a jury would have a different opinion of Mr. Harrison’s testimony.  That or Troll/Plaintiff may be deluding themselves that they can put on a dazzling show that is bound to impress.

So I expect Troll/Plaintiff will be looking for some way to extricate itself from this case.  Simply agreeing to pay Mr. Harrison’s legal bills (via a confidential agreement) is always a possibility, but the cost of Mr. Quearry’s efforts may be hefty.  This case is similar to the Butler case in Colorado, where the computer in question was not available for examination.  Note: No motions for spoliation were made in the Butler case.  A settlement was reached just before Troll/Plaintiff’s expert was required to provide his report.  The exact details of the settlement are unknown.

DieTrollDie :)

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Happy Holidays From DieTrollDie – Multi-Topic Post (Copyright Trolls Suck!)

OldTrain1I hope everyone and their families are having a good holiday season.  I’m sorry this took so long to get out – holidays are hectic to say the least.  As the various Copyright Trolls have little concern for the people they squeeze money out of, I hope they get a visit from Krampus. Here are a few cases/topics that are interesting.

TOPICS

  • Malibu Media v. Butler 1:13-cv-02707 (CO)
  • Dallas Buyers Club v. Doe (IP 50.165.43.195), Case 1:14-cv-07129 (IL)
  • Dallas Buyers Club Goes To Finland (Approx. $800 Settlement)
  • Elf-Man v. Lamberson, 2:13-cv-00395 (WAED)
  • Keith Lipscomb (and crew) File BT Copyright Troll Cases For Non-Porn Movies
  • New Copyright Infringement Cases Filed Against John Does for illegal Activation/Use Of Software
  • Prenda Law Saga – OR – Where Is The Missing $5 Million Dollars?

Malibu Media v. Butler, 1:13-cv-02707 (CO)*** 29 Dec 14 Update – I guess they came to an agreement and dismissed Mr. Butler - Butler_Dismiss_02707(CO)   Butler_Min_02707(CO) The wording is different from what we normally see.

PLEASE TAKE NOTICE, Plaintiff, Malibu Media, LLC, has settled this matter with Defendant, John Butler, subscriber assigned IP address 71.229.236.179 (“Defendant”). Upon satisfaction of the terms of the parties’ settlement agreement, to which Defendant still has executor obligations, Plaintiff will dismiss Defendant from this action with prejudice. 

So Butler still is required to do “something” to make the dismissal final.  Interesting.***

No new case filing since 16 Sep 14.  Archive Docket   Troll/Plaintiff previously was given more time to provide their expert’s report concerning the evidence they have against Mr. Butler. To date I haven’t seen any report filed with the court. As the computer used during the alleged date of infringement is gone, the Troll has to try and come up with some evidence to show that Mr. Butler is the infringer. I would expect them to try and show is that Mr. Butler either hid or destroyed the computer OR that something in his Social Media persona links him to Malibu Media/X-Art or other files in their “Expanded Surveillance” (AKA: Exhibit C) of the non-Malibu Media files that were shared via the BT client using Mr. Butler’s public IP address. As they haven’t filed such a report, I think Troll/Plaintiff is trying to improve their tap dance routine for when the court finally tells them put up or shut up. There could also be discussions between the parties to dismiss the case. The main sticking point is likely to be how much money Plaintiff is willing to pay to cover Mr. Butler’s legal bills. I suspect Keith Lipscomb doesn’t want it to get out that without a computer/hard drive and/or clear indication of spoliation (destroyed evidence), their case is markedly harder. I find this funny, as even when their forensic analysis come back with NO direct evidence, they make up some excuse as to the reason and still claim the ISP subscriber is the offender.

Dallas Buyers Club v. Doe (IP 50.165.43.195), Case 1:14-cv-07129 (IL)   Archive Docket   This is the case where attorney Ross Drath made a very good motion to sever and dismiss his client from the original case – 1:14-cv-04940 (Formerly Doe No. 22). My previous article. Troll/Plaintiff opened a new single-Doe case against the Doe and he was eventually dismissed on 31 Oct 14.   Dismiss_Doe22_07129(IL)

