ElF-Man LLC Admits It Does Not Hold The Rights To Sue – Lamberson Case – # 2:13-cv-00395 (WA)

I have been meaning to do an update on this case, but something always pushes it back.  So here is a short update to the Elf-Man LLC, v. Lamberson case, # 2:13-cv-00395.

Not surprising but Troll Vandermay/Plaintiff are still avoiding the production of discovery items to the Defense.  This is a clue people – ALL of the Troll/Plaintiff’s out there DO NOT want to disclose the inner workings of their “operations.”  They know that their operations cannot survive the disclosure and are willing to risk contempt to avoid it.  Please pay particular attention to document #39 below (Declaration of Attorney Christopher Lynch).

So since the last update, here is what has happened.

  • 17 Mar 14 – Defendant Lamberson filed his Second Amended Answer, Affirmative Defenses,  and Counterclaims.   2ndAAnswerCC_00395(WA)   2ndAAnswerCC_Exhibits_00395(WA)
  • 31 Mar 14 – Plaintiff’s Motions in Response to Defendant’s Second Amended Answer, Affirmative Defenses,  and Counterclaims.   In this document, Troll/Plaintiff makes three motions – 1) Motion to Dismiss Counterclaims Pursuant to Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim Upon Which Relief Can Be Granted; 2) Motion to Dismiss Counterclaims and/or Strike Affirmative Defenses Based Upon Allegations of Fraud Pursuant to Fed. R. Civ. P. 9(b); & 3) Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) the following redundant, immaterial, impertinent and/or scandalous matter in Defendant’s second amended answer as listed:    Doc37_ Plaintiff Resp_00395(WA)
  • 11 Apr 14 – Defendant Lamberson’s Responds to Plaintiff motions to dismiss counterclaims/affirmative defenses.   Doc38_ Lamb_Response_00395(WA)
  • 11 Apr 14 – Declaration of J. Christopher Lynch in support of Defendant Lamberson’s response to Plaintiff’s Response/Motions to Dismiss.   Doc39_ Decl_Lynch_00395(WA)

They are all worth reading, but I want to focus on the Declaration of Lamberson’s attorney, Christopher Lynch.  This declaration makes it exceedingly clear to the court (and anyone who reads it) that Troll/Plaintiff’s allegations are baseless and they have no intention of actually having the cases judged on their merits or even producing discovery material that could hurt their case.

The damning part is that Elf-Man LLC, does not hold the exclusive rights to the movie “Elf-Man!”- agreement filed under seal

Through discovery, Mr. Lamberson requested production of any agreements between Elf-Man LLC and Vision Films, Inc. Plaintiff produced such an agreement dated May 1, 2012. That agreement is attached separately under seal as Exhibit 1 hereto. That agreement at page 1 makes an assignment of the exclusive rights in the movie Elf-Man from Elf-Man LLC to Vision Films, Inc. (“Vision Films”).

As well as…

On February 15, 2013, Elf-Man LLC issued a “to whom it may concern” memorandum wherein it acknowledged that it had assigned the exclusive rights in Elf-Man to Vision Films. That memorandum is attached separately under seal as Exhibit 2 hereto.

Attorney Lynch goes on to tell the court that Vision Films, Inc., has filed a copyright infringement case in TN, “3:13-cv-00128, wherein Vision Films states that it is the owner of the exclusive rights in Elf-Man.”  He also informs the court that a subpoena has been served on Vision Films, for a copy of the sales agreement with Elf-man LLC.  “To date, Vision Films has not produced any of the documents.”  Go Figure

Anyone Care for a German Twist???

Funny how “German” firms and investigators like “Michael Patzer” shows up in these cases.  This sounds strikingly similar to the Malibu Media LLC case in MD.  Fightcopyrighttrolls Article

Mr. Lamberson has served Requests for Production on Elf-Man LLC to produce any agreements between it and its German “investigators” Daniel Macek and Michael Patzer. Elf-Man LLC refused to produce these documents. Mr. Lamberson initiated a telephonic discovery conference with the Court which was held February 27, 2014. At the conference, the Court ordered plaintiff to produce these documents or to provide a narrative explanation of the relationship. To date, Elf-Man LLC has not produced any responsive documents or narrative explanation. Defense counsel has sent reminders and requests to comply with the Order on March 14, 2014 (Exhibit 3 hereto), March 31, 2014 (Exhibit 4), but Elf-Man LLC remains in contempt of the Order.

As of 3 Apr 14, we know that Plaintiff has been in contact with Mr. Patzer, as “counsel for Elf-Man LLC informed counsel for Mr. Lamberson that Mr. Patzer “will expect to be paid his hourly rate in addition to his travel expenses” in order to be deposed.”   Doc_39_Ex5_00395(WA)

Plaintiff has also failed to produce other items they were order to by the court.

  • Copies of the links, trackers, and torrent sites allegedly accessed by Mr. Lamberson to allegedly download the movie. Nothing has been produced and plaintiff claims it has no such evidence (despite the allegations of the First Amended Complaint).
  • Copies of the any demand letters or take-down notices to third-parties demanding cessation of infringement of Elf-Man. Nothing has been produced and plaintiff claims it has no such evidence.

Shy1So right now I believe the court is waiting to see if troll Vandermay replies to Lamberson’s response.  I expect that sometime after 25 Apr 14, the court will rule on these issues.  It is going to be interesting to see how Plaintiff tries to get around the fact that it DOES NOT have the right to sue people for copyright infringement of this movie.  Also of interest is the deposition of Mr. Patzer, as it could impact some high-interest Malibu Media LLC cases out there.

Please read over the documents and give me your thoughts.

Previous Lamberson Article

DieTrollDie :)

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How To Answer A Copyright Troll Summons – Basic Denial

I have been toying with the idea of writing another article on how to do a basic ‘Answer’ (denial) to a complaint/summons from a Copyright Troll.  I don’t want to make it seem like it getting served a summons/complaint is something to be taken lightly.  It isn’t.  I will first suggest that anyone in this situation consult with an attorney knowledgeable and experienced in dealing with the Trolls.  Get as much information as possible and weigh your options.  For some people, filing an ‘Answer’ Pro Se is the best thing to do.  The cost of an attorney will not be cheap; but the service provided is often worth it.  I will caution those that decide to go Pro Se that you will likely have a bit of an uphill struggle but it could work out in your favor.

The reason I’m doing this is because I have started to see a few Trolls start or increase the number of ISP subscribers they are serving.  I believe this is not wide-spread, but with the continuing filing of mass-Doe copyright infringement law suits, it could increase.  The Richard Pryor Response (RPR) is still good, but you need to be prepared if it doesn’t work. In fact I think giving the RPR as soon you find out about the case OR in response to a settlement letter only adds more credibility to an answer.  It makes the Trolls think twice.

crt_hub1I believe some of the Trolls are serving people because the settlement letters are not bringing in the cash like before.  Some Trolls may believe serving the ISP subscriber has a good chance of bringing them to the settlement table.  The Troll doesn’t really care if the settlement comes from the Doe alone or through an attorney.  Now there is some risk that a defendant will get an attorney and make counterclaims, but this is not a huge one.  Still it will happen – it is only a matter of time.

If you haven’t noticed, I have a ‘Defendant Answers’ page on my site and it has some templates to get you started.  I will caution anyone considering this – tailor the answer to YOUR situation and DO NOT simply put your name to one and file it.  I will also caution people on filing an answer that contains false or fraudulent information – not a good idea. But if the situation warrants and you have the fortitude, have at it.  This denial answer is very basic and kicks it back over to the Troll for action.

What You Need To Do

  • Obtain a copy of the latest complaint for your case; this is usually the First Amended Complaint (FAC) and associated Exhibits.  This will be a complaint where the defendants are ‘Named’ and not John Does.
  • Get yourself an Answer template.   Basic_ProSe_Answer
  • Open up both documents side-by-side and start to fill out the template.
  • Replace all the highlighted portions with information from the Complaint and Exhibits.
  • For this exercise, I have used a Dallas Buyers Club LLC, case (52 Does) out of the IL Northern District. Case 1:14-cv-01639.   Complaint_01639(IL)   Complaint_Exhib_01639(IL)   Note: This particular case may get dismissed, as the judge told Plaintiff it has until 9 Apr 14, to submit a memorandum on why this case should not be broken out into 52 separate cases (with 51 additional filing fees! – 51 x $400 = $20,400).  Notice_Doc_12_01639(IL)
  • Still, this complaint is likely almost exactly the same as other Dallas Buyers Club LLC, cases.  As more Dallas Buyers Club cases are likely to be filed, this is a good one to use.
  • Once the answer is filled out, print it and double-check the names, dates, and general readability.  Here is an answer minus the true name of Defendant/John Doe #1.   Basic_ProSe_Answer_01639(IL)   If everything is fine, sign the answer & certificate of service, and make two copies.  Original document to the court; 1st copy to the Troll; 2nd copy for your records.
  • Mail the answer to the court and Troll.  You can obtain the mailing address for the court from their Web site or by calling the clerk of the court.
  • Monitor PACER to see when it is posted to the docket.

