Dallas Buyers Club LLC Settlement Letters & Waiver of Service (4:14-cv-00248(TX) & 2:14-cv-00384(OH))

I recently obtained two different Dallas Buyers Club (DBC) LLC (Copyright Troll), Settlement Demand letters.  One of these letters also contains a ‘Waiver of Service’ form.  They are for the following two cases: 4:14-cv-00248, Does 1-31, Southern District of Texas AND 2:14-cv-00384, Does 1-30, Southern District of Ohio.

DBC_SettleLTR_00248(TX)   DBC_SettleLTR_00384(OH)

CTBC_parody1Nothing too shocking in either letter. I found the TX letter interesting in it appears they reduced the content of it in an apparent attempt to make it less threatening. This may be in part because attached to the settlement demand is a Waiver of Service (WOS) form.  They would love for the Does to sign this form.  Here is a previous article I wrote about the WOS and how Copyright Trolls will use it.  If you get one of these, PLEASE read this article before you sign anything.

The letter from the OH case is more of the standard BT copyright troll settlement letter design. I did find the FAQ sheet attached to the letter to be highly amusing.  The thing that caught my eye was a Section 4., ARE YOU A TROLL?”  Take a read and have a good laugh at their efforts to justify their actions.

No. We are not what many refer to as “copyright trolls.” Dallas Buyers Club, LLC’s copyright enforcement efforts are distinguishable from what is commonly referred to as “trolling” actions because Dallas Buyers Club, LLC actually created and/or uses its copyright and its exclusive rights; that is it licenses and/or distributes Dallas Buyers Club and attempts to earn back its investment from the actual use of the copyright, and hopes to earn a profit from such activities. Conversely, an intellectual property “troll” typically acquires rights in intellectual property, such as a patent, trademark or copyright, created by others, with the sole or primary business objective of filing infringement actions to earn profit, rather than earning a profit through licensing or otherwise exploiting its exclusive rights in the intellectual property.

AND

Many internet blogs commenting on this and related cases ignore the rights of copyright owners to sue for infringement, and inappropriately belittle efforts of copyright owners to seek injunctions and damages.

As SophisticatedJaneDoe pointed out, we should be happy that the “Copyright Trolls” added this section, as it informs the recipients what to search for on the Internet – Copyright Trolls and blogs such as this one and Fightcopyrighttrolls.com.  Thanks guys!  

It is interesting to note that the settlement amounts for each letter are different.  For the TX case, it is $3,500.00 – low-end of what we have recently seen.  The OH case starts off at $5,000.00 for a quick settlement and then rises to $7,000.00. I think the $3,500.00 amount (TX case) was left low so as to get a higher number of settlements.  Remember that stopping piracy is not the goal here – increasing settlement revenues is.  The difference in settlement amounts also shows that each local Troll has some control of the cases they are running.

Dallas Buyers Club LLC so far has filed over 50 cases in various jurisdictions and the Defendant count is over 1500. If the Troll/Plaintiff can get 50% of the Does to settle for the lower amount, then they will make a ton of money

  • 50% settlement rate is $2,625,000.00!!! (750 Does X $3,500.00)

  • 25% settlement rate is $1,312,500.00 (375 Does X $3,500.00)

I used the lower settlement amount in the calculation, so I think we can reasonably assume it will be higher.  Now we also have to figure the Troll/Plaintiff operating costs – so figure $3,000 per case for fees and costs; that comes out to $ 177,000.00 for 59 cases.  Hell, take of another $200K off for any other costs/services/pay-off, etc.  That would still leave them with $2,248,000.00 to be split between Troll and Plaintiff (50% settlement rate at $3.5K).  This reminds me of Ferengi (Race in Star Trek) Rules of Acquisition #9, “Opportunity plus instinct equals profit.” More to the point for the Trolls is #10, “Greed is eternal.”

As far as these DBC cases go, I have not seen anyone actually being named and served. I have seen a handful of single Doe # cases filed (they appear to be spin-offs from a mass-Doe cases).  If anyone has information that shows a Defendant was named/served, please point me in the right direction.  With the large number of Does in these cases, I do expect to see some default judgments and the WOS is the perfect Troll tool to make this easier for them.

Another point to consider is due to the large number of Does, there is NO way this Plaintiff could possibly take anything but a very small number to trial. I’m still of the opinion that no “real” trials will ever occur as the masterminds never want to be exposed.  The odds are in your favor and I still think it is best to take a wait and see approach.

APMC_Happen1Important Note: The DBC cases suffer from the same core problem as Elf-Man LLC and Malibu Media LLC cases do – The BT monitoring and data collections is conducted by the German “Investigators” of IPP/Guardaley/Excipio, who then links back to the “Anti-Piracy Management Company” (APMC).  Part of APMC presentation transcript specifically mentions Daniel Macek.   Here is the “Declaration of Daniel Macek,” (employee of IPP/Guardaley/Excipio) supporting the early discovery (ISP subscriber records) in DBC case 2:14-cv-00384 (OH).   Decl_Daniel_Macek_00384(OH)   Funny how in this declaration, Mr. Macek only states he has been retained by the Crystal Bay Corporation as a consultant.  There is NO mention of who he truly works for – IPP/Guardaley/Excipio.  That is another reason not to settle with these A$$clowns – they cannot and will not expose the inner workings of these enterprises and risk destroying the operation.  *** Also see the recent FCT article on the Elf Man v. Lamberson case. ***

Lastly, if DBC does serve anyone OR if a Defendant signs the WOS, I have an “Answer Template” you are welcome to use.   Please see my “Defendant Answer” page for the template, as well as a link to an article on how to make a basic denial/Answer to a Troll summons/complaint.  Note: The basic denial was recently used (and successfully) in case 2:13-cv-01019(IA).  Please note that it is not guaranteed to work (each case and Troll is different) and each answer has to be tailored to fit the Defendant (Don’t just slap your name on it and file it with the court).

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

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Malibu Media LLC & “The Internet Hate Groups” (AKA: I’m So Scared I Thought About Getting a Guard Dog)

In case you missed today’s insanity, be sure to check out the following articles (I will post more links as I get them)

Techdirt -Copyright Troll Malibu Media Tells Court That Its Critics (And Opposing Lawyer) Are Part Of A Psychopathic Hate Group

Arstechnica - Porn studio attacks blogger for leading a “fanatical Internet hate group”

TorrentFreak -Copyright Troll Accuses Critic of Leading “Psychopathic” Hate Group

Case 1:13-cv-06312 (Archive Docket), Malibu Media LLC v. John Doe (IP address 24.14.81.195), ILND.

The Malibu Media filing is Document #94, PLAINTIFF’S MOTION FOR THE ENTRY OF A PROTECTIVE ORDER and 12 Exhibits – Shared Folder of Motion/Exhibits.

