Pandora’s Box – Elf-Man LLC v. Does 1-29, 2:13-cv-00115 (WAED)

TrollVal1Happy Valentine’s Day to you all.  Please don’t forget to show you love on the other 364 days of the year.  :)  Here is an update on case 2:13-cv-00115, Elf-Man LLC v. Does 1-29, WAED.  The case has taken some interesting twists and turns and doesn’t appear to be ending too soon.   Archive Docket

Since it was opened on 22 Mar 13, Troll Maureen VanderMay has named ISP subscribers, requested waivers or service, and even had summons/complaints served on 24 of the 32 defendants.  The number of defendants grew to “32” because 3 of the IP addresses they recorded had two people associated with it.  The ISP subscriber information most likely had both people (couple/partner) on the account.  We even had 8 defendants answer the complaint, one of which makes a counterclaim against Plaintiff.  Also do not forget about Defendant Lamberson (Doe #22), who was severed from this case, became a single defendant, and made counterclaims – case # 2:13-cv-00395.    Previous Elf-Man articles – DTD1 & DTD2FCT Article

Reckless?

The fact that Troll/Plaintiff would amend the complaint with the names of the ISP subscribers smacks of recklessness.  There is no way they have done any type of investigation to determine who the real infringer is.  The best they can say is that some of the ISP subscribers declined to answer their questions or failed to settle – “So they must be the offender!”  This could lead to FRCP 11  sanctions – See section (b) (3).   Here is a nice Rule 11 Handout from the Stetson University.   Even Malibu Media/Troll Lipscomb is more cautious in the naming of defendants.  If there was just one or two named defendants, they might be able to get away with it.  As they have named all of the ISP subscribers (barring those who settled early), to include the couples, the court will find it hard not to ask what steps Plaintiff took to determine who the infringers were.  I hears crickets or some babbling response (equivalent to the “Chewbacca defense”) coming from Troll VanderMay.

This amount of activity is unusual for most Trolls, as more work tends to be more expensive and draws unwanted attention to the operation.  With all the activity, I decided to put it in a spreadsheet and look at it that way.  It is a bit of an eye chart, but still quite interesting.  Here are some of the highlights.

  • 10 defendants settled
  • Seven defaults judgments
  • Eight defendants answered the complaint (Pro Se & Attorney)
  • One severed defendant (now a single defendant case)
  • Two counterclaims against Plaintiff
  • Negligence claim killed

Well that is a fine mess Troll VanderMay has created.  If you figure $5,000 per settlement, Troll/Plaintiff may have taken in $50,000 so far.  The defaults may add more potential money to the mix, but that will probably only happen after the remaining 15 defendants have had their day.  Then it goes into attempts to collect from the defendants – have fun with that.   Right now we have Four separate law firms handling a few of the defendant’s cases.  Troll/Plaintiff is going to have their hands full simply dealing with one active defendant.

The costs of dealing with this case could skyrocket for Troll/Plaintiff.  Using the PA Bellwether trial (Malibu Media/X-Art) as a comparison, the costs of actively working this case will easily go over $200,000.  As these cases were not designed to go this far, Plaintiff is in a bit of a bind as they cannot now easily shut it down.  I would expect that Troll/Plaintiff will first try to string this case out as long as possible, then try to make deals with the defendants who are tired.  They are bound to get some settlements.  I really doubt everyone will agree to drop the case and walk-away, so more “combat tactics” are in order.

Next Move

I would expect the court to soon start asking for a discovery plan from Plaintiff and the defendants.  Depositions and forensic examinations are the next logical step, but these cases have nothing to do with logic.  What I can next see happening is some depositions of defendants and the Troll/Plaintiff failing to provide discovery related information on Crystal Bay Corporation (CBC) and software consultant, Darren M Griffin.  CBC and Griffin were the BitTorrent technical collection aspect of this case (and many others).  DTD Article on CBC.  This case may end up disclosing various gems on who makes up this Plaintiff, their operation, and what “other” Plaintiffs and personnel are tied to them. As the judge in this case has already killed the “Indirect Infringement Claim” (AKA: Negligence) aspect of the case, Troll/Plaintiff have their work cut-out for them.  Here is the 22 Jan 14, Order.   Doc106_00115(WA)

Applying that principle here, the Court finds that holding private internet users vicariously liable for copyright infringement committed by a third party on an “intended beneficiary” theory runs counter to the underlying purpose of the Copyright Act. …

If you are one of the defendants in this case, please feel free to contact me at dietrolldie@dietrolldie.com.

As we have been having some issues with RECAPing case files, here is a folder containing some of the documents.

DieTrollDie :)

Under The Bridge Consulting & Prenda Law Inc.

Under The Bridge Consulting & Prenda Law Inc.

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Voltage Pictures (Nicolas Chartier) & TCYK, LLC, Dismissed in TN – Go Back To TX

18 Apr 14 Update

I decided to look at all the Dallas Buyers Club cases that were filed and crunch some numbers.  I was asked recently if BitTorrent Copyright Trolling is still a viable business model based on the many hits the Troll/Plaintiffs are taking of late.  YES and here is why.

Profit – This is a business and it survives on making a profit.  For the period of Feb – Apr 2014, Dallas Buyers Club (DBC) LLC, filed 18 federal Copyright Infringement cases in 3 States (TX, WI, & IL), against a total of 561 John Does.  A $400 case filing fee works out to $7,200 for the 18 cases.  A safe estimate that the Trolls will ask for approximately $5,000 per settlement.  So here are the numbers.

  • 100% settlement rate (unrealistic) – 561 Does X $5,000 = $ 2,805,000
  • 75% settlement rate – 421 Does X $5,000 = $2,103,750
  • 50% settlement rate – 281 Does X $5,000 = $1,405,000
  • 25% settlement rate – 140 Does X $5,000 = $701,250

Now even if the Troll/Plaintiff only gets a 25% settlement rate (averaged out), they still have over $701,250.   Lets say that each case cost Plaintiff approximately $3,000 in legal costs and fees, in addition to the $7,200 in filing fees.  18 cases X $3,000 = $54,000.  $54,000 + $7,200 = $61,200.  Now depending on what agreement (verbal or written) Troll/Plaintiff has with the BitTorrent technical monitoring crew, there is bound to be some additional costs.  Even if these costs were $100K, that would still leave over $500K!

  • $701,250 – $61,200 = $640,040

The old saying goes – “Money Talks.”

DTD :)

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27 Mar 14 Update

Well today turned out to be the big day for Dallas Buyers Club, LLC, filing copyright troll law suits.  A total of Nine mass-Doe (35o Does total) law suits were filed in the Northern District of Illinois, by Trolls Todd S. Parkhurst, Michael A. Hierl, Karyn L. Bass-Ehler of Hughes Socol Piers Resnick & Dym Ltd.  Well, it isn’t surprising, but the douchebag actions still stinks.

