23 Aug 12 Update
OK. Here is the settlement agreement between LMH and David Mastron. Settlement_03425(CA)
As stated below, this is not a huge shocker. What is interesting is that Gutierrez/Mastron was able to get the settlement paperwork to be releasable. Goes to show you the strength of their case AND the weakness of LMH/Randazza’s case. I’m sure Randazza would have preferred a confidentiality clause. The issue of making this case go away was obviously a bigger priority. Take a read through it and tell me what you think. I bet there are plenty of other cases out there that could go the same way if people could get past all the Troll FUD.
I have also attached the Order from the judge dismissing the case and a “Show Cause” order for why the case against the unknown John Doe should not be dismissed. Randazza has until 29 Aug 12, to respond. Order_Dismiss_03425(CA) ShowCause_Doe_03425(CA)
22 Aug 12 Update
Well another ‘Tugboat’ case is on the bottom of the ocean. The funny thing is that Randazza scuttled it himself. On 20 Aug 12, both parties are agreed to dismiss the case with prejudice; parties responsible for their own legal fees. Stip_Dismiss_03425(CA)
This very short and sweet dismissal has lots to say. Last night I was watching some poker on TV and saw a few hands that reminded me of this case. I’m sorry to say that some of you are forced to play this ‘game’ with the Trolls. These cases are played just like poker – a game of skill, bluffing, and some luck thrown in for good measure. I don’t know if Randazza likes poker, but he has the spirit of a good player. He understands the power of a huge chip-stack against lesser players, weighs his options, calculates odds of winning, and it not afraid to fold his hand when he is beat.
What made Randazza fold this hand/case? First he did not have a powerful advantage of a Pro Se Doe. Mastron was able to retain Mr. Gutierrez (Leopold, Petrich, and Smith) and even the playing field. Mr. Gutierrez was able to determine he clearly had the advantage - Copyright Preemption, No Duty (Negligence), and No Evidence apart from the public IP address (weak). I’m sure the Tabora ruling was brought up in discussions and the likelihood that if Randazza didn’t dismiss Mastron, Plaintiff would stand to lose a substantial amount of money (I’m sure Mr. Gutierrez is not cheap). Randazza made his calculations and rightly so determined that folding the case was the smartest thing to do. Randazza will not like that this information is making it out to the masses, but it is sure better than a trial where the depositions of his technical monitoring company and other aspects of his operation are disclosed.
It may not be what many of us would have liked to have seen, but it was Mr. Mastron choice, as he was the one being threatened. More facts on this case are likely to come out publically, as well as in private legal circles. This case will be used by other Troll fighters as a building block to a winning case.
Liberty Media Holding, LLC. V. John Doe and David Mastron, 2:12-cv-03425, CDCA.
I had seen this case a few months ago when TAC mentioned the Judge in the case (Margaret M. Morrow) had removed herself. That part was interesting, as the judge stated she held common stock in Liberty Media Holding, LLC. I don’t know if this is the same Liberty Media Holding (LMH) LLC, as the Plaintiff, but it was the right move to remove any doubt. S_Recusal_03425(CA)
For this case, LMH is suing John Doe and David Mastron, for Copyright Infringement (Reproduction & Distribution), Contributory Copyright Infringement, and Negligence. Complaint_03425(CA) The Copyright Infringement claims are against the John Doe and the Negligence claim is against David Mastron. For those of you who have followed the Marc Randazza cases, this is the same template based complaint used in Tabora and other cases. Note: This complaint was also copied by Prenda Law – example Joshua Hatfield.
This complaint was designed to use the State ‘Negligence’ claim to get around the difficult issue of proving copyright infringement by the ISP subscriber. The Trolls knows a good percentage of the ISP subscribers they target are not the actual infringers. It could be another member of the residence, neighbor, guest, or an unauthorized user of the Internet connection. They do not know and really don’t want to spend the time and money to try to find out. Doing an investigation is costly and eats away at the profits. They do this by claiming that an “Unknown” person (John Doe) was the actual infringer and that the named person (Defendant Mastron here) was negligent in allowing John Doe to use his Internet connection. By combining these two under the “Joint and Severally” liable claim, they can go after Mr. Mastron for negligence; if successful, he will get stuck with the copyright infringement portion. The Troll then doesn’t have to prove that the John Doe or Mr. Mastron infringed. It then becomes Mr. Mastron’s responsibility to do this and seek legal action against John Doe to make him pay his portion of the fine.
As Tabora and other negligence claims have begun to fail for the obvious reason of Copyright law preemption and lack of any legal duty to the Plaintiff or society, I figured this one would eventually go away. Well in true Randazza style, Mr. Mastron was served with a complaint on 8 Jun 12. Served_03425(CA) On 3 Jul 12, Mr. Mastron filed his answer to the complaint Pro se. Answer_Complaint_03425(CA) I was a bit shocked that Mr. Mastron filed the answer Pro Se and had not employed a lawyer. The answer to the complaint was straightforward and stated
- He didn’t download the movie
- He doesn’t use BitTorrent
- He has no knowledge or involvement in the alleged activity
- Denies the negligence claim
On 3 Aug 12, Mr. Mastron requested the court accept Robert S. Gutierrez as his attorney in this matter. Gutierrez_Rep_03425(CA) Mr. Gutierrez is a member of Leopold, Petrich, and Smith, Los Angeles, CA, and appears to have good background and experience in Intellectual Property issues. On 6 Aug 12, Judge Otis D Wright approved Mr. Gutierrez representation of Mr. Mastron.
Now based on the answer to the complaint, this makes this case more interesting. Mr. Mastron has given the “full-denial” answer and now it goes back to Plaintiff to make the case. As I previously posted an article concerning the “Merits” of these pornography copyright infringement cases, the only obvious evidence Plaintiff has is the public IP address they recorded during the technical monitoring period. The complaint states the infringing activity was observed on Mr. Mastron’s public IP address on 15 Nov 10, 9:09 PM GMT. The complaint states the recorded date/time was only a snap-shot, and the activity took place before and after this date.
On 24 Sep 12, a court ordered scheduling conference will address planning for discovery and the filing of reports and instructions. In the mean time, I expect Randazza will be trying to convince Mr. Gutierrez and Mr. Mastron to accept his settlement terms. Based on only having the public IP address as evidence, I can’t see any IP attorney ever considering this option. Now unless Randazza is going to “Pull a rabbit out of his hat,” and show some truly relevant and credible evidence, he can only hope the depositions disclose something of value. If it doesn’t, they then have to hope a forensic examination of the computer(s) finds the movie, BitTorrent software, torrent files, or evidence that shows the evidence was destroyed. Note: Hope is not a way to run a successful case and Randazza knows this.
I expect that Mr. Gutierrez will file a Motion to Dismiss the case just like the one that was successful for Tabora. Tabora_MTD_02234(NY) Mr. Gutierrez will even be able to use Plaintiff’s Opposition to Tabora’s Motion to Dismiss as supporting documentation for the dismissal. LMH_Opp_MTD_02234(NY) On page 6 of LMH’s opposition, you will find this wonderful paragraph.
LMH said the ISP subscribers have NO duty to police and prevent criminal activity on their Internet connection; the only reason they were pursuing the negligence claim against Tabora was because he had direct knowledge of the infringing activity of the roommate and did nothing. In this case, Mastron has no knowledge of the Infringing activity – thus there is no duty. Straight from the Unicorn’s mouth. ;)
Can’t wait to see this tugboat sink and join the rest of the fleet.