6 Jul 12 Update – Lipstick On A Pig – AF Holdings, LLC, v. Joshua Hatfield, 4:12-cv-02049 (CA)

 

6 Jul 12 Update

I don’t have the time right now to do a full posting update, so I will make it short. 

Here is the location of all the files of interest (Motion to Dismiss, Order for Case Management Conference, EFF Motion to File Amicus Curiae, Plaintiff’s response to EFF Motion)

Mr. Hatfield has answered Prenda’s FAC and refiled a motion to dismissed because –

For the reasons outlined above, Defendant respectfully requests that this court dismiss the claim of negligence against Defendant Hatfield. Plaintiff’s cause of action is explicitly preempted by Copyright Act §301, and is further preempted by the doctrines of conflict and field preemption. Additionally, Defendant is immune from liability for the alleged acts under CDA §230 and Plaintiff’s complaint should therefore be dismissed. Plaintiff has likewise failed to adequately allege the existence of a special relationship giving rise to a duty owed by the Defendant to the Plaintiff. Each of these failings is independently adequate for dismissal.

Finally, Defendant requests a more definite statement as to the allegations of contributory infringement against Defendant, if Plaintiff intends to pursue such an action based on the activities alleged in its complaint against Defendant Hatfield.

Please take a look and tell me what you think.  Looks like Mitchell Stoltz, EFF, will be authoring the Amicus Curiae.  Note: This is the guy Marc Randazza called a “lying piece of shit,” via Twitter.  Looks like the EFF and Ranallo are going to torpedo the SS Unicorn-Tugboat. 

Everyone have a great weekend and don’t forget Unicorns do exist – Marc Randazza has seen four of them.

DieTrollDie 🙂 

 

 

 

———————————————————————————————————–

On 14 Jun 12, Brett Gibbs, Prenda Law, filed the First Amended Complaint (FAC) for this case.   FAC_02049(CA)   This FAC is in response to Mr. Hatfield’s Motion to Dismiss and motion for a more definite statement.  Hatfield_MTD_02049(CA)   I thought the phrase about putting lipstick on a pig was appropriate to the FAC.  Prenda tries to make it look good, but can’t get away from the fact that it is still a pig.  {I apologize to the swine who take personal offense at being associated with Prenda}

The only parts I see that were amended are in Count IV – NEGLIGENCE.  This is the only section in which Mr. Hatfield is directly named in.  Note: Gibbs does make a footnote comment –

At this stage of the litigation Plaintiff does not know if Defendant Doe is the same individual as Josh Hatfield (“Defendant Hatfield”). {This is the famous Prenda “Phantom Doe” line – Pure BS}

Section 59., states that Mr. Hatfield had a duty to take reasonable steps to secure his Internet connection against “foreseeable” illegal acts of third parties. Gibbs claims the illegal acts were foreseeable because –

…the industrial-scale infringement by Defendant Doe over Defendant Hatfield’s computer network vastly increased the bandwidth loads on Defendant Hatfield’s Internet account. The bandwidth loads on Defendant Hatfield’s Internet account went far beyond that of a normal Internet user. By way of an examination of his monthly bandwidth usage statements from his Internet Service Provider, reference to basic traffic logs on his consumer-level router or the observation of a noticeable reduction in his Internet speeds (due to consumption of resources by the infringing activity), Defendant Hatfield knew or should have known that massive BitTorrent-based infringement was occurring via his computer network.

First off Gibbs, Mr. Hatfield (or anyone else) has ZERO duty to Plaintiff or society regarding securing their Internet connection.  This kills you negligence claim from the start.  Your FAC has NO support (case-law or otherwise) to make such a claim.  The best you can do is jump straight to the statement that Mr. Hatfield should have seen the activity occurring and done something about it.  You haven’t answered the first part of negligence – Duty.  Try again. 

As far as monitoring your data usage from your ISP and reviewing WiFi Firewall Router (WFR) logs, most people don’t have a clue on how to do this.  Even if they do understand where to find such information, most people are not going to bother to regularly review it.  It is a waste of their time as long as everything is working.  With most ISP data plans, your monthly allotment is large enough not to incur any warnings from your ISP for exceeding your limit. 

Even if you received a warning from your ISP, that doesn’t automatically mean that some illegal activity is taking place on your Internet connection.  For many households, it is not unusual to have three or more computers on the network and various WiFi enabled devices (TV, DVD player, Smart phones, Game systems, eBook readers, etc.).  With this many devices on a home network, most people expect some periods of high data-usage and/or degradation on their Internet connection.  The claim that this was “Industrial-scale” is just another one of the sad Prenda jokes that cannot be backed up with any proof.   

Defendant Hatfield breached his duty by failing to secure his Internet connection from the foreseeable illegal acts of a third party once on actual or constructive notice of the use of his Internet connection for an unlawful activity.  {Section 61.}

What Gibbs is trying to say in the above paragraph is concerning the “non-existent duty,” – once Mr. Hatfield was notified of the copyright infringement case concerning his public IP address, he should have secured his Internet connection.  

