8th Circuit Court Of Appeals To Hear BT Copyright Troll Case (Killer Joe NV – IA), 14-3274

Copyright Troll School

Copyright Troll School

Here is an interesting BitTorrent (BT) Copyright Troll case that made it up the 8th Circuit Court of Appeals, St. Louis, MO. The original case (Killer Joe Nevada, LLC. v. Does 1 – 20 (Case 5:13-cv-04036-MWB) was filed in Northern District of IA, on 26 Apr 13, against 20 John Does (ISP subscribers). Please read the case summary and background in the appeals documents.   Appeal_Brief_Leaverton_(14-3274_8th)

Essentially, Copyright Troll Jay Hamilton/Plaintiff filed one of its template based case against 20 IA John Does and eventually named five as non-settling Defendants.  Two of the Defendants (Leaverton and Bolan) denied downloading/sharing the movie (Killer Joe Nevada) or knowing who did it.  Note: Bolan did tell the Troll it was likely her boyfriend and NOT her.  Leaverton is a mother of three who makes $13 an hours and Bolan is a single mother who receives child support. 

Eventually Leaverton and Bolan were able to hire Attorney Ray Johnson, Johnson Law Firm, West De Moines, IA, for a reduced retainer of only $300 (for both!).  Thank you Mr. Johnson!  On 4 Apr 14, Defendant Leaverton filed an answer denying the claims and requesting a declaratory judgment that she had not infringed Plaintiff’s work.  Note: Bolan’s also answered the complaint, but at that time she was in “default” status.  

On 22 May 14, Attorney Johnson sent Troll/Plaintiff interrogatories, as well as requests for admissions and productions.  As could be expected, Troll/Plaintiff did not respond to this and soon after motioned the court to dismiss Defendant Leaverton WITH prejudice.  The court granted this motion, but then did something ridiculous in my opinion.  Even with being the “Prevailing” party, the court denied Leaverton’s declaratory judgment counterclaim and denied her request for attorney fees.  The court did not feel Troll/Plaintiff did anything wrong in NAMING HER in the amended complaint (as a defendant) SOLELY based on the fact that she was the ISP subscriber (ISP bill was in her name).  The court also felt that since the Troll/Plaintiff dismissed the case “at the pleading stage,” the harm to her was “minimal.”  Defendant Leaverton motioned the court to amend the findings and conclusions, provide proof, and to file a record of the fees she incurred to defend herself. The court also denied these requests.  Following the dismissal of the last of the 20 defendants, Attorney Johnson filed the appeal.

The appeal is based on the fact that Troll/Plaintiff named her as a Defendant with no other information than she was the ISP subscriber.  Naming a person on that basis is reckless and simply designed to scare the ISP subscriber into paying some sort of settlement.  Also at issue was the District court did not apply the standard ruling on a fee award and implement requirement to determine fees. As the “Prevailing Party,” the court should have allowed Leaverton to submit a record of her fees to the court.

Leaverton’s Appeal Makes The Following Arguments

  • The District court erred by failing to allow Leaverton to make a record of her attorney fees
  • The plausibility that the ISP subscriber is the offender is unsupported by the record and using that as a basis for non-award of fees is in an abuse of discretion
  • The District court erred when it determined it is not relevant for fee award that a Plaintiff was unable to prove the ISP subscriber was the offender
  • The DMCA allows a Plaintiff to obtain ISP subscriber information (via subpoena), BUT it does not authorize a Plaintiff to then allege (name/amend the complaint) the ISP subscriber was the offender without some factual basis/evidence
  • The District court abused its discretion by failing to consider or give weight to relevant factors AND that irrelevant/improper factors were given significant weight by the District court
  • The district court erred when refused to award fees based on the fact that Leaverton answered the complaint prior to contacting Plaintiff’s attorney
  • The court abused its discretion when it found that fees would not be awarded based on the fact that the dismissal was filed at the pleading stage OR promptly after Leaverton filed her answer

The addendum to the Leaverton Appeal Brief is pending, as there needs to be some corrections made. Once I have it, I will post.  Addendum_Note_(14-3274_8th)

This appeal goes to the heart of the matter that WITHOUT a REAL investigation, a Troll/Plaintiff who names/serves an ISP subscriber is in violation of FRCP 11.  Attorney Johnson makes it clear the appeal has nothing to do with Troll/Plaintiff getting a subpoena for Leaverton’s personal information, but on naming her specifically as a defendant with no reasonable evidence to support such an action.

The BT Copyright Trolling apparatus we all know does NOT base their naming/serving decisions on a “factual contention” or evidence.  I believe they decide who to name and serve defendants based on the likelihood that such action will drive the defendant to the settlement table.

