17 Oct Update – Troll Michael Hierl (Dallas Buyers Club LLC) Refiles Cases On Two Does Who Filed Motions – 1:14-cv-04940 (IL)

17 Oct 14 Update

It has been over a month since Troll Michael Hierl dismissed Does # 15 & 22, and then immediately filed single-Doe cases against them (details below).  I surmised that this was done to remove the possibility that the court would sever all Does except for #1.  The Troll dismissal mooted the motions and allowed the Troll to continue threatening to name people in the case unless they pay a settlement.

As of today (17 Oct 14), there has been no real movement in any of the cases (1:14-cv-04940, 1:14-cv-071281:14-cv-07129).  For the main case, I expect troll Hierl is still trying to get people to pay-up.  For the two single-Doe cases, I believe the Troll will keep them open until the court closes them for lack of action.  Troll Hierl could have easily resubmitted his template-based Early Discovery request for Does #15 & 22 (and possibly gotten it).  BUT as these Troll/Plaintiffs/APMC do not want to waste time and money fighting, it is cheaper to just pay $400 per case and essentially keep a trouble-making Doe/Attorneys out of their business for the time being.  They might even get lucky enough that a court will not award attorney fees/costs to the Defendant after the second dismissal.

The second dismissal for Doe #15 (1:14-cv-07128) could actually come about next month.  On 25 Sep 14, the Judge Gary Feinerman, set a status hearing at 0900 on 10 Nov 14.   Stat_Hearing_07128(IL)

More to come.  AND Go Giants!

DTD :)



This article concerns the rampant Dallas Buyers Club (DBC) cases, most notably in the IL Northern District.  Since these cases started in February 2014, I count over 3100 Does in over 125 cases in various jurisdictions.  One case of interest is 1:14-cv-04940, Dallas Buyers Club LLC v. Does 1-44, Northern District of IL, Troll Michael A. Hierl, Hughes Soco Piers Resnick & Dym, Ltd.

It appears to be the standard DBC Copyright Troll Case against 44 ISP subscribers/public IP addresses.  Early discovery of ISP subscriber information was granted and the Does have started to get notices from the ISPs.  What I wanted to draw attention to is that two Does (Does #15 & #22) hired attorneys and motions were filed (4 Sep 14) seeking to quash the subpoena, as well as vacate the early discovery, and proceed anonymously.   MTSVQ_Doe22_09490(IL)   MTQ_Doe15_09490(IL)   Both motions are good, but I really like the one from attorney Ross Drath, Davis McGrath, LLC.

Subsections of interest in Doe #22’s Motion

  • This Court Should Vacate its Order as to Defendant and Quash Plaintiff’s Subpoena as to Defendant, Because Plaintiff has not Shown Good Cause to Take Early Discovery and Issue Such a Subpoena under the Sony Music and Semitool Standards.
  • Plaintiff’s Subpoena is not likely to advance the case because Defendant’s counsel is already willing to accept service of process on Defendant’s behalf, and because the subpoena targets subscribers rather than infringers.
  • Plaintiff has not set out a prima facie case of copyright infringement, because it has only alleged that Defendant downloaded imperceptible data, which is not “original” and therefore not copyrightable material.
  • In Addition, the Court Should Grant Movant Leave to Proceed Anonymously Through Discovery and Dispositive Motions.

Take a read and you will see attorney Drath wrote a very good motion.  The main points in the motion were backed up by sound logic and case-law.  Responding to this motion would not have been very much fun for Troll Hierl.

So on 12 Sep 14, Troll Hierl decided to simply dismiss (without prejudice) Does #15 & #22 from the case.   Doe15_Dismiss_09490(IL)   Doe22_Dismiss_09490(IL)   Order_Motion_Moot_04940(IL)   The dismissal removes the possibility of severance for the remaining Does, as well as mooting the claim that Plaintiff has not plead even a prima facie case of copyright infringement.  Then in true Troll fashion he immediately filed single Defendant cases against both of the Does (links to archive docket below).   The move to dismiss and file single Defendant cases was likely done to send a message to any Does who are considering filing a motion or fighting back.

This tactic can work well for a Troll/Plaintiff – that is until someone decides to fight back.  Elf-Man LLC found this out the hard way when Mr. Lamberson and attorney Lynch put the hurt on them.   Troll/Plaintiff has essentially said, “Put up or shut up.”  I must say this is the reputation I have heard of concerning Troll Hierl.

CTBC_parody1As it stands, the early discovery against Does #15 & #22 is no longer in effect, as they have been dismissed from the mass case.  Troll Hierl may resubmit the early discovery request for these Does in the future.  As he still has multiple Does remaining in the main case, I expect him to focus most of his efforts on settlement collection.  I would not put it past Troll Hierl to string out the cases against Does #15 & #22 for as long as possible.  Quite possibly not even making an early discovery motion until the very last moment; or not at all.  By removing these two “trouble-makers,” he can focus his efforts on getting as many settlements as possible.  This is exactly what the controlling interest (Anti-Piracy Management Company (APMC)) wants.  The two Does might even get voluntarily dismissed by Troll/Plaintiff or the court for lack of action.

So Why Would There Be No Action Taken Against These Does?

By taking no action, Troll Hierl does not have to respond to any motions or risk an adverse ruling by the court.  This of course saves him time and money.  The remaining Does see that filing a motion will not resolve the issue and even may cost them more money than simply settling, regardless of culpability.   We all know that Troll/Plaintiff/APMC (What is APMC? Presentation) does not want to disclose the inner working of their operation, as it would likely first kill the mass-Doe cases and eventually the single Doe cases would be harder to work.  Even Troll Lipscomb/Malibu Media/X-Art understand what such a disclosure would do to their operations.

Now I could be wrong that Troll Hierl will not immediately seek early discovery against Does #15 & #22 (I haven’t seen it as of publishing this article).  Maybe Troll Hierl and APMC actually believe they will obtain the identity of the Does and then force a settlement or “walk-away” deal (cost of doing business decision).  I’m sure that is what Troll Maureen VanderMay thought when they named/served Mr. Lamberson in WA.  It didn’t work out as planned.  Troll/Plaintiff will try to avoid any/all case activity that will raise their costs and risk their operation.

What Would A Denied Early Discovery Mean To Doe #22?

Troll/Plaintiff will not have the advanced knowledge of who the ISP subscriber is and thus will be unable to conduct any background checks on him/her, their residence, other people in the residence, etc.  They may eventually get this information, but it will likely require Troll/Plaintiff to first serve the Defendant and move forward with Discovery.  Serving the Defendant based only on the IP address is risky (and rash) in my opinion, as they are claiming the Doe is the “infringer” ONLY because his/her name is on the ISP account.

Moving forward with normal two-sided discovery is what Troll/Plaintiff wants to avoid.  Based on all the previous work that has been done by attorneys such as Morgan Pietz and Christopher Lynch, attorney Drath would have a great starting point upon which develop his own line of inquiry into this Plaintiff/APMC.  Such as the BT monitoring shelf-company, Crystal Bay Corporation (CBC) and Daniel Macek.

