OR Court – BT Copyright Troll Tactics Overly Aggressive – Awards Defendant $17K In Fees (3:15-cv-00866)

5 Dec 2016 Update – Cobbler Nevada Case (3:15-cv-00866(OR)):  On 2 Dec 2016, Magistrate Judge Stacie Beckerman, issued her ‘Findings and Recommendations’ (Doc #51) on Cobbler NV, LLC v. Thomas Gonzales.   findingsrecom_00866or

fr_screen2_00866or

Based the previous case activity (see DTD articles: Cut & Run  &  How NOT To Run A Case) it was assumed the court was going to award Defendant attorney fees and costs.

PREVAILING PARTY.  The court found that the Defendant was clearly the prevailing party under “any” analysis of the case.

The Court’s finding that Gonzales prevailed on the contributory infringement claim should end the analysis, as Gonzales is seeking attorney’s fees only in connection with his defense of that claim. However, even if the Court must adjudge the prevailing party based on the relative success of both the direct and contributory infringement claims, the Court finds that Gonzales is the prevailing party under any analysis.

REASONABLENESS.  As to the reasonableness of Plaintiff’s claim, the court found the initially “reasonableness”, did not extend very far once the case details became clear.

The Court finds that once Plaintiff learned that the alleged infringement was taking place at an adult group care home at which Gonzales did not reside, Plaintiff’s continued pursuit of Gonzales for copyright infringement was objectively unreasonable. Plaintiff’s discovery that Gonzales was not the infringer came before Gonzales accrued the fees submitted for approval, and therefore the requested fees relate to a time period during which Plaintiff’s continued pursuit of Gonzales was objectively unreasonable.

MONEY.  As to Plaintiff’s motivation for filing these cases, the court clearly had concerns that this was a business model based on greed and lacked any “meaningful” investigation.

Although Plaintiff urges the Court to believe that “money has never been the goal” of this action, this Plaintiff and similarly-situated plaintiffs continue to demand large sums of money from individuals to settle these BitTorrent copyright claims. Many individuals agree to pay these large sums without the benefit of legal counsel. See Anonymous Users of Popcorn Time, 2016 WL 4238639, at *4. The Court shares Gonzales’ concern that Plaintiff is motivated, at least in large part, by extracting large settlements from individual consumers prior to any meaningful litigation. On balance, the Court has concerns about the motivation behind Plaintiff’s overaggressive litigation of this case and other cases, and that factor weighs in favor of fee shifting.

OVERLY AGGRESSIVE LITIGATION TACTICS.  Based on these findings, the court concluded:

Plaintiff’s claims against Gonzales were objectively unreasonable, and the Court has concerns about Plaintiff’s motivation in continuing to pursue those claims when it became clear that Gonzales was not responsible for the alleged infringement. To incent similarly-situated defendants to protect their rights under the Copyright Act, and to deter Plaintiff from overaggressive litigation tactics, the Court concludes that a fee award to Gonzales is appropriate.

And AWARD:

For the reasons stated above, the district judge should enter judgment dismissing Plaintiff’s claims against Gonzales with prejudice, GRANT Gonzales’ request for attorney’s fees in the amount of $17,222.40, and GRANT Gonzales’ request for costs in the amount of $252.20.

JustStupid1Now Troll/Plaintiff has 14 days from this recommendation to object to this. If they are stupid enough to do this, it simply means the fee award against them is likely to go up when attorney David Madden has to respond to whatever laugable analysis/objections they file. Congratulations to Defendant Gonzales and attorney Madden – well done.

I certainly would have liked a larger fee award, but I’m happy for the analysis and the clear statement from the court that the Trolls are pursuing these weak-ass copyright infringement claims beyond the reasonableness level based on overly aggressive tactics.

– Suggested reading – Troll Poker & Talking To The Trolls

DieTrollDie :)  If you are part of a society that votes, then do so. There may be no candidates and no measures you want to vote for … but there are certain to be ones you want to vote against.”  {The Notebook of Lazarus Long, Robert A. Heinlein}   

Posted in Carl Crowell, Cobbler NV LLC | Tagged , , , , , , , , , , , , , , , , , , | 6 Comments

BT Copyright Troll ‘Fathers and Daughters’ LLC Goes After Senior Citizen (1:16-cv-00187, HI) – Then Tries to ‘Cut & Run’

The following case comes to us from the State of Hawaii, where BT Copyright Troll attorney, Gregory A. Ferren, plies his trade.

fandd_trollitOn 22 April 16, Troll Ferren filed Fathers & Daughters Nevada, LLC, v. Does 1-12, 1:16-cv-00187, District of HI.   docket_30nov16_00187hi   This was a standard template-based multiple Doe BT copyright troll case on an otherwise lack-luster movie (RedBox Rental for $1.50).  Nothing special was noted in its form or the running of it. The Troll immediately asked the court to grant early discovery and was granted this on 28 Apr 16. Following the release of ISP subscriber information by the Hawaiian Telecom, Troll Ferren was likely working settlements.  On 19 Jul 16, Troll Ferren filed a Scheduling Conference Statement with the court – basically it said nothing.   conf_statement_doc12-00187hi

On 10 Aug 16, Troll/Plaintiff filed a dismissal ‘With Prejudice’ for Does 5 & 10. Then eight days later he filed a dismissal (‘With Prejudice’) for all remaining Does except for Doe #11.   dismissal-wp_does-5_10_00187hi   dismissal-wp_does_doc15_00187hi

On 18 Aug 16, the Troll amended the complaint to name the one remaining Defendant. The claim was for direct and contributory copyright infringement.   1st_amend_complaint_00187hi   1st_amend_complaint_ex1_00187hi   1st_amend_complaint_ex2_00187hi   On 4 Oct 16, the court issued a summons for Defendant Alberto Rodriguez. Mr. Rodriguez was served on 11 Oct 16.

What makes this case different from most is that Mr. Rodriquez filed a Pro Se ‘Answer’ denying all claims of copyright infringement (21 Nov 16).   def_answer_00187hi

def_answer_pic1

It doesn’t surprise me that the Troll went after this senior citizen. Probably figured it would be easy to force a settlement once he was served. That or they truly didn’t do their research before naming him as the Defendant.

I’m pretty sure Troll/Plaintiff was a bit surprised when Mr. Rodriquez filed his answer. In addition to his full denial, Mr. Rodriquez asked the court to:

  • Bar Plaintiff from simply naming Defendants based ONLY on who the ISP subscriber is
  • Issue a show cause order requiring Plaintiff show why it should not be sanctioned for failing to meet FRCP 11(c)(3)requirements – basically that their claims that Defendant Rodriquez is the offender is NOT based on any real evidence
  • Sanction Plaintiff for its violations of FRCP 11(b)
  • Dismiss Plaintiff’s claims With Prejudice.

On 26 Nov 16, two days before the next scheduling conference, Troll Ferren, tried to dismiss Mr. Rodriquez (With Prejudice).   dismisssed_wp_00187hi

On 29 Nov 16, the court informed Troll/Plaintiff that as Mr. Rodriquez filed an answer, he could NOT dismiss the case (AKA: ‘Cut & Run’). The court informed Troll/Plaintiff that he would need to file a ‘Stipulated” dismissal to end this case.

