DTD (All Ahead Full) – Syfert/Defendant Oppold Objection & PA Bellwether Case

Well I’m back from shore leave and I trying to get organized again and back in the fight.  I kept an eye on some of the operations, but was unable to dive too deep into anything.

I think two of the main stories are the Objection by Attorney Syfert/Defendant Oppold and the continuing activity in the PA Bellwether case prior to trial.

Objection by Attorney Syfert/Defendant Oppold

What can you say except WOW!   Oppold_Obj_Doc37_01493(FL)   BSB1This is an old school barrage of heavy ordnance the Prenda crew was probably not expecting.  As Prenda law obviously (in my opinion) settled with Syfert/defendant in the Nguyen case, they were probably hoping any additional damage to their operation and survival would be mitigated.  Boy would I like to see the signature on the settlement papers showing what Plaintiff/Prenda Law agreed to pay to make it go away.  I wonder if Mr. Syfert has a copy framed and hanging above his urinal.   😉   He just needs to remember to leave enough room for a framed copy of Exhibit K (DECLARATION OF DELVAN NEVILLE) to this objection.   Doc_37-11_01493(FL)   Funny @JohnHenryLawyer Comic   It seems the Prenda crew assumed that once they settled with Nguyen, it would be over.  Here is a clue Prenda fools – until you settle all debts, the onslaught will continue.  That is no threat from me or other personnel.  That is just my simple analysis of the mess you created and are now trying to free yourself from.  As Prenda finally posted a bond in the CA case, it seems they started to pull their heads out of their backsides.  It was funny to see the sanction amount continue to rise each day.  Point to consider: As Prenda was able to secure the bond (ARS Article), I assume they were able to show to the bond holder that they had some collateral.  That sounds like the beginning of a paper trail of where the money is coming from.  If the documents securing the bond are not ‘privileged,’ I would think seeing who has the deep pockets would be interesting (and not too shocking).  It also shows that the previous statements to various courts that Plaintifff/Prenda couldn’t afford a bond was most likely a lie (opinion) and reinforces the view that Plaintiff/Prenda has never had any intention of fully litigating these cases beyond collecting settlements and threatening those who attempt to defend themselves.  Late addition: Attorney Pietz Opposes Prenda Bond on Six points.   Doc_175_08333(CA)

With this objection, Syfert informs the court that as the defendant is the prevailing party, he should be awarded reasonable fees and costs.

The Defendant respectfully requests that he not be held in any such decision to a more stringent evidentiary standard in proving defenses to Plaintiff’s complaint than a Plaintiff would be in proving a default. Defendant had no opportunity to engage in discovery in this case. Likewise, the Plaintiff has offered no evidence other than an IP address and a date and time in this case (lacking any torrent location information).  However, there is no need for the court to delve into factual or evidentiary insufficiencies of the allegations in Plaintiff’s complaint. The complaint has been adjudicated on the merits and the defendant has prevailed on all counts of infringement and the count of negligence by operation of rule. Plaintiff’s complaint was adjudicated on the merits pursuant to 41(a)(1)(B) in favor of the Defendant, and therefore Defendant is also prevailing party under Buckhannon.

Syfert asks the court for a total of $45,641.20 from Plaintiff (First Time Video (FTV)).  This is exactly what Paul Pitcher (Former Prenda Client – Hard Drive Productions) was afraid would happen and why he removed himself from working with Prenda Law months ago.  Please see Mr. Pitcher’s comments in the BloombergBusinessweek ArticlePaul, I’m sure Mr. Syfert would love to hear from you directly and I’m sure some arraignments arrangements could be made (Thanks to Dark Moe for catching that Freudian slip).  Spilling the beans on Prenda Law could be cheaper in the long run.  Things can get so much uglier.   

4 Jun 13 Torrentfreak Article –  The Pirate Bay Helps to Expose Copyright Troll Honeypot    6 Jun 13 BloombergBusinessWeek Article – Prenda Law Update: Who Put the Porn on BitTorrent?

PA Bellwether case

*** 7 June 2013 Update ***

As of 6 Jun 13, the PA Bellwether case has turned into a simple bench trial with the remaining three defendants settling with Plaintiff.  Here is the Fightcopyrighttrolls post concerning this development. 

