PA Bellwether Case – Recap Of The 6 June 2013, Hearing
On 6 Jun 13, the PA Bellwether case has turned into a simple bench trial (10 Jun 13) with the remaining three defendants settling with Plaintiff. Here is the Fightcopyrighttrolls post concerning this development. Audio File (Hearing) As we wait to hear the results of the Bench trial for John Does #1, 13, & 16, I was asked to go over what happened at the 6 June 2013 hearing.
The hearing starts off normally and after a short recess, Keith Lipscomb tells the court that they have reached an agreement with John Does #1, 13, & 16, and want to move for a Bench trial (in front of the judge only). Lipscomb tells the court the following:
- These John does have decided to admit they did in fact infringe on Plaintiff’s movies via BitTorrent in exchange for a confidential settlement.
- Lipscomb wants the judge to enter a finding of liability against John Does # 1 & 13. No damages will be assessed by the court – confidential settlement agreement covers what they will pay.
- Lipscomb wants the judge to enter a finding of liability and statutory damages (as well as attorneys fees & costs) against John Does # 16. Lipscomb notes they have an agreement with John Doe #16 for what the minimum to maximum damages can be.
- Lipscomb requests the court mention in the bench trial that if he had entered a statutory damages for John Doe #1 & 13, the amount would be adjusted based on the fact that John Doe #1 initially denied the activity, but later recanted. John Doe #13 never denied his activity in any court filing. Lipscomb requested that the judge mention that since John Doe #1 recanted, his damages would be higher than John Doe #13.
- The judge stated as there wasn’t going to be a damages finding against John Doe #1 & 13, he was willing to let them proceed anonymously. He did require that their identifying information be provided to him. He said it will be kept for the foreseeable future in his chambers – not to be filed in the docket or released unless a legal requirement was produced.
- John Doe #16 will have to have his name added to the case and cannot proceed anonymously.
- The judge said the court appointed expert will be available for the bench trial on Monday, 10 Jun 13, in case he or other have questions.
The judge said he would also be issuing a “Plain Vanilla” report concerning this case, as there were many other judges looking to how this case proceeded. It would cover issues of joinder, severance, motions, experts, etc. Lipscomb asked the court if he would make certain findings of fact in regards to Malibu Media. The judge told Lipscomb to file a proposed findings of fact and he would consider it. The judge made it clear that he was not going to be used an advertise spokesman for Lipscomb/Malibu Media, but would stick to the legally factual aspects.
The judge did mention that there has been much discussion on Copyright trolls (and Patent Trolls) and he didn’t consider Malibu Media as one, because they actually produced copyright protected content. Lipscomb was very happy to hear this and stated they are constantly being compared to Prenda Law. Lipscomb also stated that Collette (Owner of Malibu Media) would be providing an hour-long testimony on how copyright infringement has hurt her company. Needless to say, but I disagree that Keith Lipscomb (and the content owners who employ lawyers such as him) is not a copyright troll. Just because they have a real product and owner, doesn’t mean their extortion-like actions (my opinion) are justified.
They know that approximately 30% of the public IP addresses they identify do not correlate back to the actual infringer. The actual history of their actions shows they collect public IP address, obtain ISP subscriber information, and then demand settlement from the subscriber. They assume the subscriber is the offender and do not care if he/she did it – just that they pay the settlement. Lipscomb/Malibu Media’s use of the “enhanced surveillance” of BitTorrent activity for the identified public IP address is the extent of their investigation. This actually almost came back to haunt them in this case when it was identified that the public IP address initially associated to John Doe #16 was still sharing copyright protected material. The problem was that John Doe #16 was no longer the registered user of that public IP address. This highlights that their IP monitoring apparatus and business model are not beyond errors. Lipscomb then had to make a hasty motion to not allow that information to be brought out in court. He claimed that information was not relevant, as it didn’t cover the period of alleged infringing activity by John Doe #16. Funny, Lipscomb thinks it is relevant to list all the non-Malibu Media content alleged Does are sharing via BitTorrent.
Now I know this case will be used by Lipscomb and Malibu Media to claim they are justified in their actions. The fact that copyright infringement occurs to Malibu Media is no justification to threaten people with a civil law suit with little concrete evidence. This is a business model of generating settlements on a repeatable basis and not to stop the infringing activity. Just because there is a real content owner does not mean you are not of the same ilk as Prenda Law (my opinion). You are just a different variety of Copyright Troll in my eyes.
The fact that all three of the remaining Does are admitting to the infringement does not mean all the people they target are offenders. Three out of Ten (30%) are not the infringer according to one Troll. The destruction of evidence by John Doe #16 does hurt us, but it still doesn’t mean an innocent person should settle. It will be interesting to see if Lipscomb/Malibu Media will actually take some Defendants to trial on their own in the future. I still doubt it unless they have some really good evidence. In my opinion they got lucky with these Does. If the forensic examination had not turned up anything incriminating on John Doe #16, this case would have turned out differently.
DieTrollDie :) “The Fight Goes On”