I got a good laugh out of this, as even I (non-lawyer type) know the rules require this. It is likely that the Troll hoped the court would simply dismiss it and move on – I have seen this happen in other jurisdictions.

So I assume Troll Ferren is talking to Mr. Rodriquez and trying to get him to agree to a dismissal. It is still likely to be ‘With Prejudice,’ so Mr. Rodriquez will be free and clear of this Troll.

What would be funny is if Mr. Rodriquez has some fun and told the Troll he will agree to the dismissal IF Plaintiff pays him something. No crazy amount, just something to make a point – say $400 ($400 to file a case & $400 to dismiss it). I doubt it would happen, but unless the Troll closes this case, the court is likely going to require Troll/Plaintiff to move it forward. The only way to move it forward is through additional discovery steps that will cost Troll/Plaintiff more in time and money. The Troll would likely keep stalling and the court would eventually dismiss it for lack of prosecution. As Mr. Rodriquez is a senior citizen on social security, the chance Troll/Plaintiff could collect ANY award against him is SLIM IMO – that is even IF they could win – HIGHLY UNLIKELY IMO. The bottom line is that money motivates Troll/Plaintiff and this one is going to cost them if they don’t shut it down.

So looking at this case, it appears that Troll Ferren got at least two settlements (Does # 5 & 10 – assume $3-6K each) and then soon after dismissed everyone else – except for Mr. Rodriquez. Based on seeing the scheduling conference dates kept getting pushed back, I believe the court may have told Troll Ferren to move it along or risk it being dismissed. Too bad the court did not do this formally. Thus to save face, Troll/Plaintiff decided to amend the complaint to name Mr. Rodriquez and then serve him. Troll/Plaintiff probably assumed they would get one last settlement OR a default judgement and look like a real litigant.

Nice Try Troll – you still look like a turd and the court likely sees you for who you are.

So filing a Pro Se Answer can work. NOTE: Filing an answer is not for everyone and it does involve some risk. Each case and circumstances is different for each Defendant. Please don’t assume the Troll will dismiss you without weighing his options, YOUR financial situation, and the limited facts at their disposal. Also note that some Trolls will not dismiss Defendants (even clearly innocent ones) until they have extracted enough stress, time, and money, to make other Defendants think twice before even considering fighting back. I do recommend get some sort of legal consultation and weighing all your options.

So, to Mr. Rodriquez I say, “kāmau kī`aha.”

– Suggested reading – Troll Poker & Talking To The Trolls

DieTrollDie :)  Valentine Michael Smith: “No, that’s the point. I grok people. I am people . . . so now I can say it in people talk. I’ve found out why people laugh. They laugh because it hurts so much . . . because it’s the only thing that’ll make it stop hurting.” {Stranger In A Strange Land, Robert A. Heinlein, 1961}

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Copyright Troll “London Has Fallen” Cuts And Runs When Confronted – 2:16-cv-01017 (WA)

NOTE: The following information should not be taken as legal advice – in any sense.  What I have here is an example of what worked for one attorney when trying to get Troll/Plaintiff to dismiss his client.  This is also NOT an advertisement for this attorney/Firm. Use it as YOU see fit, but note that there is no guarantee that a Troll/Plaintiff is going to back down as in this instance. Still, if more information like this ends up getting filed in various BT Copyright Troll cases, the courts have a better chance of seeing the true nature of these cases – USING THE COURTS AS AN INSTRAMENT OF GREED.

troll_runfool1Bottom Line – Attorney Lynch (Lee & Hayes) is able to get his client dismissed (London Has Fallen case 2:16-cv-01017, Western District WA) after telling Troll attorney David Lowe he plans to go forward with discovery of the various personnel and foreign companies claiming to be responsible for the BT monitoring and evidence collection apparatus.  Attorney Lynch told the Troll in very clear terms that they had five business days to dismiss their client.  AND it worked – in fact it only took the Troll four business day to do so (28 Oct 16 – 4 Nov 16) – a record in my opinion.   letter-to-troll-david-lowe-oct2016_01017wa   doe_dismissal_01017wapdf

We learned a lot from our earlier defense of innocent victims in Elf-Man and The Thompson Film. We learned that your client’s foreign representatives have no U.S. witnesses. The Amended Complaint alleges that Mr. Collins was “observed infringing” and the docket shows that ours is the first LHF case where “Daniel Arheidt” is used as the “witness” – the previous WD WA LHF cases used “Daniel Macek.” We doubt that Mr. Arheidt (or Mr. Macek) or their employers Guardaley (or IPP or Crystal Bay Corporation or Maverickeye) are properly licensed under RCW 18.165 to conduct private investigations in Washington – even though they were “engaged in the business of detecting, discovering, or revealing . . . evidence to be used before a court,” necessitating such a license under RCW 18.165.010. (None of the exemptions of RCW 18.165.020 apply.) In the District of Nevada, your client calls Maverickeye “the Investigator” (Case No. 2:16-cv-1803.) The policy of RCW 18.165 is to protect Washington citizens from abuse by unlicensed investigators. 

This is not too surprising, as the goal of these cases (my opinion) is to generate as many settlements as possible while keeping the time spent running cases to a minimum. Take a read of the attached letter.  Attorney Lynch laid it out for the Trolls – Dismiss my client or they would bring up all the questionable people/companies behind these operations. (Do a search for these names on my site and the Internet)

  • Daniel Arheidt
  • Daniel Macek
  • Michael Patzer
  • Darren Griffin
  • Guardaley
  • International IP Tracker (IPP)
  • Crystal Bay Corporation
  • Maverickeye

Now as Attorney Lynch was previously able to get a $100,000 award against Troll/Plaintiff “Elf-Man,” in WA, the decision was easy – “Cut & Run.”

  • If you are a Defendant in one of these cases and have an attorney, you might want to forward a copy of the letter to him.
  • If you are Defendant representing himself/herself, the information might also be of some value to you. The Troll will know you will not be able to conduct Discovery like Mr. Lynch, BUT they will NOT want the letter to be filed in any of their cases. 

Please share this information and documents as widely possible. ALL of the BT Copyright Troll cases out there have some ties to ALL of the current Troll/Plaintiffs. Remember that for this business model to work, the benefits (settlements) must exceed the cost of running these cases.

DieTrollDie :)   “May thy knife chip and shatter.”  {Fremen taunt, Dune}

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Get Out There And VOTE!

I hope everyone is able to get out and vote today.  No matter who your for, please take the time and effort to do this.  The only one I will say NOT to vote for is the BitTorrent Copyright Trolls.  ;)   Find Your Polling Place

DieTrollDie🙂

“A share in the sovereignty of the state, which is exercised by the citizens at large, in voting at elections is one of the most important rights of the subject, and in a republic ought to stand foremost in the estimation of the law.” {Thomas Jefferson}


torh_fucked1tp_grabsomeriggedhillarylie1

 

Posted in Uncategorized | 2 Comments

Answering A BT Copyright Troll Summons/Complaint

CaveatI’m not an attorney and I’m not practicing law. This is simply my thoughts and views based on what I see concerning BitTorrent (BT) Copyright Infringement Trolls. If you decide you need legal advice, please hire a knowledgeable attorney. IF you truly cannot afford an attorney, here at least is one possible option.

