Colorado Confusion – Malibu Media LLC v. Butler, 1:13-cv-02707 (CO)

8 May 14 Update

Thank you Anonymous and Raul for providing Butler’s response.  On 7 May 14, attorney Hanes filed an objection to the recommendation from the judge to deny Butler’s notion to dismiss.   Doc_31_Obj_02707(CO)

It is well plead and tactful, without mincing words or skirting the simple fact that Judge Hegarty doesn’t have a clue about these cases or how the technology works.  Take a read and tell me what you think the court will do.

DTD :)

—————————————————

5 May 14 Update

Since my last post on the Malibu Media case against Defendant Butler (CO case 1:13-cv-02707), we have seen the following movement.

  • Motion to allow Plaintiff, Collette Field to appear telephonically at the 23 Apr 14, settlement hearing.   Doc_27_MinOrder_02707(CO)   Funny how this was filed on a Friday with only a couple of days prior to the hearing. 
  • Minute Order allowing Collette Field to appear telephonically.  Why doesn’t Collette like to attend court proceedings they started???   Doc_29_MinOrder_02707(CO)  
  • Minute Order cancelling the settlement conference at the request of both parties.   Doc_30_MinOrder_02707(CO)   – Looks like this is going to be a fight.
  • Recommendation of Magistrate Judge (Hegarty).  He recommends that Defendant Butler’s Motion to Dismiss (ECF #20) be denied.   ReportRec_Doc31_02707(CO)   This where the “Colorado Confusion” begins.

COCrazy1It is clear that Colorado is a BitTorrent Copyright Troll haven.  Mass Doe law suits are still tolerated and motions to dismiss/quash are rarely granted.  The main reason for this is of course Magistrate Judge Michael E. Hegarty.  Even after all the Copyright Troll cases that have been filed (and future filings), Judge Hegarty still takes the claims of the Trolls at face value.  The Trolls continue to file cases and then dismiss them once the settlements dry up.  His recommendation for denying Defendant Butler’s motion in this case is no different.

Judge Hegarty states that Plaintiff has properly pled their case so far that Defendant Butler is the most likely person to have infringed Plaintiff’s works by the simple fact that his name is the one on the ISP account.

In this case, Plaintiff has sufficiently alleged that Butler copied its protected works by asserting that its investigator was able to download from Butler’s IP address one or more bits of each of the digital movie files identified by file hashes, then downloaded a full copy of each file hash from the BitTorrent file distribution network (accessed by Butler) and confirmed through independent calculation that the file hash matched the Plaintiff’s copyrighted works. Plaintiff alleges its investigator then verified that the digital media file correlating to each file hash contained a copy of a movie which is identical, strikingly similar or substantially similar to the movie associated with that file hash. Taking these well-pled allegations as true, the Court finds that Plaintiff has plausibly alleged Defendant Butler copied Plaintiff’s copyright protected works without authorization or payment in violation of the Copyright Act. See Patrick Collins, Inc. v. John Doe 1, 945 F. Supp. 2d 367, 375 (E.D.N.Y. 2013) (“the Plaintiff has adequately pled a plausible claim of copyright infringement by providing sufficient detail as to the acts the [ ] Defendant took in infringing the copyright, including going to a torrent site; participating in a swarm; and copying a piece of the copyrighted work identified by a unique hash number.”). As to whether Butler actually performed the alleged conduct, that is a matter for summary judgment or trial, as appropriate.

Even with the clear evidence attorney Richard Hanes provided the court, Judge Hegarty believes the Troll’s simple pleading is enough to justify naming defendant Butler.  In this case (and all other BT Troll cases) there is NO evidence in ANY of the Troll/Plaintiff’s initial filings that link a named defendant to the allegations by more than the fact that their name is one the ISP account.

One small point of interest is the last sentence in the prior quote.  Judge Hegarty makes it clear that the motion dismissal does not mean Defendant Butler did this.  He states a summary judgement or trial will only resolve this.  The only draw-back with such a view is the costs the average Defendant will have to cover to reach such a point (financially & emotionally).  This of course favors Troll/Plaintiff with their large cash reserve and legal experience.  Even if a Defendant requests a summary judgement after depositions and forensics, Plaintiff can still request a voluntary dismissal order from the court.  Hopefully if such an event occurs, Judge Hegarty will not grant it – but I won’t hold my breath.

DieTrollDie :)    “You know how you get to Carnegie Hall, don’t ya? Practice.  {Lt. Aldo Raine – Inglourious Bastards}

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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23 Responses to Colorado Confusion – Malibu Media LLC v. Butler, 1:13-cv-02707 (CO)

  1. Raul says:

    It seems to me that having initially swallowed the copyright troll spiel without askance Judge Hegarty lacks the fortitude to now admit a mistake and stem the clear abuse of his court.