This garbage motion is clearly an attack on Sophisticated Jane Doe (fightcopyrighttrolls.com) and John Doe’s attorney.  It is sad sad state of affair and speaks volumes of the fear that Troll Lipscomb has for our efforts to expose and change/correct an abuse of the legal system motivated by greed of the greatest magnitude.  For all the Troll attorneys and Plaintiffs out there – these are my views/opinions and if it hurts your feelings, too bad.  I don’t think it really hurts your feelings.  Probably more accurate to say it hurts the bottom line $$$$$.

FYI – I do not hate any of the Trolls (Plaintiffs or Lawyers – even John Steele) and do not condone any “real” threats to their safety.  I do not condone copyright infringement and ask anyone who is doing it to stop.

Please take a read of the motion and exhibits and try not to laugh too hard.  I can say one thing about Troll Schultz – at least she didn’t call the judge an asshole.

Declaration of Colette field – this is rich!

a stalker stared at me for more than an hour at a restaurant.  I called the police.  The stalker was removed from the restaurant.  {so where is the police report???}

Declaration of Keith Lipscomb – The Master troll is full of shit!

My wife and I have personally discussed the threat the anti-copyright psychopaths pose to our family.  We consider and investigated getting a guard dog as a result.  The veracity of the anti-copyright psychopaths stalking and harassing has increased in the last four months.  It is becoming unbearable and is scary.   {I didn’t know an attorney was qualified to make a medical determination of mental ability}

DieTrollDie :)

flip_MalibuMedia

 

 

 

IHILN1

“What is your major malfunction numb-nuts? {Gunnery Sgt. Hartman – Full Metal jacket}

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Copyright Troll Voltage Pictures Closes TCYK LLC Cases in Iowa (2:13-cv-01019 & 2:13-cv-01020)

18 Jun 14 Update

See the end of this post for the background story on the “Bailout: The Age of Greed” case (2:13-cv-01039 (IAND)).  On 17 Jun 14, the judge dismissed the case for lack of action on Plaintiffs part.   Doc_10_DismissOrder_01039(IA)   Doc_11_DismissJudgement_01039(IA)   Docket_18Jun14_01039(IA)

So for this Troll/Plaintiff, the case was a complete bust.

  • $400 case filing fee – Started off with 28 Does
  • Minimal time spent on this case
  • Troll had to dismiss Does 18-28 because I pointed out two different SHA-1 hash files
  • Settlements loss – Lets estimate 14 Does settle for $3,500.00 – Total $49,000.00

As these A$$clowns never sought early discovery, the ISPs were never notified (I assume) and the subscriber records are likely long gone.

Some days are just better than others.

DTD :)

4 Jun 14 Update

For the next week I will be on vacation, so there is likely to be a slow down in production and answering posts/questions.  Still, feel free to email and comment; If I don’t get to them right away, I’m sure others will do so.  Also, don’t forget that you can catch me on Twitter (@DieTrollDie).  This last week has been interesting and I can only hope/imagine what is in store for the Trolls.

DTD :)

————————————————————

It certainly appears that Iowa Copyright Troll attorneys Jay Hamilton and Alexander Johnson are not having the best of luck.  I’m sure they have made some money by scaring some people into paying a settlement for the garbage movie “The Company You Keep” (my opinion).  In my last post on these cases (2:13-cv-01019 & 2:13-cv-01020), the court ordered a 29 May 14, joint hearing in response to Plaintiff’s motion to compel defendants (in both cases) to work on a joint scheduling and discovery plan that the court required.  Not that the Troll/Plaintiff actually wanted to go ahead with discovery.  It is my belief the Trolls were simply trying to force settlements or possibly get set-up for a default judgement.

TCTK2From what I was able to determine, Mr. Baltramea did contact the court and Troll Hamilton prior to the 29 May 14, hearing.  The Troll attempted to get Mr. Beltramea to pay a settlement and failed.  Not surprising, the Troll then offered Mr. Beltramea a dismissal – prior to the hearing.  Mr. Beltramea accepted the dismissal and ended this case.   I bet the Troll didn’t want to have to answer any uncomfortable questions from the court.   StipDismiss_Doc41_01019(IA)

Immediately following the filing of the dismissal, the court cancelled the hearing and closed the case.   Doc42_01019(IA)   It is sad that the court on its own didn’t order Troll/Plaintiff to show cause why it shouldn’t be sanctioned for filing a frivolous case with no reasonable evidence and no good faith.  It does seem like the IA courts are not happy with the Trolls and further cases are not going to be as easy.  We will see.

The same thing also happened for the three remaining defendants (Terri Eicher, Joshua Davidson, & Brady Hixson) in case 2:13-cv-01020.  Troll/Plaintiff simply dismissed the remaining defendant prior to having to answer any questions by the court.  Both Eicher and Hixson did not file answers and were at risk of a default judgement.  But NO default judgement was requested…..   Doc47_Dismiss_01020(IA) Doc45_Dismiss_01020(IA) Doc43_Dismiss_01020(IA)

Now the funny thing is that prior to filing stipulated dismissal of Mr. Davidson (agreed to by Mr. Davidson), Troll/Plaintiff filed a motion to dismiss and a memorandum in support of it.  I warn you not to be drinking anything when you read the memo; you will likely be spit out and make a mess of the monitor.    MotionDismiss_Doc44_01020(IA)   Memo_Dismiss_Doc44-1_01020(IA)

This court should exercise its discretion and grant Plaintiff’s Motion for Dismissal With Prejudice pursuant to Fed. R. Civ. P. 41(a)(2). Dismissal is proper because Plaintiff’s counsel in its professional judgment believes there is a significantly lower likelihood that Defendant Davidson was personally involved with the infringement and any recovery would be less than the cost of continued pursuit of Plaintiff’s claims. This conclusion was arrived upon only after Defendant Davidson filed an answer, and all attempts to contact Defendant Davidson to discuss dismissal have been fruitless. Plaintiff wishes to offer settlement and dismissal with prejudice for no fee to Defendant Davidson but has been unable to discuss this offer due to nonresponsiveness. For this reason, Plaintiff is moving this court to do that which Plaintiff is unable to do without contact from Defendant Davidson: end this litigation before more costs are incurred by both parties and judicial resources are wasted. If this court agrees with Plaintiff and dismisses the claims against Defendant Davidson with prejudice, there is no threat of litigation on this issue for Defendant. Thus, this court should dismiss Defendant Davidson from this matter under Fed. R. Civ. P. 41(a)(2).

So based on What the Troll has to say in the memo, if you deny the allegations, then they are of the “professional” opinion that you probably didn’t do it.  Now I don’t buy this load of crap, but it is funny to read.  The fact of the matter is this Troll/Plaintiff is closing down some of these cases in the IA courts.

More Stupidity in IA

Here is another case I mentioned some time ago where Voltage Pictures decided to file a case under a different Plaintiff name (“Bailout: The Age of Greed” instead of “Assault on Wall Street”) to apparently hide in plain sight.  Case 2:13-cv-01039 (IAND), opened on 12 Dec 13.  Not likely.  Also of note was the fact that Troll/Plaintiff tried to mix two different SHA hash files in one case.  When I discovered this fact I fired off a letter to the court on 26 Dec 13.   Letter1_01039(IA)

letter1_01039(IA)

The court in turn notified the Troll of my letter and then the case stalled.  I wonder why…….   Troll/Plaintiff has not sought early discovery of the ISP subscriber information (case has been open approx. 6 months) and finally on 19 Mar 14 (almost 3 months after I sent the letter), Troll/Plaintiff dismissed Does 18-28, but failed to mention why or because of whom.   Doc_7_Dismiss_01039(IA)   I feel like Rodney Dangerfield, “I can’t get no respect!”

