20 Jan 14 – Update
In case you missed it, Fight Copyright Trolls posted an article concerning a dismissed Elf-Man case in the Western District of Washington. FCT Article 2:13-cv-00507, Elf-Man LLC, v. ERIC CARIVEAU. The order is important to the Elf-Man cases, as well as to all Copyright Troll cases that relies on the collection of the public IP address to obtain early discovery – which then provides ISP subscriber information from the ISPs. I expect this order will kill all of these cases in the WDWA. I also expect this order will be used by other Doe defenders in other jurisdictions to show the courts the weakness, fallacy, and extortive nature of the practice (and its supporters). 200536376-2013-01-17-ORDER-Granting-Motion-to-Dismiss
Even Malibu Media/Troll Lipscomb is going to be affected by this order. Malibu Media may do more of a look into the ISP subscriber in an effort to correlate the “Exhibit C” (non-Malibu Media files shared via BitTorrent), but their “investigations” will still be lacking for the most part.
This is a very interesting case and I apologize if this gets a bit long-winded. Once you read the Amended Complaint, Defendant Answer/Counterclaims, and Exhibits, you will understand.
This particular case started out a standard mass-Doe BitTorrent copyright infringement case for the direct-to-DVD movie, Elf-Man, featuring Jackass star Wee-Man. The initial case (2:13-cv-00115) had 29 Does and was filed on 22 Mar 13. On 30 Aug 13, after obtaining the ISP subscriber information for the Does, Elf-Man LLC (Plaintiff)/Troll Maureen C. VanderMay, VanderMay Law Firm, filed the First Amended Complaint (FAC) in which they named 28 Defendants. Note: Plaintiff did not name Does 2, 5, 6, and 24 in the FAC – WHY? These unnamed Does were in the process of settlement with Plaintiff/Troll. This was a little different from many Trolls cases where naming a Defendant (based only on weak evidence) makes them worry about FRCP 11 sanctions. Archive Docket 00115 FAC_Elf-Man_00115(WA)
WAIT – the total number of Defendants (28 named & 4 Does) now add up to 32….. It appears that in naming people, Plaintiff/Troll decided to add more stress by adding the spouses/partners (please correct me if I’m wrong) of the ISP subscribers; see the FAC title page – Kurt and Chrisann Ogden; Dean and Brenda Barnett; and another undetermined Defendant on the FAC. I guess the settlement letters and threats failed so much that they decided to name additional people to scare them into paying the settlement. I guess Plaintiff/Troll VanderMay doesn’t think sanctions are much of a possibility for naming people based only on being the spouse/partner of the ISP subscriber.
Please see Plaintiff’s “Third Claim For Relief” (FAC Page 23) – It doesn’t say NEGLIGENCE, but it sure looks like it! Time for a “Duck Test.” And I thought the Randazza Unicorn Tugboat had sunk. :)
168. Defendants obtained internet access through an ISP and permitted, facilitated and/or promoted the use of the internet access identified with the specific IP address for the infringing of Plaintiff’s exclusive rights under The Copyright Act by others.
169. Defendants, and each of them, are liable as indirect or secondary infringers.
170. Defendants, and each of them, failed to secure, police and protect the use of their internet service against illegal conduct, including the downloading and sharing of Plaintiff’s motion picture by others.
171. Defendants’ failure was with notice as illegal conduct is in violation of the law and in violation of the license for access granted to each Defendant by their ISP which issued them an IP address to access the internet.
172. Defendants’ conduct has been willful, intentional, in disregard of and indifferent to Plaintiff’s rights.
173. As a direct and proximate result of Defendants’ conduct, Plaintiff’s exclusive rights under 17 U.S.C. § 106 have been violated.
What a laugh! Hey Troll VanderMay – here is primer on Copyright, Negligence, and ISP subscriber responsibility. This should be an easy one for the defense to kill.
Well in the process of advancing their business model, the Troll seems to have angered Defendant Ryan Lamberson. On 11 Oct 13, J. Christopher Lynch, Lee & Hayes, PLLC, is recorded as an attorney for Defendant Lamberson in this case. On 18 Oct 13, Lamberson, filed a motion to sever himself from the case. On 21 Nov 13, the court granted the motion to sever and a new case was opened against him – 2:13-cv-00395. Archive Docket
Note: between 27 Nov – 5 Dec 13, Plaintiff motioned for and was granted default judgments against Seven of the Defendants (ECF # 87-100, 2:13-cv-00115). I haven’t seen any awarded amounts yet.
