Dallas Buyers Club, LLC, Versus The Gaslight Coffee Roasters – 1:14-cv-04010 (NDIL)

TrollMug_GCRThis Dallas Buyers Club (DBC) case (1:14-cv-04010) was filed in Northern District of IL on 30 May 14, against 45 John Does alleged to have downloaded/shared DBC during 12-16 Feb 2014. What makes it different from the standard mass-Doe BitTorrent (BT) Copyright Troll cases is the Defendant, Defense Attorney, and the work of Mr. Delvan Neville.

The copyright infringement complaint and motion for early discovery (seeking ISP subscriber information) are the standard Troll templates, claiming joinder of the 45 John Doe IP addresses is appropriate because the infohash/torrent file for all the Does is the same.   Complaint_04010(IL)   Complaint_Exhibits_04010(IL)   Motion_ED_Doc_10_04010(IL)   Docket_2Feb15_04010(IL)  

Now I will say I was a bit surprised that the court did tell Troll Michael Hierl to provide additional information concerning joinder.   Motion_SupportJoinder_Doc_21_04010(IL)   In their support document they claim that joinder is appropriate and the District of Columbia Court of Appeals in AF Holdings, LLC v. Does 1-1058, 752 F.3d 990 (D.C. Cir. 2014), was wrong. The Trolls states that in the Prenda Law case, there were 1058 Doe from multiple jurisdictions and the time-span was approx. five months. This case only had 45 Doe in the same jurisdiction and a time-span of only 5 days. The Troll of course did not inform the court that there was additional information showing that joinder of Defendants based on the infohash was not justified. Here is a previous declaration in a DBC case in IN. Decl_Neville_Doc_17-1_01142(IN)  As there was no dissenting view provided, the court granted early discovery. Here are some previous articles of interest regarding Troll Hierl/DBC, DC Appeals Court ruling, and Mr. Neville’s Declaration.

As the ISPs started to notify their customers of the law suits and pending release of their information, one John Doe was in a little different situation from most. This John Doe (#26) was not a residential ISP subscriber, but a small business – Gaslight Coffee Roasters (GCR), 2385 N. Milwaukee Ave., Chicago, IL 60647 (corner of Fullerton Ave & Milwaukee Ave).  GCR provides WiFi Internet access to over 200 customers each day. Note: The identity of GCR was voluntarily disclosed to the court by their attorney (see below). BTW, the coffee, food, and atmosphere at GCR look great – I will have to stop in sometime. 2nd Note: There were two additional Comcast Business customers listed – Doe # 24 & # 36 (see Complaint IP listing).

The owners of GCR decided not to give into extortion (my opinion) and sought the services of attorney Scott Kane, Kane Community Law, Logan Square, Chicago, IL.

Attorney Kane opted to defend his client by attacking the issue of mass joinder in BT Copyright Infringement cases. The Trolls claim mass joinder is appropriate because the torrent file for all 45 Does had the same infohash number and all the Does resided in the same jurisdiction. Attorney Kane hired Delvan Neville, Amaragh Associates, LLC, to look at this particular case and tell him if the joinder of 45 Does was justified. What Mr. Neville provided was similar to his findings in another mass-Doe DBC case I reported on previously.  Previous article

Mr. Neville’s assessed the chance that ALL 45 Does shared the same file (via BT) amongst themselves during the 5 day period was “astronomically small.” Well, Mr. Nelville, how small is that?

Decl_Neville_04010(IL)

There is a 1 in 7 tresviginitillion (1 in 1072) chance that ALL 45 Does are linked together by some actual data sharing, NOT just a hash file number. WOW! You have a better chance of winning the Power Ball lottery three times in a row than being able to link up all 45 Does and show that joinder is proper!

Mr. Neville also makes the point that EVEN if the 45 Does were properly linked, Troll/Plaintiff would not be able to show this, as their monitoring apparatus (CBC/IPP/APMC) does not have the ability to record such data, as well as not all the Doe BT clients provide information concerning the other peers (other Does) they are communicating (sharing data) with.

I would also like everyone to note that the BT swarm members in the analysis were NOT limited to a geographical location or single jurisdiction (like this case of 45 ILND Does).  This is important to note, as the current mass-Doe BT copyright troll cases are all filtered (by the Trolls) to a single court jurisdiction.  Mr. Neville’s analysis was on UNFILTERED SWARMS of BT clients. This is important, as I believe the filtering makes it even more likely that any BT client in a swarm shared/received data from a BT client from OUTSIDE of the jurisdiction.

On 29 Dec 14, Attorney Kane filed a Motion to Sever (including the Neville Declaration) and a notice disclosing that Doe #26 was GCR.   Motion_Sever_Doc_28_04010(IL)   Decl_DelvanNeville_Doc_28-1_04010(IL)   DBC_NDIL_Cases_Doc_28-2_04010(IL)  GaslightCR_Doc27_04010(IL)

On 15 Jan 15, Troll Hierl filed a motion to dismiss all remaining Does in this case.   Motion_DismissAll_Doc_34_04010(IL)   According to the docket, there were 14 Does who were dismissed by the Troll prior to the full dismissal that ended the case. So it looks like 32 Does (including GCR) didn’t pay Troll/Plaintiff a dime. On 21 Jan 15, the court (Judge Sara Ellis) authorized the dismissal and closed the case. The dismissal (without prejudice) mooted attorney Kane’s Motion to Sever and allowed Troll/Plaintiff to avoid having to address the joinder issue (again) with a Judge who previously raised concerns. The Troll was probably concerned that even if they only dismissed GCR, the court would have sue sponte (on its own) required the Troll to respond to the Neville Declaration.

What Does It Mean?

I believe this means the Trolls do not want to have to defend their claims of joinder. Fighting the Neville Declaration is too risky in my opinion. Dismissing the case and moving onto new ones removes the threat to their operation. As many of these cases never have a motion to server raised, it is safer to dismiss and not risk a court severing all the Does. As the Troll/Plaintiffs do nothing to try to limit the spread of their movies via BT (like sending DMCA notices to the ISPs of the Does), they know they can simply file more cases.

If I was an attorney representing a Doe in one of these mass-Doe suits, I would hire Mr. Neville to provide a declaration, as well as attaching the previously filed declarations and the fact that the Trolls dismissed the cases instead of addressing the issue.   Decl_Neville_Doc_17-1_01142(IN)   Decl_DelvanNeville_Doc_28-1_04010(IL)   Even if I was a Pro Se Doe Defendant, I would file a Motion to Sever based on both of these declarations.  Note: The Troll can still refile against any dismissed Does, but I doubt this will happen.

Mass joinder of BT Copyright Infringement Defendants is bound to die as more and more courts see how the Trolls are simply avoiding the issue when forced into a corner. Even in the Northern District of IL, the Trolls would rather not have to answer the hard questions. Hopefully we will begin to see Mr. Neville’s declaration used in other jurisdictions.

Give Thanks

If you are one of the dismissed IL Does that didn’t have to pay a settlement, do me a favor and drop attorney Kane and GCR a thank you note. Better yet, treat him to lunch or to a great cup of coffee at GCR. Also don’t forget Mr. Neville at Amaragh Associates, LLC.

DieTrollDie :)  Always yield to temptation, It may never pass your way again.  [Lazarus Long – Time Enough For Love, Robert Heinlein]

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Where is Waldo (Darren M. Griffin/CBC/APMC)? – 8th Circuit Court Of Appeals, 14-3274 (Killer Joe NV)

Darren Griffin, CBC

Darren Griffin, CBC

Well things just got a little bit more interesting in appeal of Leigh Leaverton against the ruling of the Northern District of Iowa, Killer Joe Nevada (KJN), 5:13-cv-04036.  Please see my previous post on this for background – Since my previous post, the Troll filed a response and claimed that there was nothing wrong with the decision of the lower court in deciding not to award attorney’s fees to Leaverton.   KillerJoe_Brief_(14-3274_8th)   Here is a copy of the docket.   Docket_29Jan15_14-3274(8thC)

It looks like sometime after I wrote the initial article, attorney Christopher Lynch (Elf Man v. Lamberson – case # 2:13-cv-00395, contacted attorney Ray Johnson and informed him that “Darren M. Griffin, Crystal Bay Corporation (CBC),” was a fictitious person/company.   Here is my article on thisThis is important, as the declaration from Mr. Griffin/CBC, was the reason early discovery was granted AND it was included in the appeal brief filed by KJN.

14-3274_motion

Attorney Johnson immediately contacted the Troll attorneys who were working this case and asked for an answer to the allegations by attorney Lynch. What he got back was not too surprising from the Trolls. Troll Keith Vogt told Johnson that when they filed the case, he had no information to suggest that Mr. Griffin/CBC was a fraud and thus there was no “ethical concern.“ What troll Vogt DID NOT do is contact Mr. Griffin/CBC, Plaintiff, or the Anti-Piracy Management Company (APMC) to verify/dismiss the allegations. Instead he decided to leave the Griffin declaration in the Joint Appendix submitted with this appeal.

Now the other troll attorney who WAS working for this Troll/Plaintiff – Jay Hamilton, had something else to say. Attorney Hamilton told Johnson that his law firm had ENDED “its engagement with APMC.” He also stated that they would proceed with an investigation on the matter and get back to attorney Johnson.  Note: as of attorney Johnson’s latest filing, this was not done.  Here is a copy of a briefing on APMC’s business model and strategy – The fact that Hamilton admitted that APMC was at the center of this BT Copyright Trolling effort is telling – but not really that shocking to those of us that follow their antics. As the APMC is an interested party in these operations/Federal cases, they have FAILED to notify the court of their financial interest in these law suits. It could spell trouble for the Trolls. I would also be interested in finding out why Hamilton’s law firm ended their work for APMC. Was it due to ethical concerns??? Did they know of the various frauds and finally decide the risk to them was too great for the money they were paid??? Mr. Hamilton, please feel free to email me on the issue, especially if you feel I have gotten something wrong.