On 28 May 14, Magistrate Judge Jon Scoles filed a notice of dismissal similar to cases 2:13-cv-01019 & 2:13-cv-01020.   Doc_9_NoAction_01039(IA)   The judge advised Plaintiff that unless some “appropriate action” happens by 11 Jun 14, the case will be dismissed.  I expect we will see Troll/Plaintiff dismiss the remaining Does soon.  I will be really surprised if they seek early discovery.  Based on all the fall-out that is building on the “German Investigators” (IPP/ Guardaley/ Excipio), I don’t expect to see many new cases from the idiots at Voltage pictures.  But as greed is a strong motivator, I may be wrong.  Be sure to check out the Fightcopyrighttrolls article on the German connection – things are getting interesting.

DieTrollDie :)

“DAMN THE TORPEDOS, FULL SPEED AHEAD!!”  –  {John Steele comment (My belief) made on 20 Feb 12} – failed attempt to portray himself as Admiral David Glasgow Farragut (1801-1870)

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DC Appeals Court Tells Judge Howell – “Try Again” (AKA: John Steele’s 1%) – 1:12-cv-00048 (DC)

Many of you already know that on 27 May 2014, the US Appeals Court for the District of Columbia ruled the DC District Court (Judge Beryl A. Howell) erred in its decision on personal jurisdiction and joinder in a hotly contested AF Holdings LLC (AKA: Prenda Law) case.   Judge Howell felt that “considerations of personal jurisdiction and joinder are premature when discovery is sought before the plaintiff has named a defendant and the discovery is targeted to identify unknown individuals associated with the IP addresses.”   DC_Appeal_12-7135-1494480

The initial case (1:12-cv-00048) was a potential gold-mine for the dim-wits at Prenda Law (John Steele\Paul Hansmeier\Paul Duffy).  Troll/Plaintiff decided to try to use the Troll-friendly DC courts to try to obtain ISP subscriber information on 1058 Does – majority who did not live or do business in the district.  The American Civil Liberties Foundation, Electronic Freedom Foundation, multiple ISPs, and various attorneys attempted to stop this clear abuse of the judicial system.  Judge Howell ruled in favor of Plaintiff and granted the motion to compel the ISPs to release the information.

The 1% Factor

Troll John Steele was so full of himself with this case that he even sent me comments and an email (I believe it was John Steele) when my declaration (Torpedo) on this cases was tossed by Judge Howell (not a big surprise) and when the case went up on appeal.  {Email and attachment I received AND Initial DTD Post on this case and Steele’s comments}.

GamblingWell things obviously didn’t turn out as well as the Prenda Law clan wished it had. The Appeals Court clearly felt Troll/Plaintiff was abusing the courts and they were seeking to “manipulate judicial procedures to serve their own improper ends.

The appeals court reversed the District court’s order and told them to use the appeal’s court opinion for “further proceedings” and “to determine what sanctions, if any, are warranted for AF Holdings’s use of a possible forgery in support of its claim.”  Now I don’t have too much faith that Judge Howell will doing anything of significance, but I have been wrong before.

So What Does This All Mean?

For the Mass-Doe cases that are still being filed by Plaintiffs like Voltage Pictures, it is going to make their operation a bit harder to say the least. For Trolls like Malibu Media\X-Art, their single Doe cases are unlikely to be directly affected.

Mass-Doe Cases

This is where this ruling will have a significant effect. The appeals court agreed that as filed by AF Holdings (and all the other Mass-Doe filing Trolls), there is no evidence to support joinder of the defendants based only on the fact the Torrent hash file being shared via was the same.  The EFF’s analogy of different players at a BlackJack table to clearly explain this was excellent.  I believe many of the Doe Defenders will start citing this order/opinion in motions to quash/sever/dismiss.

But AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time. Instead, it has simply set forth snapshots of a precise moment in which each of these 1,058 Does allegedly shared the copyrighted work—snapshots that span a period of nearly five months. Two individuals who downloaded the same file five months apart are exceedingly unlikely to have had any interaction with one another whatsoever. Their only relationship is that they used the same protocol to access the same work. To paraphrase an analogy offered by amicus counsel at oral argument, two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times. They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions.

So this means that the Mass-Doe Plaintiffs will have to change-up their game. The first option is to go the Malibu Media/Troll Lipscomb route and file only single-Doe cases.  This probably their least favorite option.  The second option is to change their complaint format to show how each Doe interacted with the other Does in the swarm – not an easy task!  This is because I really doubt the Troll’s German BitTorrent monitoring firms (IPP, Guardalay, etc.) are set-up to do this.  The problem is how to show that Doe #1 downloaded from Does #6, 10, & 13, and uploaded to Does # 2, 5, & 11.  Imagine what a nightmare it would be to try to link just 50 Does together to properly show joinder!  The best they are likely to be able to do is show that a particular public IP address was sharing Plaintiff’s movie over a prolonged period.  What I believe will most likely happen is they will try to limit the number of Does in a case to a small window of time (i.e. one week).  This of course looks better, but is still does NOT address the real issue of whether or not the Does shared Plaintiff’s content between each other.  Failure to adequately shows this even on a Prima facie level is a Red-Flag for Doe defenders and the court.  So the joinder issue is going to be a hard one for them to overcome.

If these trolls are forced to file single-Doe cases, the profitability of such operations drastically drops.  These Mass-Doe filing Plaintiffs are nowhere as established as Malibu Media/Troll Lipscomb in terms of only going after single defendants.  I’m also of the opinion that Malibu Media accomplishes some sort of IP address filtering/analysis to focus their case filing to locations with a higher-median income level.  They already filter out the IP addresses to only the jurisdictions they file in – so how hard would it be to do some sort of financial filters?

Single-Doe Cases

These cases will not be affected by the appeals court ruling on joinder. But I do believe other courts around the country will take notice of this ruling and see how Copyright Trolls are misusing the courts.  Now Malibu Media/Troll Lipscomb will claim they are NOT Prenda AND that they have a real Plaintiff, that they actively litigate their cases, and even had one “Show Trial.”  They will use the words of EDPA Judge Bayless support their view that they are not a Copyright Troll.  Well, IMO they are still a copyright troll because they play a sad game of threatening large numbers of people to seeking quick settlements priced just low enough to make hiring a defense attorney more costly.

This appeals court ruling is good news, but it will in no way kill off the Trolls.  That will come in time and I look forward to the journey.  I will leave you with a little bit I wrote on the blog after Judge Howell granted the motion to compel and John Steele emailed me.