I will try to synopsize the Answer and Counterclaim, but please take a look at it and tell me what you think. I think Lamberson/Lynch just pulled the pin from a grenade and handed it to Plaintiff/Troll VanderMay. :)
Lamberson denies any BitTorrent copyright infringement of Plaintiff’s movie (Elf-Man). He states he is a single parent who at the time had a roommate (another single parent) and the ISP service was in his name. He informs the court that during the alleged infringement he had a NetFlix subscription and would have been able to view Plaintiff’s movie when it was released on NetFlix on 20 Nov 12. Lamberson also offered Plaintiff his computer so they could examine it for possible evidence. In true Troll fashion, Plaintiff has refused this offer and kept seeking a settlement from him.
27. Defendant did not download Elf-Man. Defendant has no knowledge that anyone downloaded Elf-Man using his computer or internet service. Defendant has no connection, association, control, or financial relationship with anyone who might have downloaded Elf-Man using his computer or internet service. Plaintiff has refused to examine evidence voluntarily presented to it by defendant on all of these facts. If, somehow, defendant is liable for copyright infringement, defendant is an innocent infringer as he was not aware of, and had no reason to believe his acts constituted infringement. [Defendants Answer, Page 26]
Failure to Protect its Movies
Lamberson states they believe Plaintiff did not exercise reasonable due care in the protection of its content.
113. Denies paragraph 113. Defendant affirmatively states: Plaintiff’s apparent knowledge of piracy and the use of the internet to conduct purported illegal activity show an awareness by plaintiff that certain media and distribution models are better than others if prophylactic protection and secure distribution of its works are desired, plus show that plaintiff did not under the known technological landscape exercise due care to protect its work at the level it apparently seeks. [Defendants Answer, Page 16]
What Part of the Movie is Copyrighted?
The issue of Plaintiff’s copyright is a central point in Lamberson’s answer. It appears that the Elf-Man copyright is part of copyright transfer which doesn’t include preexisting film footage, photography, and music. 1st Copyright 2nd Copyright Plaintiff does not make it clear what amount of new content the movie is composed of. The Copyright Act requires that any new copyright using preexisting material have a significant difference to them. This will force Plaintiff to show the differences – if any. Here is the US Copyright Office handout on derivative works.
Who Owns the Copyright to Elf-Man?
Another thing Plaintiff is going to have to answer is why is Vision Films Inc., has filed a similar BT copyright infringement case in TN, for the movie Elf-Man??? Vision Films uses the same copyright registration, but claims Elf-Man LLC has transferred those rights to Vision Films.
30. Elf-Man LLC, as the owner, holds the copyright registration on the Motion Picture, including Copyright Registration Number PA 1-823-286 (“the Copyright”). See Exhibit B, Certificate of Registration. Elf-Man LLC has transferred to the Plaintiff, Elf-Man LLC’s exclusive rights to reproduce and distribute the copyrighted work to the public, including the right to sue for infringement. [See Exhibit 5 to Defendant’s Answer, Page 24, TN case # 3:13-cv-00128, Vision Films, Inc. v. John Does 1-41]
Now here is the Big Kahuna in the Answer – My emphasis (Defendants Answer, Page 18)
124. Admits paragraph 124. Defendant affirmatively states: Plaintiff has filed no lawsuits against any of these commercial entities, bringing its actions only against individual John and Jane Does who may be entirely innocent even if they did download a piece of the film or the entire film – for example, a child’s copying and viewing as research for a school project on elf-based holiday movies of the 21st century would be non-infringing fair use under 17 U.S.C. Section 107, even if the copyright holder disapproved. On information and belief, plaintiff and/or its agents and privies have been and are seeding Elf-Man onto the very peer-to-peer networks it claims are responsible for facilitating the defendant’s infringement, and they are perpetuating the existence and availability of Elf-Man on these peer-to-peer networks. Plaintiff’s barratrous business model needs the infrastructure of peer-to peer in order to work: seeding its own work onto peer-to-peer networks, maintaining the viability of the work on these networks, all to generate peers with visible IP addresses that can be harvested by capturing one-second snapshots, which are then churned into summonses, settlements, and default judgments – without any concomitant actions using the DMCA takedown procedures or any lawsuits against any commercial provider (or initial seeder or perpetual peer) in the peer to peer chain who is facilitating the alleged infringement. In other words, one of the torrent site profiteers of paragraph 124 is plaintiff.