Attorney Johnson did not hear anything else from the Troll/Plaintiff and filed a Motion For Additional Time To File Appellants Reply Brief.   Motion_MoteTime_14-3274(8thC)   The file contains the Motion, Emails between Johnson and Trolls Vogt and Hamilton, as well as a Declaration of Attorney Johnson.

On 27 Jan 15, The court granted Johnson extra time to file his Reply.   MoreTimeGranted_14-3274(8thC)   The Reply can be filed no later than 2 Feb 15 (Monday). We can only hope the Appeals court will see what a clear fraud this case (and others) have been and asks some hard questions.

I would also like to point out that in the docket, the court makes it clear that this cases is set for an oral argument. This is something I believe Troll Vogt and the APMC really don’t want to happen. Besides allowing attorney Johnson to highlight the Troll’s slimy behavior, the Appeals Court Judges are likely to have some hard question of their own. If anyone has some tap dancing shoes, please send them over to Troll Vogt’s office – he may need them.

Prior to oral brief expect the Trolls will try to make some sort of deal with Johnson/Defendant, but I believe they are too cheap make a reasonable offer. Plus, I believe attorney Johnson has the advantage in this appeal, as the lower court was in error – my non-lawyer opinion. So this Monday I expect to see a nice Reply filed and then an oral briefing in the future.

DieTrollDie :)  “This was a revolution ignited with nothing more than a camera and some questions. Questions that led a man, once revered as a god among mortals, to cry and shit his pants.”  {Dave Skylark – The Interview}

 

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BT Copyright Trolls Love To Fish; Malibu Media (X-Art) v. Cuddy – 1:13-cv-02385 (CO)

This is an interesting Malibu Media/X-Art case in which Troll/Plaintiff is having a big
problem with agreeing to a Protective Order (PO) in relation to a forensic examination of
a Defendant’s computer hard drives.  The case is Malibu Media LLC v. Mike Cuddy,
1:13-cv-02385, Colorado.  The local Troll for this is Jason Kotzker.   Archive Docket
Some of the case documents:   Doc_28_02385(CO)   Def_Answer_Doc_29_02385(CO)   Doc_38_02385(CO)   Doc_48_02385(CO)

Bottom Line: Troll/Plaintiff is not happy that it is NOT being allowed to conduct a free-range “Fishing Expedition” of the Defendant’s hard drives.

So What Does Troll/Plaintiff Do When They Don’t Get Their Way???

They file a Motion To Compel Defendant to produce the hard drives in direct opposition to the courts standing order.

The Court ordered production of Defendant’s hard drives for limited searching purposes, but only after a Protective Order was in place. [CM/ECF 50].

As the PO has NOT been agreed upon, Defendant has not provided the hard drives.  It would be a serious mistake to allow Malibu Media’s “Expert,” Patrick Paige to have access to the hard drives without the PO in place.  Sorry, doing that is not a mistake, it is just plain stupid.  So on 9 Jan 15, Mr. Cuddy’s attorney filed a combined motion in opposition to Troll/Plaintiffs motion to compel and their proposed PO.   Note: I only have a couple of the Exhibits from this motion; please feel free to RECAP them if possible.   Doc_67_02385(CO)   Doc_67-2_02385(CO)   Doc_67-3_02385(CO)   Doc_67-12_02385(CO)

So What Are The Limits On The Search?

Defendant’s attorney, Carolyn Lindvig, Godin & Baity, LLC, wants the forensic examination to be limited to the relevant areas based off the specific claims of the Plaintiff.  Which is:

  1. 31 Malibu Media/X-Art movies
  2. Use of any BitTorrent (BT) applications
  3. Anything showing that evidence was destroyed (spoliation)

The court agreed to this and told both sides to work out the specifics of the PO.

Doc #67-2 (01/09/15)

Doc #67-2 (01/09/15)

Based on the case specifics as present by Troll/Plaintiff, this is a “no-brainer” in my opinion.  Troll/Plaintiff claims the public IP address associated to Defendant Cuddy (ISP subscriber) was recorded sharing 31 Malibu Media LLC copyright protected works via BT on a specific date/time.  The results of such a limited scope search are going to be:

  1. Evidence is present on the hard drive(s)
  2. No evidence is found
  3. There is evidence that evidence was destroyed or the presence of data wiping application

Now based on what (if any) evidence is found, Troll/Plaintiff can request additional court authority to expand the search parameters to the relevant areas.  Example: The examination discloses that “CCleaner” was on the computer.  Troll/Plaintiff could request the court authorize a deeper look into the files/registry associated with CCleaner to determine IF it was used to wipe/destroy any files.  Note: CCleaner by itself is NOT an indicator of data destruction, ONLY the possibility.  Further examination will be needed to determine how/when it was used.

So What Is Troll/Plaintiffs Problem With The Search?

Paige_HardDrives1The problem is Troll/Plaintiff wants to have free range in HOW conduct the search and nothing is off-limits.  They would rather be given the hard drive copies and allow Mr. Paige to have a free-for-all into Defendant Cuddy’s private affairs.  The best they can do is simply say “trust us,” we would never abuse the parameters of the search.  Laughable simply laughable

Here is the proposed limits to the search from the Defense

(1) Keyword searches will be developed by Plaintiff and Defendant in order to capture the Works, the removal of the Works, and the use of BitTorrent.

(2) Mr. Paige will identify how and disable all preview functions in his forensic software, in order to avoid viewing the content of the hard drives while he performs the keyword searches.

(3) After performing the agreed upon keyword searches, Mr. Paige will produce a file list of the files containing the results of those keyword searches.

(4) After creation of a privilege/relevance log by Defendant, Mr. Paige will be permitted to view the contents of the remaining file contents.

(5) Mr. Paige will produce a log of all search activities he performed so that to the extent evidence of the Works, deletion thereof, or BitTorrent use is found, Defendant will be able to duplicate exactly what Mr. Paige did to find such information. 

encaseThis is not a difficult (or unreasonable) thing for Troll/Plaintiff/Mr. Paige to do.  EnCase is a very versatile forensic application which unless I’m mistaken, will automatically log ALL search activities from start to finish.  The proposed keyword list will cover the titles of the X-Art movies, BT applications, and the possibility of data destruction.  The Defendant even obtained the services of a very experience forensic consultant (Robert Kelso, Forensic Pursuit, CO) to support Defendant’s PO.   Doc_67-12_02385(CO)

Now I’m sure troll/Plaintiff is going to make some sort of reply that states “Well If Defendant did this… or this…Mr. Paige needs to be able to do this…” in an attempt to expand the search as far as possible, but I can’t see the court giving in at this time.  Hell, they haven’t even deposed the Defendant (as of the filing of Doc #67).

The Question Of Credibility

One thing I did notice in Exhibit C (Doc_67-3_02385(CO)), was that attorney Lindvig, told the court she has some concerns with Mr. Paige’s credibility (but it hasn’t been raised at this time) – bottom of Page 6, EX. C.  She mentions it deals with his drug arrest – top of Page 7.  Please see my previous post on this.  On 8 Mar 2011, “Detective Paige” was booked for possession of a control substance without a prescription.  Yes, he was a Detective with the Palm Beach County Sheriff’s Office (PBCSO), FL.  Note: The judge did say that this issue might not be relevant to the case.

That will most likely depend on how attorney Lindvig presents it.  If she focuses ONLY on the alleged criminal act (buying drugs), then it is certain to be brushed aside.  The point I would focus on is Mr. Paige’s credibility and trustworthiness in regards to HOW he allegedly made an illegal purchase of a controlled substance.  Based off of the limited news report and arrest mug shot, Detective Paige allegedly used an Official PBCSO online undercover account (and undercover persona) to order Vicodin.  The drugs were mailed to a PBCSO undercover post office box his office used to investigate criminal activity.  Who knows, maybe he even used the “Silk Road” to do this???  The drugs were allegedly sent by a UPS Next Day Air package.  It appears that following the arrest, Detective Paige was placed on administrative leave and eventually left employment with the PBCSO – it is possible he was asked to retire and spare the PBCSO further embarrassment.   If anyone can obtain a copy of the arrest report (and if an investigation was done), it would be greatly appreciated.  I would not be surprised to learn that Mr. Paige was given a sweet deal if he simply retired.

This was ALL allegedly done while Detective Paige worked in PBCSO’s Computer Crimes Unit.  He appears to have/had “trust” issues with abiding by rules/laws/ethical standards expected (and demanded) of a law enforcement officers and public servants.  The issue at hand IS does Mr. Paige have those ethical problems that would allow him to ignore the CO court’s order and exceed the scope of the search into areas and by methods not authorized?  I’m of the opinion that based on this incident and the fact he now works for a notorious BT Copyright Troll, that ethics are not his strong suit.   To Mr. Paige – If you would like to refute/correct any of this, please feel free to email me at dietrolldie@dietrolldie.com.  I think Mr. Paige does owe the court an explanation of the incident and set the record straight.  This issue is not likely to go away for Troll/Plaintiff.

What Is Next?

I assume Troll/Plaintiff will file some sort of response and then hopefully the court will lay down the law with regards to the PO.  Of course Troll/Plaintiff would love to have the hard drives to examine prior to any depositions or further discovery.  They are likely of the opinion that if evidence is found early on, they will have a better chance of forcing a settlement prior to having to make any discovery disclosures/depositions on their part.  This looks interesting and I expect more shenanigans from Troll Lipscomb’s camp.