Yes Mr. Troll, I’m a little upset that the DC court ruled as such, but it doesn’t change the facts of your cases and the scumbag business model you are pursuing.   Even with your minuscule naming and serving of defendants, you are still a joke.  You will still send out your settlement demands, Idiot-Lutz calls, robo-calls, and Informal Discovery paperwork.  People will turn to Google and find out all about you and how to handle these garbage allegations.  DC may become the venue to obtain ISP subscriber information, but you will still be unable to take 99.999% of these people into a DC court.  I don’t doubt you will get a few lucky default judgments, but that is going to pale in comparison to the counterclaims that will eventually come your way. 

So I say, “yes you won one here.”  Don’t gloat too much; you will not be able to see the bitch-slap when it hits!   ;)

DieTrollDie :)

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27 May Update – TCYK LLC Cases in Iowa (2:13-cv-01019 & 2:13-cv-01020)

The last multi-Doe TCYK LLC case I can find was filed in Colorado (7 Does), on 3 Mar 14.  Since then we have seen various local Trolls focus on a small number of single Does and occasionally name and serve them.  One Iowa Troll firm who went the name & serve route is Jay Hamilton and his partner Alexander Johnson.  I have written a couple of articles on his cases – most recently on the Necessary Evil of Speaking to a Troll.

This post deals with two IA cases – 2:13-cv-01019 & 2:13-cv-01020

2:13-cv-01019

In this case, we have one remaining defendant (Matthew Beltramea) who filed a Pro Se answer (full denial).   Beltramea_Answer_Doc36_01019(IA)   Due to inaction on this case the court made notice (1 May 14) that unless some action is taken by 15 May 14, the case would be dismissed.   Doc37_01019(IA)   Troll Hamilton immediately filed a motion to compel and stated that Mr. Beltramea would not respond to a letter he sent to him on 16 Apr 14.   Doc38_01019(IA)   Doc38-1_01019(IA)

Based on Troll Hamilton’s motion and declaration the court decided not to close the case and on 20 May 14, a hearing was set before Magistrate Judge Jon Scoles – 29 May 14, 9:00AM.   Doc39_01019(IA)   Note: the judge required the appearance of both parties.  On the same day, Troll Alexander Johnson, Hamilton IP Law PC, filed a notice of appearance for this case.   Doc40_01019(IA)   Based on this notice, I assume Troll Johnson will be at the meeting.

Now based on Mr. Beltramea’s answer, I cannot see why he would not work with the Troll to issue a joint scheduling order and discovery plan.  It would not surprise me if the Troll sent the “letter” to the wrong address or even failed to respond to Mr. Beltramea when he tried to contact the Troll.  In two days we will have the hearing and hopefully Mr. Beltramea can explain this issue.

The scheduling order and discovery plan is just a waste of time in my opinion.  The Troll has no desire to go this route and doesn’t want to waste more money.  The main discovery items are going to be a deposition of Mr. Beltramea and other network users, and a forensic examination of the household computers.  Now based on Mr. Beltramea’s answer, Troll/Plaintiff may actually conduct a deposition or two.  If they decide to motion the court for a dismissal and do nothing in the discovery plan, then more weight is given to Mr. Beltramea’s claim that the Troll is gaming the systems and should be sanctioned.

2:13-cv-01020

This is another Troll Hamilton/Alexander case for the same worthless movie (my opinion).  We have two named defendants remaining (Terri Eicher & Joshua Davidson).  Both defendants were served and on 26 Feb 14, Mr. Davidson filed an answer denying the allegations.  Mrs. Eicher has not filed any answer and will likely have a default judgement issue against her.

On 24 Apr 14, Troll Hamilton made a motion to compel against Mr. Davidson for failing to meet and confer on a joint scheduling order and discovery plan as mandated by the court  (ECF # 37).  On 14 May 14, the court set a mandatory hearing on the motion to compel – in Magistrate Judge Scoles’ courtroom – 29 May 14, 9:00AM.  Note: This is the same hearing for both IA cases.

Hopefully the court is growing tired of these Troll escapades and will pose some hard questions to them.  I will not hold my breath and hope that Mr. Baltramea and Mr. Davidson attend the hearing.

NFT1I’m of the opinion that for this Troll/Plaintiff, they will simply cut and run when given the chance.  As I previously posted, Troll Hamilton was able to get the court to dismiss Defendant Doonan (with prejudice) even with an answer denying the allegations.   Doc29_Answer_01020(IA)  Doc36_01020(IA)   I have it on good accord that Defendant Doonan did not pay a settlement or even agree to a walk-away deal.  This was a move by Troll/Plaintiff to avoid having to move the case forward.  This Plaintiff (TCYK LLC) is likely done, but the people behind these actions will continue to file these cases for as long as the money is good.  Hopefully after these cases are closed, the Iowa courts will take a dim view of the Trolls.

DieTrollDie :)

“DAMN THE TORPEDOS, FULL SPEED AHEAD!!”  –  {John Steele comment (My belief) made on 20 Feb 12} – failed attempt to portray himself as Admiral David Glasgow Farragut (1801-1870)

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Elf-Man LLC and The German Investigators – Lamberson Case – # 2:13-cv-00395 (WA)

1 2 Jul 14 Update

Here is a short update on the Elf-Man LLC v. Lamberson, case # 2:13-cv-00395.  On 30 Jun 14, Troll David Lowe (Now the local counsel for Elf-Man) filed an Opposition to Defendant’s Motion to Compel.   Doc_62_00395(WA)   Note: There are three declarations (from Lowe, VanderMay, and Sweeten) that I did not get from PACER due to the cost.  Here are the declarations.   Doc_62-1_Decl_Lowe_00395(WA)   Doc_62-2_Decl_VanderMay_00395(WA)   Doc_62-3_Decl_Sweeten_00395(WA)   The Troll claims Defendant’s motion is nothing but a waste of resources (The Courts & Plaintiffs) and is designed for no other purpose than to drive up litigation costs.  Take a read and try not to laugh – Plaintiff is desperate.  Plaintiff has 4 reason why the motion to compel should be dismissed.

  1. Plaintiff has moved to dismiss with prejudice all claims and unconditionally confirmed that it will not seek to enforce the asserted copyright claims.
  2. Defendant’s motion cannot be heard because there was never a good faith LR 37.1 conference with counsel of record.
  3. Objections were timely served, as confirmed by the certificate of service and testimony of prior attorney of record and legal assistant.
  4. Defendant seek privileged or work product materials that need not be produced under well-established legal authority.

The interesting part of this filing is on the last page, Troll Lowe tells the court that by an “extension” of the attorney-client privilege, the information Defendant seeks from the Anti Piracy Management Company (APMC) LLC and Vision Films, Inc., is protected from Discovery.  Yes, somebody is scared!  It is funny in that trying to prevent disclosure of APMC information, Plaintiff had to admit the company was part of their operation – and thus the information in the slide presentation was given credibility.  

While it is true that prior counsel represented Plaintiff in this case, it is no less true by extension that counsel also represented Plaintiff’s agents, which included its sales agent Vision Films, Inc. and manager APMC LLC. Defendant provides no legal authority mandating that attorney-client privilege is limited solely to parties named in a lawsuit, and such a position would be truly exceptional.