Where Is This Likely To Go?

My opinion is the most cost-effective course of action for Troll/Plaintiff is to string the cases along with little to no action.  Collect as many settlements as possible from the remaining Does and then dismiss the cases.  As I have previously stated, the amount of profit made in these cases is large.  If approximately half of the Does in this case settle for $4,000, that works out to be $80,000 (20 Does X $4,000 = $80,000).  Case filings ($1,200) and ISP charges probably cost them under $2,000.  So then it is just a matter to pay out the interested parties (Troll Hierl, APMC, and Plaintiff) from $78,000.  Even if they on get 10 Does to settle, that is $40,000!  Note: These amounts will only be realized if they are able to eventually dismiss the case and avoid having to pay attorney fees/costs for Does #15 & #22.

Case Adjudicated On The Merits

This is the part that will make things interesting.  As both of these Does were dismissed from the main case, Troll/Plaintiff has to know that a second dismissal essentially mean the Does have been cleared of the allegations and are the prevailing party.  See FRCP 41(1)(B).   Prevailing parties in Copyright Infringement law suit are (in most cases) allowed to motion the court for an award of reasonable attorney fees and costs.  Now if the Troll can keep the case activity to a minimum, the fees/costs portion could be low enough not to eat away too much of their profit margin.  If they decide to play hard (and stupid) they will simply run up the defense bill up just like Troll VanderMay/Elf-Man LLC did (approx. $200K and rising/Not to mention the two motions for sanctions).

PUSU_Cat2I have said it before and will say it again; the BT Copyright Troll business model is much like playing poker.   You’ve got to know when to hold ‘em.  Know when to fold ‘em.  Know when to walk away.  Know when to run.

DieTrollDie  :)   Run Troll Run!

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RightsCorp Shuffle (one step forward – two steps back) – Information On 30,000 ISP Subscribers Sought (1:14-MC-00848(TX))

First I want to thank all the people who push me ideas for my articles.  I can’t promise I will write anything, but I at least try to provide some feedback.  This article concerns some recent RightsCorp activity.  Previous RightsCorp Article

So what do you get when you combine Arrogance, Greed, and Stupidity?  Well, when you mix this trio in the Federal courts, the result could be bad for the people/organization with these faults.

RightsCorp Voicemail

RightsCorp has been calling ISP subscribers to obtain settlements for alleged copyright infringement of content owned by customers who subscribe to their services.  They are able to obtain the telephone number of the ISP subscriber in two ways:  1) From the ISP subscriber when they enter their personal information into their Web site;  2) From ISPs in response to a subpoena issued by a Federal court.

Once RightsCorp obtains a telephone number of an ISP subscriber, the information is passed to one of their collection personnel.  The collection personnel then start to call the ISP subscriber to try get then to pay a settlement.  The ISP subscriber telephone number is also added to an auto-call system (Robo-Call) and set to call the ISP subscriber until a settlement is reached.  Here is one voicemail left by a RightsCorp collection agent.

Take a listen and tell me what you think.  I have had one person comment that the call might not be seen in the best light by the Federal Communication Commission (FCC) or Federal Trade Commission (FTC).

RightsCorp Shuffle (one step forward – two steps back)

RightsCorp_Stupid1In my previous RightsCorp article I mentioned that RightsCorp has been using the Federal Courts (limited jurisdictions) to obtain subpoenas for ISP subscriber information.  These are not “Copyright Infringement” law suits, but simply a “Misc” cases that are opened and closed on the same day to issue a subpoena.  I noted these cases were limited and appeared to be against individuals with large numbers of alleged infringements.

On 6 Aug 14, RightsCorp attorney, Dennis J. Hawk, opened a Misc. case in the Central District of California, case #2:14-mc-00627 (CDCA).  Case documents are at the bottom of the article.  The purpose was to ask the court to grant RightsCorp a subpoena for ISP subscriber information for an undisclosed number of people they claimed were infringing.  The subpoena was granted and RightsCorp proceeded to send out the subpoenas to the affected ISPs.  One of the ISPs was Grande Communication Networks LLC, Texas.  As Grande uses Neustar Inc., to handle subpoena requests, they started to look into this request.  I think Grande/Neustar was a bit surprised to find the list of IP addresses RightsCorp was seeking ISP subscriber information was approx. 500 pages and comprised over 30,000 IP addresses.

Neustar calculated that to accomplish this request, it would take approx. two months (by dedicated personnel) to accomplish and would cost RightsCorp $32,026.  Neustar repeatedly tried to contact RightsCorp concerning the cost; time requirement; and the lack of a valid court order.  RightsCorp/Mr. Hawk eventually responded to Neustar in what can only be described as a totally rash/stupid move (my opinion) and stated,

Our client does not pay to obtain the address details on infringers.

Now Mr. Hawk has obviously failed to see how you should deal with the ISP legal departments.  He should have taken a lesson from Troll Lipscomb/Malibu Media LLC and observed how to kiss a little ISP butt to get what you want – as well as pay for a service.

On 5 Sep 14, Grande filed a motion to quash the subpoena in the Texas court, case # 1:14-MC-00848 (TX).   Grande informed the court that RightsCorp is simply trying to avoid judicial review on a litany of issues (joinder, personal jurisdiction, & venue) this case raises.  Grande even cited AF Holdings v. Doe 1-1058 (Prenda Law), appellate case in which the court said that When the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied.

The following day (8 Sep 14), RightsCorp emailed the attorney representing Grande and withdrew their request for ISP subscriber information.

On 10 Sep 14, Grande filed an Advisory to the Texas court concerning RightsCorp’s questionable activities.

As detailed in Grande’s Motion, the Subpoena presented an extraordinarily undue burden (over 30,000 subscriber lookups) and was issued to a cable operator without an order as required by the Cable Communications Act. (Mot., at 7-8.) Even more egregiously, it appears that the Subpoena is only one of approximately one hundred (100) or more similar subpoenas issued by Rightscorp to regional Internet service providers located across the country2 (presumably chosen because they are less likely to contest the subpoenas than national Internet service providers with larger in-house legal departments) upon the signature of the Clerk of the U.S. District Court for the Central District of California, seeking the personally identifiable information of thousands of individuals beyond the jurisdiction of the California courts, despite the fact that such subpoenas may not be sent and issued under 17 U.S.C. § 512(h) to an Internet service provider acting as a conduit under law that has been established for a decade. (See id., at 5-7, citing cases including In re Charter Commc’ns, Inc., 393 F.3d 771, 776-77 (8th Cir. 2005).)

Under the circumstances, this Court or the U.S. District Court for the Central District of California may consider ordering Rightscorp and its counsel to show cause why they should not be sanctioned for misusing the federal court’s subpoena powers. Such an order would be appropriate in connection with Grande’s request for costs and attorney’s fees in the Motion (Id., at 9; see also Fed. R. Civ. P. 45(f) (challenge to subpoena may also be addressed by the court of issuance)).3 Beyond any doubt, Rightscorp and its counsel failed and refused to “take reasonable steps to avoid imposing undue burden or expense” on Grande. Fed. R. Civ. P. 45(d)(1).