DieTrollDie :)   “It’s not our job to—there was no evidence against us! I think everyone, even the people that dislike anti-piracy litigation, would agree that I don’t have to answer questions if I don’t want to. That’s my right. The fact that people take the Fifth Amendment, against compelled testimony, is not allowed to be a negative inference.”  [John Steele (Prenda Law) Interview, ArsTechnica]

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The 2014 Round-Up – Why BT Copyright Trolling Will Continue

BT_TrollGreed1I decided to have a little fun and do some filtering of the 2014 BT Copyright Troll cases I recorded.  I will assume I have missed some cases and there may some other minor errors – so take this data with that note.  After saying that – even with any small number of errors, the sheer number of overall cases, the jurisdictions involved, and what Troll/Plaintiffs are involved, is telling.   2014 BT Copyright Troll Cases   2014 BT Copyright Troll Cases – Jurisdictions   2015 BT Copyright Troll Cases

So I have the total number of BT Copyright Troll cases filed in 2014 at 1828.  Number of John Does/Defendants in these cases is 6354.

At a cost of $400 per case, the filing fees paid by the Trolls were $731,200.  Note: Even if you remove the 10 cases I have on the “Misc Plaintiffs” Tab, 1818 BT Copyright Troll cases is substantial.  I don’t have the total numbers for 2013, so I cannot determine if we have seen an increased in cases and/or Does.

The single largest Troll/Plaintiff filer is Malibu Media LLC with 1449 cases – single John Does.  Filing fees of $579,600.

Next largest filer is Dallas Buyers Club LLC (AKA: Voltage Pictures) with 178 multi & single John Doe cases; Total of John Does/Defendants is 3719.  Filing fees of $71,200.

The remaining Troll/Plaintiffs numbers are smaller.

Good Man Productions, Inc., 99 single John Doe cases.  Filing fees of $39,600.

Countryman Nevada LLC, 26 cases (mostly multi-Doe) with 596 John Does/Defendants.  Filing fees of $10,400.

Poplar Oaks, Inc., 24 single John Doe cases.  Filing fees of $9,600.

The Company You Keep (TCYK), LLC, 13 cases (single & multi-Doe) with 85 John Doe/Defendants.  Filing fees of $5,200.

Millionaire Media, LLC, 11 single John Doe/Defendant cases.  Filing fees of $4,400.

Khumba Film Pty, Ltd., 4 multi-Doe cases with 160 John Does/Defendants.  Filing fees of $1,600.

The Misc Plaintiffs and RightsCorp are small but interesting aspects to this business model.

So What Does It All Mean???

As each Troll/Plaintiff and their local attorneys are different, it is hard to give definitive answers.  I believe Malibu Media/X-Art are the more serious of the Trolls.  Master Troll Keith Lipscomb has got his game-plan down fairly well.  They appear to target BT users who actively share Malibu Media content (as well as other content) for an extended period of time.  The settlement amounts Malibu Media receives is a well-kept secret, but I would still expect nothing less than $4,000 (some will be more) per case.  For the 1449 cases they filed in 2014, which is a good amount of profit.  With a 50% settlement rate at $4,000, they will make $2,896,000.  I previously said I believe Malibu Media tailors/filters their single-Doe cases to increase settlement percentages overall.  At a 75% settlement rate at $4,000, they will make $4,344,000.  As you can see, this business model isn’t going away.

Akin to Malibu Media is the cases filed for the direct-to-DVD movies, “Puncture Wounds” and “A Good Man” (Poplar Oak Inc., & Good Man Productions Inc.)  I expect these cases will be run with the same ruthlessness as the Malibu Media ones.  As they are single movies, I would expect at least a $3,000 settlement, but I’m sure they will adjust their greed as needed.

The next major player is Dallas Buyers Club (AKA: Nicolas Chartier).  BTW: Voltage Pictures is previewing their next movie, “Good Kill.”  I expect this will also be their next big BT Copyright Troll case for them.  Even with the large number of Does/Defendants, this Troll/Plaintiff does not appear as serious as Malibu Media/Lipscomb – as far naming/serving Defendant.  Note: there have been a small number of single-Doe cases, limited serving of summons/complaints, and the occasional default judgment against a non-responsive Defendant.  What you do NOT see is ANY cases going to trial.  The Trolls (All of them) in general try to avoid this at all costs, as it is not cost-effective for their business model.  For 2014, DBC had 3719 John Does.  If they only received settlements from 50% of the US John Does at $4,000, the amount of money is staggering (1859 Does * $4,000 = $7,436,000).  Also don’t forget the DBC cases that are taking place in Australia, Finland, Denmark, and Japan.

Millionaire Media, LLC, will be interesting to watch to see what comes of the 11 single-Doe cases against people who downloaded/shared documents concerning Penny stock investments.

Also of interest will be what Microsoft does with its three – 10 John Doe cases in WAWD.

I was a little surprised that Khumba Film Pty, Ltd., only filed four cases – 160 John Does.  BUT, if they were able to get a 50% settlement rate, then that is still some nice profit – 50% rate: est. settlement of $4,000 * 80 Does = $320,000!  Hell, even a 25% settlement rate is nice – $160,000.

As you can see, the ability to make a profit from these cases is still a big draw.  In the jurisdictions that are still friendly to multi-Does cases, this is the easiest way to make money.  The single-Doe cases do take some additional work, but I still think it is profitable based on what we saw in 2014 and at the start of 2015.

2015_BT_CT_cases

DieTrollDie :)

“And our credo: “Sic gorgiamus allos subjectatos nunc.” We gladly feast on those who would subdue us. Not just pretty words.”  [Morticia Adams, The Adams Family]

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Malibu Media (X-Art) Fails In Its Call For Sanctions (No Bad Faith) – Harrison Case – 1:12-cv-01117 (IN)

Some of you may have seen the recent article on Freezenet where Malibu Media took a hit on its attempt to obtain a default judgement and sanctions for spoliation of evidence against Michael Harrison, case # 1:12-cv-01117 (IN).  This is an older Malibu Media case that was originally filed on 14 Aug 2012, against 11 John Does.  I have a few posts on the Harrison case and will not go into too much background here.

HD_Gone1Suffice it to say that Mr. Harrison had Two computer systems: One gaming system and One general purpose laptop.  Mr. Harrison was notified of the law suit and subpoena for his ISP subscriber information by COMCAST in October 2012.  At that time, the hard drive in Mr. Harrison’s gaming system was having performance issues (to include crashing) and Mr. Harrison replaced it in the January 2013 time-frame.  In February 2013 the old hard drive was sent to GGI Recycling LLC as scrap (destroyed).  After finding out this fact (Mr. Harrison was deposed on 7 Aug 14), Troll/Plaintiff filed a motion for sanctions against Mr. Harrison for destroying evidence (the hard drive).  Note: On 25 Jul 13, Troll/Plaintiff was provided copies of Mr. Harrison’s computer hard drives.  On 24 Dec 14, the court issued its Report and Recommendation on Plaintiff’s Motion for Sanctions.   Doc_294_RandR_NoSanctions_01117(IN)

Two Factors For Sanctions – Duty To Preserve & Bad Faith

By simply looking at the above dates, it doesn’t look good for Mr. Harrison.  But wait…   The court said there were Two key points to determining if sanctions for spoliation were warranted.

  • Did Mr. Harrison have a duty to preserve the hard drive as evidence?  YES
  • Did Mr. Harrison destroy the hard drive (evidence) in bad faith, wilfulness, or at fault?  NO

The duty to preserve the hard drive as evidence was established when Mr. Harrison first received notification from COMCAST in October 2012.  What Mr. Harrison should have done was secure the hard drive for possible examination by Troll/Plaintiff’s expert at a later date.  Mistakes happen and this goes to show you how this Troll/Plaintiff will try to bend facts to their advantage.

“…Plaintiff asks the Court to enter default judgment against Defendant, [id. at 7], or “at minimum,” issue “an adverse inference instruction requiring the jury to infer that Plaintiff would have found its copyrighted movies on the destroyed drive.”

Troll/Plaintiff had the gall to ask the court to instruct a potential jury that Plaintiff’s movie WAS on the destroyed hard drive.  No facts support such a stupid request and the thankfully the court got to the heart of the matter. 

The court conducted an evidentiary hearing and based off all of the evidence, could not find anything to show bad faith from Mr. Harrison.

  • Mr. Harrison destroyed the hard drive approx. five months after he was notified by the ISP of the law suit.  The judge concluded that a person wanting to destroy adverse evidence would likely not wait that long to do so.
  • Troll/Plaintiff did not serve Mr. Harrison with its amended complaint until April 2013 (after the hard drive was destroyed).  Mr. Harrison testified that until he was served in April 2013, he was unaware that “He” personally was being sued.  The judge said this fact makes it less likely that Mr. Harrison was trying to destroy evidence.  Note: I also loved the following footnote in which the judge tell Troll/Plaintiff that they screwed up by not following his orders.

The Court notes that its previous order, [Dkt. 18], stated that “[w]ithin seven days of the identification through discovery or otherwise of any putative Defendant, Plaintiff shall file an Amended Complaint naming that Defendant and shall undertake immediate efforts to effect service of process upon that Defendant.” [Id. ¶ 4.] Had Plaintiff complied with the Court’s order and “immediately” undertaken efforts to serve its amended complaint on Harrison, Plaintiff’s current motion for sanctions would rest on firmer ground: in such a case, Defendant’s destruction of the hard drive would have occurred after service of the amended complaint, and it would be much easier for the Court to infer that Defendant’s conduct was an attempt to hide information that could have been adverse to Defendant in the present litigation. As it is, however, Plaintiff did not serve Harrison for approximately five months after mending its complaint, and thus cannot benefit from such an inference.

  • The purchase of the replacement hard drive by Mr. Harrison’s friend (Mr. Harlan) is not suspicious or indicates bad faith.  Mr. Harlan owed Mr. Harrison some money and he (Mr. Harrison) ask Mr. Harlan to purchase the replacement hard drive for him.  Mr. Harlan testified to this fact and corroborated the explanation.  The court felt that if Mr. Harrison wanted to hide the fact that the hard drive was replaced, he would not have disclosed this fact or provided a copy of the receipt for purchase by Mr. Harlan.
  • Mr. Harrison testified that he used the gaming computer to play on-line games and very light Internet usage, such as Facebook.  He stated that the gaming computer never had BitTorrent installed on it.  He further stated the laptop was used to run other applications, to include BitTorrent.  Note: Plaintiff’s movies were not found on the laptop computer.   The court also found Mr. Harrison’s statement concerning the gaming computer usage to be credible.

