Well Malibu Media LLC (Brigham Field & Colette Leah) and it collection of Trolls are making a mess of things across the US. There is no doubt they are making some money off their efforts, but things are changing for them. More Does are either ignoring the Trolls outright or even fighting back. The Trolls see the change and have adapted their efforts to try to maintain their grip and keep the money flowing in. One of their newer tactics is to name and serve a non-settling Doe from a previous mass-defendant case. * Some Trolls like John Steele have claimed the name and serve tactic is working to get defendants to settle. It may be getting some to settle, but the additional costs probably don’t compare to the overall reduction from Does who settle from the mass-Does cases.
* Clarification – A majority of the “Named” Does have not been served.
Also of interest is this article from Rob Cashman on making the Troll fight all the Does listed in the swarm. More to come on this one I’m sure. Force a copyright troll to fight the WHOLE BITTORRENT SWARM every time he names someone.
The real fact many Does don’t realize is whether you’re in a single-Doe or mass-Doe case, it doesn’t change the fact they only have weak evidence to start with. The public IP address their technical monitoring crew records only comes back to the ISP subscriber – the person who pays the ISP bill. The best the Troll is able to tell the court is there is a “possibility” the ISP subscriber is the infringer. Stating more without any real evidence from additional investigative work is irresponsible and can get the Troll/Plaintiff in trouble with the court. Even with this common knowledge, the Troll goes forward because he knows he will not allow a case to be judged on its merits.
The risk of getting called out with weak evidence when a Defendant fights back makes the Trolls turn tail and run away at some point. The Trolls like to play “Chicken,” but they sometimes get called out and are unable to dismiss a defendant before he answers the complaint – Jeff Fantalis. Most Trolls make some sort of drama show and then dismiss the case for some off-the-wall reason. The case I’m going to discuss is just such one.
On 3 Apr 12, CO Copyright Troll Jason Kotzker filed Malibu Media LLC, v. John Does 1-17, 1:12-cv-00839, in the District Court of CO. Complaint_00839(CO) This was you standard Copyright Troll case for the single movie, “Veronika Coming Home” (SHA-1 hash: FDA166688F0C01B464E716460F22A96E7D40A27C ). The claims were for direct and contributory copyright infringement against all the Does. One of theses defendants (Doe #11), public IP address 220.127.116.11, had a hit date/time of 14 Feb 12, 05:59 UTC. Prior to dismissing this case, five Does were dismissed by Kotzker after likely paying the settlement demand. On 1 Aug 12, Troll Kotzker dismissed the case stating he would conduct further investigative efforts and refile single-doe cases as necessary. Dismissal_00839(CO)
Now even before Kotzker dismissed all the remaining Does from 1:12-cv-00839, on 1 Aug 12, he filed a new case against Lindsay Maness (public IP address 18.104.22.168 – Doe #11 from previous case). Case is 1:12-cv-01873, Malibu Media LLC, v. Lindsey Maness, filed 18 Jul 12. Complaint_01873(CO) CoverSheet_01873(CO) MovieReg_01873(CO) Movie_Hits_01873(CO) Decl_Fieser_01873(CO)
23. As the subscriber of the Internet service being used to distribute Plaintiff’s copyrighted movies, Defendant is the most likely infringer. Consequently, Plaintiff hereby alleges Defendant is the infringer.
The new case was for one count of direct copyright infringement. The main difference in the cases besides naming the defendant was the number of movies Maness was accused of downloading/sharing via BitTorrent. For this case, Maness was accused of downloading/sharing seven different Malibu Media movies between 13 Feb 12 – 18 Apr 12.
- Silvie Eufrat Strip Poker, 13 Feb 12
- Anneli Leila Menage A Trois, 14 Feb 12
- Veronika Coming Home, 14 Feb 12
- Like The First Time, 5 Mar 12
- Roommates, 18 Apr 12
- Veronica Wet Orgasm, 18 Apr 12
- Wild At Heart, 18 Apr 12
Now Troll Kotzker does not list out the seven movie files like this. That would be too easy. Instead he lists out different times for each of theses movies, as if a few minutes difference in monitoring intervals equals another instance of infringement.