On 11 Sep 14, The Texas court closed this case because RightsCorp had withdrawn the subpoena.

I don’t know if the CA Central District court will get involved, but one can only hope. RightsCorp must be seriously hurting to pull such a bone-head move that puts it in for consideration for the Next Prenda Law “Equine Excrement Award.” I will admit they are at least smart enough to back down and not take this into a court.  Note: I wonder if the CACD local rule limiting the maximum of “John Does” in a case to 10, applies here???  If so, Rightscorp may have another violation to worry about.

I don’t know how many other regional ISP simply gave into RightsCorp, but I would expect a few at least.  I’m still of the opinion that you shouldn’t pay RightsCorp.  Don’t waste your time or money; Ignore the calls.  I will advise you to make sure any infringing BitTorrent activity on your network stops, as it could possibly lead to a real copyright infringement case.  Also, if you do get a recording of RightsCorp calling/voicemails, please email me a copy.  *** Late Addition – If you want some additional information on the RightsCorp Misc cases/Affected ISPs, please see Attorney Morgan Pietz’s Web site.  ***   

Case Documents - MTQ_GrandeComm_00848(TX)   MTQ_GrandeComm_Exhibits_00848(TX)   Order_Referring_00848(TX)   Advisory_00848(TX)  Advisory_Exhibits_00848(TX)   Order_CaseClosed_00848(TX)

DieTrollDie :)   The Dude abides.  I don’t know about you but I take comfort in that.  It’s good knowin’ he’s out there.  The Dude. Takin’ ‘er easy for all us sinners.  Shoosh.  I sure hope he makes the finals.”   {The Stranger, The Big Lebowski}

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Countryman Nevada Case Dismissed After One Settlement, 1:14-cv-01149(CO)

Just a short post to show you how some BitTrorrent Copyright Troll cases run.  Now I’m in NO way saying that all of them end up like this.  Each Troll/Plaintiff is different, as well as the local Troll who is running them.  Malibu Media LLC/Troll Lipscomb runs their operation differently than say a Voltage Pictures case.  BUT the following example points out that the Troll/Plaintiffs are doing this to generate settlements and the claims of cracking down on piracy is pure BS in my opinion.

Case At Hand

Color9SmellThis case is brought to us by Voltage Picture (Nicolas Chartier) and the local Troll attorney Scott Kannady, Brown & Kannady, LLC, Denver, CO.  Case is Countryman Nevada, LLC v. Doe 1 et al (12 Does), Colorado, 1:14-cv-01149.   Complaint_01149(CO)

The case was filed on 22 Apr 14, to include a motion for expedited discovery of ISP subscriber information.  The expedited discovery was rubber-stamped the next day and there after the Troll received the ISP subscriber information.  The case followed the usual path of working settlements and monthly status reports to the court.  Almost three months after filing, Troll/Plaintiff dismissed Doe (#6) after settling.  Approximately one month later (20 Aug 14), Troll Kannady voluntarily dismissed the entire case (11 remaining Does) without prejudice.   Doc_18_VolDismiss_01149(CO)

So one out of 12 Does apparently paid the settlement.  That is an 8.333% settlement rate – piss-poor settlement rate IMO.  But still, how much time, effort, or money did they really have to put out?  $400 and some electronic case filing based off pre-made templates is what I’m guessing – not much.  Assuming Troll/Plaintiff obtained $4,500 for this settlement; that leaves $4,100 to be split between the parties.  So even with one Doe settling, the business model is profitable.

Why Dismiss – Why Not Serve The Does?

This business model is purely designed to extract settlement from ISP subscribers.  The fact that these Troll/Plaintiffs could take these Does to trial does not figure into their plan.  The claims that they are only trying to reduce piracy and recoup lost revenue is another sad joke supported by the facts that –

  • The Troll/Plaintiffs do not send out DMCA take-down notices to the ISPs of the public IP addresses they observe.  Many of the Troll/Plaintiffs do send out DMCA take-down notices, BUT they are usually only sent to Internet Search engines or Tube sites.  As the Troll/Plaintiffs use these DMCA take-down notices in this fashion, I assume they are working – not perfect, but still working.  So why can’t work with the ISPs and their subscribers???
  • They only file cases in the jurisdictions they deem friendly enough for them and where they can find an attorney willing to tarnish their name by handling these cases.  The reason why some jurisdictions look down on these cases is because many of the past ones were questionable (at best) when you looked beyond the threadbare claims. As far as the tarnished reputation for handling these cases; the attorneys will have to fix that on their own – you reap what you sow.

The main reason you don’t see as many Does named/served with a summons/complaint is because this step significantly increases the risk that some ISP subscriber is going to fight back.  We saw this gross mistake made by the Troll Maureen Vandermay in Washington when her client decided to name/serve the Does who refused to settle in case 2:13-cv-00115 (WAED).  This of course led to Elf-Man LLC v. Lamberson case, 2:13-cv-00395, with motions for approximately $200K in attorney fees/costs and sanctions against the Troll/Plaintiff.  Even Malibu Media LLC, is feeling pressure from its efforts to name/served non-settling ISP subscribers.  It is only a matter of time before they cannot cut and run and lose a case.

So based on what I have seen in the Troll Kannady CO cases, I wouldn’t rush off to pay a settlement demand from him.  I expect that if CO court didn’t require monthly status reports from the Troll, these cases would stay open much longer and possibly get more people to pay up.  Judge Hegarty may be making it harder for the Troll/Plaintiffs, but CO is still a BT Copyright Troll haven in need of some reform.  Now as this information makes it into the public view, Troll Kannady and his Plaintiffs may be forced to start naming/serving people in small numbers.  This of course increases their risks and possibly lowers their profit.

DieTrollDie :)   “That’s how you’re gonna beat ‘em, Butch. They keep underestimating you.- Butch Coolidge, Pulp Fiction

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Copyright Troll Elf-Man LLC Files Weak Justification for Default Judgments, 2:13-cv-00115 (WAED)

On 3 Sep 14, Judge Rice denied Troll/Plaintiff’s motion for default judgements against Seven Defendants in Elf-Man LLC case 2:13-cv-00115(WA) and directed Plaintiff to file a response to his concerns.  Previous Article.   *** Late Addition – I forgot to add this document – sorry.  ***  Doc_114_DefaultDenied_00126(WA)  On 3 Sep 14, Judge Rice also denied default judgements against 4 Defendants in The Thompsons Films, LLC, case 2:13-cv-00126.  The judge had the same concern as in the Elf-Man cases.  Judge Rice was clearly able to see this is the same operation, just filed under different Plaintiff names.  Archive Docket (2:13-cv-00126(WA)    DTD Article on 2:13-cv-00126(WA) 

I am a bit surprised that Troll/Plaintiff made a response as I believe they have no additional “evidence” to tell the court.  What does not surprise me is that what they filed is 90% garbage (My opinion & I think a generous one at that).

