Malibu Media LLC in CO – “Run Away!” – 1:12-cv-01873, Lindsey Maness

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.

1st Case

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 98.245.76.1, 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)

2nd Case

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 98.245.76.1 – 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 ***

2nd Dismissal

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.

DieTrollDie :)

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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16 Responses to Malibu Media LLC in CO – “Run Away!” – 1:12-cv-01873, Lindsey Maness

  1. I think you’re missing something here. I’ve noticed that in the single named defendant cases, the plaintiff normally does an investigation first. Not always, but a lot of the time. I’ve gotten calls from people who are not the subscriber (maybe their mom or their girlfriend is), but the plaintiff named. This suggests to me that they probably did a background investigation and identified the person in the household who is most likely the infringer.

    So, for instance, Plaintiff obtained Does identities in one matter and then dismissed the action without prejudice. They then investigate the Does and file single actions against the person they believe is the likely infringer. It doesn’t take all that much work to do an investigation thanks to social media and Google. You can probably hire a college intern at $10 an hour to do it.

    Tracking evidence and other flaws aside, keep in mind it wouldn’t be difficult to prove the case at trial if the plaintiff could find either the torrent file or the actual movie on the defendant’s hard drive. I am virtually certain that plaintiff’s counsel will ask for a copy of the defendant’s hard drive in discovery, and in many instances they will get it. Also keep in mind that if the Doe has bittorrent and other copyrighted porn on their computer, but not that particular movie, plaintiff’s counsel is going to try and present that circumstantial evidence to the jury. (whether the judge will let them is an entirely different question).

    Candidly, I suspect a few of these individual cases will be tried and ultimately won by the plaintiffs, particularly where they’ve correctly identified the infringer.

    That is why I think ignoring these guys is the absolute worst thing a Doe can do.

    Although just going away was the norm in 2010, I don’t think that’s going to be the case anymore.

    • DieTrollDie says:

      Doing a simple Lexus/Nexus check is going to give you lots of information. I assume they pushed harder with the IP address and were able to come up with more movies. Yes I think they may find some evidence in discovery of a future case, but the risk of exposing the technical monitoring set-up is not want they are will to do at this point. Fantalis is making this extremely clear.

      DTD :)

      • Thoroughly documented truth, which should exist before such cases have been filed by Trolls, should be evident and made publicly available. One thing I would like to encourage is an open discussion of means of acquiring such documented evidence. Many such methods of acquiring information (usually at no cost) are available. That the Trolls are obviously not making use of such existing capabilities is inexcusable. Assuming that standards of making allegations when lawsuits are filed improve, the need for Computer Forensics Specialists will dramatically increase. I want to encourage that to happen, for many reasons — chief among them being the value of documented truth. Analysis of computer hard drives presented as exculpatory evidence is one area that would benefit from such discussions.

  2. I, Lindsey V. Maness, Jr., mentioned in the “DieTrollDie” article above, am indeed, innocent and deeply regret being forced to expend time (to document exculpatory evidence), effort and money to prove same.

    What really bothers me is the abuse of legal process followed by the Plaintiffs (aka Trolls), and how such abuses might detract from filings of lawsuits by those who have been genuinely harmed by those who abuse copyrights and other forms of Intellectual Property to the significant harm of those who have created items of real value to science, industry and to society. That is the real reason for the very existence of “Intellectual Property,” as defined from the very earliest days of our Democratic Republic. I am among the many who have been harmed by violations of IP and found that being accused of violating the IP of others to be an extremely excruciating experience.

    My experience with the Federal Court system was that the judge presiding was extremely concerned with fairness and due-process, so I must praise Judge Hegarty and his staff. Still, I would not have gotten anywhere in this mess without the advice of Fantalis (a listed counter-suer) and professional assistance of Attorney Kerr. As is abundantly clear, the burden this abuse of the legal system is placing on our federal courts is considerable: the Federal Courts need to be able to direct their judicial resources more effectively elsewhere.

    Insofar as Plaintiff’s Attorney, Kotzker, I feel somewhat sorry for him because his client has posed an almost insurmountable task to get convictions on very flimsy evidence: that sympathy is greatly limited, however, by Plaintiff’s strong efforts to embarrass people into settling, simply because of personal embarrassment and a strong desire to not have this enter public discourse where embarrassment, however unwarranted, would be greatly magnified. That is an unacceptable model for filing lawsuits: unacceptable ethically, morally and legally.

    Still, the bottom line for the Trolls is the allegedly extremely profitable outcome for them from following this model. Walking away with a pocket full of money from filing many thousands of frivolous lawsuits is certainly a powerful inducement to continue to file many more such frivolous lawsuits. Fantalis’ counter-suit might put a big dent in that financial inducement to the filing of further such frivolous lawsuits. Simply put, the Trolls’ acquisition of limited, surficial information leads to the identification of too many innocent parties as Defendants: there are far too many “False Positives.” Some of those innocents will choose to follow in Fantalis’ legal footsteps.

    In the interest of making available the means of determining the documentable truth, I have created a “LinkedIn” site for discussions of “Computer Forensics Specialists.” For those who are guilty of infringing on IP, the proper use of Computer Forensics Specialists to gather evidence could mean an open-and-shut case, based upon far more detailed, even specific to infringing individuals, documented evidence. For those who are innocent, the gathering of exculpatory evidence by Computer Forensics Specialists could spell a prompt and permanent (with prejudice) end to unsupported lawsuits that never should have been filed.