On the same day, Attorney Lynch filed a Joint 37.1(b) Statement.   Doc_61_00395(WA)   In this Statement, Attorney Lynch tells the court that both sides have conferred and tried to resolve their differences, but have been unsuccessful.

On 1 Jul 14, Attorney Lynch filed a Motion to Strike Plaintiff’s Opposition to Defendant’s Motion to Compel.   Doc_63_MTS_00395(WA)   Attorney Lynch tells the court that Plaintiff’s Opposition should be stricken because it was not filed in accordance with Local Rules.  The local rules allow for 14 days to response to non-dispositive motions.  Troll Lowe filed his Opposition 17 days after Defendant Lamberson’s Motion to Compel was filed.  Attorney Lynch tells the court that there was valid excuse for the late filing.  Troll Lowe/Plaintiff had the ability to file their Opposition on the last possible day (27 Jun 14), but simply decided not to.

Plaintiff’s counsel does not appear to have been otherwise detained without access to the Court on the due date of Friday, June 27, 2014, since the plaintiff and its counsel did file Motions for Default Judgment asking for attorneys’ fees on that same date (Case No. 2:13-cv-00126-TOR, ECF No.108 and Case No.2:13-cv-00115-TOR, ECF No. 112).

Here are the document that Troll Lowe was able to file with the court on 27 Jun 14.  He WASN’T too busy to make two motions for default judgements against 11 Defendants in cases 2:13-cv-00115 (Elf-Man LLC) & 2:13-cv-0126 (The Thompsons Film LLC) .   Doc_108_Motion_Default_00126(WA)   Doc_108-1_Decl_Lowe_Default_00126(WA)   Doc_112_Motion_Default_00115(WA)  Doc_112-1_Decl_Lowe_Default_00115(WA)

This sick!!!  The scum-bag Troll (My Opinion) wants $30,000.00 PER defendant, plus fees and costs.  $30K X 7 Elf-Man LLC Defendants = $210,000, AND $30K X 4 The Thompsons Film LLC Defendants = $120,000.  Total of $330K!!! plus fees & costs.  troll/Plaintiff even want so far as to claim they could have asked for $150K, but they were being nice.

The problem Troll/Plaintiff should have is that for both of these cases, Plaintiff claimed (via the complaints) that ALL the defendants were jointly and severally liable.  So reading 17 U.S. Code § 504 – Remedies for infringement: Damages and profits, I’m of the opinion that $150K should be the MAXIMUM damages for ALL the Defendants in each of these cases.  As the Plaintiff only asked for $30K, I hope the award of damages does not even get that high.

(c) Statutory Damages.—

1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

Another point is there is case-law that would allow the amount of settlements received (in this case and possibly for the same Hash file) by troll/Plaintiff to be taken into account and thus REDUCE the total damage award.  This of course would require one of these defendants to motion the court.  This seems unlikely, but if Troll/Plaintiff actually tries to collect, they may get a surprise.

DTD :)

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16 Jun 14 Update

Late addition – The judge decided to grant Troll VanderMay’s motion to withdraw as counsel for Elf-Man LLC.    Doc_60_Dismiss_Order_00395(WA)   Troll VanderMay was very lucky IMO.  I really doubt we will see her as counsel for anymore Copyright Trolls.   :)  So right now we have David Allen Lowe as counsel for Troll/Plaintiff.

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Thank you SJD for the recent post on the Lamberton case -Elf Man v. Lamberson: presented with the evidence of wrongdoing, plaintiff attempts to run away

That is right, the Troll/Plaintiff now wants to dismiss the case With Prejudice.   Doc_59_MTD_00395(WA)   This motion to dismiss came immediately after attorney Lynch filed a motion to compel discovery and supporting declaration.  Doc 57_MotionCompel_00395(WA)   Doc 58_Decl_LynchMTC_00395(WA)   I smell FEAR.  

The main problem the Troll is going to have is Mr. Lamberson (via Attorney Lynch) filed a counterclaims against Plaintiff prior the motion to dismiss.  Now according to FRCP 41, Mr. Lamberson could be dismissed, but only if the counterclaims still stand against Plaintiff.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

I don’t know if that would give Troll/Plaintiff any advantage, but I assume they would use the adjudication to try to claim much of Mr. Lamberson’s Discovery was no longer needed.  A sad weak argument, but one they would likely use.  As soon as the Troll/Plaintiff finds out the judge is not going to let then rum so easily, I believe Mr. Lamberson is going to get a settlement offer of some sort.  This is so Prenda-like it is hard not to chuckle out-loud.  More to come on this one.

DTD :)

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3 Jun 14 Update

Thank you Sophisticated Jane Doe for alerting me to this document.  On 3 Jun 14, Troll VanderMay motioned the court to allow her to withdraw as counsel for Elf-Man LLC.   Doc_109_Troll_WithD_00395(WA)   The exact reason may eventually be filed under seal, but for now we can still glean some information from it.

Issues have arisen between Plaintiff’s representatives and counsel, the nature of which make it impossible for counsel to both continue with representation and comply with the governing rules of professional conduct.  Because of their privileged and confidential nature, the reasons for this motion have not been disclosed in the accompanying declaration of counsel. Should the Court require the disclosure of this information, we request that we be permitted to provide this information under seal.

Troll VanderMay tells the court that if she stays local counsel for this Plaintiff, she will not be able to maintain the minimum level of professional conduct required of an attorney.  WOW!!!  Also who is this “Plaintiff’s representative” that she mentions.  It sounds very “Prenda” to me.  Until such time as replacement counsel is found, Troll VanderMay asks that the non-appearing counsel, Troll Carl D. Crowell, handle all activity.  So we can assume the issue doesn’t directly involve Troll Crowell.

I do hope the judge at least makes her file a detailed reason under seal.  Then at least the judge will have a clear view of this Troll/Plaintiff and their sleazy operation.

On a side note, I will be on a bit of vacation for a week, so my updates and comments my note be as prompt.  Please continue to send me your questions and I will get to them as soon as I can.

DTD :)    “These are great days e’re living, bros. We are jolly green giants, walking the Earth with guns.”  { Crazy Earl – Full Metal Jacket} 

2 Jun 14 Update

On 2 Jun 14, Attorney Lynch raised the stakes for Troll VanderMay and Elf-Man LLC, when he filed a second declaration supporting their motion to compel.   Doc_54_00395(WA)   Attorney Lynch informs the court that there are three similar Malibu Media/X-Art Copyright Troll cases in MD, where attorney Morgan Pietz is also trying to force Plaintiff to disclose relevant details concerning the German “Investigators.”

4. As Exhibit A, I attach a copy of the Reply Brief in that Maryland action (ECF No. 27) because it cites to evidence in this case Elf-Man v. Lamberson. The Reply explains that Mr. Patzer is the same witness as in the Lamberson case, and that Mr. Fieser plays the same role in the Maryland case that Mr. Macek plays in the Lamberson case.