*** In case you missed it, here is an article worth reading from Attorney Robert Cashman, “DieTrollDie Re-Blog: How copyright trolls are forcing defendants deeper into the federal cases, and how to respond.” ***  It is very possible that the Troll attorneys are dragging these cases out now to increase billing of the Plaintiff.

Pre-Article Note: On 17 Oct 16, Judge John Durragh issued a Final Judgement and Order on the infamous “Prenda v. The Internet,” case (1:13-cv-01569).   judgement_order_prenda_01569il   The judge awarded the Defendants $162, 448.74 in attorney fees/costs, $11,758.20 in sanctions, AND $500,000 in punitive damages! Thank you everyone who took part in this. Suck It Steele!

board_answer1

For a while now I have been seeing some of the Trolls actually amending their Multi-Doe complaints – to name the non-settling ISP subscribers as Defendants. This was also noted by attorney John Whitaker in his article “Dallas Buyers Club & Cobbler Nevada: Sample Pro Se Answer” (14 Mar 16).

While the Trolls and their supporters may claim this clearly shows they are not afraid to prosecute these cases, I find it highly suspect. From all of the cases I have seen, this is simply a tactic born out of necessity. Prior to using this tactic, the Troll settlements were for the most part entirely dependent on how much Fear, Uncertainty, and Doubt (FUD) they could induce on a Doe. If a Doe decided to ignore the settlement demand, the Troll was out of luck (and a settlement). This is why I originally wrote the Richard Pryor Response (RPR) article in 2012. Ignoring the Troll for the most part was the right thing to do. This even led to infamous Troll, John Steele (Steele/Hansmeier & Prenda Law) to gloat that it pushed them to start naming Defendants and increased settlements. Too bad John Steele couldn’t see that it would also lead to the legal fights that would help bring them down.

Now I believe the Trolls who work with Voltage Pictures have also decided to use this tactic to increases their settlement rates. The advantage in using this tactic (Naming & Serving OR Naming & Waving Service) is it increased a Defendants FUD and requires them to take some sort of action. Hopefully (for the Troll) it brings the Doe to the settlement negotiation table. After all, settlement generation is the goal of this business model – PERIOD. Even if a named Defendant does not respond to the summons/complaint, The Troll can easily motion the court for a default judgement. The default judgements are unlikely to get them any real money, but it does allow them to claim they are serious and move onto new cases.

The Trolls are of the opinion that people will be too scared to file an answer OR once they hire an attorney, some sort of settlement will be eventually worked out. I have no doubts there have been innocent Does/ISP subscriber who have paid a settlement for no other reason than to avoid a costly defense bill. Many Defense attorneys do offer reasonable flat rates for people who only wish to settle. What you will not see is a reasonable “flat rate” cost for defending a Doe – it just isn’t a reality and I understand why. For those Does who wish to fight, their Defense attorneys will inform them that the cost to fight may be more than if they simply paid the settlement. Even if you are successful in getting the Troll to turn tail and run, there is also NO guarantee the court will have the Troll cover their legal bills. The Trolls know this and are using it to their advantage.

So What Can An Innocent Doe/ISP Subscriber Do If They Don’t Have The Finances Available To Hire An Attorney?

– They Can File An Answer On Their Own

Here is small part from attorney Whitaker’s article on the basics of an answer. – “Answer the Complaint. What that means is for every numbered paragraph in the Complaint, you have to either admit it is true, deny it is true, or say that you don’t have sufficient information to either admit or deny.  Resist the urge to tell your story in the Answer.  Just don’t do it.  Admit. Deny. Insufficient information.  Nothing else.”

I will also add that lying on such a document is dangerous and can get you in trouble – don’t do it.

So in saying that, here is a basic answer template and the amended complaint it is based on.   def-answer_template   amend_complaint_01073az

answert_ss1

My answer has a little bit more than Whitakers’, but you can edit it to suit your particular situation.  The first part of the answer simply states the overall denial of Plaintiff’s claims and informs the court that Troll/Plaintiff has named the ISP subscriber as the Defendant for no other reason that he/she pays the bill for the service. The next section addresses each numbered section in the amended complaint and is either an admission, a denial, or lacks information to respond. The last section asks the court to dismiss the case and grant the Defendant other relief (Injunction, show cause order, & contempt finding).

So IF You Are Inclined, Here Is What You Will Need To Do

  • Obtain a copy of the amended complaint in which you are named. Edit the answer template – change the District, Plaintiff, Defendant, and Case number, first paragraph, etc. Do NOT simply slap you name on this and submit it to the court – at best you will look the fool. You need to make it your personal document and understand what it all means.
  • Next go through the complaint and read each numbered section. Answer each section with an admission, denial, or that you lack information to respond. You can add some additional bits to some of the sections, but it is not required.
  • The last section is where you ask the court to take action. This can be requesting a dismissal, a jury trial, sanctions, etc. If you are not comfortable with asking for anything, then simply edit it to say something like, “Defendant having fully answered and pled to the causes of actions herein, Defendant requests this case be dismissed with prejudice.”  Note: information on FRCP 11 can be found at the following Cornell Law Web page – Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

Print, Sign, Date, Mail, etc.

Once you think you have your Answer ready, take a long reread of it. Make sure you are comfortable with it and it reads well. Also make sure your contact information is correct. Print out a copy and then sign both sections (the answer & the certificate of service). Make at least two copies of the signed/dated answer & service.  Mail the original answer to the district court – see the court’s Web site for the address. I would also add the name of the judge and case number to the address – Attn. Judge Smith, 2:16-cv-00123.  You can also submit the answer in person if you are near the court – contact the court for specifics. Mail one of the copies to the Troll office via certified mail (return receipt requested). You can find the Troll address on the docket. Keep the last copy for your records.

Once the court receives the answer, they will add it to the case docket and it will be available via PACER. This matter has now been pushed back to the Troll and his ability to motion for a default judgement has been stopped. The Troll will likely then attempt to contact you and “settle” the matter. He may offer a reduced amount or even claim they will move forward with depositions and a computer forensic analysis that will end in their favor.

Advantage Defendant

At this point, the main advantage for the Defendant is the Troll will have to take otherwise costly steps to get a Defendant to settle. Advancing the case to Discovery is the next main step. Doing so will require the Troll to spend more time, effort, and money. These cases were not designed to stay profitable with the added expense of a full discovery. The Defendant on the other hand only has to expend time and some effort. The Troll also realizes that there will come a point where Troll/Plaintiff’s costs in trying to force a settlement will exceed the ability and financial situation of the Defendant to pay. By holding out, a defendant can hopefully get the Troll to agree to dismiss the cases outright and not pay anything.