What Next

After the answer is filed, you may get a call or letter from the Troll asking to discuss a settlement. This may be unpleasant, but you will need to start talking to them.  The Troll will use this time to assess how serious you are, what evidence he is likely/unlikely to find, as well as to possibly gleam additional information that may assist them in getting you to pay a settlement.  Be careful what you say.

First ask them what they are offering and listen.  Most will offer some sort of reduced amount (compared to the original amount in the letter) just to avoid any additional hassle.  If you want a full dismissal with no settlement paid, make that point clear to them.  They are unlikely to agree that easily.  They will likely tell you that they will simply depose you, other residents, and conduct a forensic examination of the systems in the residence.  This is a possibility, but not a great one IMO.  The cost to Plaintiff in doing this is significant – upwards of a couple thousand dollars alone just for the forensics on one system.  Simply tell them that after they do this and find no evidence, you will make a motion for a summary judgment in your favor.  This is a real risk to Troll/Plaintiff.  They know that without something else to support their case, the public IP address they recorded is seriously weak evidence.  It is so weak that some courts may consider it a violation of FRCP 11 (Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions) and could result in sanctions.  Now a court could deny the motion for a summary judgement, but that simply put the same evidence in front of court/jury.  Unless you have an image problem and/or come across as unbelievable, Plaintiff is at a serious disadvantage.

Hypothetical Example:  An authorized guest at your residence uses his laptop to download/share the movie in question via BitTorrent.  Note: The network is password protected and you provided the password.  You had no knowledge of this activity and didn’t authorize or assist him in doing it.  The deposition discloses he was in the residence and used the network at the date/time of the alleged infringement; and you had no knowledge that he did it.  The forensic exam of your systems fails to disclose any direct or indirect evidence of copyright infringement of the Plaintiff’s movie.  The only thing Troll/Plaintiff has is a recording of your public IP address as downloading/sharing the movie on the specific date/time.  If the Troll does not follow-up with the guest, they have left open a ‘huge’ unanswered possibility.  Now the Troll/Plaintiff can claim that the guest was made up (you lied) or that you simply removed/destroyed the offending system (spoliation) prior to the forensic exam.  Without any real evidence to back it up such a claim, they will be seen as bad losers. Now if the network was run ‘Open’ (no password), it becomes even harder to show that defendant did it.  The Trolls know how difficult it can be to actually ‘fully’ litigate these cases – That is why full trials do not happen in these cases.

As I have indicated, a Pro Se answer is not guaranteed to work (every case/situation is different), but I believe it can be an option for an innocent person that cannot afford an attorney.  The Troll/Plaintiffs know that their dragnet catches innocent people, but to admit this calls into question ‘their’ motives, evidence, and tactics.  Filing such an answer is certainly better (IMO) than allowing a default judgment to happen.

DieTrollDie :)

loveit1

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Team Prenda (Douchebags) Sanctioned in Lightspeed Media Case – 3:12-cv-00889 (SDIL)

9 Apr Update

I guess John (“I’m Too Poor”) Steele was able to find some assets and the Prenda crew posted a bond.   Paul Hansmeier informed the court of this and withdrew his emergency motion for reconsideration.   LightspeedDoc150   LightspeedDoc148  Well at least there is some money for the defendants.  Hopefully the appeal will be shot down.

DTD :)

7 Apr Update

Here you go.  This is the audio recording of the 7th Circuit Court of Appeals, 7 Apr 14.  Thank you everyone for keeping us informed.  Take a listen and tell me what you think.  


   SJD’s posting on this update.

DTD :)

3 Apr Update

Here is the Prenda Appeal document for the Lightspeed case.   Prenda_Appeal_Docs_00889IL)   The appeal is to the US Court of Appeals for the Seventh Circuit.  Based on the following recent 7th Circuit ruling (different case – similar issue), it doesn’t look like the The Dingle-berries have a good chance.   AppealDecision_13-2214(7thC)  Take a look at the ‘Draft’ bond letter they attached.  I guess they were able to find some money or other collateral.  If they are able to come up with a ‘real’ bond, another money trail is opened up and I can be explored to see where the millions went.  {Following is from the Forbes Interview of John Steele}

Kashmir Hill: These firms generally ask people to settle by paying them $3,000. Doing the math, I suggest Steele has made $15 million settling these suits.

John Steele: “Maybe a little less. We don’t track the amount we’ve recovered. More than a few million,” he says, declining to offer exact numbers. “We’ve done reductions based on people’s situations. We decided we’re not going after people in the military or active service.

I have also attached a 2 Apr 14, Order from the Court of Appeals, that states that Hansmeier’s Motion for Reconsideration (26 Mar 14) needs to be addressed by the lower court.  If the motion is successful, the appeal isn’t necessary.  Hansmeier has ti file a brief
memorandum (NLT 15 Apr 14) stating why the appeal should not be STAYED pending the disposing of his motion.   COA_Order_Doc146_00889(IL)

DTD :)

27 Mar Update

As I stated, Steele, Hansmeier, and Duffy do not know when to stop.  On 26 Mar 14, Paul Hansmeier filed an “Emergency” Motion For Reconsideration and supporting memorandum.   Lightspeed_Doc_138   Lightspeed_Doc_139   Take a read and tell me your thoughts and what you think the court will do with this fine piece of equine excrement.  Funny, I wonder what Prenda would have told the court if one of “their victims” made the claim that they could not pay???

Also please see the Arstechnica article – New judge blasts Prenda’s “attorney speak,” finds lawyers in contempt   Here is the last part of the 13 Feb 14, Show Cause Hearing where the judge lays down the law after John ramble on.  Classic   HearingEnd_00889(IL)

Here is an Appeal Decision from a recent (12 Mar 14) 7th Circuit (Court of Appeals) case that is worth a read.   AppealDecision_13-2214(7thC)   Hey Prenda!  Take a read.  I think the judge may be right – You are NOT going to win on appeal.   ;)

Here are my thoughts on the Emergency Motion by Hansmeier.

***  Here is the transcript from the 13 Feb 14, Show Cause Hearing -  lightspeed.transcript.2-13-14. ***   Based off of the rather fast filing Paul Hansmeier accomplished, I believe he had this response ready to file.  His biggest talking point to his “Emergency” motion the fact that Smith’s Renewed Motion for Contempt does not make mention of any financial irregularities by Hansmeier.  Hansmeier makes a point that Smith’s renewed motion only briefly mentions him; it primarily concerns “berating” John Steele and Paul Duffy.  He also makes the claim that any irregularities in the CPA certified assets report in fact favor Smith, as it overstate Hansmeier’s worth.  Hansmeier has submitted an “updated” letter from his CPA that explains the departure from standard account procedures.  Note: It is an update and not a correction. As we are unable to see Hansmeier’s asset report, update letter, or Smith’s renewed motion, it is hard assess the truthfulness.  But based on the history of the Prenda crew, I have some serious doubts – I bet the judge does also.

One thing that Hansmeier doesn’t address is the fact that all three clowns were found “jointly and severally” liable for $261,025.11.  All for one and one for all. It should also be noted that Hansmeier has done nothing (prior to this motion) to state or show he was unable to comply with the 27 Nov 13, Sanction Order.  His emergency motion ONLY came about after he was able to see Smith’s renewed motion and the 180 pages of financial documents that are attached to it.  It sure looks like he waited to see what was found by Smith and then felt safe to file a motion.  Funny that we haven’t seen some sort of motions from Steele or Duffy

In all the Steele/Hansmeire/Prenda Law activity, it was always John Steele playing the loud-mouth blowhard, while little overt action by Hansmeier is noted. This does not mean Hansmeier is of course telling the truth (of course that is my opinion).

