Another Randazza Tugboat Sinks, Liberty Media Holding, LLC. V. John Doe and David Mastron, 2:12-cv-03425

23 Aug 12 Update

OK.  Here is the settlement agreement between LMH and David Mastron.  Settlement_03425(CA)

As stated below, this is not a huge shocker.  What is interesting is that Gutierrez/Mastron was able to get the settlement paperwork to be releasable.  Goes to show you the strength of their case AND the weakness of LMH/Randazza’s case.  I’m sure Randazza would have preferred a confidentiality clause.  The issue of making this case go away was obviously a bigger priority.   Take a read through it and tell me what you think.  I bet there are plenty of other cases out there that could go the same way if people could get past all the Troll FUD.

I have also attached the Order from the judge dismissing the case and a “Show Cause” order for why the case against the unknown John Doe should not be dismissed.  Randazza has until 29 Aug 12, to respond.   Order_Dismiss_03425(CA)   ShowCause_Doe_03425(CA)

22 Aug 12 Update

Well another ‘Tugboat’ case is on the bottom of the ocean.  The funny thing is that Randazza scuttled it himself.  On 20 Aug 12, both parties are agreed to dismiss the case with prejudice; parties responsible for their own legal fees.   Stip_Dismiss_03425(CA) 

This very short and sweet dismissal has lots to say.  Last night I was watching some poker on TV and saw a few hands that reminded me of this case.  I’m sorry to say that some of you are forced to play this ‘game’ with the Trolls.  These cases are played just like poker – a game of skill, bluffing, and some luck thrown in for good measure.  I don’t know if Randazza likes poker, but he has the spirit of a good player.  He understands the power of a huge chip-stack against lesser players, weighs his options, calculates odds of winning, and it not afraid to fold his hand when he is beat. 

What made Randazza fold this hand/case?  First he did not have a powerful advantage of a Pro Se Doe.  Mastron was able to retain Mr. Gutierrez (Leopold, Petrich, and Smith) and even the playing field.  Mr. Gutierrez was able to determine he clearly had the advantage – Copyright Preemption, No Duty (Negligence), and No Evidence apart from the public IP address (weak).  I’m sure the Tabora ruling was brought up in discussions and the likelihood that if Randazza didn’t dismiss Mastron, Plaintiff would stand to lose a substantial amount of money (I’m sure Mr. Gutierrez is not cheap).  Randazza made his calculations and rightly so determined that folding the case was the smartest thing to do.  Randazza will not like that this information is making it out to the masses, but it is sure better than a trial where the depositions of his technical monitoring company and other aspects of his operation are disclosed. 

It may not be what many of us would have liked to have seen, but it was Mr. Mastron choice, as he was the one being threatened.  More facts on this case are likely to come out publically, as well as in private legal circles.  This case will be used by other Troll fighters as a building block to a winning case.  

DieTrolldie 🙂   

———————————————————————————————-

Liberty Media Holding, LLC. V. John Doe and David Mastron, 2:12-cv-03425, CDCA.  

I had seen this case a few months ago when TAC mentioned the Judge in the case (Margaret M. Morrow) had removed herself.  That part was interesting, as the judge stated she held common stock in Liberty Media Holding, LLC.  I don’t know if this is the same Liberty Media Holding (LMH) LLC, as the Plaintiff, but it was the right move to remove any doubt.   S_Recusal_03425(CA)

For this case, LMH is suing John Doe and David Mastron, for Copyright Infringement (Reproduction & Distribution), Contributory Copyright Infringement, and Negligence.   Complaint_03425(CA)   The Copyright Infringement claims are against the John Doe and the Negligence claim is against David Mastron.  For those of you who have followed the Marc Randazza cases, this is the same template based complaint used in Tabora and other cases.  Note: This complaint was also copied by Prenda Law – example Joshua Hatfield.

This complaint was designed to use the State ‘Negligence’ claim to get around the difficult issue of proving copyright infringement by the ISP subscriber.  The Trolls knows a good percentage of the ISP subscribers they target are not the actual infringers.  It could be another member of the residence, neighbor, guest, or an unauthorized user of the Internet connection.  They do not know and really don’t want to spend the time and money to try to find out.  Doing an investigation is costly and eats away at the profits.  They do this by claiming that an “Unknown” person (John Doe) was the actual infringer and that the named person (Defendant Mastron here) was negligent in allowing John Doe to use his Internet connection.  By combining these two under the “Joint and Severally” liable claim, they can go after Mr. Mastron for negligence; if successful, he will get stuck with the copyright infringement portion.  The Troll then doesn’t have to prove that the John Doe or Mr. Mastron infringed.  It then becomes Mr. Mastron’s responsibility to do this and seek legal action against John Doe to make him pay his portion of the fine. 