5. In both the Maryland cases and in this Washington case, the accused defendants are confronted with evidence only from German investigators and in both cases the plaintiff has not been forthright as to the relationships of the plaintiff to the
investigators.

It sure looks like WA and MD are fast becoming not so Troll friendly.

DTD :)

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22 May 14 Update

Short update that isn’t a surprise to those of use who follow the Copyright Trolls.  on 22 May 14, Attorney Lynch filed an additional declaration in support of the motion to compel discovery (ECF #50 & 51- below).   Doc_53_00395(WA)   Doc_53-1_00395(WA)

While trying to determine the true location of Mr. Patzer and Macek, Attorney Lynch had some interesting discoveries.

7. Today we examined the telephone numbers given for Mr. Macek in the Initial Disclosures (+49-0-721-977-95-73) and Mr. Patzer (+49-0-7247-4056-199). We compared these phone numbers to the German Deutsche Telekom’s listing of “country” and “city” telephone codes. “+49” (used in both numbers) is the country code for Germany. “721” (used in Mr. Macek’s number) is the city code for Karlsruhe. “7247” is the city code for Linkenheim, a suburb of Karlsruhe. Neither phone number uses any of the “70x” or “71x” city codes associated with Stuttgart and its surroundings. We reported this additional discrepancy to plaintiff’s counsel (Exhibit A) as being an additional reason to doubt the accuracy of the addresses provided, but have received no response from plaintiff’s counsel.

8. I called the number provided for Mr. Macek to try to confirm his address, and the phone was answered “Guardaley.” The number for Mr. Patzer was not answered.

9. We have concluded from this information that the Stuttgart addresses provided for the witnesses in the Initial Disclosures are inaccurate. It appears plaintiff is not being forthright about the German addresses of the very witnesses plaintiff expects Mr. Lamberson to travel to Germany to depose. We have also concluded that the Karlsruhe telephone number and the answering of the telephone “Guardaley” indicates that Mr. Macek is in fact “working for” Guardaley and not Crystal Bay Corporation as the “explanation” provided by plaintiff in response to Request for Production No. 15 proffers.

As I said, no surprises here, but it sure creates a hell of a mess for Troll VanderMay.  Have fun with this one!

DTD :)

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The Elf-Man LLC case against Mr. Lamberson (2:13-cv-00395(EDWA)) is still ongoing, but it appears Troll VanderMay is slowing down a bit.  Maybe some stress?  Previous post on this case.

elfman_parody1Currently we are waiting for Judge Rice to rule on Troll/Plaintiff’s motion to dismiss Lamberson’s counterclaims (ECF #37).   Doc_37_00395(WA)   As this motion was filed on 31 Mar 14, I expect we will have a ruling soon.

On 9 May 14, a telephonic discovery conference took place.   Doc_47_00395(WA)

The Court and counsel discussed depositions of the parties; forensic analysis of defendant’s computer and the ability of Mr. Crowell to attend the depositions in this matter.

The Court declined to issue a discovery order at this time. The defendant is entitled to start the process for letters rogatory. The parties were encouraged to work together to schedule depositions and accomplish the forensic analysis of defendant’s computer. Mr. Crowell is entitled to attend the depositions, but must be admitted pro hac vice to participate.

So it looks Plaintiff wants to bring Mr. Crowell into this mess. He is the OR Troll that recently pulled a Prenda Law move when he filed a 50-Doe Oregon State Trademark infringement cases for Voltage Pictures (@voltagepictures).  This Oregon State case was clearly a Federal Copyright case.  The case has since been removed to the appropriate Federal jurisdiction – 6:14-cv-00816-TC.

Following the Discovery conference, Troll VanderMay filed a memo in opposition to Lamberson’s motion to compel discovery and a declaration in support of the memo.    Doc_48_00395(WA)   Doc_48-1_00395(WA)

I will say that I was shocked to see how short these two filings were.  Usually Troll VanderMay is very long-winded and loves to use “lawyer-speak.”  The other fact you will find interesting (and so did Attorney Lynch) is many of the points in Lamberson’s motion to compel were never disputed (much less even addressed) by her.

On 20 May 14, Attorney Lynch filed two documents

  • DEFENDANT LAMBERSON’S REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCOVERY OR FOR ISSUANCE OF LETTERS OF REQUEST   Doc_50_00395(WA)
  • DECLARATION OF JEFFREY R. SMITH IN SUPPORT OF DEFENDANT’S REPLY ON MOTION TO COMPEL DISCOVERY OR FOR ISSUANCE OF LETTERS OF REQUEST   Doc_51_00395(WA)

In the reply memo, Attorney Lynch provides sound reasoning why the ONLY witnesses of Mr. Lamberson alleged infringement should be formally (and legally) deposed in the US and not use some unknown “informal” process – which might not even be legal.  Plaintiff was the one who employed the German company as its investigators and shouldn’t be allowed to use the high cost of travel to the US as a shield to having to produce these witnesses (and associated evidence).  As of the reply filing, Troll VanderMay has yet to provide any more insight into this issue.  And I doubt she will.

One area brought up by Attorney Lynch was the fact Plaintiff did not bother to dispute the various problems with the German “investigators.”

Messrs Macek and Patzer are not licensed and bonded in Washington, yet the plaintiff has selected these individuals to detect, discover or reveal evidence it plans to introduce into court. Plaintiff could have used the investigation from Messrs Patzer and Macek to hire a licensed local investigator to confirm the “infringement” – a local investigator who would be subject to the jurisdiction of the court and to service of process to compel testimony. {Page 6}

AND

Plaintiff does not dispute that the entirety of its liability evidence is that its investigator’s system does a “handshake” with an IP address and then sends a request for a bit to that IP address and in turn receives a bit. In the case of Mr. Lamberson, Plaintiff does not dispute that the uploaded bit from the IP address associated with Mr. Lamberson may be too small to be perceptible, or that the investigator’s machine doing the actual uploading may have been in The Netherlands, not Germany. Plaintiff does not dispute that its investigation does not account for “false positives” that could lead to erroneous identification of IP addresses, including that bittorrent “client software” can allow the “spoofing” of IP addresses (i.e. a person in a swarm can “make up” an IP address that is displayed to the others in the swarm). {Page 6-7}

Troll/Plaintiff continues to try to evade answering the straight-forward questions of WHAT is the relationship with the investigators.  Attorney Lynch states the sealed response they received from Plaintiff on 2 May 14, was lacking in key areas.