DTD :)

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DB_Card1In case you missed it, Team Prenda was recently sanctioned for being the jerks and douchebags they are (My Opinion).  This post is to spread the word and ensure it is up on the Web.  Everyone needs a place in history.  I’m sure there are many other people who were involved in this mess, but the clown princes of this bad foray down copyright infringement law suits are John Steele, Paul Hansmeier, Peter Hansmeier, Paul Duffy, and the court jester known as Mark “I Don’t Like Mexico” Lutz.

On 24 Mar 14, Chief Judge Herdon issued a memorandum and order in case 3:12-cv-00889, Lightspeed Media Corp., v. Anthony Smith, er al., Southern District of Illinois. PrendaLaw_Contempt_Mar2014   If you are unfamiliar with this case, the Background section of the memorandum does a good job in summing it up.  Suffice it to say Prenda Law Inc. (John Steel, Paul Hansmeier, and Paul Duffy) were seeking the ISP subscriber records for over 6,000 people under the claim that Smith hacked the computers of Lightspeed.  They were unsuccessful in this attempt and the defense (to include Comcast & AT&T) were awarded attorneys fees – Smith $72K, AT&T $119K, and ComCast $69K – total judgment of $261K.  This judgment was specifically against Steel, Hansmeier, and Duffy (jointly & severally liable).  The Prenda crew of course failed to pay and Smith had to file a motion for contempt against them.  During a subsequent hearing, Prenda admitted to not paying the judgement or seeking a bond for it. The court also order Steele, Hansmeier, and Duffy (SHD) to file a CPA certified asset statement as to their wealth.  The financial statement they did file with the court (in camera – not part of the open docket) was noted as being irregular and suspect to say the least.

Based on all the Prenda shenanigans, the judge DIRECTED the following.

  • SHD are required to pay interest on the sanction amounts pursuant to the Sanctions Order. SHD became liable for interest on 11 Dec 13, at a .13% interest rate.
  • The Court believes coercive AND remedial sanctions are warranted. SHD are sanctioned in the amount of 10% of the original sanction amounts equally divided among them. This works out to be $7,236.70 to Smith, $11,963.75 to AT&T, and $6,902.13 to ComCast – total amount of $26,102.58.
  • SHD will comply with the Sanctions Order and this order within 7 days, on or before 31 Mar 14.
  • A partial payment or bond will not be considered compliance with this order. Failure to comply with this order in that time frame shall result in a $500 per day per attorney fine for up to 30 days ($1.5K x 30 = $45K).  After 30 days, this amount shall increase to $1,000 per day per attorney (30 days x $3K = $90K).
  • The Court noted Smith filed a “Renewed Motion for Contempt.” on March 20, 2014, as the Court was finalizing this order. The Court will consider Smith’s new motion as “additional sanction for contempt” since it relates directly to representations made in Court and in the financial statements SHD submitted. SHD have until 20 Apr 14 to respond to this new motion. The court will then determine if another hearing and possible sanctions are warranted.

Well, you can see that the Prenda crew has taken a serious blow amid ship.  I personally don’t think all the fun from this is all played out.  This three-man ship of fools doesn’t know when to quit and roll-over.  Until we are graced by the profound words of Steel, Hansmeier, and/or Duffy, please enjoy these quotes from the order.  Note: I can’t wait to read the actual transcript from the hearing (The judge specifically references it).

DieTrollDie :)

Furthermore, Duffy, Hansmeier, and Steele failed to make a reasonable and diligent effort to comply with the Sanctions Order.

However, plaintiff.’s counsel argues that this confusion is the primary reason they did not comply with the Sanctions Order. The Court finds this argument disingenuous.  Specifically, .“I can.’t pay what I don.’t have.” (Show Cause Hr.’g Tr. 22:16-17 (Hansmeier)). Also, .“[I]t.’s extremely important because if the Court issues sanction order for, I don.’t know, a billion dollars, we can.’t pay it. And I don.’t believe that there.’s any case law to establish that .– there.’s not a debtor.’s prison. I mean if we can.’t pay it, we can.’t pay it.” (Show Cause Hr.’g Tr. 19:10-15 (Steele)).

They submitted incomplete, and to say the least suspicious, statements of financial condition. Attached to each statement was a letter from their certified public accountant (.“CPA.”). In these letters, the CPA indicates a departure from generally accepted accounting principles. He further notes that plaintiff.’s counsel elected to omit substantially all of the disclosures required by generally accepted accounting principles.  The Court finds these statements insufficient to establish plaintiff.’s counsel.’s inability to pay.

Plaintiff.’s counsel significantly violated an unambiguous order of the Court. They also failed meet their burden regarding their inability to pay defense.

The Court also finds the magnitude of harm significant. As indicated in the Sanctions Order, this case is .“baseless.” (Doc. 100 at 9). Judge Murphy ordered sanctions for attorney.’s fees and costs because plaintiff .“unreasonably and vexatiously multiplied the proceedings in this matter.” (Doc. 100 at 10).

Also, the Court cannot ignore the behavior of plaintiff.’s counsel before the undersigned at the show cause hearing. While the Court was unable to nail down any specific lies due, in significant part, to plaintiff.’s counsel excellent. “attorney speak.”, the misrepresentations and half-truths presented indicate plaintiff.’s counsel.’s clear disrespect of the Court.

PrendaSanctions10

 

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Update – “Buyer’s Remorse?” – TCYK LLC Case 2:13-cv-01020 (IAND)

Here is a short update on this rather active TCYK, LLC, case.  On 26 Mar 14, Pro Se Defendant Phillip Reinert filed his answer to Plaintiff’s Amended Complaint.   Doc35_Answer_01020(IA)   Mr. Reinert denies the allegation and requests a jury trial.

So now we have Three Pro Se defendants in this case (Doonan, Davidson, & Reinert).  Note: Troll/Plaintiff made a motion to dismiss Mrs. Doonan, but the court has not issued an order on it – the docket still show Mrs. Doonan as an active Defendant.

The clock is ticking Troll Hamilton.  What are you going to do???  How much will depositions and forensics cost you?  Much more than the $1,500 you were seeking.  The court will soon tell you to “Put up OR Shut up.”

DTD :)

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You will hear me from time to time mention that the actions (or in-actions) of a Troll/Plaintiff can be a good indicator of their intentions and plans.

It has come to my attention that a recent Troll filed Motion to Dismiss in case TCYK, LLC v. Rexin, et al, 2:13-cv-01020, may had something a little more to it than what appears.   Doc33_VolDismiss_01020(IA)

In this motion, Troll Hamilton, requests the court to dismiss three of the Defendants (Fox, Doonan, & Jennings) With Prejudice. When I saw ‘With Prejudice,’ I assumed the three defendants came to some sort or arraignment with Plaintiff. Historically we see a ‘With Prejudice’ dismissal for agreements/settlements and ‘Without Prejudice’ dismissal when a Plaintiff decides to dismiss a Defendant (as it is in their best interest) without obtaining a settlement/agreement.

The interesting bit in all this is on 26 Feb 14, Mrs. Doonan filed an answer to Plaintiff’s complaint that was served on her.   Doc29_Answer_01020(IA)   The local Sheriff’s Office has the record of the service performed at the request of Troll Hamilton.  Note: Plaintiff has not filed the proof of service for Mrs. Doonan.  Now notice the time frame between Mrs. Doonan’s answer and the motion to dismiss – 8 days.  It is a bit shocking to see a Troll/Plaintiff move so fast.  Now if there had been some sort of agreement between Plaintiff and Doonan, I would expect to see a joint statement seeking dismissal based on this – we haven’t.  A possible reason for the rapid dismissal can be found in FRCP 11(c)(2).

(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion. {My emphasis}

So the rapid dismissal (less than 21 days after the answer) may be an attempt to avoid possible FRCP 11(b) sanctions.  Rule 11(b) requires a party to certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

RemorseTrollThe biggest problem the Trolls have with Rule 11(b) is at 11(b)(3).  This part requires that they certify that after they conduct a reasonable inquiry, they have evidence to support naming a defendant OR that a subsequent investigation will likely produce evidence to support naming/serving the Defendant.

For a majority of these cases, I don’t believe the Trolls do any type of inquiry/investigation beyond collecting the public IP addresses from BitTorrent and seeking early discovery of the ISP subscriber records.  This in no way justifies naming/serving the ISP subscriber as the infringer/Defendant.  It is ONLY a starting point for the investigation into who the infringer is.  To name/serve a defendant only because he/she pays the ISP bill is reckless.