As Tabora and other negligence claims have begun to fail for the obvious reason of Copyright law preemption and lack of any legal duty to the Plaintiff or society, I figured this one would eventually go away.  Well in true Randazza style, Mr. Mastron was served with a complaint on 8 Jun 12.   Served_03425(CA)   On 3 Jul 12, Mr. Mastron filed his answer to the complaint Pro se.   Answer_Complaint_03425(CA)   I was a bit shocked that Mr. Mastron filed the answer Pro Se and had not employed a lawyer.  The answer to the complaint was straightforward and stated

  • He didn’t download the movie
  • He doesn’t use BitTorrent
  • He has no knowledge or involvement in the alleged activity
  • Denies the negligence claim

On 3 Aug 12, Mr. Mastron requested the court accept Robert S. Gutierrez as his attorney in this matter.   Gutierrez_Rep_03425(CA)   Mr. Gutierrez is a member of Leopold, Petrich, and Smith, Los Angeles, CA, and appears to have good background and experience in Intellectual Property issues.  On 6 Aug 12, Judge Otis D Wright approved Mr. Gutierrez representation of Mr. Mastron. 

Now based on the answer to the complaint, this makes this case more interesting.  Mr. Mastron has given the “full-denial” answer and now it goes back to Plaintiff to make the case.  As I previously posted an article concerning the “Merits” of these pornography copyright infringement cases, the only obvious evidence Plaintiff has is the public IP address they recorded during the technical monitoring period.  The complaint states the infringing activity was observed on Mr. Mastron’s public IP address on 15 Nov 10, 9:09 PM GMT.  The complaint states the recorded date/time was only a snap-shot, and the activity took place before and after this date.

On 24 Sep 12, a court ordered scheduling conference will address planning for discovery and the filing of reports and instructions.  In the mean time, I expect Randazza will be trying to convince Mr. Gutierrez and Mr. Mastron to accept his settlement terms.  Based on only having the public IP address as evidence, I can’t see any IP attorney ever considering this option.  Now unless Randazza is going to “Pull a rabbit out of his hat,” and show some truly relevant and credible evidence, he can only hope the depositions disclose something of value.  If it doesn’t, they then have to hope a forensic examination of the computer(s) finds the movie, BitTorrent software, torrent files, or evidence that shows the evidence was destroyed.  Note: Hope is not a way to run a successful case and Randazza knows this. 

I expect that Mr. Gutierrez will file a Motion to Dismiss the case just like the one that was successful for Tabora.   Tabora_MTD_02234(NY)   Mr. Gutierrez will even be able to use Plaintiff’s Opposition to Tabora’s Motion to Dismiss as supporting documentation for the dismissal.   LMH_Opp_MTD_02234(NY)    On page 6 of LMH’s opposition, you will find this wonderful paragraph.

LMH said the ISP subscribers have NO duty to police and prevent criminal activity on their Internet connection; the only reason they were pursuing the negligence claim against Tabora was because he had direct knowledge of the infringing activity of the roommate and did nothing.  In this case, Mastron has no knowledge of the Infringing activity – thus there is no duty.  Straight from the Unicorn’s mouth.   😉

Can’t wait to see this tugboat sink and join the rest of the fleet. 

DieTrollDie 🙂 

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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21 Responses to Another Randazza Tugboat Sinks, Liberty Media Holding, LLC. V. John Doe and David Mastron, 2:12-cv-03425

  1. Raul says:

    Another nice one. It seems as if Randazza is definitely trying to set a precedent after having lost in the most prestigious East Coast District Court he is now bringing this theory to the most prestigious West Coast District Court. If he gets shot down in this court, this negligence theory is history. Nice for us that he drew Judge Wright but not nice that Maston lost a chance to kill this lawsuit while still in the crib with a Rule 12(b)(1) motion.

    • DieTrollDie says:

      Thanks Raul for pointing out the FRCP 12 (b) (1) issue – (http://www.law.cornell.edu/rules/frcp/rule_12)
      What I didn’t make clear was (and please correct me if wrong), that Mastron should/could have made a motion to dismiss the negligence claim PRIOR to answering the complaint. The rules say that such motions need to be made prior to answering the claims/complaint.

      Now depending on the details of the case, as well as Mastron/Gutierrez’s willingness to fight, this could work out well for them. The issue of negligence will have to be addressed by the court and Plaintiff cannot just try to dismiss and run away. Not that I really believe Randazza would do that. He appears to like his fights and even when a lose occurs, he adapts and rebounds. The court could still address the issue of negligence “Sua Sponte” (http://dictionary.law.com/default.aspx?selected=2032) – on its own volition.

      Unless the discovery produces any relevant evidence, Randazza is not looking good. Randazza needs to show the following to have a chance at getting a favorable judgment.

      Mastron is the “John Doe” responsible for the infringement.

      Mastron took some “direct” action to support the infringement by another individual. Not just provide Internet access or fail to take action to stop the infringement by the John Doe (see Tabora).

      Mastron had some type of legal duty to secure his Internet connection OR a duty/contract with Plaintiff to protect their content.

