Well the DC courts are starting to heat up. Thanks Raul for providing the link to this counterclaim by Doe defendant Bailey Zwarycz, Third Degree Films, Inc., v. Does 1-152, case # 1:11-cv-01833-BAH, District of Columbia. This case is very busy and I apologize if I missed anything. Please post a comment if you find anything of interest. I would also recommend that if you are Doe in this case (even if you already settled), please contact John Lowe, attorney for Bailey Zwarycz, as they have asked the court for this information should they win.
This case was opened up by Mike Meier, The Copyright Law Group, PLLC, on 18 October 2011. I t is the same boilerplate copyright troll complaint as we have seen before. Meier did make it clear that the Copyright Registration was filed within three months of the first publication of the Motion Picture (“All About Kagney Linn Karter”), which was April 26, 2011 (Plaintiff is then entitled to statutory remedies of the U.S. Copyright Act).
The Troll only went after each defendant for the single count of Copyright Infringement. In other complaints, there have been other charges, such as conspiracy and negligence. There is also a verification statement from Meier, in which he swears to the following information:
- That the information provided by Jon Nicolini, Copyright Enforcement Group (CEG), is accurate.
- That he ”personally spot checked the purported location of the IP addresses of the alleged infringers in Exhibit A…”
- That he personally check the copyright status of the movie in question.
The complaint has the following exhibits.
- Exhibit A – Table of Last-Observed Infringements by Defendants of Third Degree’s Copyright in the Motion Picture “All About Kagney Linn Karter,” Copyright Reg. No. PA0001745129.
- Exhibit B – Technology Declaration of Mr. Jon Nicolini, explaining the technology used to identify the alleged copyright infringers.
- Exhibit C – Copyright registration record of the Motion Picture at issue.
As could be expected, the DC court allowed the Troll to serve the subpoena on the ISPs for Doe subscriber information. After receiving the subscriber information, the Troll sent out settlement letter (CLG_Settlement_Ltr_01833).
Here is a copy of the case docket from PACER on 16 Mar 12. (Docket_16Mar12). Lots of activity to include counterclaims and replies, etc. Note: there is Five True Name defendants listed, but it doesn’t show that any have actually been served. Here is an order from the court showing he denied Plaintiff’s request for more time to serve them. Denied
MINUTE ORDER (paperless) The plaintiff’s 23 Amended Motion for Leave to File Amended Complaint is GRANTED. Defendant Zwarycz’s 24 Motion to Extend the Time for Filing Her Opposition to the Plaintiff’s Motion to Dismiss Counterclaims is DENIED based upon this defendant’s statement in her Reply brief that she seeks to withdraw the motion. The plaintiff’s request for sanctions against defendant Zwarycz’s counsel is DENIED. The plaintiff’s 26 motion for a 120-day extension of time to name and serve defendants is DENIED IN PART since defendants have now been named in this case and are entitled to expeditious resolution of the claims against them; and no motion to compel speedier subpoena responses from Internet Service Providers has been filed. The plaintiff shall name and serve defendants by April 6, 2012. Signed by Judge Beryl A. Howell on February 21, 2012. (lcbah1) (Entered: 02/21/2012)
What I will post right now as I really enjoyed reading it, is the “Answer and Counterclaim of Bailey Zwarycz, AKA John Does 116 & 117, 1 Feb 12. Zwarycz is represented by John Lowe, John Lowe P.C., Bethesda, MD.
Zwarycz denies the allegation of copyright infringement and states that during the time in question, her Wireless Router was not password protected and anyone could have used it without her knowledge. Decl_Zwarycz_01833
Zwarycz makes the following counterclaims against Plaintiff:
- Abuse of Legal Process
In support of these claims, Zwarycz provides the following evidence:
Declarations from Stephen Hendricks, Computer technician and COMCAST employee (Decl_Hendricks_01833)
Declaration of John Simek, Sensei Enterprises, Inc., an Information Technology, Information Security, and Computer Forensic firm (Decl_Simek_01833)
Both of these declarations refute the information provided by Jon Nicolini, CEG, stating that his assertions are blatantly incorrect.
- Hendricks states “there is no way that Plaintiff could make a good faith allegation in its complaint that John Doe 116 and 117 – namely Bailey Zwarycz, — willfully and intentionally downloaded, copied, and distributed Plaintiff’s film.”
- Simek stated he disagrees with much of the information/allegation in the complaint and declaration of Jon Nicolini. He states it is impossible for Plaintiff to be able to ascertain the Identify of the actual infringer with only the public IP address OR that the John Doe willfully and intentionally downloaded/shared the movie in question. Simek also conducted a forensic examination of Zwarycz’s hard drive and found no indication the movie or BitTorent software ever resided on her system or was deleted.
Zwarycz makes the following request of the court:
- Dismiss the complaint against her with prejudge
- Compensatory damages of 10 million dollars.
- Punitive damages of 10 million dollars.
- The identities and addresses of all 152 Does as provided by the ISPs.
- Attorney fees, expenses, and costs.
- Other relief as she may be entitled.
The first date of interest on the docket is 6 Apr 12, when Plaintiff must serve the summons on the Doe defendants. Most likely Meiers planned to dismiss all the Does prior to the suspense. He would probably write something to make it sound like he did the court a favor in doing this. Only one problem is now that Zwaycz has made a counterclaim, he has to address this before he can cut and run. Good luck on that one. The luck of the Irish isn’t going to help you here. More to come on this one for sure
Well, Saint Patrick’s Day is almost upon us and I wish all the Does out there a wonderful weekend.