Troll/Plaintiffs will say that conducting an investigation is expensive, time-consuming, and does not serve justice efficiently.  The cost and time required to run an adequate investigation can be significant, but it does serve justice in protecting the innocent.  The costs to the Plaintiff should in no way be used to justify the circumvention of the rules.  Rule 11 was written so to ensure that legal pleading are based on facts and not simply used as a tool to bully and extort settlements from people (my opinion).

Here is a recent court order in a Malibu Media case (reported by Sophisticated Jane Doe) that shows the ISP records alone are insufficient to identify the Defendant.  OrderDismissed_20213(FL)

Plaintiff has shown that the geolocation software can provide a location for an infringing IP address; however, Plaintiff has not shown how this geolocation software can establish the identity of the Defendant. There is nothing that links the IP address location to the identity of the person actually downloading and viewing Plaintiff’s videos, and establishing whether that person lives in this district.

So what does this rapid motion to dismiss by Troll Hamilton show???  I believe somebody bought a lemon of a case and now has buyer’s remorse.  Simply naming the ISP subscriber as a Defendant is a foolhardy move that will eventually backfire.  Be careful Troll Hamilton, sanctions can be a bitter thing to swallow.

If the dismissal of Doonan is an attempt to avoid possible Rule 11 sanctions, then Troll/Plaintiff still has to deal with the Answer filed by Defendant Davidson on 26 Feb 14.   Doc30_Answer_01020(IA)   As of 24 Mar 14, 26 Days have passed since that answer was filed.  The last action on the docket is by Troll Hamilton – a 19 Mar 14, Motion to Dismiss Defendant Mary Elder (Without Prejudice).   Doc34_VolDismiss_01020(IA)

DieTrollDie :)      “Who’s the more foolish, the fool or the fool who follows him?” – {Obi-Wan, Star Wars}

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Case Update – TCYK, LLC v. 13 Does – 2:13-cv-01020 (IAND)

21 Mar Update

When this cases started in June 2013, there were 13 John Does.  Two Does (#2 & #5) settled early in the case.  After being chewed out by the judge for requesting another extension to name/serve defendants, Troll Hamilton amended the complaint and started to serving the 11 Does who refused to settle.  On 25 Feb 14, Troll Hamilton filed proof of service for one of the defendants (happened on 16 Feb 14).   Doc28_01020(IA)   The tactic appears to have motivated four more Does to settle.  But this also got two of the defendants to file answers (Doonan & Davidson) – not what the Troll wantedNote: one of these Defendants (Doonan) was eventually dismissed with prejudice – more to come on this. 

On 10 Mar 14, Troll Hamilton again file proof of service for another defendant that took place on 14 Feb 14.   Doc32_SubpExc_01020(IA)   I do find it funny that Plaintiff has only recently filed the proof of service that happened over a month ago.  It looks like Troll Hamilton is hoping the court will think they are actively pursuing the case because they filed this document on 18 March.

On 18 Mar 14, Defendant Rexin was voluntarily dismissed by Plaintiff.   Doc33_VolDismiss_01020(IA)

So as of 21 Mar 14, we have seven people who have settled; six named defendants; two defendants show proof of service (served on 14 & 16 Feb 14), and one defendant has filed an answer.  As the recent five settlement/dismissals likely happened after the defendants were served in February, the Troll is deliberately holding back on filing the proof of service.  Why???

It could be the Troll initially held out to see if the service would get people to settle.  Filing the first one was probably done to show the court they were moving forward.  The second proof of service was likely filled at that time to try to further portray they are serious about this case.  If the Troll went ahead and filed all the proofs of service, the court could tell him to move along and submit a discovery plan against the defendant who filed an answer.  This In My Opinion is not their intention.  They are simply trying to milk the settlement for as much as possible and then shut it down.  Now I know some of the Troll supporters will say I criticize the Troll when they do nothing AND then criticize them again when they do something.  Of course I do!  That is because their changing tactics are nothing more than an adaptive process to sustain a slimy business model trying to justify an extortive practice under the guise of stopping piracy and/or recouping lost revenue (My Opinion).  What a crock!

But wait DTD.  Not all Trolls are the same.  Really, here is another older TCYK LLC case that shows you what the Troll/Plaintiff have in mind.   Case 1:13-cv-03833 (NDIL), TCYK, LLC v. Does 1-112   The case was filed on 23 May 13, no defendant was ever named/served, settlements were obtained, and the case was voluntarily dismissed by the Troll on 17 Mar 14 – 299 days!   Doc_54_DismissAll_03833(IL)   Doc_55_CourtDismissAll_03833(IL)

Hopefully the judge in this case will tire of the games and tell the Troll to move it along.  As there is an active answer on the docket, Troll/Plaintiff is going to have to resolve this issue before they can try to dismiss the case.  As most of the defendants have likely been served in February, the Troll may start to motion the court for default judgements.

DieTrollDie :)

“The best things in life are beyond money; their price is agony and sweat and devotion … and the price demanded for the most precious of all things in life is life itself – ultimate cost for perfect value.”  {Robert Heinlein – Starship Troopers}

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6 Mar 14 Update

On 6 Mar 14, Troll Hamilton filed a motion to dismiss three defendants (Fox, Doonan, and Jennings) with prejudice.   Doc31_MTD_01020(IA)   As the requested dismissal is ‘with prejudice,’ I assume some sort of settlements was reached.  The dismissal of Doonan will make her ‘answer’ (ECF # 29) moot.  That still leaves eight defendants, to include Mr. Davidson who filed his answer on 26 Feb 13.  It is extremely possible that Doonan was offered a walk-away deal by Troll/Plaintiff; too bad those details are likely hidden behind a non-disclosure agreement clause in the settlement.  Such a deal would be advantageous to Troll/Plaintiff because they would not have to move forward with a costly (and possibly risky) discovery process.  The other two defendant likely paid some amount to secure the dismissal.

DTD :)

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Here is an update from a previous article about a TCYK case that was filed in the Northern District of IA, 2:13-cv-01020, on 25 Jun 13.   No Extension To Serve = TCYK, LLC Cut-Rate Settlement Deal – 2:13-cv-01020 (IAND)

On 30 Jan 14, Troll Jay Hamilton amended the complaint to name the 11 ISP subscribers as the actual defendants.  This was of course only done FOUR days AFTER the court imposed deadline (26 Jan 14) to name and serve the defendants.   Doc16_01020(IA)   FAC_01020(IA)   FAC_EXs_01020(IA)   In the mean time, Troll Hamilton tried to get some of the ISP subscribers to settle with a “cut-rate” offer of $1-1.5K.

As Mr. Threat, was the only person who took Troll Hamilton’s offer,  I don’t think most of the Defendants were impressed.  So Troll Hamilton decided to actually serve the ISP subscribers in hopes it would bring them to the settlement table.  I assume he had the local Sheriff’s Office attempt to serve all the remaining defendants.  Here is proof of service for Mr. Hixson, dated 16 Feb 14.   Doc28_01020(IA)  It is interesting that he only filed one proof of service document.  This could a way to show the court they are moving forward.

What Troll Hamilton was probably not expecting (or wanting), was that Two of the Defendants (Doonan & Davidson) filed answers Pro Se.   Doc29_Answer_01020(IA)   Doc30_Answer_01020(IA)    Both of these answers were filed on 26 Feb 14.  The answers are short (2 & 6 pages each) and to the point – both defendants deny the allegations.  I’m thinking I need to make a page to show various Defendant ‘answers’ in case the name/serve tactic is expanded.

DoeAnswer1

As I haven’t seen any other documents showing service was accomplished, I assume the Troll is either having trouble accomplishing the service and/or they are negotiating settlements with the remaining Seven defendants.

Now Troll Hamiltion/Plaintiff has to decide what is their next course of action.  For Mr. Hixson, the 21 day period to answer the complaint is 9 Mar 14.  If Mr. Hixson (and the other Defendants) fails to answer the complaint/summons, Troll Hamilton will be able to motion the court for a default judgement.  For the Defendants who answer the complaint, the next likely step will be the court directing a discovery plan from both sides.  For the Troll, this is most likely going to be a deposition of the ISP subscriber, followed possibly by other depositions (other network users/residents), and forensic examinations of Defendant computers.

