Impact Of Judge Otis Wright’s Order On Other BitTorrent Copyright Trolls – Next Generation?

As many of you have probably done, I have reread Judge Wright’s 6 May 13, Order blasting the Prenda Law crew.   WrightPhoton_Torpedo_08333(CA)   My last reread was with a pen and I turned it into a bit of an ink blot nightmare.

Sar2So what does this mean to all the other Porn Copyright Trolls, particularly Malibu Media and Keith Lipscomb.  Sorry Collette – you earned the title, so enjoy it.  I actually think it will also affect those non-porn BitTorrent cases that essentially use the same type boilerplate law suits and sub-standard investigations to reap the benefits of generating settlements from Does.

I expect Judge Wright’s Order to be used by many Does and Doe defenders.  Even though the order was for Prenda Law, it has multiple parts that are Copyright Troll neutral and can be used with ease.

Even with blasting Prenda Law, the judge makes it clear that content owners have the right to protect their products – so long as they do it right.”  Sounds good to me.  The judge goes on to highlight this business model was possible because of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs.  The judges states the copyright laws are being used by some lawyers to plunder citizens.  OK who is the Pirate now?

Here is part of the order in which he explains what is common for BitTorrent copyright infringement cases – “Findings of fact” section of the order (section 3. page 4) –

Their litigation strategy consisted of monitoring BitTorrent download activity of their copyrighted pornographic movies, recording IP addresses of the computers downloading the movies, filing suit in federal court to subpoena Internet Service Providers (“ISPs”) for the identity of the subscribers to these IP addresses, and sending cease-and-desist letters to the subscribers, offering to settle each copyright-infringement claim for about $4,000.

The statement is nothing shocking to anyone familiar with these cases.  Remove the mention of “pornographic” and it also covers all the new non-porn cases out there.

Under the “Rule 11 sanctions” section (page 6), the judge clearly lays out the reason why these BitTorrent Copyright troll cases are critically flawed.  Again not a shocking revelation, but it does help lay a solid defensive foundation backed up with an order from a Federal Judge.

Plaintiffs can only show that someone, using an IP address belonging to the subscriber, was seen online in a torrent swarm. But Plaintiffs did not conduct a sufficient investigation to determine whether that person actually downloaded enough data (or even anything at all) to produce a viewable video.  Further, Plaintiffs cannot conclude whether that person spoofed the IP address, is the subscriber of that IP address, or is someone else using that subscriber’s Internet access. Without better technology, prosecuting illegal BitTorrent activity requires substantial effort in order to make a case. It is simply not economically viable to properly prosecute the illegal download of a single copyrighted video.

The lack of any real investigation is key here.  Without one (regardless of the cost), there is no real way to show who is the actual infringer.  Even Prenda’s expert (Joshua Chin) had to admit this to Judge Wright -  Prenda Expert Declaration.  There are other parts of the order than can be applied to almost any BitTorrent copyright troll case – so enjoy.

So what will Lipscomb and the other Trolls do after this order?  I think we may see an initial slow-down on filing, as they assess what fall-out may come from this order.  Lipscomb has already been trying to take additional steps to make it look like they are not “Prenda.”  These steps are minimal and mostly superficial.  A Copyright Troll is a Copyright Troll.  One thing Malibu Media and Lipscomb are trying to do is get someone to believe their claims that they are taking people to trial because they have real evidence.  The only reason the PA Bellwether trial is ongoing is because the court is forcing it.  If Lipscomb backs down, the claims of defense and others (myself included – Torpedo #7) are confirmed.  We call this being between “A rock and a hard place.

Exculpatory Evidence Letter – This is where they try to get the ISP subscriber to provide them with additional information.  The letter is not written with any exculpatory intent.  Any information provided will actually be used against the ISP subscriber.  The Trolls have made it extremely clear in their settlement demand letters and when people try to talk to them – you are responsible -  pay up or face a trial!   Exculpatory Evidence Letter Post    Here is a clue people – If their technical monitoring results are so good, why do they need you to respond to the letter and give them evidence???

Expanded Surveillance (BT Monitoring of activity on the identified public IP addresses) – this is their attempt to show that the ISP subscriber is a serial downloader/sharer of copyright protected movies via BitTorrent.  The problem with this is two-fold:   1) It is still the public IP address and the actual offender has not been identified.   2) The content they list (other movies and media) has not been shown to be protected content. Yes, it very well might be, but let’s do the investigation and show it – not just present it to the court and infer that it is fact.

DMCA Take Down-Notices – If they actually start doing this, it could benefit them a bit.  It shows they are actually trying to take some action to stop the infringement.  It will also allow them to subpoena the ISP records to show how many DMCA notices a subscriber has received.  This could be used to show that an ISP subscriber was notified of the alleged activity.  If it can then be shown that they did nothing, it could have an impact.  Note: You still need to do an investigation to show who actually did this and not make a statistical guess as to the most likely infringer.  As DMCA notices are actually detrimental to the settlement generating business model, I see this as only a last-ditch effort.