The bench trial will take place on Monday, 10 Jun 13.  Take a listen to the audio file of the hearing for full details.   Audio File (Hearing)   All three of the defendants made settlements agreements with Plaintiff, but there will still be a formal finding of liability for all and an award of damages against John Doe #16.  Keith Lipscomb will be submitting a findings of fact sheet to the court in an attempt to justify their actions and distance themselves from the Prenda Law mess.  Collette is also scheduled to give testimony on Monday on how bad piracy has affected their company.  That should be a joke. 

Not the best news, but it could be worse.  Collette/Lipscomb – Please take the “Duck Test.” Just because you are not Prend Law, does not mean you are still not a Copyright Troll (yes it is my opinion).   

DTD 🙂

———————————————-

Since my last short post on the PA Bellwether case, much has hit the docket.  Archive Docket   HF1Most of the filing is from Plaintiff (Malibu Media) concerning various bit of information they want the court to prevent from being brought up at trial.  Notice I didn’t say “Copyright Troll.”  That was one of Lipscomb request that essentially all negative references to their operation be expressly forbidden.  I guess the fact that if it looks like, talks like, and acts like (fails to actually litigate cases) a Copyright Troll, you still shouldn’t use the most accurate descriptive term available.  That might actually let the jury figure something out when they think for themselves.

One funny part was in Document 162 (Doc_162_02078(PA)), concerning the possible introduction of the Peer Media Evidence showing that BitTorrent file sharing activity continued to take place on the same public IP address associated to Doe #16, even after Doe #16 was reassigned a new public IP address by his ISP.  Plaintiff claims it is especially irrelevant as it does not correspond to the alleged period of infringement in the complaint.  Now wait a minute.  Plaintiff believes this information is ‘irrelevant,’ but the fact that they have in other cases submitted information showing alleged BitTorrent copyright infringement activity for digital media they DO NOT own or have even verified that was in fact being infringed upon.   Enhanced Surveillance Article    Fightcopyrighttrolls Article (1 Jun 13)

On 3 Jun 13, the court ordered the release of Doe #16’s deposition to the court appointed expert (LOUIS CINQUANTO).  On 6 Jun 13, there is a hearing in front of Judge Baylson, to address the various MOTIONS (IN LIMINE AND VOIR DIRE).  Immediately following this hearing, jury selection is due to begin.  Please take a read of the various filing and tell me what you think of all of it.   Fightcopyrighttrolls should have a post on this matter soon – I will link to it.  Based on all information I have seen so far, Plaintiff is going to have an uphill battle with Doe #16.  The best they can hope for is the court appointed expert comes back and states that Doe #16 is lying and has destroyed evidence.  Not a likely scenario in my opinion.  I don’t have much detail on the other defendants, but unless that “smoking gun’ shows up, this isn’t likely to turn out good for Plaintiff.  Once this fact is made known, I expect it to be introduced in the various Malibu Media cases around the US.

Fightcopyrighttrolls.com Lipscomb/PA Bellwether case article

Recent Lipscomb filings – 170-5 170-4 170-3 170-2 170-1 170-main

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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28 Responses to DTD (All Ahead Full) – Syfert/Defendant Oppold Objection & PA Bellwether Case

  1. DieTrollDie says:

    Recent Lipscomb filings – Links at the bottom of the article.

    DTD 🙂

  2. Andrew Tandrew says:

    Lipscum’s new forensic claims leave me with more questions. The timestamps on the SSD aren’t any more consistent than those from the previous report on the 1TB drive.

    Eg. 170-2 claims Windows was installed on SSD at 10:23AM on 11/11 yet the “Recovery” folder is marked as having existed an hour before that – and the “Program files (x86) folder is from 2009.

    170-1 claims the “Downloads” folder on 1TB was created 11/11 at 11:29AM yet it contains a driver file from 10:54AM. Putting aside that first inconsistency, it doesn’t make sense to me that you would be up and running to go download drivers at 10:54AM when the whole list of system files on the SSD – pagefile, $boot, etc – supposedly didn’t yet exist at that time and wouldn’t for another hour.

    But for all of these question marks, this still looks terrible for the defendant. Significant system changes seem to have taken place on 11/11 and Lipscum being too (lazy, incompetent, disingenuous, take your pick) to give a clear and complete explanation of what they were doesn’t make them go away.

    What on earth was the defendant thinking?

    • Krono says:

      I trust Lipscomb and his expert about as far as I can throw them. Lipscomb already demonstrated that he’ll cheerfully take half a sentence out of context and use it as evidence of fraud on the defendant’s part. Lipscomb’s expert for his part, is not interested in laying things out, he’s solely on a mission to find things that can be construed as evidence of fraud for Lipscomb. Virtually everything they say is suspect. Ken is not going to ask questions that would be beneficial to JD16, his expert is not going to list evidence that would tend to exonerate JD16. They would have you believe that JD16 is a computer expert attempting to conceal the fact, who on the morning of November 11th got up, formated his main drives, then reinstalled Linux on his laptop, and Windows on his desktop to destroy evidence of infringement.

