Named Defendant in Prenda Law Inc.,/Boy Racer, Inc., Case (2:11-cv-03072-MCE-KJN), Eastern District of CA – Ammended Complaint

I want to thank the John Doe for passing this information along.  On 12 Dec 11, The Troll Brett Gibbs, Prenda Law Inc., filed an amended complaint naming a single Doe in case # 2:11-cv-03072-MCE-KJN, Eastern District of California, Sacramento Division.  The original single unnamed John Doe case was file by Gibbs on 21 Nov 11.  In the unnamed Doe defendant case, Gibbs states,

1. In a previously filed action, Plaintiff sought relief against multiple anonymous copyright infringers. One of the anonymous copyright infringers was associated with Internet Protocol (“IP”) address 98.255.135.206. In the course of expedited discovery, Plaintiff ascertained the identity of the account holder, who identified the infringer to be Phillip Williamson. Plaintiff now files this action to complete its investigation into the infringer’s identity and, if necessary, to prosecute the infringer for his blatant violation of Plaintiff’s copyright.

No other information is in the 21 Nov 11 complaint – besides the general copyright infringement claims.  So based on reading both complaints, I will make the following assessment of this case so far. 

Steele Hansmeier/Prenda Law  starts a mass John Doe case (don’t know which one) and eventually gets the subscriber information for IP address 98.255.135.206.  The are able to make contact with the ISP subscriber and threaten them with a Federal law suit unless they pay a settlement fee of a few thousand dollars.  The ISP subscriber probably freaked out and called the Troll.  The ISP subscriber probably told the Troll he didn’t do it and there are roommates who also use the Internet connection.  Because of the highlighted portion of the complaint (see above), the ISP subscriber most likely told the Troll that Mr. Williamson was responsible for downloading/sharing the movie.  As the 21 Nov 11, complaint states the infringer was identified as Mr. Williamson, the Troll likely has a statement from the ISP subscriber and maybe even information from Mr. Williamson to support this.  It is not known if the alleged infringement occurred on a computer belonging to the ISP subscriber or Mr. Williamson.   

The amended complaint (see below & here –Amended_Complaint_03072(CA)_Doc7) list Mr. Williamson as the defendant and states the following in the opening section.

1. In a previously filed action, Plaintiff sought relief against multiple anonymous copyright infringers. One of the anonymous copyright infringers was associated with Internet Protocol (“IP”) address 98.255.135.206. In the course of expedited discovery, Plaintiff ascertained the identity of the account holder, who credibly identified the infringer as Philip Williamson (“Defendant”). Plaintiff has recently come into possession of further evidence to support the account holder’s allegations. Plaintiff now files this action to prosecute the Defendant for his outrageous violations of Plaintiff’s copyrights.

The complaint goes on to state that the Troll believes Mr. Williamson is responsible for sharing over 100 of Plaintiff’s movies –

At least one of the copyrighted works at issue here is an adult video produced by Plaintiff, POV – Punx. On information and belief, however, Defendant also illegally reproduced and distributed over 100 other of Plaintiff’s copyrighted works (the “Videos”), which Plaintiff expects to identify and confirm through the course of discovery.

Here is the really interesting bit of the amended complaint.

26. In a recent examination of the Macintosh computer used by Defendant during the times of his infringements, an updated version of Vuze appears in the “Applications” folder.  Through further inspection of Defendant’s computer, Plaintiff’s agents found Mp4 converter, StreamMe, and ServeToMe software that could enable an individual to convert a full-length video to a mobile device-compatible format; Toast10, which allows an indiviudal to burn DVDs on Mac computers from videos downloaded over the Internet; and OmniDiskSweeper, a Mac utility program that helps users quickly identify and delete potentially infringing videos on one’s Mac computer in furtherance of evading liability for copyright infringement.