  • 1:14-cv-02153 – 39 Does
  • 1:14-cv-02156 – 41 Does
  • 1:14-cv-02158 – 39 Does
  • 1:14-cv-02162 – 36 Does
  • 1:14-cv-02163 – 45 Does
  • 1:14-cv-02165 – 34 Does
  • 1:14-cv-02168 – 46 Does
  • 1:14-cv-02169 – 37 Does
  • 1:14-cv-02170 -33 Does

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10 Mar 14 Update

As expected, on 10 Mar 14, two new Dallas Buyers Club cases were opened in the Copyright Troll friendly jurisdictions of the Northern District of IL- total of 102 Does.  I would expect more cases to follow as the academy award attention is bound to increase its popularity on BitTorrent.   52 Does   55 Does

*** Please see the ‘answer template’ in shared folder link below. ***

5 Mar 14 Update

In case you missed it, I have created an “Answer Template” for the Dallas Buyers Club LLC v, Does 1-31, case 4:14-cv-00248, Southern District of Texas.  It is found in this shared folder along with some case documents.  If you are going to use it, please edit it to reflect the specific Plaintiff, allegations, and YOUR answers – Don’t just slap you name on it.

DieTrollDie :)

3 Mar 14 Update

On 2 Mar 14, TorrentFreak posted the following article – “Dallas Buyers Club”Makers Censor COMCAST On Demand By Mistake.  The part I found interesting was the DMCA take-down request was the ONLY one ever sent by Voltage Pictures (For ANY of their films) to Google.  Of course the DMCA take-down request was only for the ‘search results.’ I seriously doubt Voltage Pictures has ever sent a DMCA take-down notice to the ISPs of IP addresses that were allegedly downloading/sharing Dallas Buyers Club via BitTorrent.

Also of note, is that this is the first and only DMCA request Voltage Pictures has ever sent to Google. This suggests that the company might not be too worried about appearing in search results. Instead, the takedown notice may have been a preemptive action related to the BitTorrent lawsuits we mentioned earlier.

With this DMCA notice Voltage can show the court that it took other anti-piracy efforts as well. Whether that is wise has yet to be seen though, since right now it mostly shows how weak the studio’s evidence gathering tools are.

CTBC_parody1DTD :)

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It seems recently TCYK LLC, AKA: Voltage Pictures (owner Nicholas Chartier), has been having a hard time with various copyright troll cases throughout the US.  Even with the various set-backs, the Voltage Pictures operation is still ongoing.  In this dual-post, I will detail another TCYK LLC set-back, as well as a new case associated with Voltage Pictures.

Severed and Dismissed in Tennessee

This was your standard mass-Doe TCYK, LLC copyright infringement case (3:13-cv-00251, TCYK, LLC v. Does 1-98), originally opened on 6 May 13.   Archive Docket     Plaintiff requested and was granted early discovery to obtain the ISP subscriber information for the IP addresses in question.  Following this, a few of the Does made motions to quash/dismiss and were subsequently dismissed by Plaintiff.  I don’t know if Troll/Plaintiff dismissed these Does after a deal was made or if it was done simply to render their motions as “moot” (no longer relevant) because they were no long a party to this action (because they were dismissed).  I have a sneaking suspicion that Troll/Plaintiff offered each of these Does a very cheap settlement offer that was hard not to accept.  Doe #3′s attorney signed the joint notice of dismissal (with prejudice), so one deal was obviously made.   Doe3_Dismissed_00251(TN)   How cheap was the deal???  I do not know, but I would guess it was under $1,000.  I haven’t read Doe #3′s motion, so I don’t know how good it was.  If someone would like to confirm or refute this, please email me at dietrolldie@dietrolldie.com.  I will not disclose the details.

FTCC1Here is the funny thing – I think the judge figured out these dismissals (14 Oct, 17 Oct, & 17 Nov) were more to kill the pending motions (not have to address the issues) than coming to a settlement over the copyright infringement allegation.  On 18 Nov 13, Judge H. Bruce Guyton, Eastern District of Tennessee, issued a Report and Recommendation (R&R) for this case.   RandR_00251(TN)   The judge specifically mentions Doe #3’s motion to quash/dismiss and that he decided Sua Sponte (on his own) to recommended Does #2-98 be severed from the case (without prejudice) and Plaintiff be ordered to name and serve Doe #1 within 30 days.

On 23 Dec 13, Judge Thomas A. Varlan, accepted the R&R in whole and ordered it.   OrderON_RandR_00251(TN)   Well, even with this set-back, most Trolls would name and serve Doe #1 and start moving forward.  Troll Van R. Irion decided instead not to do anything.  On 4 Feb 14, Judge Varlan dismissed the case against Doe #1.   Dismissed_00251(TN)

Here, Plaintiff has failed to serve the summons and complaint on Defendant Doe 1 within 120 days of filing the complaint and failed to serve Defendant Doe 1 within 30 days of the Court’s order entered December 23, 2013, indicating to the Court that Plaintiff has no interest in prosecuting this action.

Accordingly, the Court finds that this action shall be DISMISSED for failure to prosecute.

IT IS SO ORDERED.

As we have 12 other TCYK, LLC, cases in the Eastern District of Tennessee (per RFC Express), this R&R and dismissal could have a significant impact on the Trolls/Plaintiff here.  Note: Troll Van R. Irion other similar mass-Doe cases in the district – Killer Joe Nevada, LLC & Pound Pictures Inc.  My suggestion to any Does in these cases is to hold off settling and possibly inform the judge handling their case of the R&R.

On a side-note I want to add this little gem of an Order to Show Cause order issued to TCYK, LLC, in the District of Minnesota.  Case 0:13-cv-02779, TCYK, LLC v. Does 1-24.  TCYK_ShowC_02779(MN)   Archive Docket   It appears Troll Mark R. Anfinson, in all of his professional capability filed a duplicate case against 17 Does who’s IP addresses were already listed in case 0:13-cv-01727, TCYK, LLC v. Does 1-17.  On 23 Dec 13, Troll/Plaintiff voluntarily dismissed the case – order followed on 27 Dec 13.  Take note people, this is the type of Troll/Plaintiff you are dealing with.  Amazing…

Dallas Buyers Club, LLC files in Texas

And now for something completely different.

No, not really.  It is a new Plaintiff (Dallas Buyers Club, LLC) by “Name.”  The BitTorrent copyright infringement case is Dallas Buyers Club, LLC v Does 1-31, 4:14-cv-00248, filed on 3 Feb 14, in the Southern District of Texas.   Complaint_00248(TX)   Complaint_IPs_00248(TX)   Complaint_CpyR_00248(TX)   The movie is “Dallas Buyers Club,” which was first released on 7 Sep 13.  The main release to US audiences was on 1 Nov 13.