For these reasons, then, the Court concludes that Defendant did not destroy the hard drive in bad faith. No direct testimony establishes that Defendant did so, and the circumstances of the destruction as outlined above do no warrant an inference that Defendant destroyed the hard drive for the purpose of hiding adverse information. As such, Plaintiff has not carried its burden to prove bad faith destruction of evidence, and Plaintiff’s motion for sanctions is DENIED.

Relevance Of Destruction At Trial

The court did say the fact that Mr. Harrison destroyed the hard drive from the gaming computer could be relevant at trial.  Not that I think Troll/Plaintiff wants to risk a trial on this one.  So Troll/Plaintiff can use this fact to show why finding no evidence on the gaming computer does not exonerate Mr. Harrison.

What Now?

So what Troll/Plaintiff is left with is no direct evidence to show that Mr. Harrison downloaded/shared Plaintiff’s movie.  They also CANNOT claim spoliation following the court’s report and recommendation.  I bet Troll Lipscomb is wishing they didn’t make the motion for sanctions.  I can only see them clinging to the fact that Mr. Harrison did run BitTorrent on his laptop and there were various files downloaded/shared from it.  They could try to use these BitTorrent files to support their view that Mr. Harrison could have done this.  Note: I haven’t seen anything to suggest that Troll/Plaintiff is claiming the other non-Malibu Media/X-Art files (Exhibit “C”/Expanded Surveillance) shared via Mr. Harrison’s IP address (via BitTorrent) somehow are tied back to him.  As Mr. Harrison has no problem with providing testimony and the court found him credible, the best Troll/Plaintiff can do is “Hope” a jury would have a different opinion of Mr. Harrison’s testimony.  That or Troll/Plaintiff may be deluding themselves that they can put on a dazzling show that is bound to impress.

So I expect Troll/Plaintiff will be looking for some way to extricate itself from this case.  Simply agreeing to pay Mr. Harrison’s legal bills (via a confidential agreement) is always a possibility, but the cost of Mr. Quearry’s efforts may be hefty.  This case is similar to the Butler case in Colorado, where the computer in question was not available for examination.  Note: No motions for spoliation were made in the Butler case.  A settlement was reached just before Troll/Plaintiff’s expert was required to provide his report.  The exact details of the settlement are unknown.

DieTrollDie :)

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Happy Holidays From DieTrollDie – Multi-Topic Post (Copyright Trolls Suck!)

OldTrain1I hope everyone and their families are having a good holiday season.  I’m sorry this took so long to get out – holidays are hectic to say the least.  As the various Copyright Trolls have little concern for the people they squeeze money out of, I hope they get a visit from Krampus. Here are a few cases/topics that are interesting.

TOPICS

  • Malibu Media v. Butler 1:13-cv-02707 (CO)
  • Dallas Buyers Club v. Doe (IP 50.165.43.195), Case 1:14-cv-07129 (IL)
  • Dallas Buyers Club Goes To Finland (Approx. $800 Settlement)
  • Elf-Man v. Lamberson, 2:13-cv-00395 (WAED)
  • Keith Lipscomb (and crew) File BT Copyright Troll Cases For Non-Porn Movies
  • New Copyright Infringement Cases Filed Against John Does for illegal Activation/Use Of Software
  • Prenda Law Saga – OR – Where Is The Missing $5 Million Dollars?

Malibu Media v. Butler, 1:13-cv-02707 (CO)*** 29 Dec 14 Update – I guess they came to an agreement and dismissed Mr. Butler – Butler_Dismiss_02707(CO)   Butler_Min_02707(CO) The wording is different from what we normally see.

PLEASE TAKE NOTICE, Plaintiff, Malibu Media, LLC, has settled this matter with Defendant, John Butler, subscriber assigned IP address 71.229.236.179 (“Defendant”). Upon satisfaction of the terms of the parties’ settlement agreement, to which Defendant still has executor obligations, Plaintiff will dismiss Defendant from this action with prejudice. 

So Butler still is required to do “something” to make the dismissal final.  Interesting.***

No new case filing since 16 Sep 14.  Archive Docket   Troll/Plaintiff previously was given more time to provide their expert’s report concerning the evidence they have against Mr. Butler. To date I haven’t seen any report filed with the court. As the computer used during the alleged date of infringement is gone, the Troll has to try and come up with some evidence to show that Mr. Butler is the infringer. I would expect them to try and show is that Mr. Butler either hid or destroyed the computer OR that something in his Social Media persona links him to Malibu Media/X-Art or other files in their “Expanded Surveillance” (AKA: Exhibit C) of the non-Malibu Media files that were shared via the BT client using Mr. Butler’s public IP address. As they haven’t filed such a report, I think Troll/Plaintiff is trying to improve their tap dance routine for when the court finally tells them put up or shut up. There could also be discussions between the parties to dismiss the case. The main sticking point is likely to be how much money Plaintiff is willing to pay to cover Mr. Butler’s legal bills. I suspect Keith Lipscomb doesn’t want it to get out that without a computer/hard drive and/or clear indication of spoliation (destroyed evidence), their case is markedly harder. I find this funny, as even when their forensic analysis come back with NO direct evidence, they make up some excuse as to the reason and still claim the ISP subscriber is the offender.

Dallas Buyers Club v. Doe (IP 50.165.43.195), Case 1:14-cv-07129 (IL)   Archive Docket   This is the case where attorney Ross Drath made a very good motion to sever and dismiss his client from the original case – 1:14-cv-04940 (Formerly Doe No. 22). My previous article. Troll/Plaintiff opened a new single-Doe case against the Doe and he was eventually dismissed on 31 Oct 14.   Dismiss_Doe22_07129(IL)

No details are available as to settlement, except the dismissal was WITH prejudice and both parties would cover their own legal bills. The agreement to dismissal is disappointing to me and others, but often times it is the right thing to do for the Defendant, regardless of culpability. Fighting a BT Copyright Troll is not a cheap decision to make. I understand and thank those Defendants for fighting back on any level. The motion filed by attorney Drath was a good one and will likely be bench-marked in future motions. The IL courts are becoming more open to severing mass-Doe cases. I also assume there was some sort of non-disclosure agreement built into this dismissal. Troll/Plaintiff does not want the details to get out, as it points to their motivations and fears, as well as the best way to fight them. Even with no defined statement, the fact DBC was willing to back down is telling. Couple that with any/very limited naming/serving of Defendants and you will come to the conclusion that taking the wait and see approach is still viable (For THIS Plaintiff – even in IL). Their BUSINESS MODEL does not remain profitable for the Trolls if they actually spend time/money on cases. Last NoteThe Troll was sloppy and made a goof in the dismissal document – I guess he forgot what Plaintiff he was working for… DBC or TCYK???

Dallas Buyers Club Goes To Finland (Approx. $800 Settlement)   Recently (December 2014) a number of people in Finland have started to receive Settlement Demand letters (see attached file) for allegedly downloading/sharing Dallas Buyers Club.   FIN_DBC_Settle_LTR_Dec2014   The letter comes from Marcus Kevin, MK Law, Helsinki, Finland.  A simple translation of the letter claims that BT monitoring recorded the ISP subscriber’s IP address on a date/time sharing DBC. After a verdict in a “court of market,” the ISP was required to disclose ISP subscriber information. Troll Kevin will gladly accept 650 Euros (approx. $796) to avoid further legal action and additional costs. The letter also tells the recipient that they have to pay before the end of 2014.

Marcus_Kevin_MK_Law1

I don’t know Finish Copyright Law, so I’m unable to determine how serious this is. Many factors will come into play – like is an ISP subscriber (in Finland) accountable for activity on his network he didn’t do? As the settlement demand is low in comparison to US settlement demands (approx. $4-8K), I doubt it. Still, I would suggest anyone affected should consult with a knowledgeable Intellectual Property/Copyright attorney as to what the law actually states.

Additionally, the program allegedly used to do the BT monitoring was “MaveriMonitor.” The Finish court also came to it decision to order the release of ISP subscriber information based on declarations from Simone Richter and Daniel Macek concerning the trustworthiness (A word that a Copyright Troll scum don’t understand) of the monitoring software.

Elf-Man V. Lamberson, Case #2:13-cv-00395 (WAED)  Archive Docket   *** 29 Dec 14 Update – Here is the very last filing for this case.  Doc 108 Elf Man Reply re Motion to Strike 12-29-14   Troll Lowe just repeats what he already said concerning the filings by Lynch – immaterial,” “impertinent,” “improper hearsay,” and an “untimely matter.” Blah Blah Blah.  Now it is up to Judge Rice to determine the amount he will award in fees and costs.  It would be very nice if he would double it, but I’m not holding my breath. ***

This case is in the last stages where attorney Lynch has submitted a more detail claim for attorney fees and costs. Troll/Plaintiff has responded to the request and attorney Lynch has replied to this.  Lynch_SupReply_Doc_103_00395(WA)   SupDecl_Lynch_Doc_104_00395(WA)  Now Judge Rice previously decided not to sanction Plaintiff or their attorneys for the obvious games they have been playing at the behest of the Anti-Piracy Management Company (APMC). Hopefully the judge will be more acceptable to the fees/costs Defendant Lamberson incurred to simply reach this far. I find it incredulous that Troll/Plaintiff could even have the gall to say the fees were excessive. Troll/Plaintiff would not back down without Lamberson paying them off. ONLY after all the details were uncovered and Plaintiff repeatedly delayed/refused to answer key questions, did they dismiss Lamberson. If we are lucky enough for a full award, I doubt the money will come easily. I could see something like a “Prenda 2.0,” claim of inability to pay – that or simple refusal to pay. Attorney Lynch sums up this Troll very well.