Interesting that some type of examination of Mr. Willianson’s computer took place.  I haven’t seen the court docket, but if there is no court order granting an examination, then it was some sort of consent to search OR an observation of an authorized user accessing the computer.   If the ISP subscriber was allowed to use Mr. Williamson’s computer, he could have let the Trolls see what was on it – did some shoulder surfing.  This would explain how the Troll was able to list what they found – BitTorrent application, Mp4 converter, StreamMe, ServeToMe, Toast10, and OmniDiskSweeper.  Notice that they didn’t list the movie in question or any other of Plaintiff’s movies.  The Troll made sure to list “OmniDiskSweeper,” as the possible reason why the movie in question was not seen.  

Not a particularly good thing for Mr. Williamson.  Even if he wishes to settle, the Troll may want to try to take this one to trial.  As Mr. Williamson was a “roommate,” there is the possibility he doesn’t have many assets.  So actually getting money out of him may be hard to do – I don’t know what his financial is.  Still, taking it to trial may allow for the details on the Trolls BitTorrent monitoring/evidence collection efforts to come to light.

One good thing about this case is it goes directly to refute the view of the Troll that IP address (being an ISP subscriber) equals culpability.  If the Troll does not go after the ISP subscriber for failing to prevent this activity (negligence claim) by Mr. Williamson, they are saying the unauthorized use/abuse of an Internet connection is an acceptable defense.  It also shows that the Trolls need to conduct an investigation and not just threaten the ISP subscribers into settling. 

I also think this shows what type of cases the Trolls will actually file and name a Doe defendant.  As I previously stated, the Trolls will only take those cases to trial where they believe they have overwhelming evidence.  Naming a Doe in a single case with no more evidence then the IP address they collected is still the same old garbage.  More to follow I’m sure. 

DieTrollDie  🙂

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

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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19 Responses to Named Defendant in Prenda Law Inc.,/Boy Racer, Inc., Case (2:11-cv-03072-MCE-KJN), Eastern District of CA – Ammended Complaint

  1. skruuball says:

    While damning as a whole given the context, it should be noted that the software applications they cite are common and are not evidence of wrongdoing.

    Not to put to fine a point on it, but Toast is the most popular disc burning for OSX, the use of mobile devices and tablets (as well as Apple’s restrictions on video file formats that can be viewed on iPhone and IPad devices) makes some type of video conversion software necessary, and Omni is one of many programs that are commonly used to free up disk space — particularly important given the adoption of SSD drives with smaller capacities.

    They will probably try to make an example of this guy, but it is hardly a typical scenario. The combination of software, video files, and douchebag roommate (the Trifecta!) is unusual.

    SB

    • TrollBasher says:

      One would think that many computer users have a combination of software apps that clean and do other utilitarian things. In fact many people only run windows for a month or 2, then reinstall from scratch or from a backup image because of the way the OS gets convoluted with crap. No need for anti-virus this way, just reinstall.

      Free space on drives get cleaned leaving no trace of anything except zeros. I myself do both of these things, so what are they going to do if they find out you have reinstalled your OS within the last 30 days ?

      It proves nothing, but it may put thoughts of guilt into a less technically minded jury
      member if it were to go to a trial.

  2. Doe #1 says:

    Trollbasher, any troll will definitely go after spoilation if you wipe a drive 30 days before going to trial and anytime after receiving the letter from the lawyer. Now if you replaced your computer or wiped a drive before ever receiving information about the case… That would be a different story.

  3. TrollTrasher says:

    Doe #1:

    That’s the issue, though; if someone periodically clears their system there’s no way for the trolls to prove or disprove it was done to cover piracy tracks. People need their computers; to keep them running or to correct issues wipes and re-installs are often needed and are certainly common practices. What if the computer is used for work? Are the accused supposed to not maintain their computer if needed out of the chance that troll gets their crap together and actually names them in a suit? It’s a self-fulfilling prophecy that likely could be easily countered if the accused is able to afford an attorney.

    This is likely Steele’s promised “surprise,” and DTD’s analysis is also likely spot on. This is almost certainly due to the accused implicating themselves or their roommates via communication with the trolls, which just serves to reinforce the mantra of NEVER CONTACTING THE TROLLS. This won’t be the last time we see a case like this, sadly, based on the number of shady letters from ISP’s actually encouraging/directing the accused to contact people like Steele. So long as people panic and contact the trolls in an attempt to slip off the hook you’re going to see this. DO NOT FEED THE TROLLS. DO NOT CONTACT THEM. SPEAK TO AN ATTORNEY FROM THE EFF’S LEGAL LISTINGS!