If you look a little deeper, you will see and smell the trolls.  The IMDb Web site shows Voltage Pictures and Truth Entertainment are the production companies handling this movie.  Voltage Pictures (Owner – Nicolas Chartier) is the person behind the BitTorrent copyright troll lawsuits for movies like “The Hurt Locker” and “The Company You Keep.”  Fightcopyrighttrolls story

The “About” page for Truth Entertainment mentions Voltage Picture and Nicholas Chartier, as well as Joe Newcomb.  A review of the California Business Search Database (CBSD) disclosed that Truth Entertainment’s status is “Cancelled.”  The CBSD also disclosed Dallas Buyers Club, LLC has been active since 2 Aug 12.  A search for Dallas Buyers Club, LLC, board members discloses Joe Newcomb (Truth Entertainment) and Anthony Notarglacomo.  It looks like Nicolas Chartier has a new partner or two.

One thing that was interesting was multiple copyrights associated with the “Dallas Buyers Club” movie.  FYI.   CpyRt1   CpyRt2   CpyRt3   CpyRt4   CpyRt5

The case is the same tired old BitTorrent copyright infringement case they have been filing for some time.  Prior to this case, the most recent copyright troll case in the Southern District of Texas was TCYK case, 4:13-cv-03082 (18 Oct 13).  I expect this case to go the same way all the other BitTorrent mass-Doe cases have – obtain ISP subscriber information, issue demands under threat of a lawsuit, collect settlements, a small number of default judgments, and finally dismiss the case when the court tires of Troll/Plaintiff’s excuses and delays in prosecuting it.

Fortunately many courts around the US are starting to sever/dismiss most of the Defendants from the mass-Doe cases.  They can see that the Troll/Plaintiff are clogging up the courts with their business model cases, not paying filing fees ($400 per mass-Doe v. $400 X 31 Does = $12,400), and show absolutely no intention of trying identify the actual infringer and prosecute.  If you end up being part of this case (or others that are sure to follow), please comment and tell us what is happening to you.

DieTrollDie :)  “The Defendants have liable Plaintiff under the disguise of such childish and unsophisticated pseudonyms as ‘die troll die.’”    

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No Extension To Serve = TCYK, LLC Cut-Rate Settlement Deal – 2:13-cv-01020 (IAND)

10 Feb 14 – Update

On 5 Feb 14, Troll Hamilton dismissed Anthony Threatt With Prejudice, indicating some sort of agreement/settlement was reached.   Threatt_DismissedWP_01020(IA)   I’m of the opinion Plaintiff accepted a very low settlement.  Note: It is not my suggestion to take such an offer, but I understand everyone’s situation is different.  My view is that if they are that willing to drop their settlement amount significantly, they really don’t want to drag this case out any longer.

DTD :)

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The fact the Trolls (and their Plaintiffs) are such a bunch of money-grubbing sleaze balls never stops to amaze and sicken me.  BTW – that is my opinion.  The facts surrounding the TCYK LLC cases across the country is probably one of the worst ones in terms of the number of people affected.  I will grant that Malibu Media (X-Art) is the one Troll operation that is probably worse.

Here is one TCYK case that got my attention.  TCYK, LLC v. Rexin et al, # 2:13-cv-01020, Iowa Northern District.  Originally it was against Does 1-13.   Archive Docket

The case was opened on 25 Jun 13, by Troll Jay Hamilton, Hamilton IP Law.   On 11 Jul 13, the court granted early discovery to subpoena the ISP subscriber records for the IP addresses in question.  On 4 Oct 13, the court granted a motion by Troll/Plaintiff to extend the service deadline to 26 Jan 14.  During this time period, at least one Doe settled with the Troll and was dismissed (Doe #2 on 14 Nov 13, Doc #12).  On 21 Nov 13, the court granted a motion by Troll/Plaintiff to delay submitting a scheduling plan and discovery plan until no later than 27 Mar 14.

On 16 Jan 14 (10 days before the service deadline), Troll Hamilton, files another request for an extension to serve the defendants.  He asks the court to extend the deadline to 27 Mar 14 (also the deadline for the scheduling plan/discovery plan).  On 20 Jan 14, the court flatly denies the request.   Doc16_01020(IA)   The court was not happy that the pre-discovery was authorized more than 6 months ago and that for at least 4 months Plaintiff knew that no additional extension would be granted.

deal2So what is a money-grubbing Troll supposed to do now????  He has so many greedy little Trolls babies to feed.  Mean judge :(   It turns out that was the perfect time to send out “cut-rate” settlement demand letters to the people who wouldn’t “play ball.”  Take a look at these settlement demand letters dated immediately after the judge made his order.

HamIPL_Setl1_01020(IA)   HamIPL_Setl2_01020(IA)

They are the standard Copyright Troll settlement letter, but check out the amounts they want.  $1,000 and $1,500.  No that isn’t a typo, the Troll drastically reduced the settlement amount.  I have another TCYK settlement demand letter, where the amount was $7,500!   TCYK_7.5K_SetteLtr   That shows you how desperate the Troll/Plaintiff wants to get a settlement and how they do not want to risk full discovery and/or a trial.  They can see that the court is unhappy and need to shut this down as soon as they can squeeze a few more dollars out of people.

One day prior to motion hearing (30 Jan 14), Troll Hamilton filed a second motion to amended the complaint.  On 30 Jan 14, Troll Hamilton told the court they have the true names of the ISP subscribers for the 11 non-settling defendants (Two Does settled) and wished to amend the complaint with their names.  The court granted the motion and on the same day, Troll Hamilton filed the amended complaint.   FAC_01020(IA)   FAC_EXs_01020(IA)    It is sad the court did not dismiss the case and tell the Troll it had two weeks to file single cases on the defendants Still, I think this court is going to be upset when little to no activity happens.  I really doubt the Troll is going to name/serve all 11 defendants.  I would love to know the date that the ISP subscriber data was released to the Troll.  I think a motion to dismiss IAW FRCP 4(m) {120 days to name/serve} may be in order – or soon will be.

As I said, the depth of depravity of the Trolls/Plaintiffs is always a bit of a surprise.  If you are one of the named defendants, keep an eye out for Troll letters, Waivers of Service, and possibly summons paperwork.  I would not doubt that the Troll is going to try to find at least one defendant that is a good target for a default judgement.  Don’t let it be you!