In over 25 years of intellectual property litigation, I have never encountered the wholesale disregard for the facts, the law, the honor of the Court, or the obligations of counsel to abide by the Federal Rules of Civil Procedure as this case and its related cases have displayed. Ms. VanderMay admitted that “plaintiff’s representatives” were trying to force her into unlawful positions, yet Mr. Lowe perpetuates the pattern of evasion and deceit without ever acknowledging that there might be a problem. Plaintiff’s handlers have devised a scheme to abuse the federal courts as a necessary part of an unlawful extortion campaign. These unidentified handlers collect extorted monies from innocent people every day, but, when their scheme is revealed, they retreat, leaving only the unfortunate copyright holder and its counsel before the Court to face the consequences. I respectfully request that this Court award the full amount requested, doubled under equity, for immediate payment and that the matter be referred to the United States Attorney for investigation of the use of fraudulent declarations by Elf-Man LLC in connection with an unlawful extortion scheme. [ECF # 104, par #27] [My emphasis]

Late addition: I guess Troll/Plaintiff did not like the attorney Lynch’s request, as on 17 Dec 14, Troll Lowe filed the following Motion to Strike. Troll Lowe was butt-hurt and claimed the filings were “immaterial,” “impertinent,” “improper hearsay,” and an “untimely matter.” I think attorney Lynch hit the heart of the mater to get a whining response like this.   Doc 105 Elf-Man’s Motion to Strike Lamberson’s Supplemental Reply filed…   Doc 105-1 Appendix A to Motion to Strike filed 12-17-14

Late Late addition: Following the Troll/Plaintiff’s Motion to Strike, attorney Lynch filed theses documents.  I know it is much to read, but the details on how the Trolls operate is plain to see.  Doc 106 Opposition to Motion to Strike 12-19-14   Doc 107 Decl of JCL iso Opposition to Mot to Strike 12-19-14   Doc 107-6 Exhibit F – Chart 12-19-14 Doc 107-5 Exhibit E – Decl of Griffin 12-19-14 Doc 107-4 Exhibit D – Vision Films Complaint 12-19-14 Doc 107-3 Exhibit C – Australia Order 12-19-14 Doc 107-2 Exhibit B – Decl of Fieser 12-19-14 Doc 107-1 Exhibit A Decl of Macek

Keith Lipscomb (and crew) files BT Copyright Troll Cases For Non-Porn Movies – I previously wrote about (DTD Article) the initial non-porn BT Copyright Troll cases we started to see at the end of November 2014. The two movies in question are “A Good Man” (Steven Seagal) & “Puncture Wounds” (Chung Le). Even with well-known leading actors, the movies are not considered anything special. These movies were never released in a theater and went straight to DVD/Digital release.  As of writing this, there have been 88 cases for these two movies filed in CO, DC, FL, MI, and PA (25 Nov – 12 Dec 2014). *** Plus six additional case in NJ.***  That works out to be approx. $37,000 in filing fees. As these are single movie cases, it will be interesting to see what Lipscomb wants from the ISP subscribers. I would expect a couple thousand at a minimum.

 

 

And YES, the image in the Twitter feed is a Parody of the Fishtown lawyers Web page.  Check out the Twitter feed, as Rushie & Mulvihill both make comments that are interesting and telling.  As I previously wrote, these Keith Lipscomb-ish cases are by-design a copy of the Malibu Media LLC/X-Art BT Copyright Trolling template. They use the same general case design and employ the same players to justify early discovery of ISP subscriber information. The only real difference is it only deals with ONE non-porn action direct-to-DVD movie and not multiple Internet porn short movies. I can only assume that the public IP addresses they are targeting has a long history of BT file sharing of copyright protected movies, software, eBook, etc. Lipscomb and crew with try to use this fact to motivate a settlement under fear that a court would see such activity as indicative of a serial-infringer and thus increase the award amount – like any of these cases are going to a full trial.

I’m also of the opinion that Lipscomb (to include others) does some sort of filtering of public IP addresses to try to narrow their Trolling efforts to areas which have a Mid-to-Upper level income ratios. To make this business model viable, Troll/Plaintiff cannot afford to target No-to-Low income/asset personnel. The ideal targets are those ISP subscribers (not necessarily the true offenders) who have some assets and/or income levels to afford a settlement, but not enough free cash to want to pay for an active defense. Combine this target selection criterion with a public IP address that has a long-term history of BT file sharing of copyright protected media, and the Troll effectively increases his chances of forcing a settlement.

As these are Lipscomb cases, I do not expect to see a settlement demand letter, but I could be wrong. If you find yourself part of one of these cases, please contact me at dietrolldie@dietrolldie.com.

New Copyright Infringement cases filed against John Does for illegal activation/use of software – Microsoft Corporation (WAWD) and HiTek Software (CACD) – These cases do not fit in exactly with what I normally track, but it is interesting regardless.

  • 5 Dec 14, Microsoft Corporation cases – 2:14-cv-01851, 2:14-cv-01851, & 2:14-cv-01852 (10 Does a piece)
  • 12 Dec 14, HiTek Software LLC case – 2:14-cv-09552 (10 Does)

I haven’t had a chance to read any of the complaints yet, but I suspect the Plaintiffs were able to record the public IP addresses of systems using their software without paying for it. I’m not sure if these cases have anything to do with BitTorrent. Operating systems and other applications often require users to validate/register with them to fully use the software. Following the initial registration, many operating systems/applications communicate back to company servers to check for updates and also track various aspects of usage. During such communication, Plaintiffs are likely to determine if an activation key has been shared or if a “crack” has been used to gain full access without paying. The Plaintiffs will likely be able to obtain early discovery from the ISPs. Once that happens, we are likely to see some sort of settlement demand letters be sent to the ISP subscribers. Note: HiTek has previously file 4 John Doe (10 Does a piece) case in CACD on 27 Feb 14, 6 Feb 14, 11 Oct 13, and 21 Dec 10. I will also note that HiTek Software also appears to go after companies for copyright infringement. I assume all of the John Does in these cases have IP addresses that resolve back to the CACD and WA jurisdictions, but you never know. For anyone involved in these cases, please drop me an email and/or copy of the settlement letter once it arrives. We have seen previous filings of copyright infringement cases concerning software, but it hasn’t really been embraced by many companies. Here is a blog post concerning the HiTek case from Infringement Nation.

Prenda Law Saga – OR – Where is the missing $5 Million Dollars – In the ongoing drama that “was” Prenda Law, the three key personnel (John Steele, Paul Hansmeier, & Paul Duffy – idiots in my opinion), continue to claim they cannot pay the sanctions ($261,00252.11) issued against them (singularly & as a group) in Lightspeed MediaCorp., v. Smith, 3:12-cv-00889 (IL). In response to Prenda’s various attempts to hinder financial discovery of their assets, Booth Sweet LLP, filed the following this Motion for Reconsideration on 16 Dec 14.   MFRecon_Prenda_Doc_189_00889(IL)

Funny thing, probably all of the trouble Prenda is experiencing could have been handled better if they simply paid as soon as possible and then crawled back under their respective rocks. I guess their egos are too big to allow such a loss and thus they invited further trouble by hindering the discovery efforts. Pay over $260K from a war chest of approx., $5 Million would have been the smart thing to do. I guess the old saying is not too far off (Especially for Prenda) – “He who represents himself has a fool for a client.”

While conceding that, from 2010 through October 2013, Plaintiff’s Counsel earned millions, they now claim to possess no assets at all, or to have lacked sufficient assets to pay the sanctions ordered in November 2013. See, e.g., Doc. 154 p. 6. Smith has demonstrated that Lightspeed’s Counsel collected online settlements in 2012 of $4.4 million and another $1.9 from checks. At the hearing, Lightspeed’s Counsel claimed Prenda didn’t make millions, the bulk of the money went to clients, employees, and business expenses. Yet, when added, the financial records for 2012 indicate otherwise:

1. Expenses—$605,701.17

2. Clients—$355,387.14

3. 1099 Employees—$33,646.84

4. Freelancers—$75,891.80 (including reimbursement for filing fees, etc.)

5. Unidentified Employees—$286,012.14

Doc. 135-20.

This leaves nearly $5 million unaccounted for by Lightspeed’s Counsel. Yet, they cry poverty.

For those of you who are new to the Prenda Law saga, the shear level of douchebag activity is rather amazing. Booth Sweet does a wonderful job of informing the court on their hindering efforts and the results of financial analysis disclosed Prenda Law has not accounted for where $5 Million in assets went, as well as other efforts to hinder discovery. They also make it VERY CLEAR that at the time the Prenda fools were claiming they couldn’t pay, the records show they cashed-out/moved enough funds to easily cover the sanctions.

Take a read and see what the heart of a BT Copyright Troll, Troll attorney, and supporters looks like. Ethically challenged??? I cannot wait to hear what the judge thinks of this and hopefully further sanctions Prenda and allows collection efforts to begin. Merry Christmas Prenda Law!!!

DieTrollDie :)   “Respect for the truth is the basis for all morality. Something cannot emerge from nothing.” — [Duke Leto Atreides, Frank Herbert’s Dune]

dune-ring-gold                                                  ]

 

 

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8th Circuit Court Of Appeals To Hear BT Copyright Troll Case (Killer Joe NV – IA), 14-3274

Copyright Troll School

Copyright Troll School

Here is an interesting BitTorrent (BT) Copyright Troll case that made it up the 8th Circuit Court of Appeals, St. Louis, MO. The original case (Killer Joe Nevada, LLC. v. Does 1 – 20 (Case 5:13-cv-04036-MWB) was filed in Northern District of IA, on 26 Apr 13, against 20 John Does (ISP subscribers). Please read the case summary and background in the appeals documents.   Appeal_Brief_Leaverton_(14-3274_8th)

Essentially, Copyright Troll Jay Hamilton/Plaintiff filed one of its template based case against 20 IA John Does and eventually named five as non-settling Defendants.  Two of the Defendants (Leaverton and Bolan) denied downloading/sharing the movie (Killer Joe Nevada) or knowing who did it.  Note: Bolan did tell the Troll it was likely her boyfriend and NOT her.  Leaverton is a mother of three who makes $13 an hours and Bolan is a single mother who receives child support. 