Here are the documents they filed – you have seen some of these before in one form or another.

DECLARATION OF KURT UEBERSAX IN SUPPORT OF DEFAULT JUDGMENT   Doc_124_Decl_Uebersax_00115(WA)   Denied Plaintiff seeded the movie to BitTorrent and says a “third party distributors” managed the pre-release of the film. Here is “gem” from Mr. Ubersax concerning the piracy of Elf-Man.

At one point there were considerations for a sequel to be made, but all such plans were canceled in part due to the piracy of the first movie and the fact that unless something could be done to stem the piracy of the second film, it would suffer the same fate.

DECLARATION OF PATRICK PAIGE   Doc_125_Decl_Paige_00115(WA)   This is the same tired Paige declaration that Malibu Media LLC used and this Troll/Plaintiff is trying to use it to show IP geolocation technology works.  Too bad is has nothing to say that the public IP address only comes back to the ISP subscriber and not necessarily the alleged infringer.  An investigation is required to determine who actually did this – something that was not done by Troll Lowe or VanderMay.

DECLARATION OF MICHAEL PATZER IN OPPOSITION TO DEFENDANT’S POST-DISMISSAL MOTIONS   Doc_126_Decl_Patzer_00115(WA)   Mr. Patzer claims to be an independent contractor predominantly for Excipio GmbH (German company).

Excipio contracts with Crystal Bay Corporation (“Crystal Bay”) to provide Crystal Bay with this data collection system, which is the system that Crystal Bay uses to detect infringement of Plaintiff’s works. Specifically, Crystal Bay licenses the use of Excipio’s system and servers.

Still there is NO mention of who owns or controls the SD “shelf-company” Crystal Bay Corporation (CBC) or who Darren M. Griffin is.  Judge Rice specifically mentioned the concerns raised in the Elf-Man v. Lamberson case (2:13-cv-00395(WA)) about the validity of CBC and its technicians.

SECOND DECLARATION OF DAVID A. LOWE IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT   Doc_127_2nd_Decl_Lowe_00115(WA)   Another waste of digital media in my opinion. It only claims the fees/costs requested were valid and not excessive. It in NO way addresses either of the two reasons judge Rice denied the default judgments in the first place – “Accordingly, the Court directs Plaintiffs to brief and provide evidence supporting its substantive claims and amount of damages against each defaulting defendant separately. Upon a showing substantiating Plaintiff’s claims against each Defendant, the Court will reconsider Plaintiff’s motion for default judgment and request for attorney fees.”   (My emphasis) {Default_Denied_Doc_121_00115(WA)pdf}

DECLARATION OF DANIEL MACEK IN SUPPORT OF DEFAULT JUDGMENT   Doc_128_Decl_Macek_00115(WA)   Mr. Macek (software consultant hired by CBC AND Anti-Piracy Management Company (APMC) employee) wastes 8 pages to tell the court something they already stated – That the Defendants are the ISP subscribers with the public IP addresses they recorded.  The declaration in NO way provides ANY evidence to show that the Defendants were the infringers.  Attached to Mr. Macek’s declaration (filed under seal) is a list of additional BitTorrent files that were being shared by the public IP addresses of the Defendants.  Mr. Macek claims this list of files is so large and disruptive to the Defendants Internet service connection that:

  1. It is “highly” likely the Defendant was the infringer.
  2. The Defendants knew the infringing activity was occurring over their Internet connection.
  3. It was likely a resident and not someone else using Defendant’s WiFi Internet connection.

Threadbare claims with NO supporting evidence.  Then combined this lack of evidence with APMC documentation disclosing that Mr. Macek doesn’t have the technical qualifications to make such a claim, as well as APMC hopes the various courts will not question them on this.

If this is all Troll/Plaintiff plans to file, then I can’t see the judge granting damages or costs/fees.  There is nothing new to the claims and evidence.  They have met the 6 Oct 14, suspense to respond, but the content of the filing in NO way justifies the statutory amount they requested -$30,000.  At best it is a simplistic long-winded recital of their claim – The ISP subscribers infringed upon Plaintiff’s movie because I said so.  This type of response is qualifies then for the Prenda Law “Equine Excrement Award.” Way to go guys!


So we continue to wait for the court to assess these declarations and make its ruling. I truly hope judge Rice see these filings for what they are and fully denies the default judgments. I assume that after he rules on this case, he will move onto the motion for sanctions and fees against Troll/Plaintiff in the Lamberson case.  That will be the fun one!

DieTrollDie :)   Treat people in your debt like family … exploit them.  {Rules of Acquisition #111}

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Copyright Trolls Target Children’s Animated Movie – Khumbia – 6 Cases in IL & CO

You might have seen a recent Tweet (27 Aug 14) of mine concerning a new BitTorrent Copyright Troll Plaintiff (at least in name): Khumba Film Pty. Ltd.  This Troll/Plaintiff filed 4 multi-Doe cases in the Illinois Northern District.   Complaint_06610(IL)   Complaint_EXs_IP_CpyRt_06610(IL)   Copyrights  Upon closer inspection, I found out I missed Khumba’s first filing in Colorado on 23 Jul 14.  Sorry :(   Here are the current Khumba cases (more to come I bet).

  • 1:14-cv-02049 – 12 Does – CO – 23 Jul 14
  • 1:14-cv-02075 – 14 Does – CO – 25 Jul 14
  • 1:14-cv-06610 – 42 Does – ILND – 27 Aug 14
  • 1:14-cv-06609 – 41 Does – ILND – 27 Aug 14
  • 1:14-cv-06608 – 38 Does – ILND – 27 Aug 14
  • 1:14-cv-06605 – 39 Does – ILND – 27 Aug 14             Total of 186 Does

Khumba_TrollColorado and IL again – no surprises here.  Both locations are well-established as friendly for filing BT Copyright Troll law suits.  Khumba is an animated movie about the adventures of a “half-striped” zebra.  You can find the DVD for sale for $10 – $20.  The movie is by the same people who brought you Zambezia, another animated movie that was the subject of 33 Copyright troll cases filed in IL, CO, TN, GA, DE, and FL (16 Jan – 9 Apr 2013).  For the Zambezia cases I counted a total of 981 Does.  As far as I know, no Zambezia cases went past the settlement demand phase – no need to with all the money to be made.  I don’t believe any of the cases even went as far as a default judgment (please correct me if I’m wrong – *** See comments below ***).

Follow The Money

I will use a little Copyright Troll math to highlight why BT copyright trolling will continue – GREED!!!  Let’s say for the previous Zambezia cases the Troll was able to get 50% of the Does to settle for $3,000.

  • 50% Settlement Rate – 490 Does X $3,000 = $1,470,000.
  • 25% Settlement Rate = $735,000.

Troll Costs – Filing 33 cases costs $13,200.  Estimate local attorney fees of $3,000 per case – $99,000 (That is generous IMO).  Estimated Fees/Costs = $112,200.