If the Troll wishes to move forward, a deposition of the Defendant is the most likely next step. If the deposition only discloses the Defendant denies the infringement, denies any BT usage, and/or doesn’t knows how it happens, the best the Troll can do is suggest that it MUST have been an authorized network user because WiFi hacking is unlikely.  A Defendant claim of an “Open” WiFi is unlikely to be believed, but proving otherwise will be hard for the Troll. A forensic examination of the computers is a possibility, but an expensive one. Plus if no evidence is found, expect the Troll to claim you hid the computer or destroyed evidence. Such a scenario has been seen in previous Malibu Media LLC cases. This then leads to a motion for summary judgement, with the Troll claiming all the facts show the Defendant to be the offender and destroyer of evidence. Unless there is clear factual based evidence to support such a claim, the court is unlikely to rule in their favor.  The only good thing for the Troll at this point is even if a court dismissed the case with prejudice, a Pro Se Defendant is not going to have any attorney fees that they can be made to pay for. The best a Pro Se Defendant can do is claim whatever misc. costs he incurred in defending himself.

So is filing an answer right for every Defendant?  No.  Each case, court, and Troll/Plaintiff is different. Do what is best for you and remember that these cases are designed to run as cheap as possible (for the Troll) and anything that adds more time and costs reduces their profit margin.

– Suggested reading – Troll Poker & Talking To The Trolls

DieTrollDie🙂   “Sometimes the only thing more dangerous than a question is an answer.”  {Ferengi Rules of Acquisition # 208}

Posted in Answering A Summons | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 8 Comments

“London Has Fallen” BT Copyright Troll Case, 2:16-cv-02028 (NV) – 23 Does

lhf_chazr1Hello everyone!  I decided to throw out a post on a London Has Fallen (LHF) BitTorrent (BT) Copyright Infringement law suit in Nevada, 2:16-cv-02028, filed on 28 Aug 2016, by Copyright Troll Charles C. Rainey (AKA: CHAZ).  Previous article concerning CHAZ.  Nothing too exciting about this Troll case. In fact it is pretty standard format for the multi-Doe Copyright Troll cases filed in jurisdictions like the Northern District of IL (NDIL). The case is against 23 ISP subscribers (John Does) in the Clark County region of NV. The John Does are ISP subscribers of Cox and CenturyLink, with BT activity between 1-22 June 2016.   docket_11oct16_02028nv   complaint_02028nv   complaint_02028_ex1_nv   complaint_02028_ex2_nv   discrequest_doc3_02028nv   decl_d_arheidt_doc3_ex1_02028nv

The only things linking these Does is the alleged downloading/sharing of Troll/Plaintiff’s movie (SHA1 Hash: 632613270A1D1F66429CA070C9ED5CB980357471). There is ZERO evidence (vs. simplistic & wrong claims) in Troll/Plaintiff’s complaint to show that ALL of these NV public IP addresses shared Plaintiff’s movie BETWEEN themselves and thus are properly joined under one case.

the infringement complained of herein by each of the Defendants was part of a series of transactions over the course of a relatively short period of time, involving the exact same piece of the Plaintiff’s copyrighted Work, and was accomplished by the Defendants acting in concert with each other; and {Page 3, section 10 (b) of complaint}

Short time – 22 days???  Exact same piece of evidence??? – That is BS in my opinion. They likely only have a few Bytes of data  from each public IP address and the data in it is NOT the “same.” They likely only are tied back to the torrent file via the SHA1 Hash number – nothing to really link all the IP addresses together. It is more likely that a BT client would have connected with another BT client in another State or somewhere else on the globe. To infer that they all shared same data because they were in the same NV county is just plain stupid.

The sheer chance of such a proper joinder is extremely unlikely. Please see these two previous DTD Articles concerning declarations from Delvan Neville, Amaragh Associates, LLC.   1 in 10 Duodecillion   1 in 300 Million (Also read about “Never Convicted” Troll Forensic Stooge, Patrick Paige)

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.

Hopefully a defense attorney/doe in one of these NV multi-Doe cases will use something like this to challenge joinder. Remember that these cases are built on the premise of doing everything “on the cheap” to maximize profits. The ability to file multi-doe cases is a key aspect of that model. A multi-doe case only costs $400 to file (same as if against one John Doe) and the costs of running it is split between all the Does. For this case, the Troll is seeking an initial settlement amount of $4,900 per Doe.   lhf_settlement-ltr_02028nv   So if the Troll is only able to get 50% of the Does (11 Does) to pay $4,900, they have made $53,900!!!   This is why the Trolls prefer the multi-Doe cases and single-Doe cases have not replaced them. Single-Doe cases can (and likely will) be filed, but they are more costly to run – thus reducing profits.

Troll/Plaintiff makes the following claims against the ISP subscribers

  • Direct Copyright Infringement – The ISP subscriber was the offender.
  • Contributory Copyright Infringement – The ISP subscriber took part in a BT swarm and therefore contributed to each other Doe’s (in this case) infringing activities.
  • Vicarious Copyright Infringement – Each ISP subscriber is liable because the infringement took place over the ISP connection the Defendant pays for.  The ISP subscriber failed to supervise the use of their Internet connection, allowing it to be used to unlawfully download/share Plaintiff’s Work.

What a load of crap. Not surprising, as we have seen the Contributory and Vicarious claims tried in various jurisdiction in the past. I believe all such claims have been previously shot down in various courts. The problem is for most cases, a defense attorney is never hired and thus these stupid claims are never challenged.

The Troll even goes on to ask for the court to grant the maximum damages award of $150,000 per Doe for this garbage movie (my opinion).

In support of the early discovery request, the Troll uses a declaration from DANIEL ARHEIDT, a consultant retained by the forensic investigation service, MAVERICKEYE UG (German company). Arheidt’s name is not new and was part of a declaration by Doe Defender Morgan Pietz, concerning “IPP, GUARDALEY, AND THE “ORAL CONTINGENCY AGREEMENT” MALIBU MEDIA, LLC HAD WITH ITS KEY WITNESS.”  doc9_decl_pietz_00223md    Adheidt is simply another one of the German stooges used to make claims they are not willing to back up or even be questioned on. He is part of the same operation as Daniel Macek, Darren Griffin (Fictitious person IMO), and the likes of the Anti-Piracy Management Company (APMC) or whatever they are calling themselves now.   Transcript of APMC Slides

APMC_Snapshot

 

apmc_d_macek1So we have the same tried and true BT Copyright Troll template format that has been making money since at least 2010. We will have to wait and see if NV is as Troll friendly as the NDIL, or if it decides to make the Trolls answer some uncomfortable questions.

If you are part of this case or another multi-Doe NV case, please keep me informed of your situation. There is no way the Troll can actually bring each of you to trial if you fail to respond. The costs in time and money to run multiple individual case (broken out from a multi-Doe case) OR one case with multiple NAMED Defendants is prohibitive to them. Now that doesn’t mean this Troll/Plaintiff will not name and serve a few unresponsive Does. It is a game they play to appear to be serious of taking people to trial. My suggestion (non-attorney) is IF you can handle the stress and uncertainty, to take a wait and see approach. Monitor PACER (Register for your PACER account) and pay particular attention to any requests to either depose the ISP subscribers OR to amend the complaint to NAME the ISP subscriber as the Defendant. If you see this happening, consulting with an attorney knowledgeable on BT Copyright Trolls is advisable. Otherwise I don’t generally suggest talking to the Trolls – ANYTHING you say (even if innocent) will be used against you.