As I stated before – more to come.

DieTrollDie :)    “Somewhere a ship’s hull is being crushed as it sinks.”

About John Doe (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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10 Responses to Impact Of Judge Otis Wright’s Order On Other BitTorrent Copyright Trolls – Next Generation?

  1. DECLARATION OF COLETTE LEAH PELISSIER FIELD (dated 12-5-2012) says:

    25. “For the first three years (when our site was not as popular), we didn’t have as many issues with piracy. Now, that our videos are highly desirable, more people steal our videos that pay for a subscription.”

    IDUNNO & IANAL – but this “attitude” and lack of action seems negligent. Plaintiff seems just as responsible for allowing “unauthorized use” for the first three years and negligent for NOT taking reasonable and prudent action that would prevent continued “unauthorized use”.

    “A person has acted negligently if (s)he has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.” (http://legal-dictionary.thefreedictionary.com/negligence)

    and then there’s this from an adult entertainment lawyer on Xbiz:
    http://gregpiccionelli.com/index.php?option=com_content&task=view&id=115&Itemid=29

    1. What are the firm’s credentials and experience in the area of copyright enforcement involving peer-to-peer file sharing systems?
    2. Has the firm ever been sanctioned by a court or sued for abuse of process?
    3. Does the firm have a sufficient level of expertise in the area of adult entertainment law to properly prepare an adult entertainment client for the special risks faced by adult entertainment companies and their principals in civil litigation? Some domestic and foreign “copyright enforcement” or “copyright protection” firms tout the fact that they have represented “mainstream” companies in similar mass copyright enforcement actions. But it is important to remember that adult entertainment companies are subject to a large number of regulations that mainstream companies are not, including a large number of very serious criminal laws.

    Any material lack of compliance with applicable regulations on the part of an adult content producer plaintiff can become a serious litigation vulnerability if exploited by a knowledgeable opponent.

    Since many adult entertainment companies are simply not in compliance with all the applicable regulations (e.g, the “2257” regulations, obscenity laws, etc.), the filing of a copyright enforcement lawsuit may not always be in the best interest of an adult content producer and/or its principals. Adult entertainment companies should always consider the fact that filing a lawsuit can trigger a defendant’s right to legal discovery, which might include, for example, the right to depose the company’s principals and employees.

    It is important to always remember that litigation is a two-way street. And once started, the party initiating the litigation may not be able to control the outcome or dismiss the case. For these and other reasons, seasoned adult entertainment attorneys will always try to make sure that their client’s commencement of any kind of lawsuit will not result in the legal equivalent of throwing stones while living in a glass house.

    4. Will the firm or any associated company be uploading or downloading any of the production company’s content into a BitTorrent or any other peer-to-peer system?
    5. Will the firm indemnify the adult company and hold it harmless for the payment of court sanctions and any other damages that might result from liability to defendants for abuse of process, privacy violations, etc., that might result from the firm’s use of relatively unorthodox or unusual litigation techniques?
    6. Will the adult content producer be required to license or assign any rights in or to the subject adult content?
    7. Will the firm be employing a litigation strategy that seeks to shame or intimidate defendants into settling? I strongly suggest that adult companies seeking to enforce their intellectual property rights avoid strategies that explicitly or implicitly employ intimidation or seek to exploit negative societal views regarding adult content. Such strategies can backfire badly and, in some cases, can produce zealous defendants, particularly if the party was erroneously named and was not in fact involved in the alleged file sharing of the subject adult content. It’s good to always remember that it isn’t just adult entrepreneurs that get pissed off and fight light hell when they are wrongly hauled into court.
    8. Do the infringement location and data mining systems used by the firm, directly or through one or more third parties, infringe any patents, and, if so, will the firm indemnify and hold harmless the adult content producer from any liability for patent infringement? I can assure you that an adult entertainment company is well-advised not to become embroiled in patent litigation for directly or indirectly infringing a patent involving infringement detection.
    9. All agreements presented by the “copyright protection” firm should be reviewed by the producer’s regular adult entertainment attorney.
    10. How much professional liability coverage does the firm have? Is it sufficient to cover potential liability for class actions that might be brought on behalf of defendants?

    and this from yet another lawyer on Xbiz:
    http://www.xbiz.com/articles/161835?ln=legal

    The Proper DMCA Takedown Notification -
    “This article will discuss what must be included in a properly formatted DMCA notification of claimed infringement (commonly referred to as a “Takedown Notice”).”