Here is what Troll/Plaintiffs often claims is their “evidence” – Most of which is ONLY developed after a Defendant fails to come to the settlement table and is then named/served.

  • They (their agents) recorded the public IP address (tied back to the ISP subscriber) as using BT to download/share Plaintiff’s content.
  • A search of various open source resources and paid databases (Lexus/Nexus, etc.) indicate that a male in the age range of 14-65, at some time resided at the residence.
  • A check of Facebook or other open source/social media Web sites indicates the defendant “likes” a particular topic, hobby, or interest that is somehow tied back to the other “non-Plaintiff” owned content that was allegedly being shared via BT over the Defendant’s IP address (AKA: Malibu Media’s Exhibit C OR Extended Surveillance).

The fact that Troll/Plaintiff was so quick to dismiss Leaverton indicates that “their” evidence OR factual contentions were severally lacking at best. It also indicates that Troll/Plaintiff does not want to really litigate these matters – their idea of litigation is to generate settlements or cut and run.

It is seriously sad that the only way these two women were able to adequately proclaim their innocence in the court was because their attorney decided to do it for a $300 retainer!  Attorney Johnson knew Troll/Plaintiff was not going to dismiss an obviously innocent defendant unless forced to.  He was right and IMO the District court erred by not awarding fees/costs IAW the Copyright Act/Title 17 § 505.

MoneyClip1I have to really wonder how clueless some judges must be as far as what it costs to adequately defend oneself in a civil BT Copyright Infringement case. Troll/Plaintiff was willing to take $500 (half of her bank account) from an innocent single mother (Bolan) supporting her children even when their was NO proof she was the offender (And she even told the Troll who possibly did it!) – classy, very classy.  I guess some courts believe no frivolous cases would ever be filed in their court by ethically challenged attorneys – time to get a clue.

Hopefully the appeals court will be more reasonable and understanding of the issues. I also hope that some other players are able to come forward and add some weight to the arguments presented by attorney Johnson.  Keep an eye of this one, as it builds on the DC appeals court ruling that kicked Prenda Law in their junk.  You will also see that Mr. Johnson brings a new view to taking on the Copyright Trolls.  Bravo Mr. Johnson.  

DieTrollDie :)    All right, but apart from the sanitation, medicine, education, wine, public order, irrigation, roads, the fresh water system and public health, what have the Romans ever done for us?”  {Reg – Monty Python’s Life Of Brain}

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New Copyright Trolls Invade Thanksgiving – Good Man Productions Inc., & Poplar Oaks Inc.

Turkeyday1I have been a bit busy of late and of course there are many topics I want to write about but don’t seem to have the time.  :(   One thing I want to remind those of you who are following these issues is I also make posts via twitter (@dietrolldiehttps://twitter.com/DieTrollDie).  I will often post links to files or items of interest when I can’t write a proper article.

For this 2014 Thanksgiving post, I want to highlight some new BitTorrent (BT) Copyright Troll Plaintiffs.  Well, at least the names of the Plaintiffs are new.  The people running and supporting the litigation efforts have been seen before.  The new Plaintiffs are POPLAR OAKS, INC., and GOOD MAN PRODUCTIONS, INC.  On 25-26 Nov 2014, the following 16 cases were filed in the Western District of Michigan and Colorado.

  • Good Man Productions, Inc., 1:14-cv-01213 and 1:14-cv-01215, 25 Nov 14, MIWD
  • Poplar Oaks, Inc., 1:14-cv-01214, 25 Nov 14, MIWD
  • Good Man Productions, Inc. 1:14-cv-03211, 1:14-cv-03212, 1:14-cv-03213, 1:14-cv-03214, 1:14-cv-03217, 1:14-cv-03218, 1:14-cv-03219, 1:14-cv-03220, 1:14-cv-03222, 1:14-cv-03223, 1:14-cv-03224, 26 Nov 14, CO
  • Poplar Oaks, Inc., 1:14-cv-03215 and 1:14-cv-03216, 26 Nov 14, CO

Complaint_01213(MI)   Complaint_EX_A_01213(MI)   Complaint_EX_B_01213(MI)   Decl+P_Paige_01213(MI)   Decl+D_Susac_01213(MI)   MFR_support_ED__01213(MI)   Complaint_01214(MI)   Complaint_EX_A_01214(MI)   Complaint_EX_B_01214(MI)

The movies are “A Good Man” (Steven Seagal action movie) and “Puncture Wounds” (Chung Le action movie).  The movies appear to be mediocre action films.  The address for both of these Plaintiffs is 100 Universal City Plz, #5183, Universal City, CA 91608.  Which is the same address that is found on the copyright registrations.  The name on the copyright registration is Bryan Sexton.  The address and telephone number come back to a Nick Reed.