  4. TrollTrasher says:

    Oh, and no doubt one of the things “offered” by the trolls to the accused after they are contacted is to inspect the accused’s computers. “What’s that you say? There’s no way that you downloaded this? Well, taking a look at your computers would go a long way to settling that!” That way the trolls can spin whatever they find as “evidence” that the person is a pirate. Any kind of video editing software? Oh, they must be a pirate. Any kind of CD/DVD burning software/hardware? Oh, they must be a pirate. History of any kind of hard drive cleaning/wipe/re-install after the accused incident? Oh, they must be a pirate. The trolls fully intend to spin any lack of evidence AS evidence.

  5. It goes like this: One of the IP they got from discovery says “not me, my roomate”! They settle with that Doe, who agrees to the inspection of the computer for $1000 off or something like that. Then they file a second single case against the new Doe (roommate) who actually used the internet. Two settlements for the price of one!

  6. CTVic says:

    Very interesting. “Through further inspection of Defendant’s computer, Plaintiff’s agents found…”
    Insinuates that Prenda got their mitts into the drive of the computer. Maybe the Doe handed it over, maybe he opened up some kind of remote desktop connection to let Prenda in, maybe he burned an image of the hard drive. In any case, it’s pretty obvious that Prenda threatened the Doe and scared him enough to point both fingers at his roommate.
    Also interesting is your point that they don’t say they actually FOUND the infringed title. Rather, they found a bunch of streaming utilities, a bittorrent client, and a cleanup utility. Some very common apps for anybody who’s using a computer as a media center. No smoking gun, rather just a bunch of circumstantial stuff they could use to build a case. It’s not the tool that breaks the law – rather how the person uses it. Just because you have a gun doesn’t mean that you run around shooting babies with it.
    They only mention things installed on the drive, or in the Apps folder – insinuating that they didn’t do any kind of “deep” inspection of the machine vis-a-vis registry settings or deleted files or fragments recovered from the drive.
    My guess is that they scared the Doe enough over the phone to get him to sit at the roomate’s computer and open it up remotely for them to poke around. I wonder if Doe ever got anything in writing from them stating that they wouldn’t sue him if he informed on the roommate? If not, he may still be looking at a lawsuit himself. I wouldn’t put it past sharks like these to reneg on a verbal deal. Hell, some of these trollawyers have even told judges that they’re allowed to lie and threaten wild things in the name of “settlement negotiation”. In any case, Doe definitely gets to look forward to testifying against his roommate if anything does get to a trial.
    I wonder if the evidence collected could even be used in court? A judge didn’t order the search. It looks like it was surrendered voluntarily by the Doe – but since it’s the roommate’s machine, can he even do that legally?
    If the roommate *did* infringe, then he deserves to take a hit for it – especially considering that he would have been doing illegal shit on the Doe’s connection. That’s seriously bad form, not only breaking the law, but doing it under your roommate’s name. If he’s innocent … then damn … bad news for everyone involved, with a shattered friendship thrown in for good measure. How hard must Prenda have been pushing the Doe over the phone to get him to bend over and spread em’ that far? “With friends like these …”
    Just one more reason to never talk to the bastards themselves.

    • DieTrollDie says:

      Yes. Much that is missing in the amended complaint speaks volumes. I did’t see a summons on the docket for the defendant, so I will assume they haven’t found the movie. I bet they will keep searching and threaten him to settle for some crazy amount. Agree that the software is weak, but taken with whatever the roommate said….

      DieTrollDie. 🙂

      • TrollTrasher says:

        Hell, I don’t even think they’re looking for a “crazy” amount when they look to settle with these lone Does. Obviously they’ll be looking for more than their usual approx. $3500; probably around double that. Maybe even as much as $10k if they figure the Doe has some money. If not then they’ll settle for less; a troll will never refuse easy money, even if it is below what they initially were looking for. And if after all that they still haven’t got a settlement then they’ll pursue a default judgement or kill the case. The odds of these cases actually going to court with the trolls battling against a represented Doe are pretty damn slim.