Eventually Leaverton and Bolan were able to hire Attorney Ray Johnson, Johnson Law Firm, West De Moines, IA, for a reduced retainer of only $300 (for both!).  Thank you Mr. Johnson!  On 4 Apr 14, Defendant Leaverton filed an answer denying the claims and requesting a declaratory judgment that she had not infringed Plaintiff’s work.  Note: Bolan’s also answered the complaint, but at that time she was in “default” status.  

On 22 May 14, Attorney Johnson sent Troll/Plaintiff interrogatories, as well as requests for admissions and productions.  As could be expected, Troll/Plaintiff did not respond to this and soon after motioned the court to dismiss Defendant Leaverton WITH prejudice.  The court granted this motion, but then did something ridiculous in my opinion.  Even with being the “Prevailing” party, the court denied Leaverton’s declaratory judgment counterclaim and denied her request for attorney fees.  The court did not feel Troll/Plaintiff did anything wrong in NAMING HER in the amended complaint (as a defendant) SOLELY based on the fact that she was the ISP subscriber (ISP bill was in her name).  The court also felt that since the Troll/Plaintiff dismissed the case “at the pleading stage,” the harm to her was “minimal.”  Defendant Leaverton motioned the court to amend the findings and conclusions, provide proof, and to file a record of the fees she incurred to defend herself. The court also denied these requests.  Following the dismissal of the last of the 20 defendants, Attorney Johnson filed the appeal.

The appeal is based on the fact that Troll/Plaintiff named her as a Defendant with no other information than she was the ISP subscriber.  Naming a person on that basis is reckless and simply designed to scare the ISP subscriber into paying some sort of settlement.  Also at issue was the District court did not apply the standard ruling on a fee award and implement requirement to determine fees. As the “Prevailing Party,” the court should have allowed Leaverton to submit a record of her fees to the court.

Leaverton’s Appeal Makes The Following Arguments

  • The District court erred by failing to allow Leaverton to make a record of her attorney fees
  • The plausibility that the ISP subscriber is the offender is unsupported by the record and using that as a basis for non-award of fees is in an abuse of discretion
  • The District court erred when it determined it is not relevant for fee award that a Plaintiff was unable to prove the ISP subscriber was the offender
  • The DMCA allows a Plaintiff to obtain ISP subscriber information (via subpoena), BUT it does not authorize a Plaintiff to then allege (name/amend the complaint) the ISP subscriber was the offender without some factual basis/evidence
  • The District court abused its discretion by failing to consider or give weight to relevant factors AND that irrelevant/improper factors were given significant weight by the District court
  • The district court erred when refused to award fees based on the fact that Leaverton answered the complaint prior to contacting Plaintiff’s attorney
  • The court abused its discretion when it found that fees would not be awarded based on the fact that the dismissal was filed at the pleading stage OR promptly after Leaverton filed her answer

The addendum to the Leaverton Appeal Brief is pending, as there needs to be some corrections made. Once I have it, I will post.  Addendum_Note_(14-3274_8th)

This appeal goes to the heart of the matter that WITHOUT a REAL investigation, a Troll/Plaintiff who names/serves an ISP subscriber is in violation of FRCP 11.  Attorney Johnson makes it clear the appeal has nothing to do with Troll/Plaintiff getting a subpoena for Leaverton’s personal information, but on naming her specifically as a defendant with no reasonable evidence to support such an action.

The BT Copyright Trolling apparatus we all know does NOT base their naming/serving decisions on a “factual contention” or evidence.  I believe they decide who to name and serve defendants based on the likelihood that such action will drive the defendant to the settlement table.

Here is what Troll/Plaintiffs often claims is their “evidence” – Most of which is ONLY developed after a Defendant fails to come to the settlement table and is then named/served.

  • They (their agents) recorded the public IP address (tied back to the ISP subscriber) as using BT to download/share Plaintiff’s content.
  • A search of various open source resources and paid databases (Lexus/Nexus, etc.) indicate that a male in the age range of 14-65, at some time resided at the residence.
  • A check of Facebook or other open source/social media Web sites indicates the defendant “likes” a particular topic, hobby, or interest that is somehow tied back to the other “non-Plaintiff” owned content that was allegedly being shared via BT over the Defendant’s IP address (AKA: Malibu Media’s Exhibit C OR Extended Surveillance).

The fact that Troll/Plaintiff was so quick to dismiss Leaverton indicates that “their” evidence OR factual contentions were severally lacking at best. It also indicates that Troll/Plaintiff does not want to really litigate these matters – their idea of litigation is to generate settlements or cut and run.

It is seriously sad that the only way these two women were able to adequately proclaim their innocence in the court was because their attorney decided to do it for a $300 retainer!  Attorney Johnson knew Troll/Plaintiff was not going to dismiss an obviously innocent defendant unless forced to.  He was right and IMO the District court erred by not awarding fees/costs IAW the Copyright Act/Title 17 § 505.

MoneyClip1I have to really wonder how clueless some judges must be as far as what it costs to adequately defend oneself in a civil BT Copyright Infringement case. Troll/Plaintiff was willing to take $500 (half of her bank account) from an innocent single mother (Bolan) supporting her children even when their was NO proof she was the offender (And she even told the Troll who possibly did it!) – classy, very classy.  I guess some courts believe no frivolous cases would ever be filed in their court by ethically challenged attorneys – time to get a clue.

Hopefully the appeals court will be more reasonable and understanding of the issues. I also hope that some other players are able to come forward and add some weight to the arguments presented by attorney Johnson.  Keep an eye of this one, as it builds on the DC appeals court ruling that kicked Prenda Law in their junk.  You will also see that Mr. Johnson brings a new view to taking on the Copyright Trolls.  Bravo Mr. Johnson.  

DieTrollDie :)    All right, but apart from the sanitation, medicine, education, wine, public order, irrigation, roads, the fresh water system and public health, what have the Romans ever done for us?”  {Reg – Monty Python’s Life Of Brain}

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New Copyright Trolls Invade Thanksgiving – Good Man Productions Inc., & Poplar Oaks Inc.

Turkeyday1I have been a bit busy of late and of course there are many topics I want to write about but don’t seem to have the time.  :(   One thing I want to remind those of you who are following these issues is I also make posts via twitter (@dietrolldiehttps://twitter.com/DieTrollDie).  I will often post links to files or items of interest when I can’t write a proper article.

For this 2014 Thanksgiving post, I want to highlight some new BitTorrent (BT) Copyright Troll Plaintiffs.  Well, at least the names of the Plaintiffs are new.  The people running and supporting the litigation efforts have been seen before.  The new Plaintiffs are POPLAR OAKS, INC., and GOOD MAN PRODUCTIONS, INC.  On 25-26 Nov 2014, the following 16 cases were filed in the Western District of Michigan and Colorado.

  • Good Man Productions, Inc., 1:14-cv-01213 and 1:14-cv-01215, 25 Nov 14, MIWD
  • Poplar Oaks, Inc., 1:14-cv-01214, 25 Nov 14, MIWD
  • Good Man Productions, Inc. 1:14-cv-03211, 1:14-cv-03212, 1:14-cv-03213, 1:14-cv-03214, 1:14-cv-03217, 1:14-cv-03218, 1:14-cv-03219, 1:14-cv-03220, 1:14-cv-03222, 1:14-cv-03223, 1:14-cv-03224, 26 Nov 14, CO
  • Poplar Oaks, Inc., 1:14-cv-03215 and 1:14-cv-03216, 26 Nov 14, CO

Complaint_01213(MI)   Complaint_EX_A_01213(MI)   Complaint_EX_B_01213(MI)   Decl+P_Paige_01213(MI)   Decl+D_Susac_01213(MI)   MFR_support_ED__01213(MI)   Complaint_01214(MI)   Complaint_EX_A_01214(MI)   Complaint_EX_B_01214(MI)

The movies are “A Good Man” (Steven Seagal action movie) and “Puncture Wounds” (Chung Le action movie).  The movies appear to be mediocre action films.  The address for both of these Plaintiffs is 100 Universal City Plz, #5183, Universal City, CA 91608.  Which is the same address that is found on the copyright registrations.  The name on the copyright registration is Bryan Sexton.  The address and telephone number come back to a Nick Reed.

I took a look at the complaint for the two different Plaintiffs and they appear to be the same template based complaint we have gotten to know from the Trolls in general.  The Troll attorneys for these cases are none other than Paul J. Nicoletti and Jason Kotzker.  What is a change is both of these Trolls have previously working for Troll Lipscomb/Malibu Media/X-Art.

Some of the other Troll supporters are present in these cases.  Most notably is the forensic consultant Patrick Paige, who claims his reputation is his greatest asset.

— DieTrollDie (@DieTrollDie) November 14, 2014

Too bad he forgets to tell the courts that he was arrested for illegal possession of a controlled substance on 8 Mar 2011.  Funny, Troll Lipscomb forgot to tell the PA court (Judge Bayless)  about this arrest when the PA Bellwether trial was going.  Some may say, “Well it was only drugs.”  It wasn’t just drugs – it also was that Mr. Paige used “official” Palm Beach Sheriff’s Office resources (covered P.O. Box and fictitious name they use is investigations) to have the drugs shipped to.  This directly calls into question his ethics (lack of them) as well as his trustworthiness.  NOTE: Here is an interesting change from Mr. Paiges previous declarations (my emphasis) –

From my experience, Plaintiff is likely to identify the infringer. Indeed, I can recall only one instance in all the times that we executed a search warrant and seized computers where we did not find the alleged illegal activity at the dwelling identified in the search warrant.