    • Anonymous says:

      Found this because of you Raul. Thanks for posting.
      http://ia600603.us.archive.org/32/items/gov.uscourts.cod.143513/gov.uscourts.cod.143513.32.0.pdf

      It takes a lot of courage to file an official objection calling out the judge presiding over your case like this. But it’s very well argued and it clearly shows that Judge Hegarty didn’t even bother to read Butler’s original motion. Maybe he skimmed it. It will be very interesting to watch this develop, and to see how Judge Hegarty justifies the many points that clearly show that he simply copied and pasted a previous ruling and did a find-and-replace on the defendant’s name, without even considering any of the specific arguments, and even ‘rebutting’ arguments attributed to the defendant that the defendant didn’t even make!

      It’s very frustrating. Mr. Butler’s attorney clearly spent a lot of time on the motion, and Mr. Butler himself no doubt spent a great deal of money to have the motion prepared on the assumption that the Judge would actually read it and at the very, very least, address the arguments presented within it before dismissing it outright. If the Judge finds in the Plaintiff’s favor for any motion that is his call and we have to trust in his judgement as a steward of the law, but it IS his responsibility to read the motions put in front of him before making a decision. It’s about time somebody called out this clear prejudice for what it is.

      • DieTrollDie says:

        Thank you for posting the link. A very nice response to the recommendation from Judge Hegarty. I will add the document to the main post.

        DTD :)

      • Raul says:

        Having seen countless motions to dismiss in these lawsuits i think they are all lacking one crucial piece: an expert’s supporting affidavit. Such an affidavit would go a long way in debunking the pseudo technical jargon tossed around in Feiser’s Declaration and would add gravitas to these motions to dismiss.

      • DieTrollDie says:

        Agree. An expert’s explanation coupled with a real example of how being the ISP subscriber did not equate to being the one who downloaded/shared a movie via BT. Something along the lines of what Lipscomb did in the Bellwether case.

        DTD :)

      • dndt says:

        Any expert report was going to run about $5k+, but only needs to be done once for all cases. I looked into it

  2. that anonymous coward says:

    Our investigator saw a blue car drive away, allow us to get the names of everyone who drives a blue car. This is what is happening. It sounds ridiculous because it is.
    With no actual investigation the owner of a blue car is forced to put on a defense after being named. Even if the owner can show the car was stolen while he was in orbit of the moon, they still insist on going forward… run up the bill… and if he refuses to settle they drop the case.
    They have no skin in the fight beyond the filing fee and eventually having to pay the ISP for the lookup… and the accused can face thousands in costs to defend the case that the Judge felt had merit that the troll drops when the going gets tough.
    You can get the Judge to award you 150K, yet they cut and run… its like they don’t want anyone to have a chance to address the merits (or lack thereof) in the original complaint.
    If the case has such merit as the trolls claim, perhaps the Judge should start a policy awarding all costs to defendants if the case is dropped rather than pursued. Give them that little push to put their money where their claims are.

    • Anon E.Mous says:

      Well said TAC I would love to see some of the Lawyers use the blue car reference to some of the Judges where they are up against a troll. While the blue car reference is very simply, it is a great way to describe what the trolls are doing here.

      Some Judges have caught on but there are still far to many courts that just don’t give it a thought and rubber stamp giving the trolls the order to get the ISP subscriber information and initiating the extortion -er- I mean settlement process.

  3. DNDT says:

    TAC- you are 100% right. The worst thing about this is it allows the troll in CO to do absolutely nothing to force these cases to settlement or discovery. Ideas on how to fight this with this judge?

    • that anonymous coward says:

      One would think a motion to quash would work using the ‘blue car’ analogy, but Judges seem to think there is more backing up the complaint.
      Perhaps it would make more sense to pursue everything else out there on multiple records in a MTQ.
      That the firm directing the litigation has a history of dragging these cases out, if someone puts on a defense they run out the time and then walk away.
      That there is a clear statement that they planned to run up the bill for someone they knew was innocent, to try and keep forcing a settlement.
      That they make the “expert” unavailable and the “experts” roll has changed multiple times along with the payment.
      They merely had to fork over $350 or $400 and are using every trick to avoid there ever being a day in court.
      I’d not ignore mentioning the Bellwether, but merely point out there were no merits discussed in the case as the defendant admitted guilt before the trial FINALLY began, and the event became a dog and pony show to create illusions.
      While we have lots of things that “look” bad (because they are) one needs to stay focused on facts that are on the record in all of the various cases, Judges don’t want “conjecture” (yet somehow accept the complaints) so stick with the facts. They do not provide discovery as required, they try and run time out or file for multiple extensions trying to run defendants out of cash. They claim to have evidence to prove the case, ask for the first available date to have the court hear the case. Watching MM freak out because they aren’t allowed time to play the standard games, and have to admit on the record they have no evidence to proceed.