I don’t think Troll Hamilton/Plaintiff will go past the deposition phase, but you never know.  If the depositions fail to disclose any evidence of infringement, forensic examinations are going to be costly and risky.  If both discovery steps fails to disclose any direct evidence, the Defendants could motion the court for a summary judgement.  The only angle I could see Troll Hamilton use is to suggest the Defendants removed/hid/ destroyed the computer used to commit the infringement.  A generally weak argument especially with no evidence to back it up.  As well as the court was obviously displeased with the Troll for not advancing the case and asking for more extensions with no good reason.  I wouldn’t be surprised if Troll Hamilton eventually tried to make a “walk away” deal with Doonan & Davidson if/when things start to look bad for Plaintiff.

The Troll lawyers understand there is going to be ISP subscribers who were not the infringers (Copyright Troll Mike Meier’s estimate of 30% (3 out of 10)). Their problem is if defendants are found not at fault, it will give rise to others ISP subscribers fighting back.  The Trolls are trying to maintain control of this business model, but they are often their worst enemy.  I will be only too happy to assist them in screwing it up.   ;)

DieTrollDie :)   “The Defendants have liable Plaintiff under the disguise of such childish and unsophisticated pseudonyms as ‘die troll die.”

LL1

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Malibu Media LLC And The Plausibility Test (Defendant Butler, 1:13-cv-02707 (CO)

14 Mar 14 Update

On a side note, Troll Jason Kotzker filed 10 new Malibu Media cases in Colorado District court on 14 Mar 14.   Case Opening database

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It has been a while since I wrote about Copyright Trolls in Colorado.  Our friend Raul (@Raul15340965) was kind enough to tweet about a wonderful ‘Reply’ from Malibu Media defendant John Butler (via attorney Richard Hanes, HANES & BARTELS LLC).   Def_Reply_Doc_26_02707(CO)   Doc_26-1_02707(CO)   Doc_26-2_02707(CO)   Thanks Raul!

The single Doe case (IP address 71.229.236.179) case was opened in the District of Colorado on 3 Oct 2013, with the court granting early discovery for the ISP records on 7 Oct 13.  On 23 Dec 13, the complaint was amended to list John Butler as the defendant.   FAC_02707(CO)   FAC_EX_A_02707(CO)   FAC_EX_B_02707(CO)   On 10 Jan 14, Mr. Butler was served with the summons/complaint.  Though it appears that Troll Kotzker forgot he already did thissee footnote 2.  On 12 Feb 14, Defendant Butler filed a motion to dismiss.   MTD_Doc_20_02707(CO)   On 5 mar 14, Troll Jason Kotzker filed an opposition to the motion to dismiss.  On 11 Mar 14, Defendant Butler filed a reply to the Plaintiff’s opposition.   Archive Docket

Also of note is the telephonic scheduling conference and scheduling order from 25 Feb 14, and 3 Mar 14.   SchedulingOrder_Doc_24_02707(CO) SchedulingConf_Doc_23_02707(CO)

Defendant’s Motion to Dismiss is worth reading as it attacks Plaintiff’s allegation and failure to tie the defendant to the activity.

The plausibility of Plaintiff’s Amended Complaint is on the same level as a personal injury complaint alleging that the named defendant is the one liable for plaintiff’s injuries, occasioned when struck in the cross walk by a red and white pick up truck, because defendant owns and drives a red and white pick up truck. The Plaintiff has not “nudge[d] [its] claims across the line from conceivable to plausible” Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012). The naked conclusions that attempt to recite the elements of a cause of action for copyright infringement are based solely on an eddy of contradictory and misleading technological assertions that are intended to intimidate the reader with an aura of factual content implied by such imposing terms as “cryptographic,” “file hash,” “independent calculation,” “digital media file,” “hash value,” “digital fingerprint,” “TCP/IP connection,” “IPP International UG,” “air traffic control,” “computer forensic purposes” and the use of 40 digit File Hash values and such official terms as “UTC Universal Time” in order to endow the Amended Complaint with factual legitimacy. However, when the reader drills down though the technological smoke screen it is discovered that the factual background of the Amended Complaint is nothing but smoke and mirrors cut and pasted from a thousand other complaints and does not provide the “factual enhancement” necessary to support the naked conclusions of copying and distribution by this Defendant. {Doc # 20, Conclusion}

hurt1The Reply is equally a good read and further sets to dismantling Plaintiff’s response to the Motion to Dismiss.  I am sure the various points brought up by attorney Hanes will be read and used by other Doe Defenders across the US.  Attorney Hanes makes it very clear that Troll/Plaintiff has not done an investigation (or possibly done a substandard one) to link the Defendant to the infringing activity.   Attorney Hanes states the allegations against Mr. Butler are a “…compilation of conclusory allegations supported, not by factual allegations relative to this Defendant, but by a camouflage of technical jargon and contradictory and irrelevant contentions by a mystery investigator whose actual report, if one even exists, is not applicable to this case or to this Defendant or this Defendant’s IP address.”  He also claims that “…there are no factual allegations in the Amended Complaint that plausibly connect this Defendant to the complained of infringement.”

Attorney Hanes tells the court that are many ‘omissions’ (i.e. Plaintiff chose not to respond to them) in Plaintiff’s response.

On page 6 of his Motion Defendant states: “There is not a single fact asserted in the Amended Complaint that would justify the allegation in paragraphs 17, 19 and 20 that ‘UG downloaded from Defendant’ …” Plaintiff’s Response does not dispute this assertion of Defendant in his motion to dismiss.

Plaintiff does not deny that its present counsel has admitted that an estimated 30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material.

Plaintiff does not deny that one of its two co-owners admitted in her declaration that an open wireless connection would prevent them from pursuing a claim.

On pages 12-14 of the Motion, Defendant analyzes the illusory content of paragraphs 11, 13, 15, 17, 19 and 20 of the Amended Complaint. Plaintiff’s Response contains no rebuttal to this analysis and therefore, it has be assumed to be true and accurate.

Plaintiff does not deny that the mass of technological jargon about BitTorrent, hash values, cryptography and similar expressions in the Amended Complaint are intended to obfuscate reality and substitute for factual allegations that would actually provide the necessary “factual enhancement” for the many conclusory and legal allegations on which the Amended Complaint is based.

Plaintiff does not deny that one or more “bits” of a work do not constitute the constituent elements of a copyrighted work.  {Document 26, pages 8-9}

Now I don’t know when Judge Hegarty will rule on the motion to dismiss, but I bet Troll Kotzker will try to file something to try to minimize this rather scathing reply.  Even if the motion is unsuccessful (Judge Hegarty has a history of being Troll friendly), Troll Lipscomb and Kotzker will be trying to extricate themselves from this mess.  Attorney Hanes appears eager to conduct depositions of IPP and Malibu Media personnel.  Unless Plaintiff is able to come up with some good forensic evidence on the defendant’s system, it doesn’t look good.  I bet Plaintiff hopes that if no forensic evidence is found, Defendant will motion for a “summary judgment.”  That at least would preclude further discovery and testimony from Malibu Media and IPP - even if they had to pay something to make it go away.  The last thing Troll Lipscomb wants is having the details of their operation fully explored.  Here is something to think about - It appears if the Defense indicates they will be deposing Colette Pelissier Field and Brigham Field (X-art/Malibu Media owners), a settlement is soon reached – go figure.  The closest thing we have had so far is the paltry “PA Bellwether trial.”  As there was no cross-examination of the witnesses and experts in the PA Bellwether trial, Plaintiff was allowed to present a one-sided view.  Here is a shared folder with trial transcripts and the audio recording from PA Bellwether trial – good read and listen – I assume attorney Hanes already has this information.  It doesn’t appear attorney Hanes is going to make it that easy for Plaintiff.  You can see attorney Hanes has a good understanding of the technology, as well as where to focus his efforts.  I would expect that Troll/Plaintiff will hold off trying to settle with Defendant Butler until the forensic results come back.

Now depending on how this case works out, Colorado may turn out to be an unwelcome location for the Trolls to ply their trade.  Lets hope.  Who knows, maybe Troll Kotzker will pull a Schulz and call the judge a$$ hole.   ;)

Upcoming Dates

  • NLT 18 Mar 14, FRCP 26(a)(1) disclosures will be exchanged.
  • On 23 Apr 14, at 9:30AM, there is a settlement conference scheduled in Colorado Springs, CO – see Doc #23.  I don’t know if the conference is open to the public, but it would be interesting for someone in Colorado to possibly attend. 