For the previous case Mr. Hatfield was associated with (5:11-cv-03336), the earliest point he could have become aware of it was when his ISP forwarded him the subpoena package for his subscriber information.  This would have been in August/September 2011 – Judge approved the subpoenas on 2 Aug 11.  Maybe if Plaintiff had bothered to send out DMCA take-down notices, as soon as it discovered the activity, Mr. Hatfield could have taken steps to determine what was going on.  In the current case, Mr. Hatfield was not notified of the activity until he was served on 10 May 12.  That is a years past when the initial activity was noted by the “investigator.”    

Here is a paragraph from the FAC concerning when they observed activity from public IP address 67.161.66.95.

Plaintiff’s investigators detected this illegal activity on April 21, 2011 at 5:25:25 p.m. and May 2, 2011 at 10:37:48 p.m. (UTC). However, these are simply snapshot observations of when the IP address was observed in the BitTorrent swarm; the conduct took itself place before and after these dates and times.  {Section 27.}

Funny how Prenda will not actually name its investigators and the company they employ.  Well I will – Company: 6881 Forensics LLC.  Investigator (term very loosely applied): Peter Hansmeier.  This is nothing more than a Prenda cover for the Steele/Hansmeier operations that stinks of questionable personnel, untested “forensic” software, non-certified forensic/Investigative personnel, unethical behavior, and an incestuous relationships of all parties involved.   

As I previous stated, Prenda is trying this negligence move to avoid having to show the court the details of their operation and actually prove that Mr. Hatfield was the infringer.  You will hear this time and again:  The public IP address they collect is piss-poor evidence by itself.  If they can get the negligence claim to stand, Mr. Hatfield would become jointly and severally liable for the entire judgment.  This means if the court makes a judgment for the Plaintiff for $30K (statutory damages, legal fees, experts, etc.), all the parties (Phantom Doe and Mr. Hatfield) are liable to pay it.  As no one knows who this Phantom Doe is, Mr. Hatfield get stuck with the entire bill and it is his responsibility to find out who the Phantom Doe is.  Prenda doesn’t have to prove that the Phantom Doe did it.     

On Count IV, an order that Defendant Hatfield is jointly and severally liable to the Plaintiff in the full amount of Judgment on the basis of Defendant Hatfield’s negligence in allowing an unidentified third party access his Internet account and, through it, violate Plaintiff’s copyrighted works; for an award of compensatory damages in favor of the Plaintiff and against Defendant Hatfield, jointly and severally, in an amount to be determined at trial;  {Prayer for Relief – Section 5}

On 11 Jun 12, Nicholas Rannallo, filed a re-notice of a motion to dismiss and a motion for a more definite statement.   Renotice_Motion_02049(CA)

PLEASE TAKE NOTICE THAT the hearing of Defendant Josh Hatfield’s Motion to Dismiss and/or Motion for More Definite Statement (Pacer Doc. 8), previously noticed for July 17, 2012, in the San Francisco Courthouse, Courtroom E, is hereby re-noticed for July 25, 2012, at 9:00 a.m. before Judge Phyllis J. Hamilton, in accordance with this court’s order of June 5, 2012 (Doc. 11). The hearing shall be held in Courtroom 3 (Third Floor) of the Oakland Courthouse, 1301 Clay Street, Oakland, CA 94612. The motion shall be based on the motion, points of authority, proposed order, and other related documents submitted with the original motion on May 31, 2012 (Doc. 8).

I would love to be able to go to the hearing, but that isn’t an option.  I hope the EFF will be able to send someone to attend and possibly write (or Twitter) about the hearing.  The negligence claim is a big issue that needs to be promptly stomped into the ground.  It is a wonder we haven’t seen Buffy weigh in on this case, as he knows Gibbs is bound to do something stupid.  Too bad Randazza, thinks your firm is a bunch of Bozos, maybe you could have gotten him to argue how the 1932 Tugboat case (T.J. Hooper) is relevant to the negligence claim.  Not to say you couldn’t argue it yourself, but since you have been copying him… 

Once the negligence claim is laid to rest, Prenda can only amend the complaint again and claim they now believe the Phantom Doe is in-fact Mr. Hatfield.  Sounds like a really bad “Scooby Doo,” episode.  Not what Prenda really wants, as this has failed with defendants who actually fight back (Wong & Abrahams).  If Prenda decides to dismiss this case, Mr. Hatfield is free and clear, as this will be the second dismissal on this matter.     