DieTrollDie :)

catdogwalk1

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Waiver Of Service & Judge Kills TCYK, LLC, case 1:13-cv-03840 (ILND) – “Too Little, Too Late”

I decided to revisit this topic after Doe defender Jeffrey Antonelli, Antonelli Law, made the following Twitter comment, “Anyone receiving a Waiver of Service should speak with a lawyer first before they sign it. We are seeing too many defaults from this!”  Antonellie further said Trolls Michael Hierl and Keith Vogt have been using them.  The first part of the article explains a Waiver of Service (WOS) and the second part details how one Troll had an ILND judge kill his case.

If you are unfamiliar with a “Waiver of Service (WOS),” please see the following articles .   DTD1   DTD2

DSF1Now there is nothing wrong with a WOS, it is just how the Trolls are using them.  For majority of the Does, the legal process is strange and often expensive.  I feel that some of the Does are not going to understand the WOS and possibly make a big mistake.

What is the difference between a Waiver of Service (WOS) & a Summons/Complaint?

Waiver of Service – A WOS is simply an agreement to “waive” the requirement to be officially served with a summons/complaint.   Cornell Law (see section (d) )   By waiving the official requirement, the defendant is allowed more time to respond to the complaint (60 days) and the Plaintiff saves money by not having to hire a process-server.  Now a WOS is “Voluntary,” meaning a Defendant does not have to accept/sign it if they don’t want to.  If a WOS is not signed and returned, Plaintiff will have to have the Defendant officially served.  Once a case is decided, the court is required to award the fees/costs associated with the service to the Plaintiff.  Note: The WOS is going to have the true name of the Defendant and not the John Doe #/IP address – so this document will only be seen after the ISP releases the subscriber information to the Troll.  Now when a defendant signs/returns a WOS, he/she has effectively been served with a summons and needs to respond to the complaint.  If no response is made within the 60 day time frame, the Plaintiff can motion the court for a default judgement.

Summons/Complaint – A Summons/Complaint is a document prepared by the court and tells the recipient they are Defendant in a law suit, which court/jurisdiction it is filed in, whom the Plaintiff is, and how long they have to respond to the complaint – usually 21 days.  The summons/complaint will have the true name of the Defendant and not the Doe #/IP address.  Plaintiff is responsible for seeking the summons/complaint, as well as serving it on the defendant in accordance with FRCP 4.  Each jurisdiction can have local rules for effecting service, but generally they need to personally provide it to the defendant, leave a copy with an adult at the residence, or with an agent authorized to accept service.  Failure to answer a summons/complaint will allow the Plaintiff to motion the court for a default judgement.

120 Day Time-Frame To Serve

Now the Rule that covers “Summons” and WOS, also covers the time frame to Plaintiff has to effect service.  According to FRCP 4(m), Plaintiff has 120 days after filing the complaint to effect service.  For theses cases, the ISP subscriber information is not available until sometime later, so this is pushed back.  BUT once they have your identification, the clock is effectively ticking.  Once the 120 days has passed, a motion can be made to the court (or the court can do it on its own) to dismiss the case without prejudice.  The service time can be extended if Plaintiff shows “good cause” as to the delay.

ILND Judge Kills TCYK LLC Case 1:13-cv-03840

This TCYK LLC case was originally filed in the ILND on 23 May 13, against 113 John Does.   Archive Docket   The case ran the usual course of early discover, motions to quash/dismiss, release of ISP subscriber information, settlement negotiations, and voluntary dismissals.

On 22 Jan 14, it appears Judge Elaine E. Bucklo had enough of Plaintiff and made the following minute entry.

MINUTE entry before the Honorable Elaine E. Bucklo: Status hearing held on 1/22/2014. Plaintiff’s motion to dismiss “Doe Defendants” with certain Internet Protocol addresses is granted. Upon reflection, this court’s oral decision to set this case for trial is vacated. After nearly a year, plaintiff has neither served various defendants, nor substituted actual names of people for “Doe.” Plaintiff is given until January 30, 2014 to file proof of service on all defendants. After that, any defendant not served will be dismissed per Fed. R. Civ. P. 4. The case is set for hearing on February 4, 2014 at 9:30 AM. Doe Defendants 7,14,46,49,59,61 and 102 are dismissed with prejudice. Mailed notice (jdh)

Doesn’t sound good for Plaintiff.  So on 28 Jan 14 (two days before the cut-off), Troll Hierl informs the court they have met the courts requirement (“Plaintiff is given until January 30, 2014 to file proof of service on all defendants“) because they sent the remaining 62 defendants a WOS/Complaint.   StatusRep_03840(IL)

Well, Judge Bucklo wasn’t buying this “Too Little, Too Late” bit of gamesmanship, and issued the following on 29 Jan 14.   CaseDismissed_03840(IL)

MINUTE entry before the Honorable Elaine E. Bucklo: This case was filed on 5/23/2013. I allowed discovery and gave plaintiff until 8/2/2013 to amend its complaint to name the actual defendants. I extended that time until 10/10/2013. Plaintiff never amended its complaint. It turns out that plaintiff never served most of the defendants. In response to my notice that I would dismiss this case under Fed. R. Civ. P. 4, unless plaintiff promptly filed its proof of service, plaintiff says that it will ask for a waiver of service from the defendants. This is not good enough. Plaintiff has flagrantly violated Fed. R. Civ. P. 4. This case is dismissed. Civil case terminated. Mailed notice (jdh) 

CS1This is the essentially a Bench Bitch-Slap for Troll Hierl and TCYK.  “Flagrantly violated Fed. R. Civ. P. 4.”  Way to go Troll Hierl and Parkhurst.  Now hopefully more of the ILND judges will take notice.  To me this clearly indicates these Copyright Trolls are not trying to find out who the true infringers are and are only interested in squeezing out settlements from the ISP subscribers under threat of a law suit.

So it looks like 72 Does (out of 113) were dismissed from the case (correct me if I’m wrong).  Let do some Copyright Troll math – If Plaintiff/Troll was able to get $7,500 settlements (TCYK_7.5K_SetteLtr) from the 41 previously dismissed Does, they would have taken in $307,500.  Even if they only got $3,750 per settlement, that is still over $150,000!  You can see why even with a Bench Bitch-Slap like this, there is money to be made.

Now Plaintiff can still refile a new case(s) against the Does – mass or single, but that would be a foolish waste of time and money.  Without filing named defendants cases against the 62 defendants (which they have names for), they would simply be showing how weak their case is.  Also naming a defendant simply because they are the ISP subscriber is bound to lead to motions for sanctions against Plaintiff for violation of Fed. R. Civ. P. 11 (See section (b) ).