Another recent addition to the German behind the scene team is Daniel Susac.  Mr. Susac works for the German firm “Excipio GmbH” and monitors BT for instances of copyright protected work of their customers.  They record the public IP address, date/time of the “hit,” as well as additional details on the BT client sharing the work(s), to include other non-Plaintiff owned media files.

The cases themselves are nothing really new.  What is different is that these non-porn Plaintiffs (to Include Voltage Pictures) may be moving away from the traditional mass-Doe BT copyright troll cases and going after the single Does.  Now based on the recent declaration of Mr. Delvan Neville, they may foresee the inevitable is on the horizon.  Note: As the Two local Trolls in these cases are Nicoletti and Kotzker (both work Malibu Media cases), I’m interested to see if this new activity is associated with Troll Lipscomb…

So who makes a good single Doe target for the BT Copyright Trolls?

My guess is that for the Trolls, the best targets are those people who –

  1. Reside in a jurisdiction they file in (MI, CO, IL, OH, etc. – many more)
  2. Don’t use any proxy service to hide their true IP address
  3. Share a large amount of files via BT
  4. Keep their BT client running for long periods of time – allowing multiple “hits” by the Trolls

I call this target profile the “Malibu Media” profile.  Troll Lipscomb and Malibu Media came to their decision some time ago when they determined it wasn’t worth it to fight the various motions to dismiss/quash/sever.  Going the single Doe route using this profile effectively removes these motions and increases the chances of settlement – again this is the goal/not a trial.  It is not perfect, but it likely reduces the number of Does who might fight back.  Further filtering (geo-location) of the target IP addresses to areas with a good median income will also reduce the chances of targeting people with no assets.

More to come in future article and Tweets.  A very happy Thanksgiving to all.

One last thing – Paul Duffy, I’m not part of an “Internet Hate Group.”  I just can’t stand douche-bags like you, Paul/Peter Hansmeier, John Steele, and Mark Lutz (YES, that is my opinion).  Pay up and fade away.  ;)

DieTrollDie :)  “You sum bitch. You did that on purpose. You’re going away ’till you’re gray. I got the evidence.”  [Smokey and the Bandit – Buford T. Justice]

Sword_Gun1

 

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Malibu Media (X-Art) Isn’t That Bad (AKA: First Rodeo) – 2:13-cv-12217 (MI)

Yes I’m joking.  Sometimes people say that since a majority of the Does in BitTorrent (BT) Copyright Infringement cases are the true offenders (or their family members are), the Plaintiff’s in these cases are doing nothing wrong.  They say they are simply trying to stem the tide of piracy and recoup some money.  “Why do you call them Copyright Trolls?”  “They do not deserve that term.” “They work hard to make a real product and BT piracy hurts them.”  Beyond that is goes down the road of “You’re just thieving pirates,” or “You’re part of an Internet Hate Group that scares lawyers and Plaintiff to consider getting a guard dog.”  I acknowledge that Copyright infringement is an issue and AS the law is written, Troll/Plaintiffs are within their right to file these cases.  What I detest is the sleazy business model that squeezes money from people under the guise of “Combating Piracy.”  It is my opinion that this business model (BT Copyright Infringement) is nothing more than legal extortion based on greed of the highest level.

I recently told one Malibu Media/X-Art supporter that Brigham and Colette Field are  equally responsible for what the Troll attorneys do in their name.  They might have gotten in bed with Keith Lipscomb (and the Anti-Piracy Management Company (APMC)) with the best of intentions, but that does not justify the abusive practices.  Troll lawyers have the common view that if you are the ISP subscriber, you are responsible.  This fact is highlighted in a recent case filing of a Brief In Support Of Defendant’s Response To Plaintiff’s Amended Motion To Dismiss.  The document is at the bottom of this article.  This is a must read document on how Malibu Media/X-Art/Troll Lipscomb run these cases.  Fightcopyrighttrolls.com has covered this case and exposed much of the sleazy Troll practices.

The case at hand is 2:13-cv-12217, Eastern District of Michigan, against a single Doe/IP address.  It was initially filed on 17 May 13, based on Troll/IPP observation that public IP address 68.62.41.133 had downloaded/shared 21 Malibu Media LLC works between 16 Aug 12 and 26 Mar 13.  On 14 Aug 13, Troll/Plaintiff amended its complaint to named Mr. Gerald Shekoski as the Defendant.  Immediately following being named/served, Defendant hired Derek S. Wilczynski and Lincoln G. Herweye, Blanco Wilczynski to represent him. These attorneys tried to convince Troll/Plaintiff that Defendant was not the offender and asked for him to be dismissed.  Malibu Media LLC decided it knew better and spent considerable effort on deposing Defendant, as well as examining his computer hard drive.  The judge in this case even made it VERY clear to Troll/Plaintiff that if the forensic analysis failed to disclose any direct evidence of Plaintiff’s movies OR evidence of data destruction (spoliation), Plaintiff would dismiss the Defendant.  Sounds straight forward and simple doesn’t it???

Troll/Plaintiff had the forensic analysis conducted by the now-infamous Patrick Paige.   Doc_22-1_12217(MI)   Funny, it appears something is missing from Mr. Paige’s work history at the Palm Beach Sheriff’s Office  The forensic report is light on details AND there was NO mention of Paige finding – 1) a BT program/client; 2) Torrent files; 3) Plaintiff’s movies; 4) Evidence of Data destruction.  Mr. Paige did report that there was evidence indicating the Defendant’s daughter had used Limewire (file sharing program) years ago to allegedly download/share copyright protected music.  Nothing stating that Defendant or his son took part in BT file sharing.

Based on Mr. Paige’ inability to clearly disclose his finding, the judge directed Troll/Plaintiff to have Mr. Paige amend his report to specifically address the key issues.   Doc_23_12217(MI)

2.  Patrick Paige must supplement his affidavit by September 23, 2014. The affidavit must answer the questions: (1) Did Mr. Paige find evidence of copyright infringement as alleged in the Complaint? (2) Did Mr. Paige find evidence of deletion of infringing files?

NMFRB1The Paige supplement was NEVER presented to the court.  Go Figure.  Based off of the weak forensic report, Troll/Plaintiff decided to try to scare defendant into accepting a “walk-away” deal.  Here is the email chain between Troll Nicoletti and Wilczynski & Herweye.  WOW!  Let’s not mince words here!  I don’t think the Troll was expecting this response from Wilczynski and Herweye.   Doc_30-14_12217(MI)

{To Nicoletti} I understood your offer when you related it to me earlier today, and I am ethically bound to take it to the client.  And I don’t think it was out of order for us to ask for the expert’s report in conjunction with the same. But if you’re going to shake your fist (or your client’s fist) in a threatening manner (so to speak) so that we will be sufficiently intimidated to take your offer, it behooves you actually make it scary . . . you know, so that we can be afraid. Otherwise, it’s just embarrassing. Derek and I both litigate against Fieger regularly and he’s been perfecting his circus act for long time– so, you’ve really got to bring your A-game (I’ll let you decide what the A stands for) if you want us to buy into your theory that “bad things” are going to happen unless Gerry agrees to walk away. In point of fact, while this is clearly not our first rodeo, it is a “first” of sorts. Which is to say, it may be the first time we have collaborated on a case whether the risk of an actual downside is so low.

So after approximately a year and a half, a Defendant answer, limited depositions and discovery, it comes down to Troll/Plaintiff asking the court to dismiss the case against the Defendant “Without Prejudice,” so it can avoid having to pay Defendant’s attorney fees and cost.   Doc_30_12217(MI)   I would estimate the low-end attorney fees/cost Troll/Plaintiff is facing is $30,000 (probably much more).  Troll/Plaintiff of course pleads that they did nothing wrong, Defendant (or his family members) were the infringers, and they are only dismissing it because it is no longer cost-effective or practical to continue.  Not cost-effective to Troll/Plaintiff as they cannot prove anything, only make allegations.

In response, Wilczynski & Herweye filed the following response document showing why the Dismissal should be “With Prejudice” (allowing for fees/costs to be claimed IAW 17 U.S.C. § 505) and why Troll/Plaintiff’s claims are absurd.  The response is a no-holds-bar slam against the Troll and Plaintiff.  As I said, this is a must read.   Doc_31_12217(MI)

Indeed, Plaintiff’s business model and professed strategy appears to be that an innocent defendant should still have to pay if he or she can be smeared with “guilt by association” regarding the alleged but unproven acts of others for whom the defendant has no legal responsibility. Further, apparently Defendant was supposed to have (in Plaintiff’s view) acted as Plaintiff’s unpaid and involuntary investigator, with his entitlement to escape liability not being dependent on whether he was the infringer or not, but on whether he discovered who actually did the infringing and “ratted” that person out (so to speak) to Malibu. While that type of coercion might not be uncommon inside of a prison (e.g., “if you don’t stab that guy, then we’ll stab you”), it is hardly the type of behavior that should be endorsed or rewarded by a federal court.

What I found very interesting was in their filing, Troll/Plaintiff claims the most likely offender was the Defendants son.  This was based on of the fact the “Other” files being shared via BT (AKA: Exhibit C – “expanded surveillance”) had a “Dr. Who” and “Wii” file AND the Facebook page for Defendant’s son indicated he “Liked” these topics.  REALLY, a Facebook “Like???, that is your evidence…”   Troll/Plaintiff then “Forgot” to mention the “Other” files that were being shared that did NOT point to Defendant, his son, or daughter.

