4 Oct 11 Update – All Does except #1 were dismissed on 3 Oct 11. I will post more details soon. Until then, please enjoy the image I’m dedicating to the Law Firm of Fiore & Barber, LLC, K-Beech, and Jeff Snyder. The image represents were your case is heading.
In an effort to keep myself informed and educated on the various Troll efforts and legal system, I decided to review a recent PA case that was filed on 8 Aug 11, in the Eastern District of PA. K-Beech, Inc. v. Does 1-78, Case No. 11-cv-5060 (EDPA) BTW – I’m NOT one of the Does in this case. I still have to run a PACER report on the case, but off of the initial complaint I noted the following points of interest/concern:
K-Beech, Inc., dba Cherry Boxxx Pictures, Jeff Snyder, 9601 Mason Ave., Unit B. Chatsworth, CA 91311, is the copyright claimant.
Attorneys for plaintiff is Fiore & Barber, LLC, 425 Main Street, Suite 200, Harleysvillie, PA 19438. Christopher P. Fiore & Aman M. Barber. They don’t appear to specialize in this type of cases, so I’m wondering if they were subcontracted by one of the bigger Trolls.
The initial part of the complaint has the usual Introduction, Jurisdiction and Venue, Parties, Joinder, and Factual Background (I dispute this part). All the John Doe IP addresses do appear to be in PA – I haven’t verified the Eastern District claim.
In the Factual Background section, the Troll actually uses Wikipedia as a source and Exhibit for a BitTorrent terms list. Wikipedia??? Wikipedia is not a source I would cite on a college or high school paper, much less a Federal Court document. Use Wikipedia to start your data collection and analysis, but find something a little better for you final cite.
Exhibit A of the complaint is a listing of the 78 John Does, their IP addresses, Hit date (UTC), City, State, ISP, and Network. The information in the “Hit Date (UTC)” is the really interesting bit, especially when compared to the date/time of the Copyright Application K-Beech submitted on the film “Virgins #4” (Exhibit B).
Eleven (11) IP addresses on Exhibit A have a Hit date (UTC) before the K-Beech applied for a copyright for this movie (Submitted on 22 Apr 11, 12:25PM Pacific Standard Time).
The Hit date is when Plaintiff’s agents noted the IP addresses as sharing this movie.
Does # 11, 18, 24, 25, 29, 50, 57, 60, 61, 67, 70 (Dates/Times before 22 Apr 11, 12:25PM PST)
K-Beech lists “Date of Publication” for this film as 9 Feb 2011. I need to pose the question to some knowledgeable types on when does copyright start? Application date (I assume) or does it post-date back to 1st publication (I doubt it, but I’m not sure)?
Exhibit A contains Hit Dates ranging from 12 Apr 11 – 7 Jul 11. Plaintiff claims in the complaint that all of the defendants is jointly and severely liable for the infringing activities of each of the other defendants. What he is trying to say is that ALL the IPs in question acted together (“Defendants acting in concert with each other,…”). Exhibit A only shows one “snap-shot” in time for each IP address. The nature of BitTorrent is that file sharer come and go from sharing files (The swarm). There is nothing to say that all of the listed IP addresses stayed in the same swarm for the entire period. If they did not ALL stay sharing the movie for ENTIRE time period (12 Apr – 7 Jul 11), how can you join ALL of the IP addresses together? Plaintiff states that their investigators
“Identified Each of the defendants’ IP addresses as Participating in the Same Swarm That Was Distributing Plaintiff’s Copyrighted Work at the Same UTC time”
Plaintiff also claimed each defendant installed BitTorrent software/clients on their computer. Another generic statement by the plaintiff that is not correct. The IP address for the Does does not equal culpability. It just means the IP address is registered to a person. Did an unauthorized person (computer) use the Internet via that IP address? If so, the defendants did not do this and the claim is baseless.
Exhibit D is a terrible screenshot of what appears to a BitTorrent client. I can’t tell if the screenshot shows the movie “Virgin 4” being shared by Plaintiff’s agents. If so, plaintiff was seeding the movie and essentially telling people to take the movie for free – claim of infringement would be baseless.
In the compliant, the plaintiff states they employed “IPP, Limited” to identify IP addresses sharing the copyright protected file. IPP is the forensic software “INTERNATIONAL IPTRACKER v1.2.1” and related technology enabling the scanning of P2P. Does anyone have any information on IPP or the forensic software mentioned?
MY REQUEST – Please take a look at the complaint and give me your thoughts on the matter. I’m no expert, but it just doesn’t look right to me. I would love to draft up a response to this or have someone smarter do it. This looks like a sloppy case the Trolls are trying to slip into a new area in hopes of getting the subpoena approved.
Any help is greatly appreciated – DieTrollDie 🙂
9 Sep 2011 Update –
Well here are the documents I got from PACER on this case.
Doc2 – Report on the filing or determination of an action or appeal regarding a copyright
Doc3 – Notice of Filing Rule 7.1 Disclosure Statement
Doc4 – Exhibit A for Doc3 (above) – Declaration of Tobias Fieser, IPP, Limited (German Co.) who did the forensic work.
Doc5 – Order on Motion for Leave to Serve Third Party Subpeonas Prior to a Rule 26(f) Conference. Judge granted it.
Doc6 – Motion toQuash or Modify Subpoena by John Doe, filed 9 Sep 2011. Go Joe!
K-Beech, Inc. v. Does 1-78, Case No. 11-cv-5060 Doc 2 K-Beech, Inc. v. Does 1-78, Case No. 11-cv-5060 Doc 3 K-Beech, Inc. v. Does 1-78, Case No. 11-cv-5060 Doc 4 K-Beech, Inc. v. Does 1-78, Case No. 11-cv-5060 Doc 5 K-Beech, Inc. v. Does 1-78, Case No. 11-cv-5060 Doc 6