– Suggested reading – Troll Poker & Talking To The Trolls

DieTrollDie :)  Dana Barrett (as The Gatekeeper): “I want you inside me.”  Dr. Peter Venkman: “Go ahead! No, I can’t. It sounds like you’ve got at least two or three people in there already.” {Ghostbusters, 1984}

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DieTrollDie – October 2016 Update

dtd_mix1I have seen this on the horizon and have dreaded it. Based on personal issues, I have scaled back my previous writing activities concerning BitTorrent (BT) Copyright Trolls. I don’t have plans to shut down DieTrollDie.com; my articles will just be infrequent for now. The site will stay up and I will answer/reply to any questions/comments. ALSO, please continue to send me stuff – inquires, settlement letters, voice mails from Trolls, etc., at dietrolldie@dietrolldie.com. In fact I just replied to one Doe on 27 Sep 16.  Also remember to follow me on Twitter (https://twitter.com/DieTrollDie), as this is a very fast way to get the word out.  Most of the questions I get do not take that much work to respond to and it helps keep me current on the antics of the Trolls.

Just remember that BT Copyright Trolling is fluid and thing can change very fast. Don’t assume the Trolls will not change their tactics to keep the settlements rolling in. Also remember that anything on this site is NOT legal advice – If you need legal advice, please consult with a knowledgeable attorney on BT Copyright Trolling. What you get here is FREE suggestions/thoughts/views, etc. Take this with your analysis and make the best decisions for YOUR situation – everyone’s situation is different.

For now I will leave you with a couple good articles to reference, as well as what I have been seeing recently.

Bottom Feeding Trolls (CEG-TEK, Rightscorp, etc.) – These bottom feeding Trolls are trying to scrape up easy money via DMCA take-down notices backs by fear of a possible law suit if you don’t settle. Don’t believe the hype – CEG-TEK/Rightscorp Page   Don’t contact the Troll – Stop the BT activity on your network (don’t let it start back up later) – move on with your life.  NOTE: Both Rightscorp & CEG-TEK have a client that does sue ISP subscribers – I believe only one client each (please correct me if I’m wrong). BUT, for the vast majority of people who get these notices forwarded through their ISP, the chance of it becoming a law suit extremely low in my opinion.  Here is a recent article in which the script used by Rightscorp was disclosed – this goes to show you how desperate these fools are to try to stay variable.  Techdirt Article – Rightscorp Phone Script

London Has Fallen (Troll) – CEG-TEK and Law Suits – I have been hearing from a few Does/ISP subscriber concerning CEG-TEK notices on London Has Fallen (LHF), the movie, in areas there have been actual law suits filed in. The Does are worried that because the LHF files in their State/jurisdiction, if they don’t pay CEG-TEK, a law suit will follow. I have seen nothing to suggest that if you don’t pay CEG-TEK for a LHF claim, a law suit will follow. CEG-TEK and the Troll attorneys who file real cases for LHF do not generally work together. To do so would require agreements (financial, etc.) to make sure a CEG-TEK settlement would not kill a real copyright infringement case filed by a Troll attorney – a valid release of liability from CEG-TEK would do that.  NOTE: It could happen; I just don’t see the greedy fools on either side wanting this headache of coordinating this. It is just easier IMO for the Plaintiff to give a list a public IP address to each group (CEG-TEK & Troll Attorneys) and let them work their operations separately.

Multiple-Doe BT Copyright Infringement Law Suits – These are still the big money makers and a favorite in the Northern District of IL. One $400 filing fee a case with 15-30 Does.  Troll/Plaintiff is almost assured a court will grant early discovery and an ISP will provide the subscriber information on most of them. Then it is just a matter of sending out settlement demand letters and negotiating settlements.    I recently saw that for one Troll attorney, the initial settlement amount was $3900. That is a good bit lower that what I was previously seeing – $5-7K. So this tells me that the Trolls want to make it easier for people to settle. They are hoping that a lower amount will increase the number of settlements and thus increase their profits overall. This may also be in response to more people using VPNs and streaming content instead of using BT.  So if the Trolls get only a 50% settlement rate on $3900 for a 30 Doe case, the return on a $400 filing fee is $58,500. Not bad. The good news for the Does in these cases is there is no way Troll/Plaintiff can take all of the unresponsive ISP subscribers to trial. Actually they will not take anyone (IMO) to trial. It is too costly and risky to do so; plus it would be a logistical nightmare for them. They will name and serve some of the unresponsive ISP subscribers (hard to say who or how many). It really depends on the particular Troll attorney and how he/she feels about the particular Does. Naming and serving unresponsive people does have the effect of getting more settlements. For the one who don’t, they simply motion for a default judgement and move onto the next case. Each situation is different, but I’m of the opinion to take a wait and see approach on multiple-Doe cases – don’t contact the Trolls – get an attorney if you receive a summons/complaint or a deposition subpoena. Monitor the case in PACER – check it at least once a week. If you don’t see the complaint being amended to NAME the Does/ISP subscribers, getting served with a summons is unlikely IMO.

Single-Doe BT Copyright Infringement Law Suits – I consider these the more serious BT Copyright Troll cases out there.  Generally the Troll picks the IP addresses that have a long history of continued BT usage (2-3 months +)and are sharing a large number of files in BT – a good portion appearing to be copyright protected content not belonging to the Plaintiff. This is where Malibu Media LLC and a few other non-porn Troll/Plaintiffs ply their trade.  The cases are generally run the same as in the multi-Doe cases, except for the Troll is less likely to ignore a non-responsive doe/ISP subscriber. Based on their analysis of the BT activity (time & duration) and shared BT content, the Troll believes the ISP is either the offender or can readily identify who is. Things I would possibly expect from these cases – 1) Settlement demand letter from the non-Malibu Trolls; 2) Troll requests a waiver of service be signed by the ISP subscriber; 3)Troll requests the court to allow a short (2-hour max) deposition of the ISP subscriber; 4) The complaint is amended with the name of the ISP subscriber; 5) Named Defendant is served with a summons/complaint.

As Malibu Media operation is not being run by Keith Lipscomb anymore, it is hard to say how it will go.  I assume they will be aggressive as that previously worked well in getting settlements. Due to some ongoing law suits (Malibu Media verse Defendants & Malibu Media verse Lipscomb), I think they may take it down a notch – we will see. Malibu Media needs these cases to fund their defense against Keith Lipscomb’s law suit against them. One thing I still expect from Malibu Media and other Plaintiff’s who file single-Doe cases is to only seek a “walk away” deal after the cost to the Defendant exceeds what an early settlement would have initially cost. This insures that Defense attorneys will tell future clients of the associated costs of fight back even is innocent. It may cost the Troll in time and some money, but it is considered an investment in the future cases.

DieTrollDie🙂

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Criminal Contempt? (John Steele/Prenda Law) & Cobbler NV Cuts & Runs

11 August 2016 Update – Cobbler Nevada Case (3:15-cv-00866(OR)): On 3 Aug 16, Troll Crowell filed two document (and exhibits) in response to the Defendant’s Motion for attorney fees and costs (link below).   Docket_11Aug16_00866(OR)   Doc48_TrollResponse_FeesCosts_00866(OR)   Doc49_Decl_Resp_FeesCosts_00866(OR)   Doc49_Decl_EX1_00866(OR)   Doc49_Decl_EX2_00866(OR)

As I said he would, Troll Crowell went and filed some garbage. Here is the bottom line of what Troll/Plaintiff claims.