      DTD 🙂

    • David says:

      Hey, that’s why I hired a lawyer, because I don’t have the expertise, not the time to gain it. I don’t really understand how it’s a lack of subject-matter jurisdiction, which is a 12 (b)(1). Part of me wanted it to go to trial so I could recoup losses, but it’s time consuming and annoying!

      • David says:

        Should be “nor” where it says “not”. Also, I’d like to point out that Leopold, Petrich & Smith is THE preeminent copyright law firm in the entertainment world. Just check their site for history and huge cases. I would highly recommend them, but they are pretty exclusive on who/what they’ll take as a client/case.

      • DieTrollDie says:

        I was a bit surprised when I saw their previous case work. Yes, “Big Guns” do help, but the Troll cases are weak to begin with.

        DTD 🙂

      • DieTrollDie says:

        Every situation and person is different and what you did was good for us all. Thank you.

        DTD 🙂

  2. Irritated Troll Hater says:

    Wait a minute…. So if my roommate downloaded a movie with my connection, and I’m out of state, out of town, or at work…. I have knowledge of his actions????? Really?!

    To me, what it sounds like is Randazza is using a John Doe as an excuse to stick Mr. Mastron with all the bills. He’s trying to hide from the court of the direct claim towards Mastron with a shadow of a Doe. I hope Mr. Gutierrez sees that and uses it against Randazza. And, can Randazza really claim that the Doe did, has been, and continue to ’cause harm’ and Mastron knows it. That’s reaching a lot.

    My question to all of you here….. what is it gonna take to make Randazza go away for good?

    Down with all Trolls

  3. The Tod says:

    Razzy must have missed the day in law school were they went over Circumstantial Evidence. Deposition? Last chance for direct evidence from David.

  4. AC says:

    I noticed a new line of argument that I haven’t seem before. The Plaintiff seems to be arguing the Defendent profited from the sharing of the copyrighted film because there is “honor among thieves” and that sharing a file somehow gives you access to other files to download.

    “They seeded to reap the benefits granted to a seeder. This benefit was not in actual cash, but had substantial pecurniary value: access to volumes upon volumes of infringing copies of materials. In the online swap meet of pirated motion pictures, sharing is not just caring; sharing is currency.”

    “The Defendant profited from this contributory infringement by way of being granted access to a greater library of other infringing works, some of which belonged to the Plaintiff and some of which belonged to other copyright owners.”

    Seriously? This is ridiculous. Has anyone seen this line of argument before?

    • DieTrollDie says:

      Funny. I will just reading this again and got a chuckle from it. Yes, I have seen similar comments before.

      DTD 🙂

      • AC says:

        through reading the Defendant’s response to the complaint, I literally laughed out loud at this line:

        “and there is no such word as “pecurniary” (sic).”

        Trolls can’t even spell check their complaints, they file so many.

  5. Anonymous says:

    Dismissed with prejudice and each party to bear their own costs:

    http://ia701205.us.archive.org/35/items/gov.uscourts.cacd.530118/gov.uscourts.cacd.530118.docket.html

    Good for the (clearly innocent) defendant, but this won’t do much to discourage the trolls. I’m afraid this is all going to continue ad nauseam until money out > money in…

    • DieTrollDie says:

      I Will make some comments about this, but it does show how WEAK the evidence is even when Randazza is on the attack.

      DTD:)

      • Raul says:

        Do you think someone might have tipped him off that Judge Wright is not so right for this kind of troll lawsuit 😉

      • Anonymous says:

        True — and especially weak when the doe in fact had nothing to do with the alleged infringement. But if Randazza et. al. can spray law suits at all and sundry and suffer little or no financial damage when they injure innocent people , surely they will just keep doing it? (And that’s leaving aside the total absurdity of current copyright law and the potential penalties for those who really did download the “works”.)

    • David says:

      If he (Randazza) can read, and not just dictate, he’d easily be able to find on his own Judge Wright’s low opinion of this type of shenanigans. I was actually pretty happy when the first judge recused herself and it landed with the Hon. O. Wright.

  6. that anonymous coward says:

    My word was not good enough?
    The trendy Avatar looks familiar to you for a reason.
    I am happy to see you question something someone said, I am very unhappy you took material from a private forum and made it much more public, possibly causing problems for the person involved.

    • that anonymous coward says:

      This is a reply about another issue that appeared here, and has nothing to do with this post or comments. As one might be able to tell I’m very angry at the moment, I apologize for any confusion.

      • TXXXXXX says:

        T,

        Got your post. I don’t wish to post it, but thank you. I tried to email you, but only got delivery failures.

        DTD 🙂

      • that anonymous coward says:

        The place you came from has help waiting. Its not as scary as you think and fear.
        Take a deep breath and reach out, Trolls feed on fear and once you learn about how they work you will no longer fear them.

  7. DieTrollDie says:

    More to come on the recent dismissal with prejudice of Mr. Mastron. I will hopefully be able to post something tomorrow.

    DTD 🙂

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