I took a look at the complaint for the two different Plaintiffs and they appear to be the same template based complaint we have gotten to know from the Trolls in general.  The Troll attorneys for these cases are none other than Paul J. Nicoletti and Jason Kotzker.  What is a change is both of these Trolls have previously working for Troll Lipscomb/Malibu Media/X-Art.

Some of the other Troll supporters are present in these cases.  Most notably is the forensic consultant Patrick Paige, who claims his reputation is his greatest asset.

— DieTrollDie (@DieTrollDie) November 14, 2014

Too bad he forgets to tell the courts that he was arrested for illegal possession of a controlled substance on 8 Mar 2011.  Funny, Troll Lipscomb forgot to tell the PA court (Judge Bayless)  about this arrest when the PA Bellwether trial was going.  Some may say, “Well it was only drugs.”  It wasn’t just drugs – it also was that Mr. Paige used “official” Palm Beach Sheriff’s Office resources (covered P.O. Box and fictitious name they use is investigations) to have the drugs shipped to.  This directly calls into question his ethics (lack of them) as well as his trustworthiness.  NOTE: Here is an interesting change from Mr. Paiges previous declarations (my emphasis) -

From my experience, Plaintiff is likely to identify the infringer. Indeed, I can recall only one instance in all the times that we executed a search warrant and seized computers where we did not find the alleged illegal activity at the dwelling identified in the search warrant.

Another recent addition to the German behind the scene team is Daniel Susac.  Mr. Susac works for the German firm “Excipio GmbH” and monitors BT for instances of copyright protected work of their customers.  They record the public IP address, date/time of the “hit,” as well as additional details on the BT client sharing the work(s), to include other non-Plaintiff owned media files.

The cases themselves are nothing really new.  What is different is that these non-porn Plaintiffs (to Include Voltage Pictures) may be moving away from the traditional mass-Doe BT copyright troll cases and going after the single Does.  Now based on the recent declaration of Mr. Delvan Neville, they may foresee the inevitable is on the horizon.  Note: As the Two local Trolls in these cases are Nicoletti and Kotzker (both work Malibu Media cases), I’m interested to see if this new activity is associated with Troll Lipscomb…

So who makes a good single Doe target for the BT Copyright Trolls?

My guess is that for the Trolls, the best targets are those people who -

  1. Reside in a jurisdiction they file in (MI, CO, IL, OH, etc. – many more)
  2. Don’t use any proxy service to hide their true IP address
  3. Share a large amount of files via BT
  4. Keep their BT client running for long periods of time – allowing multiple “hits” by the Trolls

I call this target profile the “Malibu Media” profile.  Troll Lipscomb and Malibu Media came to their decision some time ago when they determined it wasn’t worth it to fight the various motions to dismiss/quash/sever.  Going the single Doe route using this profile effectively removes these motions and increases the chances of settlement – again this is the goal/not a trial.  It is not perfect, but it likely reduces the number of Does who might fight back.  Further filtering (geo-location) of the target IP addresses to areas with a good median income will also reduce the chances of targeting people with no assets.

More to come in future article and Tweets.  A very happy Thanksgiving to all.

One last thing – Paul Duffy, I’m not part of an “Internet Hate Group.”  I just can’t stand douche-bags like you, Paul/Peter Hansmeier, John Steele, and Mark Lutz (YES, that is my opinion).  Pay up and fade away.  ;)

DieTrollDie :)  “You sum bitch. You did that on purpose. You’re going away ’till you’re gray. I got the evidence.”  [Smokey and the Bandit – Buford T. Justice]

Sword_Gun1

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Why Mass Joinder in BitTorrent Copyright Infringement Cases Is Wrong

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Halloween Horrors (Copyright Troll Tricks) – Three Topic Post

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

TorTreat1

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

Dallas Buyers Club (DBC) LLC Settlement Demand Letter

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

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

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

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

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

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

New BT Copyright Troll Plaintiff – Millionaire Media LLC

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

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

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

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

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

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

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

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

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

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

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

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

Happy Halloween To All!!!

DieTrollDie :)

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

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

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

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

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

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

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

Why do this?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CTBC_parody1

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

VolPic1

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

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

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

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

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

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

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

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

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

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

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

“Sayonara

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

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

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

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

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

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

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

Butler Case – Colorado

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

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

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

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

New Case Filings Since The Last Article

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

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

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

Part 1

Part 2

Patrick Paige Testimony

Lipscomb Closing Statement

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

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

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

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

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

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

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

Doe17_Conclusion_02162(IL)

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

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

Refile?

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

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

No Facts Support Joinder

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

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

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

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