It appears that Lamberson/Lynch believe Plaintiff (or its agents) have uploaded the movie to BitTorrent prior to its public release. Lamberson states if it wasn’t Plaintiff who directly uploaded the movie, then they failed to exercise due care with its contractual parties, assignees, suppliers, or vendors with respect to the unpublished work prior to the public release of it. Lamberson claims there is no evidence he or any of the other John Does in any of the cases was the initial seeder of the movie. Now prior to the information concerning Prenda Law seeding movies it sued people over, such a claim would not be given much merit. It does look fairly suspicious that the initial upload on BT happened prior to its earliest release. I don’t know if the Pirate Bay or others will choose to shed some light on this, but I hope somebody takes a deeper look.
IPP International & Crystal Bay Corp.
Lamberson tells the court that Plaintiff is obtaining its IP address evidence from IPP International (IPP), formally known as Guardaley Ltd of Germany. The issues with IPP and Guardaley are well documented and their methods and procedures have never been independently tested or evaluated for accuracy.
28. On information and belief, plaintiff is using IPP Ltd, or IPP International, (IPP), fka Guardaley Ltd of Germany as its “investigator.” IPP and Guardaley are noted for flawed and inaccurate data harvesting techniques. Guardaley is a defendant in a class action lawsuit in the District of Massachusetts, Case No. 1:10-cv-12043 alleging Guardaley’s commission of fraud in connection with its barratrous relationship with a copyright owner and law firm in bringing lawsuits based on faulty investigation in order to drive nuisance settlements. Guardaley’s “technology” that has apparently been used in this case as plaintiff’s only evidence has also been found fundamentally flawed by a German tribunal. Guardaley was sued by the German law firm Baumgarten Brandt because Guardaley did not reveal the flaws in its techniques to the law firm which hired it. The rulings from the German court found that Guardaley was operating a honeypot, seeding its clients’ own works; that Guardaley’s technology identifies as infringers those who only inquired about the file; that its technology identifies as infringers those who neither downloaded or uploaded; and did not identify how each IP address was identified. (Ex. 19 and 20 as previously filed in the District of Colorado in Malibu Media, LLC v. Fantalis et al., Case No.: 1:12-cv-00886-MSK-MEH). IPP is acting in concert with plaintiff in its unlawful barratrous scheme. Plaintiff has provided no witness in the United States as to the facts of its allegations of infringement against any of the defendants in any of the Washington state Elf-Man cases. [Defendants Answer, Page 39]
Lamberson also mentions the “delinquent” Crystal Bay Corporation, as being possibly involved with IPP and Plaintiff.
29. Plaintiff is operating this barratrous infringement lawsuit enterprise in Washington without any certificate of authority to conduct business in the state. On information and belief, plaintiff is paying for the “evidence” in its tables from IPP (and/or the delinquent South Dakota Crystal Bay Corporation) and has agreed to share proceeds of these matters with IPP (and/or the delinquent South Dakota Crystal Bay Corporation) and those responsible for creation of the tables. Unless enjoined, the plaintiff’s unlawful conduct is certain to continue. [Defendants Answer, Page 41]
Lamberson make his counterclaims against Plaintiff (Page 27) and asks the court the following.
- Dismissal of plaintiff’s claims with prejudice;
- An order that plaintiff shall be afforded no relief from its complaint herein;
- A declaration of non-infringement and injunctive relief;
- An order to the U.S. Copyright Office to cancel plaintiff’s purported copyright registration;
- Attorneys’ fees and costs awardable under 17 U.S.C. Section 505;
- Multiple damages and attorney’s fees under the Consumer Protection Act;
- For any and all damages suffered by defendant;
- A ruling prohibiting the testimony of Daniel Macea, Michael Patzer, or any representative of IPP or Guardaley on the basis of lack of foundation, inequitable conduct, and Daubert principals;
- Sanctions pursuant to Fed. R. Civ. P. 11;
- For post-judgment interest on the entire amount until paid in full; and
- For such other and further relief as the Court may deem just.
After this answer, it will be interesting to see what the court and Plaintiff decide to do. The judge has initially set the trial for 2015, so there is going to be plenty of time to develop evidence. If the court decides Plaintiff has to answer some hard questions (and it should), they are going to be in trouble. Plaintiff is going to have a hard time running away from this one. Their best option may be for them to try to cut a deal with Mr. Lamberson. I expect such a deal would be very expensive for Plaintiff and the fact that they paid him off would likely kill all other pending/future litigation. Barring any deal, Plaintiff will likely try to drag this out and make Mr. Lamberson’s legal bills add up. Often a growing legal bill does get people to settle eventually. This case could also be a big problem for Malibu Media/Troll Keith Lipscomb, as their cases all use IPP BitTorrent evidence. If IPP developed evidence is found to be lacking or suspect by the court, the fallout will be huge.
Well I think I have gone on enough for now. Please take a read of the documents and spread the word.