No details are available as to settlement, except the dismissal was WITH prejudice and both parties would cover their own legal bills. The agreement to dismissal is disappointing to me and others, but often times it is the right thing to do for the Defendant, regardless of culpability. Fighting a BT Copyright Troll is not a cheap decision to make. I understand and thank those Defendants for fighting back on any level. The motion filed by attorney Drath was a good one and will likely be bench-marked in future motions. The IL courts are becoming more open to severing mass-Doe cases. I also assume there was some sort of non-disclosure agreement built into this dismissal. Troll/Plaintiff does not want the details to get out, as it points to their motivations and fears, as well as the best way to fight them. Even with no defined statement, the fact DBC was willing to back down is telling. Couple that with any/very limited naming/serving of Defendants and you will come to the conclusion that taking the wait and see approach is still viable (For THIS Plaintiff – even in IL). Their BUSINESS MODEL does not remain profitable for the Trolls if they actually spend time/money on cases. Last NoteThe Troll was sloppy and made a goof in the dismissal document – I guess he forgot what Plaintiff he was working for… DBC or TCYK???

Dallas Buyers Club Goes To Finland (Approx. $800 Settlement)   Recently (December 2014) a number of people in Finland have started to receive Settlement Demand letters (see attached file) for allegedly downloading/sharing Dallas Buyers Club.   FIN_DBC_Settle_LTR_Dec2014   The letter comes from Marcus Kevin, MK Law, Helsinki, Finland.  A simple translation of the letter claims that BT monitoring recorded the ISP subscriber’s IP address on a date/time sharing DBC. After a verdict in a “court of market,” the ISP was required to disclose ISP subscriber information. Troll Kevin will gladly accept 650 Euros (approx. $796) to avoid further legal action and additional costs. The letter also tells the recipient that they have to pay before the end of 2014.

Marcus_Kevin_MK_Law1

I don’t know Finish Copyright Law, so I’m unable to determine how serious this is. Many factors will come into play – like is an ISP subscriber (in Finland) accountable for activity on his network he didn’t do? As the settlement demand is low in comparison to US settlement demands (approx. $4-8K), I doubt it. Still, I would suggest anyone affected should consult with a knowledgeable Intellectual Property/Copyright attorney as to what the law actually states.

Additionally, the program allegedly used to do the BT monitoring was “MaveriMonitor.” The Finish court also came to it decision to order the release of ISP subscriber information based on declarations from Simone Richter and Daniel Macek concerning the trustworthiness (A word that a Copyright Troll scum don’t understand) of the monitoring software.

Elf-Man V. Lamberson, Case #2:13-cv-00395 (WAED)  Archive Docket   *** 29 Dec 14 Update – Here is the very last filing for this case.  Doc 108 Elf Man Reply re Motion to Strike 12-29-14   Troll Lowe just repeats what he already said concerning the filings by Lynch – immaterial,” “impertinent,” “improper hearsay,” and an “untimely matter.” Blah Blah Blah.  Now it is up to Judge Rice to determine the amount he will award in fees and costs.  It would be very nice if he would double it, but I’m not holding my breath. ***

This case is in the last stages where attorney Lynch has submitted a more detail claim for attorney fees and costs. Troll/Plaintiff has responded to the request and attorney Lynch has replied to this.  Lynch_SupReply_Doc_103_00395(WA)   SupDecl_Lynch_Doc_104_00395(WA)  Now Judge Rice previously decided not to sanction Plaintiff or their attorneys for the obvious games they have been playing at the behest of the Anti-Piracy Management Company (APMC). Hopefully the judge will be more acceptable to the fees/costs Defendant Lamberson incurred to simply reach this far. I find it incredulous that Troll/Plaintiff could even have the gall to say the fees were excessive. Troll/Plaintiff would not back down without Lamberson paying them off. ONLY after all the details were uncovered and Plaintiff repeatedly delayed/refused to answer key questions, did they dismiss Lamberson. If we are lucky enough for a full award, I doubt the money will come easily. I could see something like a “Prenda 2.0,” claim of inability to pay – that or simple refusal to pay. Attorney Lynch sums up this Troll very well.