DieTrollDie :)

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BitTorrent Hash File Alone Is Insufficient To Justify Mass Joinder Cases – SDIA Judge (4:13-cv-00271)

hash1Here is a December 2013, court order that escaped many of us.  So many things going on.  Hi John – I hear GA was cold.  The order affects 5 Southern District of Iowa cases (over 100 Does).  The cases were all non-porn movie Plaintiffs (Killer Joe Nevada, TCYK, & Sibling The Movie), represented by Troll Jay R. Hamilton.  Take a read of the order and you will see this judge took the time to understand the technology and how it relates to joinder.

SDIA Cases

  • KILLER JOE NEVADA, LLC, v. DOES 1-39, 3:13-cv-00060
  • TCYK, LLC, v. DOES 1-18, 3:13-cv-00074
  • TCYK, LLC, V. DOES 1-18, 3:13-cv-00077
  • KILLER JOE NEVADA, LLC, v. DOES 1-10, 4:13-cv-00192
  • SIBLING THE MOVIE, LLC, V. DOES 1-21, 4:13-cv-00271

All of these cases were consolidated together for purpose of discovery.  Sometime prior to the release of ISP subscriber information, Doe #18 from case 3:13-cv-00077, filed a motion to quash the ISP subpoena and sever all the Does due to misjoinder.  I was not able to find a copy of Doe #18’s Motion to Quash/Server on the docket, but I know it was prior to Doe #18 being dismissed “with prejudice” by Plaintiff on 4 Oct 13.  As this dismissal was with prejudice, I wonder if Doe #18 came to some sort of agreement with Plaintiff.  It appears that Plaintiff decided (in error) not to respond to Doe #18’s motion and figured it would go away once they dismissed him from the case.   DismissDoe18WP_00077    Archive Docket

SMR1In this order, Judge Stephanie Rose said Doe #18’s motion was never challenged by Plaintiff and she decided on her own (sua sponte) to include the other four cases in determining if the ISP subpoenas should be quashed and if a majority of the Does should be severed from the cases.  On 20 Dec 13, the court issued the order quashed all the ISP subpoenas and severed all the Does from each case, except for one.      SeverCases_Doc12_00271(IA)   Archive Docket

The order is long, well written, and worth reviewing for its analysis on joinder of BitTorrent copyright infringement defendant based only on the hash file.  The court removed all but one Doe for each cases and told Plaintiff they could refile single-Doe cases and pay the filing fee for each case.  The court also required Plaintiff file a notice of related cases on any new cases based off the old ones.

This Court agrees with the reasoning of courts that have decided that joinder is Inappropriate.  Although questions of law or fact common to all defendants would likely arise in the action, the Court is not convinced that a right to relief is asserted against defendants with respect to or arising out of the “same transaction, occurrence, or series of transactions or occurrences[.]” See Fed. R. Civ. P. 20(a)(2). The better reasoning is that Doe defendants who have allegedly participated in the same swarm to download a copyrighted work should not, without more information, be considered part of the same transaction, occurrence, or series of transactions or occurrences.

Here is what the court thought about the joinder of Does in these cases.

Thus, in the Killer Joe cases, the January defendants would have to be connected to the Internet and still actively distributing data through the BitTorrent client approximately three months later to be involved in the same transaction as the April defendants, which is implausible at best. See Kill Joe Nevada, LLC, 2013 U.S. Dist. LEXIS 74824, at *7.  In the other cases that allege a shorter span of activity, and even in all five cases where Doe defendants allegedly have “hit dates” on the same day and close in time, there is no showing that the earlier defendants were still connected to the Internet and actively distributing data through the BitTorrent client at the same time as the later defendants. Facts have not been alleged regarding what time frame would be appropriate to infer that defendants shared data. But see Malibu Media, LLC v. Reynolds, No. 12 C 6672, 2013 U.S. Dist. LEXIS 31228, at *46 (N.D. Ill. Mar. 7, 2013) (indicating that within hours of each other would be sufficient). Temporal overlap would not necessarily establish that any two defendants shared data, but it would at least be reasonable to infer that they engaged in the same series of transactions. Id.

Finally the judge said any early discovery (from the ISPs) prior to service (naming and serving a defendant) must follow the sensible protocol adopted by Magistrate Judge Brown (SDNY, 5 Jun 12), which would prohibit the release of ISP subscriber telephone number and email address.  The ISP would disclose the Doe’s subscriber data to the court and the court would release it to Plaintiff for litigation purposes only.

I think there are many attorneys and courts out there that could benefit from reading this order and getting a better understanding of the technology and how the various Plaintiffs who still file Mass-Doe cases are gaming the system.  The court did not say Mass-Doe BitTorrent cases could never be filed, only that Plaintiff is going to have to show more evidence to substantiate proper joinder.  The SHA-1 hash file alone is not going to be enough.  This is something most Plaintiffs/Trolls are not going to want to do, as it is more labor intensive to accomplish.

Each plaintiff bears the burden of pleading facts sufficient to show that the requirements of Rule 20(a)(2) are met, see Third Degree Films, Inc., 2013 U.S. Dist. LEXIS 44131, at *18 n.6 (citation omitted), and it is also not evident that defendants participated in the same series of transactions or occurrences. “Even under the broad interpretation of Rule 20(a) and the liberal construction of the word ‘transaction’ adopted by the Eighth Circuit, defendants may not be joined in the absence of a transactional link between them.” Private Lenders Group, Inc., 2013 U.S. Dist. LEXIS 121643, at *7 (internal quotation omitted). “A transactional link is missing when the defendants’ acts, though identical, were separate and independent.” Id. (internal quotation omitted). Although each plaintiff has alleged that the defendants in each case were in the same swarm based on the same hash value, participation in a specific swarm is too imprecise a factor absent additional information relating to the alleged copyright infringement to support joinder. See Killer Joe Nevada, LLC, 2013 U.S. Dist. LEXIS 95416, at *11. Any “pieces” of the work copied or uploaded by any individual Doe may have gone to any other Doe, but may instead have gone to any of the potentially thousands of others who participated in a given swarm and are not in this case. See Hard Drive Prods., Inc., 809 F. Supp. 2d at 1163. A peer can avoid participating in future uploads to other peers by disconnecting from the swarm once he or she has downloaded the entire file. X-Pays, Inc., 2013 U.S. Dist. LEXIS 96241, at *5 (citation omitted). “While it is possible that some defendants obtained pieces of the data file from a preceding defendant, it is equally likely that earlier defendants had no involvement in later exchanges of data because they, and anyone who downloaded the file from them, left the swarm and were no longer available sources of data.” Private Lenders Group, Inc., 2013 U.S. Dist. LEXIS 121643, at *8 (citation omitted). “Because any connection between the defendants’ otherwise separate and independent acts is entirely speculative, joinder of defendants is not appropriate under Rule 20(a).” Id. (citation omitted).

Now hopefully this will be picked up by the Doe defenders and used to kill some of these mass Doe cases.  Take a read of the order and tell me what you think.