DieTrollDie :)   “What is your major malfunction numb-nuts? {Gunnery Sgt. Hartman – Full Metal jacket}

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Countryman Nevada LLC (Nicolas Chartier/ Voltage Pictures) Gets A Shot At Doe #1, 1:14-cv-00040 (ILND)

24 Mar 14 Update

This isn’t an update to this case, BUT it is an Order from another NDIL judge concerning swarm joinder.  Judge Chang kill the mass joinder of nearly 400 Does in Four reFX Audio cases (1:13-cv-03524, 1:13-cv-01790, 1:13-cv-01793, & 1:13-cv-07494).  Please read this impressive Order and the explanation of how the joinder of BT Does should work.    Opin_Order_03524(IL)   DocketEntry_03524(IL)

DTD :)

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This is a short update to a previous post in which Countryman Nevada LLC (Nicholas Chartier) filed Two ILND cases on 3 Jan 14.   Case 1:14-cv-00040 (32 Does – Archive Docket) and 1:14-cv-00041 (34 Does)

As the case was filed on 3 Jan 14, I expected Plaintiff would motion for early discovery soon after.  I will say for some recent Voltage Pictures/Nicolas Chartier cases, I have noted a long delay in requesting early discovery.  For these cases, the Troll/Plaintiff already has all the information needed to request early discovery when the complaint is filed.  The only reason I would expect a short delay is while they get their “technician” (AKA: Troll Expert) to validate and sign the memorandum.  For this case, the motion for early discovery was not filed until 6 Mar 14 – approx.  Two months after filing the complaint.  Why the delay???  I haven’t bothered to download the document yet, but I expect it is the same old garbage.  If someone wants to RECAP (if working) or email me – Thank you in advance.

On 11 Mar 14, the court held a status hearing  in which Troll Hierl basically said the case was at a stand still until the court granted early discovery for the ISP subscriber records.   StatusRptMar14_00040(IL)

Now the interesting bit of this comes from a court order filed on the same day.   Order_Doe1_Only_00040(IL)

Status hearing held and continued to 05/14/14 at 9:00 a.m. As stated on the record, Plaintiff will proceed against Defendant Doe Number 1. Plaintiff’s motion for discovery [8] is granted as to Doe Number 1.

The order is short on details, but it makes it clear the court (Judge Samuel Der-Yeghiayan) doesn’t agree with the joinder of the 32 Does – for some reason.  So now Plaintiff can seek the subscriber information for Doe #1, Comcast customer using public IP address 67.162.103.12, on 8 Dec 13, 08:53:27 UTC.  The next status hearing is in approx. Two months, so any failure to name and serve this “Single” Doe is going to stick out to the court.  I haven’t seen a dismissal of the remaining Does, but that could happen if the court feels Troll/Plaintiff is gaming the system.  This could also be a test by the court to see what the troll does prior to granting any additional subpoenas.  Hopefully this case will get delayed enough that the ISP records will expire for some of the Does (Infringement date range | 27 Nov – 8 Dec 13).

I would have preferred a straight dismissal of Does # 2-32, but it is a start in the ILND.  The Does in case 1:14-cv-00041, were not so lucky, as on 5 Mar 14, the court (Judge Sara L. Ellis) authorized early discovery for Troll/Plaintiff.   Entry_Doc13_00041(IL)   This just goes to show you how inconsistently these cases are handles even within the same jurisdiction.  What a mess.

DieTrollDie  :)

KCDTDO1

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Case Update – Elf-Man LLC v. Defendant Lamberson – # 2:13-cv-00395 (WA)

19 Mar Update

I have a short update on the Elf-Man LLC v. Lamberson case.  On 7 Mar 14, Troll VanderMay replied to Defendant Lamberson’s response to her motion to add a ‘John Doe’ defendant to this case.   Doc_34_00395(WA)

…In the event that discovery indicates that some other party is the direct infringer and that Defendant is not liable as a contributory infringer, Plaintiff should be permitted to name such potentially liable person(s) in this action. Why Defendant would object to the naming of an additional Defendant that could result in a motion to dismiss him from this action is perplexing at best.

I love the use of ‘could’ in the last sentence.  How about you say this Troll VanderMay – “Defendant will be dismissed from this case if discovery indicates some other party is the direct infringer and Defendant is not a contributory infringer.”

On 17 Mar 14, Judge Thomas Rice ruled on 3 pending procedural motions (Two from Plaintiff & One from Defendant).   Order_Doc_35_00395(WA)

  1. Plaintiff’s “Motions in Response to Defendant’s First Amended Answer” (ECF No. 20) – DENIED
  2. Defendant’s Motion to Dismiss or for Leave to File Second Amended Answer (ECF No. 21) – DENIED in part/GRANTED in part
  3. Plaintiff’s Motion to Add Additional Defendant (ECF No. 28) – DENIED

The judge felt this case was best served by denying Plaintiff’s special motion to strike and allowing Defendant to file an amended answer.

Accordingly, the Court will deny Plaintiff’s special motion to strike and will grant Defendant’s motion for leave to file a Second Amended Answer. Defendant shall file his Second Amended Answer on or before March 24, 2014. In view of this resolution, the Court declines to address the remaining arguments raised in Plaintiff’s motion to dismiss (ECF No. 20). In the event that Plaintiff wishes to challenge any counterclaim or affirmative defense raised in Defendant’s Second Amended Answer, it may do so within the timeframe provided by Rule 12(b).

The motion to add the additional Phantom Doe Defendant was also denied, with leave to review at a later date if Defendant Lamberson is found not to be the infringer.

…but at this juncture Plaintiff’s proffered reason for adding a party is entirely speculative. In the event that discovery reveals that someone other than Defendant Lamberson copied Plaintiff’s movie, Plaintiff may move to add that person as a defendant at that time. Notwithstanding the deadline set forth in the Scheduling Order, the Court may add or drop a party “at any time, on just terms” under Rule 21. Fed. R. Civ. P. 21. Just terms for adding a new party would likely require the simultaneous dismissal of Plaintiff’s claims against Defendant Lamberson. {my emphasis]

So by Monday, 24 Mar 14, Defendant must file his Second Amended Answer (& assuming counterclaims).  Following that, Plaintiff will have 21 days to respond to the counterclaims or file some other motion to delay this case.  In the mean time, Plaintiff should be working to provide the various outstanding discovery items to the Defense.  I haven’t seen anything to say the depositions and forensic analysis took place, so I will assume they haven’t.

From what I can see, Judge Rice is not going to accept any obvious delays and gamesmanship from either side.  This puts Troll/Plaintiff in a difficult position, as going forward with discovery may produce evidence that does not support their allegations.  What to do, what to do.  ;)

DieTrollDie :)

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I have another update to the Elf-Man case against Mr. Lamberson, Case # 2:13-cv-00395.  Here are the previous posts on this case – DTD 1   DTD2.  There has been a decent amount of activity, so I will try to keep it short and to the point.

The motion to add an addition unknown Defendant (AKA: Phantom Doe) is an attempt to keep the case open in light of the possibility that the discovery (deposition and forensics) will come up with nothing.  This is a very “Prenda-like” tactic and a sign of weakness.  Unless they can show Mr. Lamberson committed the copyright infringement or at least took some action (knowingly) to allow another person to do it, Plaintiff will not be in a good position.  I will suggest reading this motion and then Defendant’s response (Doc #33) together.  Defendant’s attorney, J. Christopher Lynch does a good job of telling the court that adding the ‘unknown’ Doe would be a bad idea.  You can also see that Plaintiff is likely worried about attorneys’ fees following a summary judgement.

In other words, either Mr. Lamberson is liable, or he is not – and this will be decided in this severed case. If plaintiff has evidence that some other person has liability, then it can proceed and bring a new action against that person with a new statute of limitations clock. If plaintiff discovers that Mr. Lamberson somehow acted in concert with another person in a manner that violates the Copyright Act, then plaintiff could move to amend at the time that has been discovered, using real liability evidence as the basis for such a motion. This would allow Mr. Lamberson to confront that evidence in a substantive manner and not in a response to a generalized motion to add a fictitious party as is the case in the present Motion. But if plaintiff desires to “drop” Mr. Lamberson because in the end there is no evidence that he is liable under the Copyright Act, then Mr. Lamberson becomes a prevailing party who can request defense attorneys’ fees under Fogerty v. Fantasy, 510 U.S. 517 (1994), and he should be able to do that unfettered in his severed action.