    Comment: Be very careful before you send out any DMCA notification. Abusing the DMCA notification procedures or misrepresenting facts in a DMCA notification can result in legal liability including damages, court costs and attorneys’ fees. In fact, the DMCA contains specific language for dealing with any individual that “knowingly materially misrepresents” when making a DMCA notification. Take a look at 17 USC § 512(f)”

    If they were REALLY trying to “combat” the copyright infringement issue one would think they’d direct their notices to the sites that are indexing them; not GOOGLE! Google just indexes links to the site that indexes the link to the (dot) .torrent file (which is a whole ‘nother issue that should be looked into)

    • that anonymous coward says:

      The first statement seems right out of the, but this lawyer told me all of my losses were from pirates not from the porn market overflowing with cheaper better quality content. I used to make this many dollars and now I make less… must be pirates….

  2. that anonymous coward says:

    I’m not sure DMCA notices would be that useful.
    Well this subscriber got 10,100,1000 notices still doesn’t mean they knew anything about it when it was happening. There is no duty for a subscriber to monitor their connection to protect a 3rd party’s copyrights. As most of the people they are allegedly pursuing are just downloaders, the event could be long past by the time they send a DMCA notice to the subscriber.
    The subscriber never made the content available, so it is impossible for them to stop doing something they never did.

    And if they were so brazen as to include a settlement demand, one might need to complain to a court about how the notice was being misused to circumvent the legal remedies available and bypass due process.

    And then there is this giant stack of DMCA notices that are failures on so many levels showing it is a flawed process.

    I would also challenge their system for verifying the content was their clients work before sending the notice, and point out that if it was a mislabeled/misidentified file it is possible the sender violated copyright. But then I’m entertained by suggesting these sorts of things…

    • DieTrollDie says:

      I think the DMCA notices “could” be a help, but not a smoking gun at all. It could help in supporting some sort of digital finding on a defendants system or that BT was removed or suspicious files were deleted. Plaintiff would likely claim the defendant did nothing (or spoliation) because they are a “Pirate” downloading/sharing copyright protected content. To be of value, the DMCA notices should be sent out as soon as the activity is recorded, not months down the road. As well as what the defendants states during any depositions. As most of these cases never reach a deposition, the discussion is more academic (for now). Yes the DMCA notice process is a failure, but it looks better for the plaintiff if they are actually try to work with it and not avoid it because it could disrupt their business model profitability. As these civil cases will be judged on the preponderance of evidence, the image of Plaintiff and the Troll could make a difference.

      Malibu media just had a failure in the PA Bellwether case – http://dietrolldie.files.wordpress.com/2013/05/harddrives_doc134_02078pa.pdf Doesn’t do their image problem any help. :)

      “The Court concludes that this issue had been raised by plaintiff in a belated manner. Defendant was entitled to know promptly that there was an alleged problem in reading the hard drive produced in January 2013. Counsel for defendant had to incur a significant amount of time in preparing to defend against the relief requested in the Emergency Motion, including several telephone calls with the Court and filing a response. The Court ORDERS attorneys’ fees and costs of defendant’s counsel be recovered from plaintiff. Defendant’s counsel shall promptly submit a statement of the amount of time at his usual hourly rate, and any expenses from his receipt of the Emergency Motion until conclusion of the conference call May 6, 2013, which amount shall be paid by plaintiff to defendant’s counsel within ten (10) days.”

      DTD :)

      • that anonymous coward says:

        As always I just fear how it can be twisted to try and still leverage payments.

        You expected them to not screw up the Bellwether?
        I’m just happy that the Judge called bullshit and then proceeded to make it hurt.
        As was covered in the coverage of why Prenda got away with it for so long, it was because Judges were unwilling to make it hurt when stunts were pulled.

  3. Paul says:

    You clowns not only watch the porn. You clowns steal the porn. Jesus never watched porn. Before you get on your high horse, remember what you are: sexual deviants. God wants you to be revealed and tracked and disclosed to protect our children. All you John Does should be revealed for what you are: a form of evil to American society. A blog whose purpose is to protect sexual deviants. How sick.

    • DieTrollDie says:

      - From FCT – This clown is posting on both sites. Another Chicago IP address.

      “Jesus never watched porn. You clowns not only watch the porn, but you also steal the porn. God wants the world to know who you are because you are the greatest evil in America. You make slaves of other people’s sons and daughters. So before you get on your high horse, remember what you are: sexual deviants.”

    • that anonymous coward says:

      “God wants you to be revealed and tracked”
      Nope, but TAC would love to have your IP address revealed… and then I can track it.
      And I am a greater evil than you imagine… I’m gay. Which means I don’t watch the porn we talk about here, I just have to show up and spread my evil pixie dust on the others to keep them out of god’s sight.

      So when your beating it to the sears catalog, do you use your own tears for lube?

    • thatbalddude says:

      “Render unto Caesar that which is Caesar’s, and render unto the Lord what is the Lord’s.”
      Judge Wright says you copyright trolls’ butts belong to Caesar, so pay up! :)

  4. Ted Kazynski says:

    Yup! Even though Jesus never watched porn, there was still some damn crooked lawyer trying to get him crucified.

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