DieTrollDie :)    “You probably heard we ain’t in the prisoner-takin’ business, we in the killin’ Nazi business. And cousin, business is a-boomin’.” – Lt. Aldo Raine {Inglourious Basterds}

GM1

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Elf-Man LLC – Dismissed Negligence Claim & Rambling Troll Response – 2:13-cv-00395/2:13-cv-00115 (WA)

Thank you Jack for bringing the fact that troll VanderMay filed a response to Defendant Lamberson’s Answer and Counterclaim.  As Jack points out, it appears Troll Vandermay was in a bit of a shock and decided to file a response not even bothering to address the core issues to the answer/counterclaims.  Please take a read and I will try to hit the main points.   PlaintiffResp_Doc20_00395(WA)

Also of note is a very recent order in Elf-Man case # 2:13-cv-00115 (The case this one is based on), in which Judge Rice (Same Judge in both cases) dismissed the “Negligence” claim (Plaintiff tried to call it “Indirect Infringement) against the remaining defendants, but kept “pending” the claims of direct and contributory copyright infringement.    Order_Doc106_00115(WA)    Reading this order I see the judge taking the safe road and not dismissing the weak claims based solely on who pays the ISP bills.  As Plaintiff has already named the defendants, It had better be ready to move forward with discovery and adequately prove the named defendants are responsible.  Failure to do this could result is FRCP Rule 11 sanctions.

Elf1The response is a combination response and motionsStrike Defendant’s State Law Counterclaims (Defamation, Washington Consumer Protection Act, & Intentional Interference with Business Relations). – Motion to Stay Discovery Pending Resolution of Plaintiff’s Special Motion to Strike and Request for Monetary Award – Motion to Dismiss Counterclaims – Motion to Dismiss Counterclaims and/or Strike Affirmative Defenses Based Upon Allegations of Fraud – Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) the following redundant, immaterial, impertinent and/or scandalous matter in Defendant’s first amended answer and counterclaims.  It is not a straight forward read and Troll VanderMay only lightly talks to the claim that Plaintiff seeded the movie on BitTorrent.

Attempt to Halt Discovery

What is of interest and only appears very slightly is the motion to stay discovery.  Troll VanderMay is hoping she can stop Defendant Lamberson from discovery.  I wonder what Plaintiff has to hide?  If you remember Defendant Lamberson’s answer and counterclaim, many interesting items were brought up –

  • Who actually owns the copyright to the movie Elf-Man – Vision Films Inc. OR Elf-Man LLC?
  • What parts of the movie covered under the claimed copyright (PA 1-823-286 – There is a “Note” in the registration concerning preexisting material (film, music, & photographs).
  • Plaintiff’s failure to take reasonable steps to protect its movie – This may have led to the Plaintiff’s movie being made available via BitTorrent.  If the storage wasn’t hacked (or a physical theft), then somebody associated with Plaintiff likely did it.
  • Who initially seeded the movie BEFORE it was ever released to the public – Defendant Lamberson believes it was seeded by Plaintiff or its agents.
  • IPP Ltd/IPP International =  Guardaley Ltd of Germany – Allegations of fraud and faulty monitoring software and methods against Guardaley.  IPP is also not licensed in WA to conduct business.  Plaintiff paid for “evidence” from IPP with settlements from the Does.
  • Crystal Bay Corporation (CBC) – previously delinquent SD “shelf-corporation” used to hide the BT technical monitoring apparatus used by Plaintiff.  CBC is also believed to be paid for its “evidence” by Plaintiff with settlement proceeds.  CBC is also not licensed in WA to conduct business.

What does Troll VanderMay Respond to?

 She basically claims that since Defendant Lamberson’s (Attorney Christopher Lynch) answer/counterclaim did not follow the rules, it should dismissed or in an alternative, require a refiling with additional details.

In answering Plaintiff’s First Amended Complaint, Fed. R. Civ. P. 8(b)(1) requires that Defendant “state in short and plain terms its defenses to each claim asserted against it; and . . . admit or deny the allegations asserted against it by an opposing party.” Rather than following this rule, Defendant has included in his answer a wide ranging narrative and numerous exhibits, much of which is simply irrelevant and other portions of which at best relate to matters that he may be entitled to present later in this action pursuant to the governing evidentiary and procedural rules. Therefore, Plaintiff has moved to strike, with a single exception, the material in Defendant’s answer which he “affirmatively states.”

So Troll VanderMay doesn’t want anyone to question their case  or seek information on their operation.  What do they fear???  Until the motion is decided, she asks that all discovery be placed on hold.

This motion speaks to me of some serious fear from Plaintiff.  This is simply a delaying tactic that is designed to keep running up the legal bills of Defendant Lamberson.  Run them up high enough and they may get Lamberson to accept a confidential deal.

More Detail

Even if the judge asks the Defendant for a more detailed counterclaim, it will not be hard to produce.  The issue of who actually owns the copyright to the movie, as well as what preexisting material is NOT part of the copyright will be easy.  Plaintiff’s control of the movie (or lack of it) prior to public release and who had access to it (correlated to the date it was “seeded” and release to the public) will be easy to justify.  Interviews of Plaintiff’s personnel who had access to the movie (during seeding/pre-public release) is easily justified.  IPP/CBC details/agreements with Plaintiff on providing evidence to Plaintiff for a price will not be that hard either.  The best I can see Troll VanderMay doing to trying to claim all of this information is privileged and not subject to public disclosure.

If Defendant Lamberson has the stamina to go the distance, this could be bad for Plaintiff.

DieTrollDie :)

HLPubS1

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Please Email the SD Sec of State – Crystal Bay Corporation (CBC) – Revoke/Dismiss Status

Hello all!

CBC1Want to do something to help?  In case you missed it, the technical monitoring company Copyright Troll Shelf Company, Crystal Bay Corporation (CDC), used by a few of the non-porn trolls, went into delinquent status at the end of March 2013.  This was most likely due to not filing the annual report, taxes, and any associated fees.  SD Corporate database   Search Sites in the US

CBC is a SD “Shelf” corporation used by Trolls such as Lynn Peak Productions/Bailout: The Age of Greed and Bad Kids Go To Hell.    CBC Tag at DTD.

I looked on the SD Secretary of State Web site and it states companies have 60 days to correct this or the company will be admin revoked or dissolved.  As this cut-off date was 31 May 2013, the time has passed!

Myself and others have emailed the SD Secretary of State office requesting they place CBC in a revoked/dismissed status.   email address – sdsos@state.sd.us

I don’t know how busy the SD Secretary of State office is, but we may get more traction if more people email them.  If the SD Secretary of State will do this, it could kill many of the cases that are still pending in the US.  Note: I haven’t seen CBC used in any recent filings, so I expect the Trolls may be moving to a “new” dummy corporation.  Even if they do this, the stink of the this dummy corporation will follow them and taint their cases.  Please keep an eye out and email anything you find.  Please feel free to email them and lend a hand.