      With that in mind, I can think of a few possibilities. It rather heavily depends on what JD16 did to create the images of his drives, and when he actually backed them up, but my guess is that the file timestamps are artifacts of the copying process.

      The “expert” testifies that the images were created in December. The problem is that the creation timestamps on files are not a surefire thing. Indeed, explaining to the Jury why Ken’s expert says that the images were created in December while JD16 says they were created on November 11th. A quick test on my Windows 7 computer yielded a file with a creation date of “June ‎04, ‎2013, ‏‎10:50:38 PM” and a last modified date of “June ‎22, ‎2009, ‏‎12:46:43 AM”. So JD16 could create the images on the 11th, copy/paste them to the drive sent to Lipscomb in December, and end up with the testimony we got as to image creation dates.

      Notably absent from Ken’s evidence is the status of JD16’s wife’s computer. If it does not have the same date anomalies, I would expect Ken’s expert to point that out as further evidence that his two computers were tampered with on November 11th. If it does, I would expect him to bring it up as further evidence of tampering on JD16’s part… except that it’s a work computer of JD16’s wife, not JD16 and it would stretch credulity of people that JD16 could casually wipe the whole thing and start from scratch.

      I can think of several ways that windows activation could’ve be tripped on November 11th. Buy a new hard drive, remove old drives, install Windows on new drive so you can use the desktop and make images of those drives without worrying about disturbing them later, and bame, Windows activated. Alternatively, make test image on external drive, boot test image to make sure the whole process works, Windows detects it’s on a different HD and demands to be activated JD16 activates without thinking and bame, Windows activated.

      • DieTrollDie says:

        Thanks Krono. If we had the deposition transcript it would hopefully answer many of the questions. It will be interesting to see what the court appointed expert has to say about all of this. Lipscomb knows there is no direct evidence (Palintiff’s movies, BT client, and related files) on JD#16’s systems, so he is doing the only remaining thing, paint a circumstantial evidence picture. As he only needs 51% (more than likely that JD#16 did it), all of these little bits add up. IMO it doesn’t look good as JD#16 cannot give a good reason for the 11 Nov date. I think you are likely spot on about the forensic examiner and the piss-poor “evidence” handling of the hard drive (images) by Lipscomb (my opinion). I also thought it was funny that when the expert call MS, he talked to “Angelo.” I hope his notes have a last name, telephone number, MS section, etc. If not, it is very sloppy. I thought it was odd that MS would give out such information without court documents directing them to do so. I wonder what their legal department is going to think about it. They probably have a right to do so, but it then evolves them in a case that they may get called to testify at. More to come.

        DTD 🙂

  3. Krono says:

    Been meaning to comment about this, but I’ve been busy, and there’s been lots of information, so I’ll probably make several posts so I don’t get tied up in trying to make one huge post and end up not posting.

    My first thought is “Was that legal to call up Microsoft to ask them about the license key?” I mean they’re getting what’s technically the defendant’s information/about the defendant from a third party. Isn’t that the sort of thing that normally requires a subpoena and has to be done during the discovery phase?

    When reading through his original complaint of fraud, when I saw this:

    “Q: How big is the hard drive?
    A: It has a one terabyte storage drive, and a –.
    Id. at 29:14-16”

    My immediate thought was “I bet the rest of that statement was something along the lines of ” and a 240gb SSD main drive.”
    Sure enough, in one of the responses from JD16’s lawyer:

    ‘John Doe 16 also testified that the desktop contained “a one terabyte storage drive” and “a 250, 240 gigabyte solid state drive, as well”’

    In short Lipscomb will cheerfully omit parts of JD16’s sentences in an attempt to incriminate him.

    I’m also continuing to be not very impressed with Lipscomb’s “expert”. They finally posted his CV. He’s an ex-cop that did forensics work for a number of years. Which would be reasonably decent except that he stop being a Certified Forensic Computer Examiner back in 2008. This appears to coincide with with him being assigned as supervisor of Palm Beach
    County Sexual Predator Enforcement (SPE). In other words, he appears to have stopped doing enough hands on work to make it worthwhile to maintain certification. Looking at his training section, he lists no training between 2006 and one conference in 2012. Looking at his teaching, he taught a bunch of introductory courses, and last did that in 2007. He hasn’t been called as a witness since 2008 either apparently.