In over 25 years of intellectual property litigation, I have never encountered the wholesale disregard for the facts, the law, the honor of the Court, or the obligations of counsel to abide by the Federal Rules of Civil Procedure as this case and its related cases have displayed. Ms. VanderMay admitted that “plaintiff’s representatives” were trying to force her into unlawful positions, yet Mr. Lowe perpetuates the pattern of evasion and deceit without ever acknowledging that there might be a problem. Plaintiff’s handlers have devised a scheme to abuse the federal courts as a necessary part of an unlawful extortion campaign. These unidentified handlers collect extorted monies from innocent people every day, but, when their scheme is revealed, they retreat, leaving only the unfortunate copyright holder and its counsel before the Court to face the consequences. I respectfully request that this Court award the full amount requested, doubled under equity, for immediate payment and that the matter be referred to the United States Attorney for investigation of the use of fraudulent declarations by Elf-Man LLC in connection with an unlawful extortion scheme. [ECF # 104, par #27] [My emphasis]

Late addition: I guess Troll/Plaintiff did not like the attorney Lynch’s request, as on 17 Dec 14, Troll Lowe filed the following Motion to Strike. Troll Lowe was butt-hurt and claimed the filings were “immaterial,” “impertinent,” “improper hearsay,” and an “untimely matter.” I think attorney Lynch hit the heart of the mater to get a whining response like this.   Doc 105 Elf-Man’s Motion to Strike Lamberson’s Supplemental Reply filed…   Doc 105-1 Appendix A to Motion to Strike filed 12-17-14

Late Late addition: Following the Troll/Plaintiff’s Motion to Strike, attorney Lynch filed theses documents.  I know it is much to read, but the details on how the Trolls operate is plain to see.  Doc 106 Opposition to Motion to Strike 12-19-14   Doc 107 Decl of JCL iso Opposition to Mot to Strike 12-19-14   Doc 107-6 Exhibit F – Chart 12-19-14 Doc 107-5 Exhibit E – Decl of Griffin 12-19-14 Doc 107-4 Exhibit D – Vision Films Complaint 12-19-14 Doc 107-3 Exhibit C – Australia Order 12-19-14 Doc 107-2 Exhibit B – Decl of Fieser 12-19-14 Doc 107-1 Exhibit A Decl of Macek

Keith Lipscomb (and crew) files BT Copyright Troll Cases For Non-Porn Movies – I previously wrote about (DTD Article) the initial non-porn BT Copyright Troll cases we started to see at the end of November 2014. The two movies in question are “A Good Man” (Steven Seagal) & “Puncture Wounds” (Chung Le). Even with well-known leading actors, the movies are not considered anything special. These movies were never released in a theater and went straight to DVD/Digital release.  As of writing this, there have been 88 cases for these two movies filed in CO, DC, FL, MI, and PA (25 Nov – 12 Dec 2014). *** Plus six additional case in NJ.***  That works out to be approx. $37,000 in filing fees. As these are single movie cases, it will be interesting to see what Lipscomb wants from the ISP subscribers. I would expect a couple thousand at a minimum.

 

 

And YES, the image in the Twitter feed is a Parody of the Fishtown lawyers Web page.  Check out the Twitter feed, as Rushie & Mulvihill both make comments that are interesting and telling.  As I previously wrote, these Keith Lipscomb-ish cases are by-design a copy of the Malibu Media LLC/X-Art BT Copyright Trolling template. They use the same general case design and employ the same players to justify early discovery of ISP subscriber information. The only real difference is it only deals with ONE non-porn action direct-to-DVD movie and not multiple Internet porn short movies. I can only assume that the public IP addresses they are targeting has a long history of BT file sharing of copyright protected movies, software, eBook, etc. Lipscomb and crew with try to use this fact to motivate a settlement under fear that a court would see such activity as indicative of a serial-infringer and thus increase the award amount – like any of these cases are going to a full trial.

I’m also of the opinion that Lipscomb (to include others) does some sort of filtering of public IP addresses to try to narrow their Trolling efforts to areas which have a Mid-to-Upper level income ratios. To make this business model viable, Troll/Plaintiff cannot afford to target No-to-Low income/asset personnel. The ideal targets are those ISP subscribers (not necessarily the true offenders) who have some assets and/or income levels to afford a settlement, but not enough free cash to want to pay for an active defense. Combine this target selection criterion with a public IP address that has a long-term history of BT file sharing of copyright protected media, and the Troll effectively increases his chances of forcing a settlement.

As these are Lipscomb cases, I do not expect to see a settlement demand letter, but I could be wrong. If you find yourself part of one of these cases, please contact me at dietrolldie@dietrolldie.com.

New Copyright Infringement cases filed against John Does for illegal activation/use of software – Microsoft Corporation (WAWD) and HiTek Software (CACD) – These cases do not fit in exactly with what I normally track, but it is interesting regardless.