DieTrollDie :)

——————————– send to sdsos@state.sd.us —————————–

Sir/Ma’am,

I’m emailing you concerning a Delinquent SD corporation, Crystal Bay Corporation (CBC), DB056782, Incorp date 3/28/2012.

Per your Web site, delinquent SD corporations have 60 days to file or they will be administratively dissolved or revoked by the Secretary of State.  As the 60-day grace period for CBC expired on 31 May 2013, I respectfully request that CBC be administratively dissolved or revoked by the Secretary of State.

Thank you for your assistance in this matter.

John Doe

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Elf-Man LLC – Defendant Claims Plaintiff Seeded Movie (And Other Things!), case # 2:13-cv-00395 (WA)

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.

DieTrollDie :)

———————————————————–

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.

EM1This 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)

Named

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 pageKurt 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.

Negligence

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.

Defendant Lamberson

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.

On 3 Jan 14, Defendant Lamberson filed “One Hell of an Answer and Counterclaim.”  Def_AnswerCC_00395(WA)   Def_AnswerCC_EXs_00395(WA)   Google Doc Location

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]

Initial Seeder

Now here is the Big Kahuna in the AnswerMy 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.

Next Up!

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.

DieTrollDie :)

BE1

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New Troll Plaintiff – Countryman Nevada LLC, AKA: Nicolas Chartier & Voltage Pictures LLC, 1:14-cv-00040 (ILND)

22 Jan 14 – Update

On 21 Jan 14, Troll Paul J. Nicoletti, filed a Countryman Nevada LLC case (1:14-cv-00073 – 30 Does) in the Michigan Western District Court.   As I previously said, I expect more of these cases to be filed so Plaintiff can pay off the mortgaged copyright.

DTD :)

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I fully expected Malibu Media/X-Art to be the first Troll/Plaintiff to file a copyright infringement case in 2014 (database).  Well, I was wrong – they were second to do that.  The first copyright troll cases filed in 2014 was from what appears to be a new Plaintiff, Countryman Nevada LLC.  The name is different, but the actors behind it are well-known.

ecard1On 3 Jan 14, two Countryman Nevada cases were filed in the Troll friendly Illinois Northern District.  This was once the favorite stomping ground of John Steele/Prenda Law.  Cases numbers 1:14-cv-00040 (32 Does) and 1:14-cv-00041 (34 Does).  Here is the archive docket for 1:14-cv-00040.    Complaint_00040(IL)   Complaint_EX_A_B_00040(IL)   As of writing this, I haven’t seen the request for early discovery from the ISPs, but it is bound to show up.  I wonder why the local Trolls do not file the early discovery requests alongside the complaint.  They already have all the information.

The Necessary Death of Charlie Countryman

These cases are the standard template mass-Doe BitTorrent copyright infringement cases for the movie, “The Necessary Death of Charlie Countryman.”   IMDB link   I’m still looking for what it cost to produce the movie, but it looks like the box office take was lacking to say the least.

For case 1:14-cv-00040, the dates of infringement are 27 Nov – 8 Dec 2013.  I assume for 1:14-cv-00041, the dates of infringement will coincide.  The claim in the complaint is for one count of copyright infringement.

Copyright Registration

The only thing remotely interesting about this template based case is the copyright registration details.  A search for the keywords of “Countryman Nevada” discloses 10 records.  Screenshots of the records (as well as other LLC document) can be seen here.

The copyright appears to have been mortgaged to Voltage Pictures LLC and Countryman Nevada LLC.  Some of the documents registered with the US Copyright Office are – movie copyrights (Video disc and electronic file); Security Interest – mortgage of copyright and assignment; Security Agreement; and short form quitclaimThe following entities are also listed on these documentsPicture Perfect Corporation LLC; Film Finances Inc,; Screen Actors Guild-American federation of television and  Radio Artists; Matthew Drake; Albert Berger, Ron  Yerxa, Big Beat Productions, Inc.; Scrim Productions, Inc.; Mandate Development II, LLC; Mandate Films, LLC; and Country Nevada, LLC.

Voltage Pictures LLC – Nicolas Chartier

Voltage Pictures LLC and its owner Nicolas Chartier are well-known for filing copyright troll law suits against thousands of Does for movies like The Hurt Locker and The Company You Keep (TCYK).  Techdirt Article – Hurt Locker Case   BoingBoing Article -Nicolas Chartier Letter   Fight Copyright Trolls Articles – Voltage Pictures

If Countryman Nevada follows the example of TCYK LLC, I expect to see more copyright infringement law suits to filed in the following locations – Iowa, Colorado, Minnesota, Tennessee, Ohio, Florida, Wisconsin, Indiana, Michigan, and Texas.  I don’t know what they paid for/mortgaged to get the copyright assignment, but I bet it wasn’t cheap.

New Does

If you end up being one of the Does who gets a notice from your ISP, please contact me at dietrolldie@dietrolldie.com.  All I expect out of these cases is for early discovery to be granted, ISP subscriber information released, settlement demands made to the Does, and eventually the cases will be closed.  Now I will say with the TCYK cases, we have seen a small number of single Doe cases filed.  These single Does appear to have been part of a previous mass Doe case.  I do not know the exact reason for this, but it could be because the Doe filed a motion.  I have not seen any of these single Doe TCYK cases with named and served defendants.  Please correct me if I’m wrong.  With a mortgaged copyright and possible “investment partners” in this operation, taking a defendant into the discovery phase or beyond is financially risky – it takes money away from the profit margin and doesn’t guarantee a defendant will be able to pay.  Remember that money is the motivation in these cases.

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

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Malibu Media – “Never Give a Sucker an Even Break,” 3:13-cv-00204 (IN) – Plaintiff Allows Infringement For Months

NGSEB1When I read documents from the various Malibu Media/X-Art/Troll Lipscomb cases, I’m reminded of the quote from WC Fields, “Never Give a Sucker an Even Break.”  In my opinion Malibu Media considers all the people they target as pirates (AKA: suckers) and they don’t deserve an even break.  By saying this, some may claim I must be a pirate or “pro-piracy.” As I have stated over and over again, I’m not “pro-piracy,” I do not condone copyright infringement, and I ask people who are doing it, to stop.

The fact that copyright infringement occurs does not justify the running of these law suits  (My Opinion).  One major problem with these law suits is that IF Malibu Media (and the other Plaintiffs) do not play “hard ball” against ALL the Does, it shows a weaknesses to be possibly exploited by other Does.