“Adding” a fictitious party would prejudice Mr. Lamberson. If plaintiff discovers no evidence against Mr. Lamberson, and Mr. Lamberson prevails by summary judgment, then Mr. Lamberson would have to await conclusion of the entire matter in order to pursue costs and attorneys’ fees, or to await plaintiff’s appeal of his summary judgment.

The Troll response to Defendant’s first amended answer and counterclaims is long-winded and a bit of a pain to read.  I’m not a fan of Troll VanderMay’s writing style.  I will leave the assessment of Plaintiff response to others to comment on.  I think the various pending aspects of discovery are going to add weight to Defendant Lamberson’s claims.

The minutes from the telephonic discovery hearing are interesting.  There wasn’t a great amount of detail, but it appears (correct me if I’m wrong) that the judge approved and denied various Request For Productions (RFP) from Plaintiff.  As the 25 Feb 14, letter sent to the court by Attorney Jeffrey Smith (Defendant) is not available, I do not know the details of each RFP.  I don’t know if the deposition(s) and forensic examination of Lamberson’s system have happened, but his attorney did tell the court that Lamberson has made himself available to Plaintiff (See Doc #33).  The following part appears to be referencing Plaintiff’s BitTorrent technical monitoring apparatus – Darren Griffen, Crystal Bay Corp (CBC).

Maureen VanderMay addressed the Court as to the status of plaintiff’s responses to discovery. The Court and Ms. VanderMay discussed the status of the investigators as fact witnesses and Requests for Production 19-22.

Next is the Stipulated Protective Order that was signed by both parties and approved by the judge.  Nothing shocking here, as it allows both sides to mark certain items as confidential, while allowing the other party to dispute any claims of confidentiality.  I’m sure Troll VanderMay will try to mark as many items as possible as confidential.  Plaintiff does not want the details of their operation to be exposed to people such as myself.   ;)    They know full well that such information will be exposed to the light of day and it will hinder their business model.  I hope that Troll VanderMay/Plaintiff understand that for each time Defendant has to respond to an over classification, the cost of Defendant’s attorney fees goes up.  Catch – 22

I expect that once Plaintiff produces the discovery items, there will be some discussions on how to settle this.  I hope a settlement does not happen, but you never know.  Much will depend on how deep the pockets of Plaintiff are, as well as if they want to bow out or fight a losing battle.  Common sense is something that is often in short supply.   More to come…

DieTrollDie :)   “This isn’t the state of California, it’s a state of insanity.” – General Joseph W. Stilwel {1941 – the movie}

WBKJ1

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Two Defendants File Answers in TCYK, LLC Case – 2:13-cv-01020 (IAND)

6 Mar 14 Update

On 6 Mar 14, Troll Hamilton filed a motion to dismiss three defendants (Fox, Doonan, and Jennings) with prejudice.   Doc31_MTD_01020(IA)   As the requested dismissal is ‘with prejudice,’ I assume some sort of settlements was reached.  The dismissal of Doonan will make her ‘answer’ (ECF # 29) moot.  That still leaves eight defendants, to include Mr. Davidson who filed his answer on 26 Feb 13.  It is extremely possible that Doonan was offered a walk-away deal by Troll/Plaintiff; too bad those details are likely hidden behind a non-disclosure agreement clause in the settlement.  Such a deal would be advantageous to Troll/Plaintiff because they would not have to move forward with a costly (and possibly risky) discovery process.  The other two defendant likely paid some amount to secure the dismissal.

DTD :)

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Here is an update from a previous article about a TCYK case that was filed in the Northern District of IA, 2:13-cv-01020, on 25 Jun 13.   No Extension To Serve = TCYK, LLC Cut-Rate Settlement Deal – 2:13-cv-01020 (IAND)

On 30 Jan 14, Troll Jay Hamilton amended the complaint to name the 11 ISP subscribers as the actual defendants.  This was of course only done FOUR days AFTER the court imposed deadline (26 Jan 14) to name and serve the defendants.   Doc16_01020(IA)   FAC_01020(IA)   FAC_EXs_01020(IA)   In the mean time, Troll Hamilton tried to get some of the ISP subscribers to settle with a “cut-rate” offer of $1-1.5K.

As Mr. Threat, was the only person who took Troll Hamilton’s offer,  I don’t think most of the Defendants were impressed.  So Troll Hamilton decided to actually serve the ISP subscribers in hopes it would bring them to the settlement table.  I assume he had the local Sheriff’s Office attempt to serve all the remaining defendants.  Here is proof of service for Mr. Hixson, dated 16 Feb 14.   Doc28_01020(IA)  It is interesting that he only filed one proof of service document.  This could a way to show the court they are moving forward.

What Troll Hamilton was probably not expecting (or wanting), was that Two of the Defendants (Doonan & Davidson) filed answers Pro Se.   Doc29_Answer_01020(IA)   Doc30_Answer_01020(IA)    Both of these answers were filed on 26 Feb 14.  The answers are short (2 & 6 pages each) and to the point – both defendants deny the allegations.  I’m thinking I need to make a page to show various Defendant ‘answers’ in case the name/serve tactic is expanded.

DoeAnswer1

As I haven’t seen any other documents showing service was accomplished, I assume the Troll is either having trouble accomplishing the service and/or they are negotiating settlements with the remaining Seven defendants.

Now Troll Hamiltion/Plaintiff has to decide what is their next course of action.  For Mr. Hixson, the 21 day period to answer the complaint is 9 Mar 14.  If Mr. Hixson (and the other Defendants) fails to answer the complaint/summons, Troll Hamilton will be able to motion the court for a default judgement.  For the Defendants who answer the complaint, the next likely step will be the court directing a discovery plan from both sides.  For the Troll, this is most likely going to be a deposition of the ISP subscriber, followed possibly by other depositions (other network users/residents), and forensic examinations of Defendant computers.

I don’t think Troll Hamilton/Plaintiff will go past the deposition phase, but you never know.  If the depositions fail to disclose any evidence of infringement, forensic examinations are going to be costly and risky.  If both discovery steps fails to disclose any direct evidence, the Defendants could motion the court for a summary judgement.  The only angle I could see Troll Hamilton use is to suggest the Defendants removed/hid/ destroyed the computer used to commit the infringement.  A generally weak argument especially with no evidence to back it up.  As well as the court was obviously displeased with the Troll for not advancing the case and asking for more extensions with no good reason.  I wouldn’t be surprised if Troll Hamilton eventually tried to make a “walk away” deal with Doonan & Davidson if/when things start to look bad for Plaintiff.

The Troll lawyers understand there is going to be ISP subscribers who were not the infringers (Copyright Troll Mike Meier’s estimate of 30% (3 out of 10)). Their problem is if defendants are found not at fault, it will give rise to others ISP subscribers fighting back.  The Trolls are trying to maintain control of this business model, but they are often their worst enemy.  I will be only too happy to assist them in screwing it up.   ;)

DieTrollDie :)   “The Defendants have liable Plaintiff under the disguise of such childish and unsophisticated pseudonyms as ‘die troll die.”

LL1

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The Problem With BT Mass Joinder Copyright Infringement Cases

6 Mar 14 Update

Here is a link to a paper written by Matthew Sag, Professor, Loyola University Chicago School of Law and Associate Director for Intellectual
Property of the Institute for Consumer Antitrust Studies.

COPYRIGHT TROLLING, AN EMPIRICAL STUDY

Abstract:     

This detailed empirical and doctrinal study of copyright trolling presents new data showing the astonishing rate of growth of multi-defendant John Doe litigation in United States district courts over the past decade. It also presents new evidence of the association between this form of litigation and allegations of infringement concerning pornographic films. Multi-defendant John Doe lawsuits have become the most common form of copyright litigation in several U.S. districts, and in districts such as the Northern District of Illinois, copyright litigation involving pornography accounts for more than half of new cases filed.This Article highlights a fundamental oversight in the extant literature on copyright trolls. Paralleling discussions in patent law, scholars addressing the troll issue in copyright have applied status-based definitions to determine who is, and is not, a troll. This Article argues that the definition should be conduct-based. Multi-defendant John Doe litigation should be counted as part of copyright trolling whenever these suits are motivated by a desire to turn litigation into an independent revenue stream. Such litigation, when initiated with the aim of turning a profit in the courthouse as opposed to seeking compensation or deterring illegal activity, reflects a kind of systematic opportunism that fits squarely within the concept of litigation trolling. Existing status-based definitions of copyright trolls are inapt because they do not account for what is now the most widely practiced from of trolling.