Secondly, even if this Court were to buy into the explanation that Plaintiff has offered other courts as to why it creates and attaches a record of its “expanded surveillance,” using it for that purpose exculpates your instant Defendant. Specifically, and as evinced in Defendant’s responses to discovery, your instant Defendant is a 54-year-old father and grandfather, Catholic of Polish descent who enjoys golf and using his computer to play Texas Hold’em. Nowhere on Plaintiff’s Complaint Exhibit C is any video or movie suggesting this profile (e.g, there are no golf videos or instruction videos for on-line poker). By contrast, the works listed on Complaint Exhibit C seem to describe an individual who speaks Arabic (and probably French) in addition to English, and is either Islamic or has an interest in Islam. They also describe an individual with substantial computer sophistication who would use materials as Linux – Teach yourself KDE in 24 hours and !! Programming – Write Great Code, Volume 2 Thinking Low Level Writing High Level. In point of fact, the person described by Plaintiff’s Complaint Exhibit C is NOT Defendant nor anyone in his family.

Please read the document and see what Malibu Media LLC is all about.  Malibu Media supporters may say, well that is just their attorney and not truly them.  Bullshit!  They signed up with Troll Keith Lipscomb & company and the cases are filed under Malibu Media LLC.  ALL the actions taken are in their name, and the money they receive is a direct result of their decision (regardless of how little they claim to get from it).  You can’t take the settlement money and then say you don’t agree with the methods used to generate it.  As the saying goes, “You lie down with dogs, you get up with fleas.”  Associating with those of low reputation may not only lower your own but also lead you astray by the faulty assumptions, premises, and data of the unscrupulous.  At least John Steele was honest enough about what he was doing and accepted the title of “Master Troll.”

I hope the court makes a swift decision and awards the attorney fees/cost IAW 17 U.S.C. § 505, but I will not hold my breath.  We will see.  Thank you Mr. Shekoski, Mr. Wilczynski, and Mr. Herweye.  Well done gentlemen.

DieTrollDie :)   “The Defendants have libeled Plaintiff under the disguise of such childish and unsophisticated pseudonyms as ‘die troll die’.  {Prenda Law, Inc.}

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Why Mass Joinder in BitTorrent Copyright Infringement Cases Is Wrong

VD_ThankYouOn this Veteran’s Day I decided to rehash of a previous article with the addition of the wonderful declaration Mr. Delvan Neville provided in a recent ILND Copyright Troll case (1:14-cv-01142).  NOTE: Following the submission of the Motion to Sever (Motion_Sever_Doc_17_01142(IN)) and Mr. Neville’s Declaration (Decl_Neville_Doc_17-1_01142(IN)), Troll/Plaintiff dismissed (Doe_10_Dismissed_01142(IN)) the Doe.  With it dismissed, the Troll doesn’t have to address the issue.  We can only now hope the judge decides to bring the issue up and force the Troll to respond.  However this is probably unlikely knowing the Federal courts.  Sad….

For the Troll/Plaintiffs, joining together of multiple Does/IP address is simple and cost-effective way to run their cases.  Joinder rules allow a Plaintiff to group defendants together when there is justification based on a common action in which they ALL took part.  The problem is the Copyright Trolls are abusing the joinder rules to save money.  They file their cases with threadbare claims of proper joinder and technical explanations that most courts are not going to truly understand.  A simple understanding and a little analysis of how BT works clearly indicates that for a majority of these cases, joinder cannot be justified.

Since BT Copyright Trolling started in 2010, we have made advances and educated various courts on the “game” the Trolls are playing.  Malibu Media LLC has since stopped filing multi-Doe cases in favor of single Doe cases, as well as being a bit more selective as to who they file against.  Today’s multi-Doe cases follow the general rule of only grouping Does together which shared the same hash file (movie) via BT AND the IP address resolved back to a location within the jurisdiction of the court where the cases were filed.  Recently I have also noted some cases have had  a shorter time-period between the first and last Doe allegedly sharing Plaintiff’s content via BT.  I believe this is a Troll attempt to preclude any motions claiming the sharing of ALL Does could not have occurred over the entire period in the complaint.  A court may have an easier time granting early discovery to a case with only a Two-week period of sharing, verses a two-month period.

In 2014, multi-Doe BT copyright infringement law suits were filed in the following jurisdictions:  ILND, CO, HI, MIWD, MIED,WAWD, INSD, INND, TXSD, WIED, WIWD, and OHSD.  The jurisdictions that are a particular Troll favorite are Colorado and the IL Northern District.  These jurisdictions do not generally question the Troll’s justification for joinder and basically rubber stamp the Early Discovery template filed with the court.

Recently in a IN case (1:14-cv-01142), attorney Gabriel Quearry filed a motion to sever his client (Doe #10).  His main justification for severance was a declaration from Delvan Neville.  I wrote about this Motion/Declaration briefly in a previous article.

Mr. Neville’s analysis and declaration was based on two periods of time (“soaks”) in which he monitored BT swarms consisting of IPP International (IPP)monitored swarms, Crystal Bay Corporation (CBC)monitored swarms, or legal content swarm.  The first soak was for 24 hours/1 day and consisted of 17 monitored swarms.  The second soak was for two weeks and consisted 7 monitored swarms.

Mr. Neville found that for the one day analysis, the BT swarm members were only a “leecher” for .996 hours on average (let’s say 1 hour/60 minutes).  Once a “seeder,” the BT swarm members only stayed attached to the swarm for 3.117 hours on average (let’s say 3.2 hours/192 minutes).  These numbers also came with a variance of 3 times the average.  So let’s say for this one-day analysis, the range of time a BT swarm member is a leecher is .1 hour (6 minutes) – 3 hours.  Then the range of time the BT client was a seeder is .1 hours (6 minutes) – 9.6 hours.  Note: I used the “.1 hour/6min”, as some people may stop their participation in a swarm at the earliest moment of leeching or seeding.

For the two-week analysis, Mr. Neville found BT swarm members were only a leecher for .603 hours on average (let’s say .7 hours/42 minutes) and a seeder for 2.042 hours on average (let’s say 2.1 hours/126 minutes).  These numbers also came with a variance of 6 times the average.  The range time of a leecher is .1 hour (6 minutes) – 4.2 hours/252 minutes).  The range time of a seeder is .1 hour (6 minutes) – 12.6 hours/756 minutes.

I would also like everyone to note that the BT swarm members were NOT limited to a geographical location or single jurisdiction (like these cases).  This means the swarm members were world-wide and not limited to one particular jurisdiction.  This is important to note, as the current mass-Doe BT copyright troll cases are all filtered (by the Trolls) to a single court jurisdiction.  Mr. Neville’s analysis was on UNFILTERED SWARMS of BT clients.

These results show that mass-joinder BitTorrent litigation is not based upon any real likelihood that the joined peers have engaged in any series of transactions with each other. Even if one were to assume that all 20 peers named in this suit were at the high end of the distribution of connectivity (3.247%), the likelihood that there is any series of peer-to-peer connections that could link all 20 peers together in the same series of transactions is 0.01%6.   

Footnote – This probability was calculated on the basis that any arrangement of communication that links each peer in this suit to at least one other peer would be sufficient. The probability is even more unlikely if there must be a contiguous series of links connecting all 20 peers through each other.

As the range of “Hit Dates” in this case range similarly to those from the second soak (weeks, not a single day), the connectivity is almost certainly closer to the 0.05% average seen in the second soak, and thus the likelihood that there is any series of transactions that could link these 20 peers together in some fashion is 0.00000000000000000000000000000000000001% or a 1 in 10 duodecillion chance.   

It is also worthy to note that Mr. Neville declaration was based on his analysis of Peer Exchange (PEX), an extension of the BT protocol, in which peers in a swarm will notify each other of the IPs of all other peers they are currently connected to within the same swarm, and subsequently update in later messages when any of those peers have disconnected.

Mr. Neville determined that for every communication he had with IPP/CBC IP address, PEX was NOT in use by the Trolls.  This shows there is NO way the Trolls could justify joinder even IF it was appropriate (IT ISN’T).

As every communication between an EUPSC2k node and IPP/CBC demonstrate that they do not support PEX messages, even if the 20 named peers in this case did engage in the same series of transactions together, Plaintiff will not be able to demonstrate that this occurred.

So what does this mean?  It means Troll/Plaintiff is very likely to dismiss a Doe/Attorney who submits this declaration in support of severance.  The Trolls do NOT what to take a chance that a court could agree and sever all the Does.  Until a court decides to address this issue seriously Troll/Plaintiff is going to continue to use IPP/CBC/APMC justification to obtain ISP subscriber information.

Now Troll/Plaintiff could dismiss and then refile against any Does who file such a motion/declaration.  The advantage of refiling is there is no long a joinder issue to contend with.  This was exactly what Malibu Media/X-Art did when they moved to single Doe cases.  Still, the Trolls are not going to want to risk going up against a defendant who doesn’t appear to be afraid of them finding anything on his computer OR open source searches disclosing a possible links to the “other” files they recorded as being shared via BT/Defendants IP address.  The second draw-back is if Troll/Plaintiff dismisses the Defendant a second time, it is considered adjudicated on its merits and the Defendant is the prevailing party – time for attorney fees and costs!

The Trolls are going to be forced to address this issue in the future, that or stop filing mass-Doe cases like Malibu Media LLC did.  The declaration will not stop BT copyright troll law suits, but it will put a dent in their business model and profitability.  As all of the mass Doe cases this year are non-porn, they do not have as strong a social stigma and embarrassment.  So where Malibu Media LLC may have Does more willing to avoid public disclosure of their porn habits/tastes, simply downloading Dallas Buyers Club may only subject a person to ridicule for bad taste (my opinion).

DieTrollDie :)   “Honor to the soldier and sailor everywhere, who bravely bears his country’s cause. Honor, also, to the citizen who cares for his brother in the field and serves, as he best can, the same cause.”  [Abraham Lincoln]

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