      • DieTrollDie says:

        I think for this case they will ask much more. What ever evidence and statements they have will be used against this defendant to either get him to settle or in a trial. They have continually stated that they pass any additional costs they incur to the defendant when they settle. I guarantee they paid out a good amount for whatever forensic exam that took place. As they have not gone ahead and issued a named summons (as of 16 Dec 11), they are probably trying to settle. If their evidence was so good, they would possibly take it to trial. I agree that most will never see an actual trial.

  7. TrollTrasher says:

    Yeah, but how much money can they truly expect to get? I understand obviously that there was more cost for them to get to this point, but I can’t see them looking to settle for more than $10k unless they know the Doe has the assets to potentially pay that. Most people simply do not have the ability to pay more than around, say, $5k as a lump sum. I seriously doubt the trolls are going to look to garnish wages or set up payment plans; they want their money ASAP. I just don’t see the higher settlements being more than the $5k-$10k range unless they’ve checked out the Doe and know they can push for a lot.

    • DieTrollDie says:

      I don’t think they care too much on what they can actually get right now. I think they will try to get him to settle for a larger amount under the fear of a trial. They will take as much as possible in lump sum and then set up a payment plan. Miss a payment and they will try to garnish wages. Money is money, even it you get it slowly over time. They are probably telling him that “their forensic expert will find all the files he downloaded/shared…” and better to sign the settlement agreement then risk a finding against for $150K… Same old troll BS, but the defendant probably doesn’t know that the forensic expert should have already found it. Finding a movie file as large as some of these is easy. If it was deleted, there will likely be small parts of it or indicators of its previous presence. If the disk cleaning software was run, very little of the alleged file will remain (mostly indicators). If the file or directory it is stored in is encrypted, the Trolls will have a hell of a time trying to crack the password.

      DieTrollDie 🙂

  8. skruuball says:

    The Troll misrepresents the capabilities and purpose of OmniDiskSweeper. The software simply shows a graphical representation of the directories and files on a drive for the purpose of reclaiming space. It does not offer the ability to perform a “secure” delete. Anyone trying to remove all traces of a file would not be able to do it using that software.

    The amended complaint indicates that the computer is a Mac. OSX offers a native “secure delete” option that performs a multipass delete and wipes all traces of a file. No third-party software required.

  9. Doe #1 says:

    Wow… I have to say this example help me sleeps at night. This case is the worst case scenario for a doe and Prenda still hasn’t issued a summons and is hoping to avoid court. Now I realize that avoiding a trial is the smartest move in civil litigation but the fact that they have the “perfect” Doe to make an example out of and still are hesitant to pull the trigger is interesting. I doubt they will find a better case then this.

  10. Doe X says:

    Looks like there is finally movement in this case. Gibbs executed a waiver of service. Basically if the defendent agrees and signs the waiver there will be no summons. He just has to send in the signed waiver and will have 30 days to answer the complaint or be subject to a default judgement. Very interestin tactic.. Prenda is limping towards actually having to deal with this in court if this guy lawyers up. It is obvious by going the route of using the waiver that Gibbs is making one last effort to get this guy to settle and avoid putting up or shutting up. The fact that Prenda is still so hesitant to aggressively persue this guy is telling. They aren’t going to have a better target than this guy, a doe who they actually have a cooperating party and some evidence on. Yet they still have dragged their feet for months.

    • DieTrollDie says:

      If it goes to the deposition phase and this guy hires a lawyer, the light will be focused on the Troll and his “eveidence.” It will expose everything and make it easier for copyright defense lawyers and Does to fight it. PLEASE Mr. Troll, let me get a look at the details of your cases. I will make sure to tailor my torpedos to attack your weak areas.

      DTD 🙂

      • skruuball says:

        weak areas include a) the one directly above the neck, and b) the one that controls ethics.

        sb

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