Defendant is NOT the prevailing party – funny… According to the judge, HE is most certainly the prevailing party on the “Indirect” copyright infringement claim – dismissed WITH PREJUDICE.  As to the “Direct” infringement claims, Troll/Plaintiff was given a second chance to file an amended complaint that adequately allegedy the Defendant was responsible – but FAILED to do so.

ORDER TO SHOW CAUSE. The Court ORDERS plaintiff to show cause in writing, within 21 days, why its Second Amended Complaint 41 should not be dismissed for failure to cure the deficiencies identified in the Court’s Order of Dismissal 39 and the Court’s Findings and Recommendation 35 , or for failure to identify the Doe defendant in a timely manner, pursuant to Fed. R. Civ. P. 4(m). Ordered on 7/13/2016 by Magistrate Judge Stacie F. Beckerman. (gw) (Entered: 07/13/2016)

It is a funny read. I also find the Declaration from Troll Crowell (and Exhibits) to be on equal level – crap.  Troll Crowell goes onto claim (and show deposition excerpts) that the Defendant knew about the infringement activity and didn’t do enough to stop it at the location. ??????  The judge already dismissed the INDIRECT claim WITH PREJUDICE. That argument and claimed obligation to Plaintiff already FAILED. Next.

He then goes on to claim that in November and December 2015, Troll/Plaintiff asked the Defendant to sign a “Complaint and Stipulated Consent Judgment that fully resolves this matter without any assessment of costs, fees or damages.” Troll Crowell claims that the Defendant did not confer with Troll/Plaintiff prior to filing its motion – but admits that there were emails and phone messages dealing with this issue.  Nice try – I’m sure the judge is going to buy that! Note: In Document #48, the Troll claims he will attached the “Complaint and Stipulated Consent Judgment,” but he does NOT (Doc # 48, bottom of page 3). The only thing he attached was the email (Exhibit 2). I would love to see what they tried to get the Defendant to sign.

Last laugh – Here is an example of how Troll greed overpowers common sense – Troll Crowell states that they tried to get the Defendant to sign the Stipulated Consent Judgement in Nov & Dec 2015. Why offer such a “walk-away” deal???  Because at this stage they already knew they would have a hard time making either infringement claim (Direct or Indirect) stick. This was even after they amended the complaint (naming the Defendant) on 4 Nov 2015.  Their greed prevented them from simply voluntarily dismissing the case and avoiding the potential award of attorney fees/costs. They were probably worried the Defendant would file an answer and not simply a motion to dismiss. I assume the Defense will respond and hopefully soon the court will award fees/costs.

DTD🙂

——————————

Prenda_Idiots1Are You an Idiot And/Or a Criminal???

The crazy world of Prenda Law (AKA: John Steele & Paul Hansmeier) doesn’t seem to stop. Even when given advice from the 7th Circuit Court of Appeals to “stop digging” (First Rule of Holes), they kept going.

On 19 July 2016, the 7th Circuit Court of Appeals, ruled on the Steele and Hansmeier’s appeal on the contempt sanctions imposed on them (3:12‐cv‐889‐DRH‐SCW(SDIL) – Lightspeed Media v, Anthony Smith). I will not go too far into this, but ruling is worth a read IMO.   49-Lightspeed-Opinion_PrendaLaw_2016   Techdirt Article

Bottom line: The appeals court ruled that since Hansmeier is in Chapter 7 Bankruptcy, he CANNOT appeal the sanctions (has NO standing) – PERIOD – Appeal Denied. The sanction award against Steele was vacated and returned to the District court for corrective action because the contempt sanctions were determined to be CRIMINAL in nature (v. Civil).  Steel needed to be afforded his rights IAW the 5th Amendment of the US Constitution. 

This is enough to show that we must vacate the existing contempt order and remand for further proceedings. We make no comment on what type of contempt Smith may wish to seek, whether the court might re‐consider the possibility of civil contempt, or whether criminal contempt could be justified once the proper procedures are followed. We are confident that the district court will take a fresh look at these questions in light of this opinion.  {page 15, Doc # 49, 15-2440(7th)]

So back to the District court we go. I’m sure the District court will handle this. I would love to see John Steele afforded his 5th Amendment protections. Take the 5th John Steele. Your direct testimony is NOT required to ensure contempt sanctions are levied. Appropriate due-process will be afforded and the results will not be to your liking.  John Steele and Paul Hansmeier are turds (my opinion) and the courts are not too fond of the stench they have made.

Cobbler Nevada – Attempts To Cut & Run – Attorney Fees & Costs Likely

JustStupid1In my previous article (Cobbler NV LLC), I wrote about how Plaintiff/Troll was in hot water after the court dismissed the complaint (Both WITH & WITHOUT Prejudice) for Direct and Indirect Copyright Infringement against a single Defendant (3:15-cv-00866(OR)). The court did allow Troll Crowell to refile an amended complaint NLT 18 July 2016.

On 5 July 2016, Troll Crowell did file a Second Amended Complaint (SAC) – a sad joke of one – IMO.  This “Joke” did not go over well with the court.

On 13 July 2016, the court issued a “Show Cause” order (NLT 3 Aug 2016) to Plaintiff – requiring the Troll to explain why its SAC should not be dismissed for failure to cure the deficiencies previously identified by the court when dismissed on 8 June 2016.

Now it appears that Troll Crowell is maybe slightly smarter that John Steel and Paul Hansmeier when it comes to holes – stop digging. So on 19 July 2016, Troll/Plaintiff dismissed the case without prejudice.  Doc45_Vol_Dismissed_00866(OR)

That same day (19 July), Defense Attorney David Madden filed a motion for attorney fees and costs.   Doc47_Mot_AttorneyFeesCosts_00866(OR)   By the length of the document, it appears Attorney Madden had this motion ready to file as soon as the dismissal occurred.

The motion is well worth the read, as it spells out clearly what BitTorrent (BT) Copyright Trolling is; the history of this particular case; that this Defendant is the PREVAILING PARTY for the Direct and Indirect copyright Infringement claims; and that he should be awarded reasonable attorney fees and costs due to the following factors.

  • Frivolous Claims – “Plaintiff brought two claims against Defendant GONZALES: one was legally inadequate, and the other was re-asserted against an unknown party who remained unknown despite fourteen months of litigation and considerable inconvenience, anxiety and expense borne by Defendant (and now, even that claim has been dropped).”
  • Claims Were Overaggressive And Improper – “… Plaintiff has pressed futile claims (both the legally-insufficient indirect-infringement claim, and the direct-infringement claim unsupported by any relevant factual allegations). Here, and in its hundreds of other cases, even if Plaintiff is not intending to capitalize on the wide and unpredictable liability a target faces and the substantial attorney fees its counsel are able to rack up, it has undeniably maneuvered itself into a position where those statutory damages and fees incentivize the overreaching settlements that reward and encourage this litigation strategy.”
  • Objectively Unreasonable – “One of Plaintiff’s claims was dismissed with prejudice on Defendant’s 12(b)(6) motion, and the other was dismissed sua sponte by the Court.”
  • Compensation & Deterrence – “As discussed earlier, Plaintiff COBBLER NEVADA LLC has no reasonable infringement claim against Defendant GONZALES, and it never should have brought suit against him in the first instance. But now, having done so, Plaintiff should be charged for the full amount of cost and expense it has forced Defendant to bear.”  AND “…failing to award fees to the prevailing defendant here will encourage the filing of even more “thin” cases – equivocal allegations that threaten everyone but fail to clearly implicate anyone, and allegations that (even if true) fail to create liability – the cases quite literally pay for themselves, if Plaintiff risks no downside by filing them.”