…and failing to provide any further explanation as to exactly how Mr. Macek, a German national, could possibly be “working for” a delinquent South Dakota corporation, and how such a delinquent South Dakota company with no offices could have “been retained” by Anti-Piracy Management Company, a company that pretends to have an office in Sacramento, California (but presumably is located in Karlsruhe, Germany) – all without any paperwork or financial terms. The May 2, 2014 explanation indicates “Mr. Macek is paid at a set rate in the form of a monthly salary which was in no way contingent upon the results of the subject investigation nor the outcome of this litigation” – but how could this be the case? How could a German national work for a delinquent South Dakota company? The May 2, 2014 explanation indicates “We have provided every document that exists concerning the subject relationships,” but this cannot be true since the explanation also admits “the parties to this arrangement are working upon but have not yet finalized the financial terms of their arrangement.” There must be some written explanation as to why the financial terms were redacted from the APMC agreement provided in discovery and there must be some written explanation why there are no terms at all with Crystal Bay. Indeed, if the South Dakota company Crystal Bay Corporation were a real company, we could seek discovery from it, but, as our April 16 letter questions, how could we seek discovery from a company with no office, and with a registered agent with no office? {Page 7-8}

Attorney Lynch attacks Plaintiff weak reasoning and I cannot imagine the court not granting Mr. Lamberson’s motion to compel.  The obvious stink of Troll/Plaintiff’s actions gives rise to a multitude of reasonable questions that can only be answered by these two witnesses.  If the motion to compel is approved, I seriously doubt we will see Macek and Patzer willingly come to the US.  I would expect them to pull a full-Prenda/Mark Lutz and not show up.  Maybe they can claim they were on a no-fly list and could not make it to the US.

If this happens, the case against Mr. Lamberson will be dismissed.  If the counterclaims against Plaintiff have not been dismissed, then it becomes Troll Open-Season.  :)   Fees, Costs, Sanctions….   As bad as this sounds for Plaintiff, it is still better than having to answer the questions that will lead to more questions and so on.   I imagine at such a time, there is also going to be a mad rush to voluntarily dismiss any remaining cases that can be tied to the German “investigators.”

One can also hope that the impending fallout in this case will affect Troll Lipscomb and Malibu Media. – See Exhibit H (Page 34) of Doc #51, DECLARATION OF JEFFREY R. SMITH.

Take a read of the filing from Attorney Lynch and tell me what you think.

DieTrollDie :)    “Well that’s great, that’s just fuckin’ great, man. Now what the fuck are we supposed to do? We’re in some real pretty shit now man…” – Aliens – Hudson

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“We Can Prove Every Case” (Troll Lipscomb/Malibu Media) – AKA: No Evidence – Harrison Case 1:12-cv-01117 (IN)

I will try to keep this short, but I apologize in advance for getting a bit long-winded. In the continuing saga of Malibu Media v. Harrison, Case 1:12-cv-01117, we have seen a very interesting development.  One that calls into question Troll/Plaintiff’s stated reason for filing these law suits AND the plain and simple fact that without some real evidence, going after the ISP subscriber is reckless.  I know this is shocking to many of you (sarcasm).  Now once you read the documents I sure we will have a comment or two to point out there is “some” evidence.  I of course beg to differ.

NoEVID1The following Objection and Exhibits are from Defendant Harrison (Attorney Quearry) and seeks the court to grant his motion to compel discovery from Troll/Plaintiff. The objection is well-written and I can’t see why it would not be approved – but I’m no lawyer either.    Harrison_Obj_01117(IN)   Harrison_Obj_EX1_01117(IN)   Harrison_Obj_EX2_01117(IN)   Harrison_Obj_EX3_01117(IN)   Harrison_Obj_EX4_01117(IN)   Harrison_Obj_EX5_01117(IN)   The files can also be found here.

The part of the “Objection” which is the focus of this article is the “DECLARATION OF JASON BOSAW” (Exhibit #2).  Mr. Bosaw,  Bosaw & Associates LLC, is the computer forensic expert hired to review the Troll forensic reports from Patrick Paige (see Exhibit 1 – very thin report).  He also reviewed the “Revised Settlement Demand by the Plaintiff.”

Bottom Line Up-Front {from Mr. Bosaw}

There IS NO evidence reported by the Plaintiff’s expert that demonstrates the Defendant is the likely infringer.

What is so funny is this professional opinion is ONLY based on the findings of Plaintiff’s expert and what the troll claims in the revised settlement demand.

So what did they find on Defendant Harrison’s hard drives??? I guess it would be better to list out what they did not find.

  • NONE of the 6 (six) X-ART related files were found to have ever been on the Defendant’s hard drives by the Plaintiff’s expert.
  • The technical reports DO NOT identify the specific device using the 98.220.43.119 IP address by its physical/MAC address and therefore CANNOT prove the Defendant was the infringer flawlessly without showing the Defendant’s device has the same physical/MAC address or has ever contained the files alleged to have been infringed.

What was found

  • Some sort of evidence to indicate that a Torrent client was used at some time.
  • Presence of several external devices being attached to the Defendant’s hard drives.

Now I don’t know the specific evidence Mr. Paige mentions, but if it was anything serious, Plaintiff sure would have said so. This indicates to me that the evidence is extremely weak at best.  Here is a past Fightcopyrighttrolls article concerning Mr. Paige.

Here is what Mr. Bosaw had to say about Plaintiff’s evidence

Evidence of a Torrent client in use IS NOT evidence of infringement of the Plaintiff’s works. Torrent protocols are used for a wide range of legitimate purposes including downloading of open source developer software applications and NOT only for infringement of the Plaintiff’s works.

Existence of Torrent files on the Defendant’s hard drive IS NOT evidence of infringement of the Plaintiff’s works. NO Torrent files found by the Plaintiff’s expert were identified as belonging to the Plaintiff.

Presence of several external devices being attached to the Defendant’s hard drives IS NOT evidence of infringement of the Plaintiff’s works. Removable devices are so prevalent in today’s digital age; it would be hard to find a computer that has not had a removable device attached to it at some time.

Of the numerous external devices listed in the Plaintiff’s expert’s Exhibits C and D, Zero (0) are reported by the Plaintiff’s expert as being connected to the Defendant’s hard drives during the alleged infringement period of the Plaintiff’s works as detailed in the six (6) Technical Reports between June 3, 2012 and September 30, 2012. Had external devices been connected during this period, they would be the only devices able to store the files allegedly downloaded by the Defendant because the files were NOT found to have ever been on the Defendant’s hard drives.

Now I don’t know for how long Troll/Plaintiff has had this information, but I would make a friendly wager that it was soon after Mr. Bosaw signed the declaration (20 Mar 14).  Knowing Mr. Bosaw was prepared to testify I would expect the Troll offered a “walk-away” deal.  I bet the Troll was unwilling to cover Defendant Harrison’s legal fees and costs.

The fact that they are still holding on is very confusing.  The best they can hope for is to get IPP personnel on the stand and say that they recorded the IP address as sharing Plaintiff’s works.  If the objection is successful in compelling the discovery of IPP information, then they will be in even worse shape.  Then they get grilled by Attorney Quearry on the simple fact that they cannot determine who was using the public IP address at the dates/times in question.  The best I could see them trying to do is link Defendant Harrison to all the other non-Malibu Media files that were being shared via the BitTorrent client over his public IP address.  The Troll could also try to claim Harrison removed the offending system (i.e. the “mystery” computer) that was used to illegally download/share Plaintiff’s movies.  Without having any evidence to back up such a claim, Troll/Plaintiff will come across even worse.  Not that such a prospect has ever stopped them before.  

Reasonable?