So after subtracting fees/costs, Troll/Plaintiff still has made a serious profit.  At the 50% settlement rate, the Troll/Plaintiff has made $1,357,800.  25% settlement rate = $622,800.  Wow!!!  Note: the amount the Troll/Plaintiff actually made is unknown and would have varied depending on the percentage of Does that did settle and the settlement amounts the Troll obtained.  As long as they are making a profit, this business model will continue.

More Crystal Bay Corporation (CBC) Garbage

Another interesting point is that for the CO Khumba cases (and will assume the same for IL cases), we have the Troll/Plaintiff using the Infamous BT technical monitoring firm/SD Shelf-Company, Crystal Bay Corporation (CBC) and the German consultant Daniel Macek.   Motion_EarlyDisc_02049(CO)   Decl_Daniel_Macek_02049(CO)   The complaints and declarations from Macek do not bother to disclose who Daniel Macek is, what company he actually works for, or even a basic resume of experience.  The lack of technical experience is not a shock to many of us, as we know Mr. Macek works for the Anti Piracy Management Company (APMC) LLC and they hope that US judges do not question Mr. Macek’s qualifications when he submits these template based declarations seeking early discovery of ISP subscriber information from the ISPs.  As the ILND and CO courts seem to be full of rubber-stamping fools (my opinion), these greedy Trolls keep on filing cases in these jurisdictions.  I can only hope that Judge Rice in WA makes his ruling on the Elf-Man LLC v. Lamberson (2:13-cv-00395 (WA)) motion for attorney fees/costs and sanctions (against Troll/Plaintiff).  In the Lamberson case, CBC was the BT monitoring firm and it used Daniel Macek.  Attorney Lynch informed the court that another “Ghost” of a technician,  Darren M. Griffin, was part of CBC (Known SD shelf company and possible sham) and called into question the truthfulness of Troll/Plaintiff’s technicians and the case as a whole.   If Griffin/CBC ends up being discredited, then these new cases that use CBC (via Daniel Macek) will have a harder time – they might even get dismissed by the Troll en mass.  *** Sorry – correction: I first had Griffin listed as part of the Lamberson case – it was Macek. ***

For the Colorado Does, please drop me an email if you have received your ISP notification, as well as when the settlement demand letters start arriving – please send me copies. Same goes for the IL Does when the notifications start.

Previous Zambezia Articles – 1  2

DieTrollDie :)  “Love the one you’re with.”

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DieTrollDie.com Is Three Years Old – Malibu Media Settles 1:14-cv-00262 (CO)

Happy Birthday All!!!

DieTrollDie.com is three years old (as of 30 Aug 14).

BDayTartI almost let this get by me again.  The world of BitTorrent Copyright Trolls is still in existence and adapting to the changing environment.  I wanted to take a moment to thank all of the people who have made this last year so interesting for me and the Web site.  I expect no less for the next year!  So on 30 Aug 14, please find the time to raise a glass of you favorite beverage as I toast you all.

Here’s to a long life and a merry one.
A quick death and an easy one.
A pretty girl and an honest one.
A cold beer-and another one!

Update on Malibu Media LLC v. Richard Sadowski, 1:14-cv-00262 (CO)

Here is a short but very interesting update to the Malibu Media case against Mr. Sadowski (1:14-cv-00262 – IP address   This is the case where attorney John Arsenault filed a very good Motion to Dismiss because Plaintiff failed to plead the necessary volitional act in its complaint.   MTD_FSC_Doc26_00262(CO)   Previous Article   My view was (and still is) that attorney Arsenault clearly showed Troll/Plaintiff was only targeting the Defendant because he was the ISP subscriber.  He backed up the motion with sound analysis and case-law to boot. 

Even in a Troll friendly environment such Colorado, Troll/Plaintiff decided NOT to file a reply and decided to settle the matter with the Defendant.  Why???  Because in the off-chance Hegarty/Wiley required Malibu Media to provide more than “an unadorned, the-defendant-unlawfully-harmed-me accusation,”  they would have to disclose more of their internal operations.  Now Malibu Media is ALL about “settlements,” but I surmise this settlement agreement was more to Defendants liking.  On 18 Aug 14, Troll Kotzker dismissed the case with prejudice.   Doc_28_Settlement_Dismiss_00262(CO)   Doc_29_DismissOrder_00262(CO)

Please also note the wording of the dismissal.  The rather common statement that both parties will cover their respective legal bills is missing…  Does this mean that Malibu Media paid  Defendant Sadowski’s legal bills???  I don’t know, but the silence around this case is “interesting.” 

This just goes to reinforce that Malibu Media does not want to litigate these cases unless they can be assured that the defense will not be asking uncomfortable questions concerning their operation and “Who” is really pulling the strings for these cases.  Troll Lipscomb and minions are facing increased pressure from various courts and it is simply a matter of time before they get called to the carpet.  Until then, they will make each Defendant who chooses to fight incur a substantial defense bill to do so.  For those who have the will and ability to fight back – I salute you.

DieTrollDie :)   “I have had people walk out on me before, but not… when I was being so charming.”  {Deckard, Blade Runner}


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Dallas Buyers Club, LLC Attorney Tiptoes Dangerously Near Judge Hughes’ Order.


Thank you to attorney Robert Cashman for publishing this update to the Dallas Buyers Club (DBC) cases in Texas.  It looks like Troll Vogt is going to try the name & serve option that served Troll Maureen VanderMay so well in WA.  All it will take is one of the named Defendants to fight back and this Plaintiff is going to be hurting.  Greed makes people and organization do some pretty stupid things. If you are one of the named defendants, I suggest you contact attorney Cashman to discuss your options.  I will also note that in my “Defendant Answer” page, you can find some “Answer” templates (to include Dallas Buyers Club).

DieTrollDie :)

Originally posted on TorrentLawyer™ - Exposing Copyright Trolls and Their Lawsuits:

After my “Dallas Buyers Club, LLC is a modern-day Icarus Story (TXSD)” article on August 13th, I called Keith Vogt, the plaintiff attorney for Dallas Buyers Club. In our call, I ascertained his motivations regarding how he plans to approach Judge Hughes here in Texas, and what he plans to do with the other cases (duck and run, or push forward).

As I suspected, he expressed no “duck and run” mentality (not even privately), as we have seen in similar past cases with other past “copyright troll” plaintiff attorneys. In fact, Vogt appeared to be undeterred considering the outcome of the case, mentioning that he has NINE (9) other cases alive and well in the Southern District of Texas, seven of which were in their INFANT STAGES and all current cases are assigned to judges other than Judge Hughes.

Below is a list of those new cases:

Dallas Buyers Club, LLC…

View original 494 more words

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Defendant Butler Has No Computer Hard Drives – Malibu Media LLC, 1:13-cv-02707 (CO)

Here is a short post, as I have a costume party to get ready for.  Note: I certainly will not be dressing up like a Troll.  This is an update on Malibu Media LLC v. John Butler, 1:13-cv-02707 (CO). Since my last Butler post, the following has happened.

  • MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES – Troll/Plaintiff requested the court strike three of the five affirmative defenses he asserted (Failure to State a Claim, Assumption of the Risk, and Intervening Cause)   Doc_36_MotionStrike _Answer_02707(CO)
  • UNOPPOSED MOTION FOR EXTENSION OF TIME TO SERVE EXPERT WITNESS REPORT BY PLAINTIFF MALIBU MEDIA, LLC – Troll/Plaintiff asked the court for a 90 day extension (10 Nov 14) to serve expert witness reports.  The Forensic expert (assume it is P. Paige) has not receive the hard drive from the Defendant.  WHY??? Because the Defendant doesn’t have the computer anymore!  Defendant claims to only have a cell phone at this time.   Doc_38_MotionTime_02707(CO)
  • MINUTE ORDER – Judge Hegarty tells Troll Kotzker “NO” to 90 days – only grants 30 additional days.  Discovery is due NLT 17 Nov 14.   Doc_40_MinOrder_02707(CO)
  • RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE – Judge Hegarty agrees with Troll/Plaintiff and Strikes the three affirmative defenses.   Doc_41_Hegarty_REC_02707(CO)
  • DEFENDANT’S OBJECTIONS TO MAGISTRATE’S RECOMMENDATION THAT PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES BE GRANTEDAttorney Richard Hanes objects to the Recommendation based on – 1) Defendant was deprived of his right to file a response to Plaintiff’s motion and for it to be considered prior to the recommendation; 2) The recommendation lacks legal sufficiency to show that Plaintiff would succeed despite any facts from the Defense (especially since Discovery has not taken place); and 3) the recommendation would deprive the Defendant of his right to defend himself from Plaintiff’s allegations.   Doc_42_OBJ_Hegarty_REC_02707(CO)

HardDrivesWell this just got interesting.  No computer hard drives are available for Troll/Plaintiff to examine.  So what will the Troll do???  The only things I can imagine is using the list of “Other” files that were being shared via BitTorrent on Butler’s IP address, interviewing neighbors, friends, associates, and doing social media searches and records checks.  The “Other” files would somehow need to be able to be linked back to the Defendant’s hobbies, profession, or interests.  Example: Social media searches disclosed the Defendant really likes “Thomas the Tank Engine” and among the “Other” files being shared via BT is 4 DVD rips of Thomas the Tank Engine.

Thomas1As Troll Kotzker has known the computer was long gone and not tried to develop/show any linkage to the allegation, I bet they are grasping at anything.  If they decide to talk to neighbors, they will be looking for anything to show Defendant used BT, anything he said about illegal downloading of copyright protected media, and of course Plaintiff’s movies. The bottom line is the Troll has its work cut out for them to somehow scrape up enough evidence to show a preponderance of evidence in their favor.

Now I’m no Judge Hagerty fan, but it does seem like the judge is getting a little tired of the games Troll Kotzker and Malibu Media/X-Art are playing in CO.  We will see what happens.  It may turn out that Troll/Plaintiff tries to secure a “walk-away” deal with Defendant.  If this goes to trial with no forensic evidence, I will be surprised.

DieTrollDie :)   “You might belong in Gryffindor, Where dwell the brave at heart, Their daring, nerve, and chivalry Set Gryffindors apart…”  {The Sorting Hat, “Harry Potter and the Sorcerer’s Stone”}

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Copyright Troll Malibu Media/X-Art AGAIN Refused To Examine Exculpatory Evidence, 1:13-cv-03184 (CO)

21 Aug 14 Update

Some additional information made it my way after the article was posted.  I cannot validate it, so use you own judgement.  But I will say it does sound very plausible.  Additional information is this color (below).


The following closed Malibu Media/X-Art case is interesting in for two reasons.

  1. What it “Doesn’t” say.
  2. For highlighting the normal course of action for Malibu Media.

The case is a standard Malibu Media copyright troll case in Colorado (1:13-cv-03184), in which a single public IP address/John Doe was sued over allegedly downloading/sharing 12 Malibu Media/X-Art movies.   Complaint_03184(CO)   Complaint_IP_12Movies_03184(CO)   Complaint_12MoviesReg_03184(CO)   As this is a Colorado court, Troll/Plaintiff had no problem obtaining early discovery and getting a rubber stamp of approval from the court based off of questionable documentation from some of our German “friends.”   Discovery_MFR_03184(CO)   Decl_Tobias_Fieser_03184(CO)   Discovery_Order_03184(CO)

Troll_DM1Now after the ISP subscriber information was released on 20 Jan 14, Troll Jason Kotzker followed the standard Malibu Media course of action.  If you have been following these cases, you will know that Malibu Media does not generally send out settlement demand letters.  They let the ISP subscriber start the process by – 1) Contacting Troll Kotzker directly; 2) Hiring an attorney who contacts Troll Kotzker; or 3) Letting the ISP subscriber ignore the matter for a time.

On 20 Mar 14, Troll Kotzker amended the complaint to name the ISP subscriber as the defendant.   A summons was also issued at this time.  One day after filing the amended complaint, the Troll requested an extension of time in which to serve the defendant. The court granted the extension out to no later than 21 Apr 14 (3 months since receiving the ISP subscriber information).

True to Troll form, they failed to show the court that they serve the Defendant with a summons/complaint by 21 Apr 14.  On 23 Apr 14, the court issued a show cause order giving the Troll TWO days to explain why the case should not be dismissed. This was a bit of a shock to me as the CO courts have been a Troll favorite for some time. Troll Kotzker then got off his @$$ and filed the paperwork showing the Defendant had been served on 16 Apr 14.  NOTE: I assume the Defendant hired Christina Saunders, Sparkman Foote Minor LLP, to represent him after he was served.   ShowCause_03184(CO)   Def_Served_03184(CO)

On 5 May 14, Defendant filed an answer with the court.   Def_Answer_03184(CO)   The answer is a basic denial with Eight Affirmative Defenses (MISUSE OF COPYRIGHT, ONE SATISFACTION RULE, NO VOLITIONAL CONDUCT, DOCTRINE OF EXHAUSTION, INVALIDITY OR UNENFORCEABILITY OF COPYRIGHT, DE MINIMUS INFRINGEMENT, INJUNCTIVE RELIEF, and FAIR USE).  I think I will add this one to my “Answer Page.”  The first affirmative defense best describes the BT Copyright Trolling business model and lets Troll Kotzker and Troll Lipscomb what is in store.

 First Affirmative Defense: MISUSE OF COPYRIGHT

Plaintiff’s claims are barred by the misuse of copyright. Plaintiff intends to elicit settlement funds from Defendant, rather than prevent infringement of its copyrights. Moreover, Plaintiff has developed and engaged a litigation centric business model, whereby Plaintiff tracks BitTorrent sites in order to locate IP addresses, which may lead to a potential copyright infringer, in order to generate income for the alleged downloads rather than use this as a method to stop infringements. In doing so, Plaintiff has illegally extended its monopoly beyond the scope of copyright and violated public policy underlying the copyright laws.