On 11 Aug 12, Troll Kotzker requests the court issue a summon for Maness. On 13 Aug 12, the court issues the summons and the Troll effects service on 26 Aug 12. Service_01873(CO) On 14 Sep 12, Maness asks the court for more time to respond to the complaint, as he hasn’t been able to retain counsel yet. An extension of 17 Oct 12, is given to Maness to respond to the complaint. At a 10 Oct 12, status hearing, Maness tell the court he expect to hire representation prior to the deadline. He has also brought his laptop to the court so Troll Kotzker can examine it if he chooses. 10Oct_Min_01873(CO)
Following this status hearing, Maness hires David Kerr, Santangelo Law Offices P.C., Ft. Collins, CO, to represent him. Kerr starts to work on a Motion to Dismiss Maness because Plaintiff failed to state a claim.
…The Feiser Declaration, however, provides no information or details whatsoever as to how Plaintiff concluded that Defendant actually committed any volitional act of copyright infringement as required to sustain a claim of direct copyright infringement. In fact, the Feiser Declaration provided to support Plaintiff’s already thread-bare claims, as will be discussed below, is factually inaccurate and misleading. Neither the Feiser Declaration nor Plaintiff’s Complaint provide any allegation that Defendant violated any of Plaintiff’s rights apart from this conclusory statement and should be dismissed. …
It should be noted that prior to Kerr representing Maness, Troll Kotzker was repeatedly offered the following:
- Inspect Maness’ computers
- Inspect Maness’ network
- Provide evidence Maness had an unsecured open wireless Internet connection
- Never heard of BitTorrent prior to these cases
- Did not know who may have downloaded Plaintiff’s movies
- Provide an affidavit he never destroyed/altered any evidence
- Members of his household were not even in town on some of the alleged dates and as such could not have downloaded Plaintiff’s works
Maness also told Troll Kotzker he would not sign a confidentiality agreement with Malibu Media as to the terms and this was non-negotiable. Kerr informed Troll Kotzker they would begin preparing their initial response due 17 Oct 12. MTD – Maness_01873(CO) MTD_01873_EX_A MTD_01873_EX_B *** Take a look at the Exhibits ***
On 17 Oct 12, Kerr sends Troll Kotzker a copy of the MTD and is then informed Plaintiff has already dismissed Maness. A check of the docket disclosed that Troll Kotzker dismissed the case on 15 Oct 12, and didn’t have the courtesy to send Kerr an email or call. Troll Kotzker states the reason for the dismissal as:
PLEASE TAKE NOTICE, Plaintiff hereby voluntary dismisses Defendant Lindsay Maness from this action without prejudice. Pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i) Defendant has neither answered Plaintiff’s Complaint nor filed a motion for summary judgment.
Now if that isn’t running away, I don’t know what is. As this is the second dismissal for Maness in accordance with FRCP 41, it is deemed adjudicated on its merits (actually the lack of them). I’m sure Kerr and Maness will seek reasonable attorneys’ fees and costs, as well as the possibility of seeking sanction against Malibu Media and possibly Troll Kotzker for their actions.
Please take a look at the Motion to Dismiss and its Exhibits which show multiple instances of Malibu Media LLC totally ignoring attorneys and defendants offering access to their systems/network to show they are not the infringer. These are not the actions of a Plaintiff or attorney who is interested in determining if a defendant is the infringer. These are the actions of a slimy business model that does not want the fact that their claims are weak and unsupportable as currently brought before the courts. For this business model to continue, Troll Kotzker and Malibu Media LLC cannot stop their actions. I liken this to a nuclear reactor running while its supply of coolant slowly begins to fail. They don’t have sense enough to stop, so there is going to be a meltdown in the future. The PA Bellwether case is on a fast-track, with a recorded status hearing scheduled for 1 Nov 12. It will be fun to watch that one crash and burn.
The author of the MTD/Exhibits said people are welcome to use some or all of them as they see fit. The MTD is good and I’m sure will be picked up by others in fighting Copyright Trolls. I will also place copies of the MTD and Exhibit on my Motions page.