  4. Rumplestein says:

    Judge Hegarty seems to miss how insignificant one or more bits are when is comes to video clips. And how meaningless the German investigators are when they are immune to US legal system and are paid on contingency based on outcome of the case. He is a cog in the broken system of copyright law in the US, where people can be sued for $150K for the most worthless piece of junk.

    • DieTrollDie says:

      I’m afraid he is of the old shcool thought that inncocent people will fight and the offenders will settle. That or he just doesn’t care. Either way it is just sad. CO and IL are the armpits of this problem because local counsels will debase themselves. I’m sure it will die out eventually – just wish it would start sooner rather than later.

      DTD :)

  5. Anonymous says:

    Jason Kotzker definitely seems to have his hands full in CO. Motions for extensions of time to serve on dozens of cases, second motions for extensions of time to serve on a handful, and a few immediate voluntary dismissals after being ordered to show cause why service was not rendered. Multiple scheduling conferences have had to be reset because Jason just keeps missing his service dates, to the point where it’s the norm and not the exception. At some point you’d think Judge Hagerty would get sick of one single plaintiff eating up so much of his time and so thoroughly abusing his Court.

    CO’s copyright trolling scene is definitely a nuthouse spectacle right now, and the more innocent people who stand up and fight, the nuttier it will become. I just hope Judge Hagerty doesn’t get carpal tunnel from signing his autograph on Jason’s never-ending stacks of copy-and-paste motions.

  6. SJD says:

    Robingroom reviews Hegarty. As Leo Tolstoy famously noted, “All positive judge reviews are alike; each critical one is valuable in its own way.”

    There are two negative reviews, and both confirm the disturbing fact presented in Hanes’s motion: this judge makes up his mind before hearing arguments and twists the law (or simply ignores opposing opinions):

    […] His rulings are entirely result-oriented & predictable. He will go out of his way to twist the law in order to support the side that he favors.

    […] highly predictable, one of those judges that you know how they will rule before a case is even heard; easily bamboozled and not swayed by actual evidence.

  7. Anon E. Mous says:

    Honestly I know Hanes has some very valid points in his Objection, we all know the troll litigation is shady at best and not about enforcing copyright but it is aimed at the settlement game and playing the percentages that so many will settle than fight.

    Colorado and Illinois cases seem to be rubber stamped with a “feel free to extort” folks for any troll that files suit in these states. Hanes’ Objection was well thought out , but I don’t really see that Judge Hagerty or most Colorado judges even giving it a glance and really delving in to what the victims lawyers are trying to inform the court of what is really happening in these types of troll litigation cases.

    IMHO there are venues that are troll friendly, and the troll lawyers know this and they use to every extent they can. You can see it in jurisdictions like Eastern District court in Texas that the Patent Trolls love to file cases in. Why? Because the Court their loves it and the Judges of the Eastern District of Texas have let it run rampant for years, and the Trolls know they have a good chance of wringing a settlement rather than the victim company taking the case to trial there.

    It’s no different with the copyright trolls sadly, they know how to game the system and where to do it. If the Judges really honestly looked at these case in depth they would smell the stench coming from them. Does Hanes’ client deserve to have this ruling overturned, IMHO I believe they do. Do I think the magistrate judge will give it the consideration it deserves… No, it ain’t going to happen.

    Maybe Hanes will have better luck when this lands in front of another Judge if it gets to that point. Hopefully ore does will file an answer with the court and common sense will kick into the Judge that there is something very amiss with the case and the trolls evidence

    • Anonymous says:

      I think you got the lawyers mixed up. Hanes wrote the objection, and Jason Kotzker is a scum-sucking lowlife who only objects to innocent people standing up to his extortion scheme and failing to line his pockets.

  8. dndt says:

    How long will a ruling on the objection take? Are we looking at weeks or days?

    • DieTrollDie says:

      Unsure how long. It would be great if Hegarty would remove himself from the objection and let another judge handle it. Probably too much to wish for.

      DTD :)

      • WDS says:

        I thought the objection was before the district court judge that the magistrate judge (Hegarty) wrote the recommendation for.

      • DieTrollDie says:

        I believe so, but it seems Hegarty is in control and the other judges just play follow the leader.

        DTD :)

  9. Pingback: Malibu Media’s “evidence” or the march of the Naked Emperor | Fight Copyright Trolls

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