DTD 🙂

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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12 Responses to 6 Jul 12 Update – Lipstick On A Pig – AF Holdings, LLC, v. Joshua Hatfield, 4:12-cv-02049 (CA)

  1. Subscribe says:

    Subscrib

  2. Great post. Right on the trail of yesterday’s beating Randazza received on Techdirt!

    Bandwidth usage is a hogwash also because… Netflix 2-hour HD movie consumes 3.6 GB. The movie in this case is 1.36 GB according to TPB (NSFW). Make conclusions yourself.

    • Anonymous says:

      Do you mean to suggest that Brett Langdon Gibbs is LYING to the CA courts again? No way!

      Just did a 30 second calculation, at the average broadband speed in the US, 5.8 Mbps according to Akamai’s October 2011 State of the Internet Report, the download in question would take 32 minutes. This is a flash in the pan, not something that would grind a residential connection to a halt. Since this is the Northern District of California, encompassing Silicon Valley, the engine of the Information Age, chances are speeds are above average there.

      Here’s my math in case anyone wants to follow along:

      (1.36GB * 1024MB per GB) / (5.8 Mbps / 8 bits per byte) / 60 seconds = ~32 minutes

      Now there is going to be some overhead and it depends on network conditions for both uploaders and downloaders, but this is not a meaningful use of bandwidth.

      Welcome to the 21st Century, Prenda Law, Inc.

      Getting caught up in Copyright Trolling is basically the first time I’ve payed attention to the law and had to learn about the legal process, but can anyone with more experience in the legal profession tell me if it is normal for attorneys to make baseless and false statements in their filings? You note that he also does not cite case law to back up his arguments. He also makes these assertions about use of bandwidth, etc. that can be debunked in seconds, and he does not provide his own math or other data to back the statements up in the first place. Is that normal? I work in a technical/engineering field so I’m not so used to being able to make things up, if you’re building a bridge for example you don’t argue that it’ll stay up, you make it so. Seems like lawyers don’t worry about being accountable to reality at all, and there is nothing to hold them accountable. I guess that explains why law and politics are so screwed up!

  3. that anonymous coward says:

    EVERYONE ONBOARD THE TUGBOAT!
    Is there anything Randazza has tried that Steele doesn’t steal for his firm?

  4. Troll Chaser 2000 says:

    “47. Plaintiff has been damaged by Defendant Doe’s conduct, including but not limited to
    economic and reputation losses”

    Could someone kindly explain to me how they suffered ‘reputation losses’?

    As a prurient individual I do not look up to the porn purveyors for any level moral value. Have I missed something in the fact that they should be on par with my local priest, rabbi, shaman, etc.? Looking at their hiring tactics of hiring ‘at risk’ individuals, with their own share of issues (like us all), providing them drugs and money to perform private acts in front of a camera amounts to pimping, pandering and prostitution. Aren’t those just the poster child traits of someone with a great reputation?

    How about attacking them on the issue of their “moral” practices?

    “18. The degree of anonymity provided by the BitTorrent protocol is extremely low.
    Because the protocol is based on peers connecting to one another, a peer must broadcast identifying information (i.e. an IP address) before it can receive data. Nevertheless, the actual names of peers in a swarm are unknown, as the users are allowed to download and distribute under the cover of their IP addresses.”

    That is rock solid “non-anonymity” …. and if you believe that then I have a bridge I’d like to sell you.

    What sort of mind altering substances does one have to ingest to even begin to come up with these diatribes let alone to follow them? I hope the court provides free aspirin to the judges who have to read through this garbage all day!

    • DieTrollDie says:

      More BS that cannot be backed-up. Prenda-Speak: “47. Plaintiff has been damaged by Defendant Doe’s conduct, including but not limited to
      economic and reputation losses”

      DTD 🙂

  5. DieTrollDie says:

    6 Jul 12 Update
    I don’t have the time right now to do a full posting update, so I will make it short.

    The main body of the post contains the location of all the files of interest (Motion to Dismiss, Order for Case Management Conference, EFF Motion to File Amicus Curiae, Plaintiff’s response to EFF Motion)

    DTD 🙂

    • The EFF’s brief demonstrates that it has little interest in the actual facts of this case, and instead simply wishes to gain the most exposure nationwide for the least amount of work.

      ummmmm would Gibbsy prefer they robocalled the courthouse? Oh wait, making money with the least amount of work is Prenda’s job, how dare EFF step on toes

  6. Raul says:

    You need to post a link for Wilely ‘s “Dropbox For Dummies”.

  7. Pingback: Phantom Doe #6, AF Holdings LLC, v. Josh Hatfield, 4:12-cv-02049 (CA) | DieTrollDie

  8. Pingback: End of the Prenda Phantom Doe (#7), AF Holdings LLC, v. Josh Hatfield, 4:12-cv-02049 (CA) | DieTrollDie

  9. Pingback: Night Of The Living Prenda (Phantom Doe #8), AF Holdings LLC, v. John Doe (Josh Hatfield), 4:12-cv-02049 (CA) | DieTrollDie

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