In addition to these empirical and theoretical contributions, this Article explores the features of copyright doctrine that have facilitated the recent explosion in trolling litigation. In particular, it shows how statutory damages and permissive joinder make multi-defendant John Doe litigation possible and why allegations of infringement concerning pornographic films are particularly well-suited to this model.

Thank you Professor Sag

DTD :)

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For some Plaintiffs (namely Voltage Pictures/Nicolas Chartier), the mass Doe cases are still advantageous.  These cases rely on the “swam joinder” theory.   Swarm joinder theory is simply the belief that because a group of public IP addresses are in the same jurisdiction (i.e. IL Northern District) and used BT to downloaded/shared the same file (same SHA-1 hash #), they are properly joined in a case.  Being joined makes all the defendants jointly & severally liable for any damages.  We have seen a few courts decide that BT swarm joinder of defendants is not proper, but jurisdictions like the IL Northern District and Colorado are still hold-outs to change.  Other untried districts could come into play, but the Plaintiff first has to find a local attorney willing to lower themselves into taking on cases like these.  The fact we don’t have droves of attorney lining up to do this speaks volumes.

For cases in these Troll-Friendly jurisdictions, the courts usually accept these copyright infringement complaints at face-value.  The courts expect that Plaintiff will provide full details/evidence once the case comes to discovery and trial.  The fact of the matter is there have been NO mass Doe cases where the full details justifying swarm joinder have come out in court.  The usual course of events is for these cases is to negotiated settlements, name/serve a small number of defendants, request some default judgments, and then voluntarily shutdown the case (by Plaintiff) or it is dismissed by the court for failure to prosecute.  Here is one Killer Joe Nevada case – Case Dismissed

Omission Of Evidence

DB1A simple analysis of the complaint and initial evidence by anyone reasonably acquainted with BT is going to raise some serious questions.  First one is going to be – How did Plaintiff’s BT Agent (PBA) determine all these Does were in fact sharing the same file among each other?  For the ease of this article, I will refer to the “Does,” but actually it would be better to say “public IP address associated with the ISP subscriber.” Taking what the various Plaintiffs have said in their support documents, they use a modified BT client (that will not upload data) to collect the evidence from BT clients illegally sharing Plaintiff’s content.  So PBAs collects file data from all the various BT clients sharing the file (SHA-1 #) they have determined to be a copy (or at least a representative copy) of Plaintiff’s content.  This method is a reasonable start, but it still only shows that each Doe “individually” shared data with PBA on a specific date/time.  This is reasonable enough to start a single Doe case only.  Plaintiffs assume that because the Does were sharing the same file (SHA-1 hash #) – they surely must have shared among the other Does in these cases.  The PBAs knows this is a wild assumption based on the data they collected.  That is why the PBAs have not (and will not) make such a statement in support of early discovery – it just cannot be shown with the evidence they collect.  It is my opinion the Trolls knowingly omit this HIGHLY important fact when they file these complaints and when they seek early discovery of the ISP subscriber data.  In my opinion, this omission is a fraud upon the courts.  FOR SHAME!  For all the Trolls reading this, I challenge you to refute this.

You should ask yourself why does Malibu Media/Troll Lipscomb now only files single Doe cases???  They used to follow the mass Doe case format.  Simple – because they knew they could not defend swarm joinder of Does based only on IP addresses sharing/downloading the same file/SHA-1 number.  Say what you like about Troll Lipscomb, but he is smart enough not to pull a Full-PrendaAnd YES Keith Lipscomb, my opinion is that you are a Copyright Troll.  Now many of the Plaintiffs will claim that mass joinder is appropriate and the efficiency of it benefits the court and justice.  Without real evidence it actually harms justice, as well as deprives the courts of fees rightly owed it.  I would love to see some Doe defender use the fact that Malibu Media no longer files mass Doe cases due to there being no evidence to support this theory.  As the Troll/Plaintiff never plan to take any of these case to a full trial, they have very little fear of the omission coming out to the court.

BitTorrent File Sharing

BitTorrent is a file sharing protocol used by many people across the world.  As far as sharing goes in relation to these cases, it is probably more likely that a Doe downloaded/shared parts of Plaintiff’s content with another BT client in a different jurisdiction (i.e. Belgium, Washington DC, etc.).  The PBAs collect no data to show whom a particular Doe has shared file data with – only that they shared some data with the PBA.  They also fail to show when a Doe enters and leaves a swarm – only showing a snapshot down to a few seconds.  The PBAs may be able to show that at a specific date/time, there were other Does (in a specific case) who were in the swarm.  Now the PBAs could take some complex and time-consuming steps to try to obtain such information, but I have not seen anything supporting this.  The simplest way to obtain such data would be for the PBA to somehow gain direct access to a Doe’s system and monitor the BT communications.  Such monitoring could be done legally, but it would require prior consent from the Doe(s).  Doing any unauthorized invasive monitoring (without Doe consent) would get Plaintiff into some serious trouble – civil and criminal.  Based on my knowledge of these PBAs and the trolling business model, I find this possibility unlikely.  It is easier and less expensive to simply make the simplistic claim and never have to prove anything.

So What Is PBA Doing?

I believe the various PBAs (IPP International and Crystal Bay Corp (CBC)) – possibly tied/associated) are simply recording as much information as possible on the various torrents they have determined to be of Plaintiff’s content.  Note: CEG-TEK and Rightscorp use PBAs, but have no interest in filing cases.  Once the data is collected over a certain time period, it is then filtered to find IP addresses that are within a jurisdiction they file cases in.  For this example, let’s say a fictitious Plaintiff, “Bad Movies Inc.,” only has local Troll counsels in 5 States.  Kind of hard to seriously fight piracy by only filing in a few US jurisdictions – go figure.  That means they really don’t care about the IP addresses that are not associated to the jurisdictions they file in.  What about an IP address that comes back to businesses instead of a residence?  As we don’t see very many of these, I assume business IP addresses are handled differently or not at all by most Trolls.  Depending on how many IP addresses from a jurisdiction are collected for a given period, the Troll will file a mass Doe case.  Depending on how the courts feel about large numbers of Does in a case, the Trolls have been known to split up cases (Does 1-24 & Does 1-33, instead of Does 1-67).  The fact that some of these cases are split up cleanly has everything to do with drawing less negative attention and nothing to do with defendants who are properly joined.  Some jurisdictions also limit the number Does that can be in a case; I believe the Central District of California has a limit of 10.

What Can Be Done?

The education of the judges in these hold-out jurisdictions is the hardest part.  As the technology is often confusing, getting a judge to see the deceptive practices is not easy.  Many courts believe that unless they know an attorney or Plaintiff is “shady,” whatever that attorney files should be taken at face-value.  This view does allow for greater court efficiency, but the risk of abuse is highly evident based on the history of these Copyright Troll/Plaintiffs.  I really hope we see some Doe defenders employ some BT experts to support a motion to dismiss all but a single Doe.   The problem is the cost of filing a motion and fighting early discovery.  There is no guarantee that a Doe will be granted attorneys fees/costs if the motion is successful.  Defeating these mass doe cases is a start.  We did it with the mass Doe pornography cases and now it is the time for the non-porn cases.  The good thing with these Trolls is that for a majority of the mass Does cases, they will be dismissed voluntarily by the Troll or dismissed outright by the court.  I will note we have started to see a couple local Troll counsels actually serve a small number of defendants.  I believe the number of people actually served is small and the tactic is more likely designed to get people to settle – not a true effort to have their case judged on its merits.  Still, for the people who do get served it is a harrowing experience.  For many of these cases, the courts eventually do tire of hearing the Troll’s repeated empty promises to litigate these cases on their merits.  We can only hope that eventually the courts see that the settlement generating business model needs to be stopped.

DieTrollDie :)    ”Some ships are designed to sink…other require our attention.”

*** Here is a shared folder with the PA Bellwether trial transcript and audio recordings.  Malibu Media/Troll Lipscomb’s BPA (IPP International) gives some limited testimony.

DragTor2

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