    Even better, many of the newly-available potential Computer Forensics Specialists are just released-from-active-duty Military Intelligence (MI) personnel who served in such US-domestic NSA-affiliated organs as the Air Force Intelligence Command, the Army Security Agency and the Naval Security Group … Internationally, many very reputable retirees from the British General Communications Headquarter (GCHQ) are becoming available, and equivalents from Commonwealth Countries like Canada, Australia and New Zealand. In like manner, highly-qualified MI personnel in Russia, China and other countries which are the true sources of many of these IP violations, are also available.

    For those who wish to systematically determine the true identities of IP violators and document the violations, the hiring of these eminently qualified Computer Forensics Specialists is an action that should be seriously contemplated: they know the technology, the tools (Unclassified) and, to a large extent, the local environment. Speaking personally, I would like to help our qualified veterans get jobs, especially if that employment would lead to less hacking and other costly computer mischief.

    Signed:

    Lindsey V. Maness, Jr., Veteran

    • John Doe says:

      Thank you for your comment, and congrats on your case.

      However, I think that if these cases were truly about protecting IP, then the plaintiff would be going about them in an entirely different way. Specifically…

      1) The plaintiff would be filing the cases themselves, not hiring a third party to do so and agreeing to a 10/90 split of proceeds.

      2) The plaintiff would be mostly issuing DMCA takedown notices, primarily to bittorrent hosts, as this is a highly effective and low cost way to prevent IP infringement (especially as opposed to filing hundreds of legal cases).

      3) The plaintiff would be removing their movies from numerous “porn tube” sites where they are available in full, and even available for free and legal download–files which the plaintiff uploaded during the same time periods they were filing these cases!

      Clearly these cases are not about IP at all but extortion. Extortion works equally well as a threatening tactic whether the party being extorted are innocent or guilty.

      Some judges have already named these tactics as extortionist and not the way to go about protecting IP. I wholeheartedly agree with these judges.

      Again, congratulations on your case.

      • John Doe says:

        And one other factor is that a plaintiff truly seeking to protect their IP wouldn’t create a shell corporation solely to sue alleged infringers.

        On X-art’s own website it says “copyright x-art” not “copyright Malibu Media.” I think it was Fantalis who pointed out that Malibu Media has probably never made a penny from any sale of any movie, purposely underfunded and uninsured so as to not have to pay out when they lose against defendants who countersue.

      • To John Doe: first of all, I would feel a lot more comfortable addressing this issue with someone using his (or her) real name. Second, while all that you say is probably true (at least I saw nothing with which I disagreed: in particular, it IS prima-facie de-facto extortion), my point was and is that the cases filed should be based upon demonstrable, objective, legally provable facts and that the defense should be based upon factual evidence. As it is, the legal justice system (the judiciary) is being overwhelmed with spurious cases: this is unacceptable. Many thousands of innocent individuals are paying a steep price in lost time, effort and money better (more productively) spent elsewhere. Many naive citizens are paying a very steep price for their ignorance or refusal to “waste” money on a defense. New standards, well thought out, for the filing of such cases need to be implemented to ensure that at least minimal standards of going after the right person are followed. The use of Computer Forensics Specialists could, at the very least, drastically cut the number of “False Positives” who must defend themselves and enable straightforward convictions, where such is warranted. In similar fashion, the use of Computer Forensics Specialists could enable, through the presentation of exculpatory evidence, a straightforward exoneration of most innocent defendants. Ultimately, a lot of this type of “crime” (porn is contemptible!) should be investigated by the police and prosecuted by the state. Clearly, individuals whose intellectual property rights have been expropriated should have the option of pursuing a separate venue for damages, etc., but such should at least be looked at by duly-constituted law enforcement before individuals separately pursue judicial remedies for harm suffered. Ultimately, judges should have the ability to rule early on, based upon specific guidelines, that the weight of evidence is insufficient to justify hearing specific cases. The real nexus will be in the formulation of those reasonable, specific, guidelines for the judiciary to follow. The reality is that these spurious lawsuits are morally, ethically and legally questionable and something must be done to rectify these abuses of the judicial process.

  3. Pingback: Some truths and myths about bittorrent lawsuits… « Philly Law Blog

  4. Subscribe says:

    Subscribe

  5. Doe98 says:

    When is settling a good thing?

  6. I’m inclined to agree with Jordan’s comments. Ignorning these lawsuits is NOT the way to go. I get calls from people who ignore the Plaintiff’s initial salvo and then they get named in the lawsuits… at that point, it becomes much more expensive and somewhat more difficult to defend a Doe defendant. Of course, by that time, the “Doe” defendant is named personally.

    As for settlements, yes they are a real option for SOME people. I prefer to fight back, but each case is different and only a lawyer versed in both the law and your particular set of facts could accurately advise you on whether or not to settle.

    I’m always available to chat with defendants in these types of cases in NJ, DE, or PA (through my firm’s PA counsel). I offer these phone consults at no-cost to Doe defendants. My contact information is available at: http://www.mwm-law.com/amansharmaesquire.html.

    • DieTrollDie says:

      Mr. Sharma,

      I will agree that ignoring the Trolls in totality has the possibility of getting you into serious trouble. You need to know what your specific Troll is currently up to (Tactics and Modus operandi) and then you can assess the allegations against you. I certainly would have less fear of being named by CEG TEK, then from Malibu Media. Even if Malibu media is about to take hits in CO and PA. I believe as SJD points out, the numbers of people who are named is very small overall. The number of people who are actually served with a summons after naming is even smaller.

      Again settling is very personal and could be the right time for someone. Case-by-case basis.

      Thank you for your efforts and I hope to report your successes in this forum.

      DirTrollDie :)

  7. Pingback: Malibu Media v. Fantalis et al: an update « Fight Copyright Trolls

  8. AC says:

    Update: Motion for attorney fees denied on 12/4. Haven’t recapped.

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