    In short, given that he states his company was founded in 2012, he appears to have more or less stopped doing forensics work personally back in 2009 when he became supervisor, retired from police work in 2011, and gone to a single conference in an attempt to blow the rust off when he and his partner started up their company in 2012.

    That does not exactly scream “Up to date” and “well versed in what the latest systems do” to me. That JD 16 was apparently able to easily boot the first hard drive that the expert claimed was unreadable does not help with that impression.

    Particularly as his testimony is pretty lacking IMO. Rather than give any sort of overall picture of the evidence presented to him, he seems to be on a mission to find evidence of possible fraud for Lipscomb, and stops the moment he’s got something. It would have been pretty trivial to determine that the SSD image was the main drive for the 1tb drive he was looking at before Lipscomb began throwing about accusations of fraud on the basis of a declaration all about how the 1tb drive lacked an operating system and couldn’t possibly boot, and the free space was all but empty.

    Though it’s particularly telling about Lipscomb that Lipscomb continued to accuse JD16 off fraud even as he was saying to the judge that until they hearing, they’d been totally unaware that the desktop had two hard drives in it and they needed to have their expert take another look at it. In short he continued to accuse JD16 of fraud even right after it was demonstrated that pretty much the main reason they were using to allege fraud (lack of an OS on the 1tb drive) was invalid and that they’d examined the wrong drive.

    Onto other subjects for a moment, I find it hilarious that Lipscomb claims that “Indeed,
    during the last six months Plaintiff has prepared diligently and vigorously for this trial.” just prior to explaining the timeline of examining the first hard drive in an attempt to defend the time it took, when the timeline includes this part:

    7. On December 28, 2012, Malibu Media’s counsel, Christopher Fiore, received the
    copies of Defendant’s hard drives.
    8. On February 11, 2013, Plaintiff received the hard drives in Miami.
    9. The hard drives sat in an unopened box between February 11, 2013 and March 6, 2013.
    10. On March 6, 2013, the box was opened so that its contents could be ascertained, a Post-It note which read “Doe 16 Atty Ronald Smith” was stuck to the outside of Defendant John Doe 16’s otherwise unlabeled hard drive, and the box was resealed and mailed to Plaintiff’s experts in Boynton Beach, Florida. No other action was taken with respect to the hard drives.

    Let’s repeat #9.

    “9. The hard drives sat in an unopened box between February 11, 2013 and March 6, 2013.”

    Part of the delay was that they got a shipment from one of their attorneys in an important case, then left it sitting around unopened for nearly a month before someone bothered to open it and look inside and see what was up with it. They call that diligence?

    Lipscomb also kind of screws up while talking about the first hard drive.

    In document 148 after quoting his expert about the first HD, Lipscomb says “To explain, the First Hard Drive can be analogously compared to a clear glass box. In this clear glass box, Defendant placed copies of hard drives for four computers. Plaintiff’s expert was able to look through the clear glass box and see these four hard drives. However, the box lacked any opening for Plaintiff’s expert to touch or analyze the four hard drives.”

    Which is somewhat at odds with his expert’s statement that “Through the use of Active Partition Recovery, I was able to see that the First Hard Drive contains images of three computers, among other files. And, that the images of the three computers were made between December 16, 2012 and December 22, 2012.”

    Nothing unusual so far as we know that JD16’s set up is three computers with 4 hard drives. Except that it proves that there were four hard drives on the first drive sent, and the expert looked at them and saw three computers, and as such really shouldn’t have made the mistake of examining the 1tb drive as though it was the main drive. It’s also rather at odds with Lipscomb’s statement in a footnote in in document 141 that “Plaintiff could not tell if the images of the three computers on the first hard drive are copies of the images of those three computers on the second hard drive. But, the evidence suggests the images are the same. Note: The second hard drive had one more image of a computer than the first hard drive. That additional computer was purchased by John Doe 16 after the date of infringement.”

    In other words Lipscomb’s expert testifies that the first drive sent had information for three computers on it, Lipscomb’s expert places a list of files on the drive which has three computers with four hard drives, and Lipcomb claims that the second drive had an imagine of a fourth computer purchased after the date of infringement on it which is not present in his experts testimony.

    In other words Lipscomb at different times states that the first drive had four hard drives belonging to computers on it, and that the second hard drive had one more image of a computer on it bringing the count up to four hard drives belonging to computers on it.