Following Defendant Harrison’s filing, Troll Nicoletti made a motion for attorney fees and costs.  Troll Nocoletti wants $4,316.25 for having to respond to Defendant’s motion to compel.  He claims the amount was reasonable.    Plaintiff_Fees_01117(IN)

Troll/Plaintiff Speaks to the Media

In case you missed it, The “New Yorker” has an online article about Malibu Media – “The Biggest Filer of Copyright Lawsuits? This Erotica Web Site.”  I thought it was very soft on Troll/Plaintiff, but what can you say, I have been called “Anti-Copyright,” Pro-Piracy,” and even a member of an “Internet Hate Group.”  I’m none of these.

Troll Lipscomb and Collette even spoke to the reporter, which is unusual.  One quote the New Yorker got from Troll Keith Lipscomb was this gem.

“We can prove every case,” Lipscomb said, adding that Malibu Media drops a suit if there’s any hint of a mistake.

Now why would Troll Lipscomb make such an outlandish statement that has no basis in truth???  That is my opinion Keith.  I believe they fear all the information that is making its way into the public concerning their slimy business model.  They don’t want the world to see what they are doing unless it is a view they approve of.  Somebody is trying to pull a Prenda and lives in their own fantasy world.  And yes Keith, you and your clients who follow this business model are “Copyright Trolls.”

DieTrollDie :)

PonyEVID

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

8 May 14 Update

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

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

DTD :)

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5 May 14 Update

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

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

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

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

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

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

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

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

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22 May – Update on Copyright Troll (Voltage Pictures) Claims Trademark Infringement In Oregon State Court

22 May 14 Update

Quick Update – Well thanks to some Does who fought back, as well as their attorneys, the two OR State Trademark infringement cases have been removed to Federal court and then the judge on his own decided to server all defendants except for Doe #1.

I don’t believe any subscriber information was released to the Troll prior to judge severing the Does.  Just remember that this success was only possible because some of the Does decided to fight.  Thank you!

VoltagePic_MTQ_OR_State   OR_DBC_Order 00812(OR)

DTD :)

2 May 14 Update

A short update concerning the release of subscriber information by Comcast concerning the 50 Does.  It looks like unless there is some sort of motion to quash filed, Comcast is scheduled to release the information on 22 May 14.  It would be nice if Comcast decided to fight what is clearly an abuse of the law to obtain their customer’s information.

If you are a Comcast customer, you might consider calling (866) 947-8LRC & select option #2. You can also tell Comcast what you think via Twitter – @comcast OR via their corporate Web site – http://corporate.comcast.com/

In case you missed it, NBC Chicago, IL, recently (2 May 14) ran a story on Copyright Trolls and I was lucky enough to be interviewed for it.  Attorney Jeffrey Antonelli features more prominently in the story (as well as looks good in that suit).  Please take a read and watch the video.

DieTrollDie :)

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VolPic1The low-down tactics of Copyright Trolls never stop to amaze me.  This time Voltage Pictures (AKA: Nicolas Chartier) are trying a very Prenda-Like move in the Marion Circuit Court (Oregon State court).  They have filed a Trademark Infringement case against 50 John Does for what is clearly a BitTorrent Copyright Infringement case – thus should be filed in Federal court.  I would also like to welcome attorney Carl D. Crowell, Crowell Law, to the ranks of the Copyright Trolls.  Your reputation may suffer for doing this. 

VolOR1

Voltage Picture is clearly trying to use this ruse (my opinion) to obtain ISP subscriber information for IP addresses they say shared the movie Dallas Buyers Club over BitTorrent.   Complaint_VolPict_OR

If you recently received a letter from your ISP about Voltage Pictures in Oregon, The Pietz Law Firm would like to hear from you.  As to your options generally in cases like these, check out this article by Morgan Pietz.

DieTrollDie :)

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The Necessary Evil Of Speaking To A Troll – TCYK LLC Case 2:13-cv-01020 (IAND)

HBell_NA1DieTrollDie is not at his home port right now.  I’m at an east Coast location taking in some “interesting” studies for a few weeks.  Until I return home, my articles are likely to be fewer in number; but please don’t hesitate to contact me.

In this update to TCYK LLC case 2:13-cv-01020, Troll Hamilton has recently taken some action of interest.  We have TWO Pro Se Defendants who have filed answers denying the allegations. 

As I previously pointed out, Troll Hamilton made a motion to dismiss Defendant Doonan.    Doc33_VolDismiss_01020(IA)  Well on 10 Apr 14, Judge Edward McManus granted the voluntary dismissal of Defendants Fox, Jennings, and Doonan WITH PREJUDICE.   Doc36_01020(IA)   Now I have no doubt that Defendant Fox and Jennings were dismissed after settling with Troll Hamilton.  What was a bit of a surprising to me was the dismissal of Defendant Doonan after she filed an answer denying the allegations.   Doc29_Answer_01020(IA)   I have it on good accord that Defendant Doonan did not pay a settlement or even agree to a walk-away deal.  This was a move by Troll/Plaintiff to avoid having to move the case forward.  Congratulations to Defendant Doonan – the Troll was made to back down.

In accordance with FRCP 41, Dismissal of Actions, a judge can dismiss a case against a defendant who has filed an answer.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for inde pendent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

So according to FRCP 41(2), the court decided to dismiss the case against Defendant Doonan via a court order.  If Defendant Doonan had made counterclaims, the case still could have been dismissed, but the counterclaims would have stood after the fact.

So Troll/Plaintiff weaseled out of  having to move forward with discovery and the eventual motion for summary judgement once the deposition and forensics came back with nothing.  So right now we only have two named defendants left who have filed answers – Davidson and Reinert.   Doc30_Answer_01020(IA)    Doc35_Answer_01020(IA)

On 24 Apr 14, Troll Hamilton filed a motion to compel Defendant Davidson to comply with a court order.   Doc37_01020(IA)   Troll Hamilton informs the court he is unable to comply with the court order (past deadline of 27 Mar 14) for submitting a Scheduling Order/Discovery Plan because Defendant Davidson has failed to contact him.  Troll Hamilton informs the court that on 6 Mar 14, he sent a letter to Defendant Davidson requesting to discuss the case.  According to Troll Hamilton, Defendant Davidson has not contacted his office.

If this is true, Defendant Davidson needs to contact Troll Hamilton as soon as possible to make it clear he is not ignoring the court order.  I would also suggest that Defendant Reinert contact Troll Hamilton and make this fact clear.  It is my view that Troll/Plaintiff does not wish to take this case through discovery or trial.  The cost of such actions is more than they want and it has a good chance of going bad for them.

ICreamEV1Once a Pro Se Defendant files an answer, they should contact Plaintiff and not appear to be hiding.  At this point, discussing the case with Troll/Plaintiff is going to be a necessary evil.  They are already concerned that a Pro Se answer has been filed; no reason to give them hope by failing to speak with them.

DieTrollDie :)    The hard part about playing chicken is knowin’ when to flinch.”  - {Capt. Bart Mancuso – The Hunt for Red October}

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