On 5 May 14, a proposed scheduling order was filed with this “notable,” but otherwise unsurprising report of Troll/Plaintiff refusing to look at the exculpatory evidence – Defendant’s computers.   SchedulingOrder_03184(CO)

Defendant has made several attempts to settle this matter with Plaintiff, and in doing so, has offered Plaintiff exculpatory evidence and the ability to access Defendant’s electronic capable devices, but to date, Plaintiff and Defendant have not reach mutually acceptable settlement terms. The parties believe that early neutral evaluation or a settlement conference facilitated by this Court would help parties in promptly settling this case without incurring further unnecessary cost and expense.   {My Emphasis}

The next interesting document is a report on the 13 May 14, Scheduling and Settlement Conference.   SS_Conference_03184(CO)   The conference only lasted 28 minutes, in which both sides sides agreed to settle.  The unfortunate part of this conference is that the portions in which the Defendant and his wife were questioned by the judge, as well as the settlement terms were sealed.

Additional information – I have been informed that the Defendant brought the hard drive from their computer to the conference.  For some reason, Troll Kotzker did not want take it for examination.  Surprised???  Also that Troll Kotzker got to have a nice conversation with the judge behind closed doors – I don’t think was a good one for Troll Kotzker. 

On 20 May 14, the judge signed the proposed stipulated dismissal (With Prejudice), in which both sides cover their own costs and fees.   Order_Dismiss_03184(CO)

This case is clearly indicative of Troll/Plaintiff who is engaged in a systematic business model to misuse the Copyright Law (My Opinion) in order to generate income.  I can only hope the CO court eventually starts to see this and put a stop to it.  I’m not too hopeful of this as the court decided to seal the interviews it conducted of Defendant and his wife.  I understand sealing the settlement portion, but what is the harm of letting the world see what these people had to say???  I’m sure once Attorney Saunders got involved, she made it clear to Troll Kotzker that the Defendant and his wife didn’t do this, their computers would validate this, and that fighting this would be a no-win for them.  The fact that Troll/Plaintiff refused to examine the systems indicates a bully trying to force a settlement by increasing defense attorney fees.  The fact that the Defendant will incur fees is disgusting in my view.  Troll/Plaintiff did NO real investigation prior to naming/serving the Defendant.  The reckless naming/serving of the Defendant was based ONLY on the fact he was the ISP subscriber (my opinion) and that he did not agree to pay approximately $9,000 (My estimate based on 12 movies X $750) to make the law suit go away.

From this case you can see the Copyright Troll/Malibu Media/X-Art playbook.

Monitor Malibu Media/X-Art torrents – Collect minimal data showing the public IP shared Plaintiff’s works – File a law suit – Seek ISP subscriber information based off questionable companies and support personnel – Wait for ISP subscriber to initiate contact – Seek extensions from the court to serve a defendant – Name/serve a Defendant at the last moment – If summons is answered, work out a settlement (payment to Troll) – If summons is ignored, seek a default judgment – Depose ISP subscriber and other residents – Conduct forensic examinations of systems – Avoid depositions of Colette and Brigham Field – Avoid depositions of IPP personnel – Seek a settlement OR a walkaway deal.

Some people may wonder why a truly innocent Defendant would not take this to the bitter end.  Sounds simple, but until you (as a Defendant) find an attorney willing to work for free, you risk ending up with a HUGE legal bill!  Yes, the Copyright Law does allow for a prevailing side to motion for fees/costs, but that does not mean a court is going to grant it or the exact amount the attorney billed for.  Even after an award from the court, I would expect a hell of a time trying to collect from the idiots.  See this FightCopyrightTrolls article on trying to find the Prenda Law money.  We would all love to see these bozos get put through the legal wringer, but the costs and stress involved can be very high.  In the very recent case of Elf-Man LLC v. Defendant Lamberson, 2:13-cv-00395 (WA), the defense bill is up to approx. $200,000!!!  And this case never really made it into full discovery, much less a trial.  Right now we are waiting to see what Judge Rice does.   The Trolls understand the costs and use it to force defendants to settle simply out of economics – justice in no ways plays a part.  What is really disgusting is the courts in some jurisdictions (CO & IL) know what is going on and decide to do nothing.  The prevailing view is, “Well, that is our legal system, if you don’t like it, change it.”  The little people cannot change it and the courts themselves have the responsibility to police themselves and clean up their own messes or slap down those who would make a mess in it.

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

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Troll Hierl (Dallas Buyers Club LLC) Claims DC Appeals Court Was Wrong In AF Holdings Ruling (1:14-cv-02162)

In an ongoing Copyright Troll case (1:14-cv-02162) in ILND, Troll Michael Hierl tells the court that the Electronic Frontier Foundation’s (EFF) “Blackjack” analogy that the DC Court of Appeals adopted in AF Holdings case (1:12-cv-00048 / 12-7135) was wrong.   Docket_15Aug14_02162(IL)   On 23 Jun 14, Troll/Plaintiff filed it’s memorandum on joinder and responded to Doe #17’s motion to quash.   Troll Response_02162(IL)   Troll Response_EXs_02162(IL)   It was refreshing to see an ILND court actually considering a motion to quash from a Pro Se Doe.   MTQ_Doe17_02162(IL)

Note: the court did inform Doe #17, that prior to accepting the motion, she would need to take part in a hearing scheduled for 9 Jun 14.  Doe #17 took part in the hearing via telephone and the judge accepted the motion.   During the hearing judge Gary Feinerman also raised the issue of the recent Appeals court ruling (AF Holdings, LLC v. Does 1-1058, — F.3d —-, 2014 WL 2178839 (D.C.Cir. 2014)), as well as how it may affect Doe #17’s Motion.

On 23 Jun 14, Doe #17 filed the following letter with the court.  In it, she informs the court she is 52 years old, denies downloading/sharing Dallas Buyers Club, and doesn’t know how this could have happened.  She states that for approx. 5 months they had continuing Internet issues/problems.  Once the problems were fixed, the WiFi Internet password was freely given to multiple friends and guests to use when visiting the residence.   Doc_29_Doe17_Ltter_02162(IL)

Subsequently the judge gave Doe #17 until 29 Aug 14, to make a reply to Troll/Plaintiff’s response, as well as setting status hearing for 11 Sep 14.   Doc_30_MinOrder_02162(IL)

Of course Troll Hierl does not care as to actually download/shared the movie, as that would mean doing a real investigation.  What is really interesting is I’ve been informed that during the hearing, the judge repeatedly asked Troll Hierl if he was going to dismiss Doe #17 based on what he was hearing.  Troll Hierl decided to ignore the request/suggestion from the court – probably not the smartest thing.

Troll Response To Doe #17’s Motion

In its response, Troll/Plaintiff claims that -

  1. The AF Holdings decision is not controlling upon the court.
  2. There are material errors in the legal analysis in AF Holdings.
  3. Additional technical arguments relating to how BitTorrent works support joinder.
  4. The AF Holdings ruling was intended to punish and corral an out-of-control litigant, and its should not be extended to Plaintiffs who follow the rules.  {This is the one I nearly choked on when I first read it.}
  5. Defendant’s remaining arguments do not merit quashing the subpoena.