I do expect Troll Crowell to file some sort of garbage in opposition to the motion for fees and costs. I think Troll/Plaintiff is going to have a hard time convincing the court not to awards fees and costs. Taking 14 months to run a single Doe/Defendant case is a joke – Telling the court that their intentions in pursuing this case were purely honorable is insulting. Hopefully the court will send a message to the idiot Plaintiffs, Troll Attorneys, and the German BT Monitoring Apparatus. We will see.

DieTrollDie :)   “Consider the black widow spider. It’s a timid little beastie, useful and, for my taste, the prettiest of the arachnids, with its shiny, patent-leather finish and its red hourglass trademark. But the poor thing has the fatal misfortune of possessing enormously too much power for its size. So everybody kills it on sight.”  {Stranger in a Strange Land, Robert A. Heinlein}   

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How NOT To Run A Single-Doe BT Copyright Infringement Case, 3:15-cv-00866 (OR)

TrollHolio1Here is another example of how a BitTorrent (BT) Copyright Troll can run their cases – POORLY.  This case is 3:15-cv-00866, Cobbler Nevada, LLC, v. John Doe 24.21.136.125, District of Oregon, filed on 20 May 16, by Drew Taylor and Carl D. Crowell, Crowell Law.   Doc1_Complaint_00866(OR)   Doc3_Discovery_00866(OR) Doc8_Motion FRCP45_00866(OR)

The case appears to be the standard single Doe/IP address/ISP subscriber case Crowell Law has been filing for some time.  These single Doe cases appear to be more focused on going after IP address within their jurisdictions that have a longer history of BT activity (1-2+ months) and many “other” (non-Plaintiff) files/content being shared via the BT client. The Trolls appear to be under the impression that because of this, there is a greater chance of settlement – regardless of what the evidence may show.

The only thing that was a bit unusual was the two claims for relief – 1) Copyright Infringement (Direct); 2) Indirect Copyright Infringement. I find this funny that the Troll would try to run both of these claims, it has been tried before multiple times before in BT cases and they generally don’t work out well for the Troll.

The use of the dual claim is simply a “shot-gun” method of trying to cover all targets. The Troll is hoping that if for some reason the Direct Copyright Infringement fails, the Indirect claim will still hold up. When in all likelihood, trying to use both makes it appear that the Plaintiff hasn’t got a real clue on who the true offender is. AND it looks like the court in this case has got the same idea. Stupid Troll.   

This Doe/ISP subscriber did not respond to the Troll (settlement demands), was deposed, and eventually named/served as the Defendant.  At the end of December 2015, the Defendant hired David H. Madden, Mersenne Law LLC, OR, and a Motion to Dismiss Troll/Plaintiff’s second claim for relief (for Indirect Copyright Infringement) was filed.   Doc27_Def_MTD_00866(OR)   On 18 Mar 16, the court issued a  Findings and Recommendations report on this case.   Doc35_FindingsRec_00866(OR)

Essentially the court dismissed the Indirect Copyright Infringement claim WITH PREJUDICE, and dismissed the Direct Copyright Infringement claim WITHOUT PREJUDICE.   Doc39_Order_00866(OR)

Yes, the court said that NOT ONLY is your “Indirect” claim a load of crap – so much that I’m dismissing it so you cannot file it again against this Defendant, BUT I don’t believe you even pled the “Direct” Copyright Infringement claim enough to convince me that the ISP subscriber was the likely offender.

Twombly and Iqbal do not allow Plaintiff to guess at who is liable, and attempt to confirm liability through discovery. “Plausible” does not mean certain, but it does mean “likely,” and Plaintiff has not pled sufficient facts to support its allegation that Gonzales is the likely infringer here. Accordingly, the district judge should dismiss Plaintiff’s claim for copyright infringement. See Omar v. Sea–Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6).”).  {Doc #35, FINDINGS AND RECOMMENDATION}

I will not go into too much of all the pleadings on this (It is well worth reading IMO), but Troll/Plaintiff clearly only targeted the Defendant because his name was on the ISP account and they figure they could either force a settlement, get him to name the offender, or accept a walk-away deal.   Doc38_DefResponse_00866(OR)

PLAINTIFF’S FIRST CAUSE OF ACTION: DIRECT COPYRIGHT INFRINGEMENT

While Defendant GONZALES did not initially challenge Plaintiff’s first cause of action, Plaintiff’s counsel acknowledged at oral argument that it knew a number of other individuals resided at the site of the alleged infringement (Exhibit A, Hearing Transcript, 6:7-15) and that it did not know “whether or not [GONZALES] was for sure the first party direct infringer.” (Id., 6:2-4) Plaintiff had admitted in its initial pleadings that it only knew the defendant by way of a computer address (Complaint, doc. 1, ¶12; Ex Parte Motion to Expedite Discovery, doc. 3, p. 2) and Plaintiff’s counsel was unable to offer a single fact uncovered during early discovery that would make Mr. GONZALES a more likely candidate for the role of direct infringer.  {Doc #38, DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO MAGISTRATE’S FINDINGS & RECOMMENDATION}

Troll/Plaintiff was allowed to amend the Complaint for Direct Copyright Infringement no later than 18 July.  On 5 July, Troll Crowell filed his Second Amended Complaint (SAC) against “DOE-24.21.136.125” and NOT against the ISP Subscriber (Previous Defendant).   Doc41_SAC_00866(OR)

I find it exceedingly funny that in this SAC, The “Defendant,” has reverted back to the IP address assigned to ISP subscriber, with a note that there is 2-3 other regular occupants at the residence, to include the previous Defendant.  They also did not mention any of the “Other” files that were being shared by the BT client on this IP address. I guess none of the other shared files could be associated back to the ISP subscriber or the roommates.

I know that Troll/Plaintiff deposed the ISP subscriber/Defendant and it got them nothing. I am unsure if they deposed the 2-3 “other” residents. So they could depose the roommates/occupants, but if that gets them nothing, the case is dead in the water in my opinion.

Some will ask why the Troll amended the complaint and did not simply let die. The view of this court was clearly that unless you can provide some reasonable information to point to why a person is a defendant – beyond a simple guess – then they have NOT reached a level where plausible equals likely.

Now I will say that the last dockets entries are interesting and funny.   Docket_15Jul16_00866(OR)   Three days after Troll/Plaintiff filed the SAC, the court ordered a conference call between all parties to take place on 11 July. The conference call took place, but nothing else is noted by it on the docket (a bit telling). Then on 13 July, the court issued another ORDER.