Based on the general nature of these cases and how the initial IP address evidence is collected, there are going to instances where the ISP subscriber (or family members) are not the offender.  It is ridiculous for any Troll/Plaintiff to claim that their process is 100% accurate as to identifying the offender – That is PURE BS.  If it is not 100% accurate, then playing “hard ball” against ALL the Does is going to catch up with them eventually.  This is where the quote of WC Fields comes in – Giving an obviously innocent Doe a break is not part of their business plan.  I wonder if Troll Lipscomb has gotten to a stage in his operation where he is taking this all too personal – Doing that will cloud a persons judgment.

Even if he truly believes a Doe is the infringer but lacks the evidence to back it up, why push so hard?  Every poker player knows you may be able to bluff sometimes, but eventually it isn’t going to work.  Even if he gets a Doe to eventually take a “walk-away” deal, he has wasted funds AND rest assured the knowledge of what they did is spread across the Internet.  Keith Lipscomb – don’t fool yourself into believing you are preventing other Does from fighting.  Your “winnowing” process is not fool-proof and it is only a matter of time.

The following Malibu Media case is interesting because it could come back to bite them.  More to come on this one.  The case is  3:13-cv-00204, initially filed on 14 Mar 13, in the Northern District of Indiana.  I haven’t gone through the entire docket, but someone was nice enough to RECAP the First Amended Complaint (FAC), Malibu Media Movie list, “Exhibit C” list, Defendant Cooper’s Answer, and the Initial Disclosure by Defendant Cooper.  FAC_00204(IN)   FAC_EXA_00204(IN)   FAC_EXC_00204(IN)   CopyR_Reg_00204(IN)   Answer_00204(IN)   Init_Disclosures_00204(IN)

In the FAC, Plaintiff alleges Cooper used BitTorrent to download and share 16 registered Malibu Media movies between July 2012 and February 2013.   They also recorded 10 pages of other media (movies, pictures, software, etc.) being shared via BitTorrent on Defendant Cooper’s public IP address (Sep 2012 – March 2013).  On 31 Oct 13, Defendant Cooper (via Attorney Willaim Beyers) filed his answer denying he committed the copyright infringement.

Now based on the initial disclosure (31 Dec 13) from Defendant Cooper, it appears the discovery phase has started.  Defendant Cooper informs Plaintiff that he and his wife (assuming his wife) will testify they are not the infringers.  He also states he has two computers in the residence – a desktop and a laptop.  He states in January 2013, the hard drive in the desktop system “failed” (was destroyed), and a new one was installed.  He is working to have copies of the hard drives made available to Plaintiff.  I assume the copies of the hard drives will be sent to Malibu Media’s forensic consultant, Patrick Page, Computer Forensics LLC, for analysis.

This disclosure of a hard drive failure is bound to make Troll Lipscomb suspicious of spoliation (evidence destruction).  Now as the failed hard drive isn’t available, they will not be able to examine it to determine if anything is recoverable.  They will be able to examine the laptop and new desktop hard drives.  The laptop likely cover the entire period of infringement, as well as the date associated with the “Exhibit C” files.  As Cooper states the hard drive failure happened in January 2013, claims of spoliation will be harder to back up. He was likely unaware of this case until April/May 2013 time-frame.

The new hard drive will cover parts of the downloaded/shared Malibu media files, as well as parts of “Exhibit C” files.  This leaves Troll Lipscomb/Malibu Media in a bit of a “pickle.”  If the depositions and forensic analysis fail to disclose any direct evidence, they will have a hard time showing infringement or claiming spoliation – the hard drives did cover the periods of infringement.  The best they will be able to do is claim Cooper did not provide a copy of the offending system (possibly claim he removed the offending system/evidence).  Without any evidence to back-up this belief, they will look foolish to push the issue.

For this case, the forensic analysis will still be important.  In addition to the direct evidence (MM Movies, BT client, .Torrent file, Exhibit C files, etc.), Plaintiff will verify the claimed installation date of the new hard drive/Operation System (Install Date).  They may also check with Microsoft (I assume it is a MS OS) to see when the OS was registered with Microsoft (Date/Time) – was it installed in January or after Cooper was notified of the case?

They will also look for any programs with the ability to wipe files/folders/hard drives, as well as encryption programs that could be used to hide evidence.  Note: On page 1 of Exhibit C is the program “CCleaner Professional and Business Edition v3.28.1913 Incl Crack + Key [TorDigger]” (5 Mar 13) – this is the program “Crap Cleaner” (http://www.piriform.com/business/ccleaner-business-edition), which besides being used securely wipe the free space/unallocated space of a hard drive, can help keep a system running optimally.

I haven’t seen any claim from Cooper that someone else used his WiFi Internet connection, but it is a possibility.  There are multiple houses near Copper’s residence which could have accessed his Internet connection, with or without a range extending antenna.  Troll Lipscomb will claim that due to the long-period of infringement, this theory is baseless.  Of course he is wrong – it might be unlikely, but it is certainly not baseless.  I can point out a couple of criminal child pornography cases where a neighbor’s WiFi Internet signal was used to download/share media.  The victims in these cases did not know what was happening on their network until law enforcement raided their residence.

As Malibu Media does not send out DMCA take down notices to the ISPs who own the infringing public IP addresses (who would then forward it to the ISP subscriber – like they do for CEG-TEK and Rightscorp BMG), the subscriber doesn’t have the opportunity to investigate and stop the activity from happening until months after it was observed.  In this case, Malibu Media started recording the activity on 26 Jul 12 – they didn’t stop monitoring until 6 Mar 13.  The case was filed on 14 Mar 13 – Over 8 months of activity occurred and Cooper & his ISP were never notified.  If they had only monitored for just 30 days, they would have record five Malibu Media movies – Note: Exhibit C files were not noted until 10 Sep 12.  So for over 7 months, Plaintiff/Troll Lipscomb allowed their movies to be continued to be shared/downloaded illegally (via BT) and did nothing to stop it.  Why???  Because if they actually try to stop it, they will reduce the number of people they can file law suits against and generate settlements.  Also, a case with 16 movies is likely to get a larger settlement, verses only 5 movies.  Assume Malibu Media accepts $750 per movie – 5 movie = $3,750.00 – 16 movies = $12,000.00.  

Note: I do not know this defendant or the details of his case (besides what is publicly available).  I will play “Devil’s Advocate” and say even if Cooper did it (begging your pardon Mr. Cooper), the actions of Troll Lipscomb/Troll Nicoletti/Malibu Media are clearly suspect and designed to most effectively follow the business model of “Copyright Trolling.”  Sorry Keith, you may not like the title, but you have surely earned it.  Take a bite.

JD1DieTrollDie :)   “What is your major malfunction numb-nuts? {Gunnery Sgt. Hartman}

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