I hope this judge gets wind of Daniel Macek, Crystal Bay Corporation (CBC), and the apparent fraud associated with the bogus “Shelf-Company.”  I hope Doe #17 files some sort of a reply, as the judge is clearly open to the possibility of quashing the subpoena and severing the Does.  For now I will talk about the ridiculous claim that the AF Holdings decision was flawed.

Blackjack Analogy – A Refresher (Quote from the DC Appeals Court Decision)

But AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time. Instead, it has simply set forth snapshots of a precise moment in which each of these 1,058 Does allegedly shared the copyrighted work snapshots that span a period of nearly five months. Two individuals who downloaded the same file five months apart are exceedingly unlikely to have had any interaction with one another whatsoever. Their only relationship is that they used the same protocol to access the same work. To paraphrase an analogy offered by amicus counsel at oral argument, two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times. They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions. And “[s]imply committing the same type of violation in the same way does not link defendants together for the purposes of joinder.” {My Emphsis}

In his response, Troll Hierl states that members of a BT swarm are more akin to a cooperating group of “card-counters” working together to gain an advantage against the Blackjack dealer.  He claims that joinder of ALL 36 Does in this case is proper because like the cooperation of the card-counters, the Does all took part downloading/sharing the same movie (torrent/SHA-1 hash file).  Where did Troll Hierl get this idea???  From our friendly German players – Daniel Macek.  If you remember, Daniel Macek is responsible for providing early discovery declarations to the Anti-Piracy Management Company (APMC) and the local Troll counsels.   Daniel_Macek_Cardcounting_EX4_02162(IL)

What the Troll doesn’t tell the court is that even with this pretty “card-counting” analogy add-on and explanation of the “Distributed Hash Table” and “Peer Exchange,” there is still NO evidence to show that ANY of these 36 Does shared ANY part of the movie with EACH OTHER.  Where is the “Cooperation” that makes the card-counting analogy work???  If there is direct evidence showing cooperation, please disclose it – not a simplistic claim based on the protocol.  The problem the Troll has is that they have NO records to back this up – Period – their system does not and cannot record this information.

BT Discussion

The Troll BT clients appear to other swarm BT clients a new swarm member (a leecher with no data to share).  It then makes its request for data from a swarm member (seeder or leecher).  When the Troll BT client get a small piece of data from a swarm member, it records the public IP address, date/time, as well as packet capture (PCAP) data showing how it got the data.  Their system may record all the data they obtained from various “individual” swarm members, but they have NO insight into which BT clients shared data between themselves.  They would need to actually be inside the individual systems to see and record who shares with whom.  The only basis for their claims of proper joinder is the SHA-1 hash file.

Consider This Scenario

A Troll files a case in the ILND against 25 public IP addresses that resolve back to this district.  The time frame of the alleged infringement is 30 days.  At the beginning of the monitoring period, only 5 of the 25 ILND swarm members are seeders and not sharing data between other seeders (they already have a full copy of the data).  So we can accurately state that no data exchange would have occurred between the seeders – only seeders to leechers AND leechers to leechers.  BUT, the Trolls do NOT show anything like this.  WHY???  Because their system ONLY records the data they obtain from “individual” BT clients/IP addresses.   They claim that since the hash files match and the jurisdiction is correct, joinder is appropriate.  What the Troll actually has is 25 “individual” records that their BT client received a small amount of data from the 25 BT clients on a date/time.  Possibly sufficient to file 25 single Doe cases, but nothing to support joinder.

BT Monitoring By The Trolls

The Trolls monitor for infringing torrent files belonging to their clients.  As the BT protocol is used world-wide, the IP locations are all around the world.  Now the Trolls may record ALL the data world-wide for a particular torrent/hash file, but I suspect for economy sake, they limit their actual recording to IP addresses in jurisdictions they file suit in.  Note: You may notice that we don’t currently have Malibu Media/X-Art or Voltage Pictures copyright infringement law suits in California.  That isn’t because no one in CA uses BT to infringe upon these Plaintiffs.  It is only because the Trolls choose not to ply their business model in an environment that doesn’t trust them and will raise uncomfortable question. Here is a quote from the APMC presentation dealing with the declarations Daniel Macek is responsible for providing to local counsels.

- paragraph 1 is a serious declaration that’s stating everything is true & accurate.
– paragraph 2 in regards to software consultant (i.e., he can talk about software issues), & we’re hoping the judge won’t question his qualifications too much. {My Emphasis}

My point with mentioning Troll BT “filtering” is it actually removes the BT clients that were probably more likely to have shared data among the swarm members in these cases.

Troll Actions Show Why Joinder Is Improper

IID1 - CopyWhen the Trolls filter their BT monitoring results to fit a specific hash file, jurisdiction, and time period, they are actually hurting themselves.  Why so???  Isn’t it proper to only file suits against the IP addresses in the proper jurisdiction???  It is proper to file cases in the right jurisdiction and have a single hash file, but by “filtering” the IP addresses they significantly reduce the probability that these swarm members actually shared data among themselves.

Going back to the previous scenario swarm of 25 BT clients filtered down to the ILND jurisdiction.  If we were able to remove the Troll filter, we may find out that for the same 30 day time-frame, there were actually 500 other “World-Wide” BT swarm members for this hash file.  That means that the ILND IP addresses only made up 5% of the world wide swarm (single hash file) for that time period.  NOTE: Swarm participant numbers can and do vary, but the likelihood that a majority came from ILND (or any single district) is ridiculous.  That means it is much more probable that a leeching member of this BT swarm got its data from a swarm member residing outside of the ILND jurisdiction – approx. 95% likelihood.  Percentages vary, but not in favor of the Troll.

Adding to the unlikely chance that two IP address in the same jurisdiction actually shared is the uncertain nature of BT client member’s connection to the swarm and the Internet in general.  How many swarm members disconnected from BT or simply turned off their computers for various lengths of time – hours, days, weeks???  This also does not take into account that fact that people who run BT are known to stop sharing some content.  I.e. a BT user downloads a file and decides he doesn’t like it, so he deletes the torrent file and data file.  He is no longer sharing it with anyone else.

So the Troll card-counting “cooperation” theory is weak and inaccurate at best.  BT users come and go from swarms all the time, just like at the Blackjack analogy shows. There is NO Troll records to show ANY individual BT swarm members shared files among themselves.  Note: I know that sharing among BT members does occur – it is the nature of the BT protocol.  But it is ridiculous to allow the Trolls to make these claims of joinder simply for the economy of their abusive business model.  The Trolls do not “follow the rules,” they simply play them to their advantage and totally avoid the “spirit” of the law – to the courts and the Does detriment.

DieTrollDie    “The Defendants have liable Plaintiff under the disguise of such childish and unsophisticated pseudonyms as ‘die troll die.’”  – a statement like that could cost you $11K!


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