  • 5 Dec 14, Microsoft Corporation cases – 2:14-cv-01851, 2:14-cv-01851, & 2:14-cv-01852 (10 Does a piece)
  • 12 Dec 14, HiTek Software LLC case – 2:14-cv-09552 (10 Does)

I haven’t had a chance to read any of the complaints yet, but I suspect the Plaintiffs were able to record the public IP addresses of systems using their software without paying for it. I’m not sure if these cases have anything to do with BitTorrent. Operating systems and other applications often require users to validate/register with them to fully use the software. Following the initial registration, many operating systems/applications communicate back to company servers to check for updates and also track various aspects of usage. During such communication, Plaintiffs are likely to determine if an activation key has been shared or if a “crack” has been used to gain full access without paying. The Plaintiffs will likely be able to obtain early discovery from the ISPs. Once that happens, we are likely to see some sort of settlement demand letters be sent to the ISP subscribers. Note: HiTek has previously file 4 John Doe (10 Does a piece) case in CACD on 27 Feb 14, 6 Feb 14, 11 Oct 13, and 21 Dec 10. I will also note that HiTek Software also appears to go after companies for copyright infringement. I assume all of the John Does in these cases have IP addresses that resolve back to the CACD and WA jurisdictions, but you never know. For anyone involved in these cases, please drop me an email and/or copy of the settlement letter once it arrives. We have seen previous filings of copyright infringement cases concerning software, but it hasn’t really been embraced by many companies. Here is a blog post concerning the HiTek case from Infringement Nation.

Prenda Law Saga – OR – Where is the missing $5 Million Dollars – In the ongoing drama that “was” Prenda Law, the three key personnel (John Steele, Paul Hansmeier, & Paul Duffy – idiots in my opinion), continue to claim they cannot pay the sanctions ($261,00252.11) issued against them (singularly & as a group) in Lightspeed MediaCorp., v. Smith, 3:12-cv-00889 (IL). In response to Prenda’s various attempts to hinder financial discovery of their assets, Booth Sweet LLP, filed the following this Motion for Reconsideration on 16 Dec 14.   MFRecon_Prenda_Doc_189_00889(IL)

Funny thing, probably all of the trouble Prenda is experiencing could have been handled better if they simply paid as soon as possible and then crawled back under their respective rocks. I guess their egos are too big to allow such a loss and thus they invited further trouble by hindering the discovery efforts. Pay over $260K from a war chest of approx., $5 Million would have been the smart thing to do. I guess the old saying is not too far off (Especially for Prenda) – “He who represents himself has a fool for a client.”

While conceding that, from 2010 through October 2013, Plaintiff’s Counsel earned millions, they now claim to possess no assets at all, or to have lacked sufficient assets to pay the sanctions ordered in November 2013. See, e.g., Doc. 154 p. 6. Smith has demonstrated that Lightspeed’s Counsel collected online settlements in 2012 of $4.4 million and another $1.9 from checks. At the hearing, Lightspeed’s Counsel claimed Prenda didn’t make millions, the bulk of the money went to clients, employees, and business expenses. Yet, when added, the financial records for 2012 indicate otherwise:

1. Expenses—$605,701.17

2. Clients—$355,387.14

3. 1099 Employees—$33,646.84

4. Freelancers—$75,891.80 (including reimbursement for filing fees, etc.)

5. Unidentified Employees—$286,012.14

Doc. 135-20.

This leaves nearly $5 million unaccounted for by Lightspeed’s Counsel. Yet, they cry poverty.

For those of you who are new to the Prenda Law saga, the shear level of douchebag activity is rather amazing. Booth Sweet does a wonderful job of informing the court on their hindering efforts and the results of financial analysis disclosed Prenda Law has not accounted for where $5 Million in assets went, as well as other efforts to hinder discovery. They also make it VERY CLEAR that at the time the Prenda fools were claiming they couldn’t pay, the records show they cashed-out/moved enough funds to easily cover the sanctions.

Take a read and see what the heart of a BT Copyright Troll, Troll attorney, and supporters looks like. Ethically challenged??? I cannot wait to hear what the judge thinks of this and hopefully further sanctions Prenda and allows collection efforts to begin. Merry Christmas Prenda Law!!!

DieTrollDie :)   “Respect for the truth is the basis for all morality. Something cannot emerge from nothing.” — [Duke Leto Atreides, Frank Herbert’s Dune]

dune-ring-gold                                                  ]

 

 

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