ORDER TO SHOW CAUSE. The Court ORDERS plaintiff to show cause in writing, within 21 days, why its Second Amended Complaint 41 should not be dismissed for failure to cure the deficiencies identified in the Court’s Order of Dismissal 39 and the Court’s Findings and Recommendation 35 , or for failure to identify the Doe defendant in a timely manner, pursuant to Fed. R. Civ. P. 4(m). Ordered on 7/13/2016 by Magistrate Judge Stacie F. Beckerman. (gw) (Entered: 07/13/2016)

I expect the Troll will now try to dismiss the case instead of trying to justify its actions. I have been wrong before, so we may see more a$$hatery from the Law Firm Clown Firm of Crowell Law (my opinion). It will also be interesting to see if the court allows the Defendant to seek attorney fees and costs from Plaintiff. One of Plaintiff’s claims was dismissed WITH PREJUDICE, so I believe the Defendant has a really good chance.  Well done Attorney David H. Madden.

DieTrollDie :)   “If I’m curt with you, it’s because time is a factor here. I think fast, I talk fast, and I need you guys to act fast if you want to get out of this. So, pretty please, with sugar on top, clean the fucking car.”  {Pulp Fiction, Winston Wolf}

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TaylorMadeClips – Digital Markings AND ‘Queen Of The Desert’ FAILS in AZ (2:16-cv-01021)

TaylorMadeClips – Digital Markings On Their Downloads???

TMC_Borghese_SettlementLTR_June2016Recently I started to get some emails from people who received settlement demand letters from Copyright Troll Mark Borghese, for movie clips from TaylorMadeClips (TMC). Here are my previous posts concerning TaylorMadeClips.  TMC1   TMC2   The settlement demand letters are essentially the same as before, so I will not fully upload them.

Now at first I figured this was just another round of settlement demand letters sent to emails somehow associated to an account on Macrochan.us. (The site alleged to have TMC content uploaded to). A simple search of the site did disclose some users apparently sharing TMC content.

By digging a little bit deeper I disclosed the recipients of the settlement demand letters had in fact purchased various TMC content, BUT did not upload anything to Macrochan.us.  Note: the contact information on the settlement letter was the same as what was used to purchase the TMC clips.

So it appears TMC is likely digitally marking (hidden water-marks) each download of their content/movies. The hidden code can be used to identify who purchased the clip – name, address, email, and possibly payment information. This information is passed to Mark Borghesse, who in turn sends out the settlement demand letter. This is not a new technology and in fact we have seen in the past a law suit targeting the initial uploader based on a hidden digital water-mark/code.  Previous DTD Post –  Kywan Fisher – Flava Works    The technology to do this is not new and it is amazing that we have not seen more content owners do this. This technology is something that most copyright trolls do not bother with. Here is one company – Digimarc.

So if the person who purchased the TMC clip did not upload it to Macrochan.us., who was responsible?  I don’t have any reason not to believe the recipients, so the most likely scenario is somehow a third-party was responsible. The third-party was either given a copy of the TMC clip or somehow obtained it without the approval of the person who purchased it.

Either way, TMC doesn’t really care about the reason; they just want a settlement to be paid. It appears that TMC/Borghese is seeking $750 per title.

So what is TMC/Borghese likely to do if a settlement is not paid? They can continue to send emails/letters seeking a settlement under a threat of a law suit OR they can file a copyright infringement law suit. As Mark Borghese is only licensed in NV and Washington DC, TMC would need to hire attorneys in the jurisdictions of the offenders if they wanted to proceed.  NOTE: Borghese did previously file a couple of NV law suits against out-of-State Defendants in an effort to force a settlement – it worked.  So Borghese could do this again, but if challenged, there is a good possibility the case would be dismissed (improper jurisdiction) or at least transferred to the right jurisdiction (where the Defendant lives & requiring TMC to hire a local attorney). That of course is my non-attorney thoughts on the matter.  As they are only seeking $750 per title, it doesn’t look like they are too serious on filing law suits.  Saying that, I would be especially careful in sharing content among friends. Once you share something with another person, you have lost all control over it – once it hits the Internet it is GONE.  IF a law suit was ever filed, most courts are not going to look too kindly on the initial uploader/seeder verses someone who just downloads the content – my opinion.

Due Diligence???

What I really find interesting is the use of hidden digital markings/water-marks by this otherwise small fetish-niche company.  Notorious Copyright Trolls like Malibu Media/X-Art (which are significantly larger & have more money) do not use this technology (please correct me if I’m wrong). Why not??? I believe the Copyright Trolls and the German monitoring firms that support them do not want to see a slow-down in piracy of their content. If the copyright owners actually took step to deal with the initial seeder (the uploader) of their content, they might start to make an impact & lose settlements in the process.

‘Queen Of The Desert’ FAILS in Arizona (Case # 2:16-cv-01021)

Thanks to the Doe that forwarded me the following AZ ‘Queen Of The Desert’ case (2:16-cv-01021). Nothing out of the ordinary – Standard mass-Doe BT Copyright Troll case against 26 Does. Case was opened on 12 Apr 2016, with Early Discovery granted for the ISP subscriber information on 11 May 2016. Where it starts to gets interesting is on 14 June, when Judge Neil Wake files an Order telling the Troll that they need to name and serve each Defendant and show proof of service by 13 July (30 days to do this), or the case may be dismissed.   Docket_11Jul16_01021(AZ)   Disc_Motion_01021(AZ)   Disc_Granted_01021(AZ)   Doc10_01020(AZ)

So the Troll now has 30 days to amend the complaint with the true names of the Defendants (ISP subscribers), serve each Defendant with a summons/complaint, and file documents showing the service was accomplished.  So in true Copyright Troll form, attorney Gregory B. Collins, asks the court for 90 more days accomplish these tasks.  The Troll tells the court that Cox Communications is due to provide the ISP subscriber information on 30 June, so an extension out to 11 October is justified.   Motion_MoreTime_01021(AZ)

Well on 22 June, judge Wake issued another short, straightforward Order – DENIED. The Judge did tell the Troll that he would give them two more days (15 July), but that was it.   Order_01021(AZ)

22JuneOrder_01021(AZ)

As the message was made painfully clear, Troll Collins then dismissed Does # 8 & 25 WITH Prejudice AND all the remaining Does WITHOUT prejudice on 8 July.   2_Does_Dismissed_01021(AZ)   ALL_Does_Dismissed_01021(AZ)

So it looks like they were able to get two people to pay a settlement. Even if the settlement was only for $3K each, that means $6K on a $400 investment.  Even if they have to split their ill-gotten gains three ways (Copyright owner, Troll attorney, German BT Monitors), it is still over $1K each. Then back to filing more cases and hoping they don’t get Judge Wake again.

Wait And See Approach

This is exactly why in the multi-Doe cases I suggest taking a ‘wait and see’ approach and not contact the Troll.  It is a real possibility that Does # 8 & 25 would not have had to pay a settlement. Note: The Troll could refile cases against the 24 Does/ISP Subscribers, but in my opinion it is unlikely.  Each Troll attorney is different, but Collins doesn’t appears to want to name and serve Defendants at this time.

DieTrollDie🙂

“Some ships are designed to sink…Others require our assistance.”

TrollSpotting1

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