    In short, Lipscomb contradicts himself. He’s claiming that the first hard drive had only three hard drives with images of computers on it, and the second one an additional fourth image unrelated to the case that the defendant just happened to send along this time for some reason – just before his expert examines a data drive and claims fraud because it couldn’t possibly be a main drive. Then when it’s time to accuse the defendant of fraud and call for sanctions, the first hard drive suddenly has four hard drives with images of computers on it that his expert could not examine.

    Ok, I’m starting to ramble a bit, and I suspect becoming less coherent so I think I’ll post this.

  4. Krono says:

    On a couple other notes, I find it amusing that in his proposed Jury selection questions Lipscomb has:

    29. Please raise your hand if you have any personal, moral, religious or any other
    reason which would prevent you from viewing pornographic, adult or erotic material.
    Pornography, “erotic” and “adult” works are protected by the Copyright Laws of the
    United States of America.

    Yes, right in the middle of the questions he has as a statement of fact that pornography is protected by copyright law. He inserts this statement despite the fact that JD 16’s lawyer has in one of his motions under “Statement of Material Facts in Opposition”:

    “2. Plaintiff does not possess ownership of valid copyright in its alleged works: (1) Anneli Leila Menage a Trois; (2) Carmen Poolside Striptease; (3) Silvie Eufrat Strip Poker; (4) Tiffany Sex with a Supermodel; and (5) Veronika Coming Home, because the works are obscene and not copyrightable.”

    Way to try and prejudice the Jury at selection time Lipscomb.

    I also find it hilarious that Lipscomb wants to suppress talk of having an essentially unsecured wi-fi connection on the basis of “any attempt to rely on it at trial will effectively “ambush” Plaintiff, and leave Plaintiff without having had the opportunity to depose Defendant’s neighbors and discredit the defense.”

    Just laughable. The only thing he could get out of such depositions is a bunch of testimonies that they did not download the works in question using JD16’s internet service. JD16 claims the exact same thing, so why should their word have any more weight than his on the subject?

  5. Believeitornot says:

    How would he be ambushed when he thinks the defense may use WiFi hacking as a possible strategy? Perhaps the super weasel should just present facts that disprove such a possibility. He can depose everyone in the US to see if they hacked the network and surely no one would ever lie. Well unless they are like the devil from Dante’s Inferno. Lipscumb is funnier than Monty Python’s Flying Circus.

    • Krono says:

      Lipscomb’s problem is that he can’t disprove such a possibility. Judging by JD16’s lawyer’s filings, JD16 had his wi-fi configured with defaults. So even though it sounds like he had a password on it, said password would be essentially worthless as anyone could access the router, check it’s configurations, and learn the password.

      Going around and asking all his neighbors “Did you hack into your neighbor’s wifi and illegally download our porn?” is essentially worthless as if JD16’s word he didn’t do it is no good, then theirs should be no good as well. Trying to examine all their hard drives to prove their denials is absurd. It’d be like accusing a guy of a crime, then searching all his neighbor’s houses as well as his.

      In short, the insecurity of JD16’s wifi is a fact that casts doubt on Lipscomb’s claims which he has no realistic way to discredit, so he wants to prevent it from being brought up or discussed.

  6. DieTrollDie says:

    Here is some fun information. On 21 Dec 12, Plaintiff filed a notice of served subpoena (Doc 34) on Records Custodian for Peer Media Peer Media Technologies, Verizon Internet Services, Yahoo, Google, Bing (Microsoft), Ask Jeeves, and Dogpile. I assume it was this subpoena they used to get Microsoft to provide the Windows install date for JD#16. I need to look at the details of the subpoena, but from Doc 34, it appears it was issued for the purpose of looking for search engine records coming from JD#16’s public IP address. POINT: If the subpoena was written only for this purpose (and it spells it out clearly for only that purpose), then the use of it to obtain the Windows install date/time may have exceeded the scope of the subpoena. As Plaintiff knew the scope, this could get them in trouble.

    Also, Peer Media Tech was brought up by Plaintiff (Doc 177 WiFi Hack) and not JD#16, I find it funny that Plaintiff doesn’t want JD#16 to use it in his defense. The fact that Peer Media Tech may show that the public IP address identified by IPP (JD#16) is still an infringer even after JD#16 received a new public IP address (from his ISP) is extremely relevant to the case.

    I looked at JD#16 answer to the complaints and did not see any reference to a compromised WiFi Internet by unknown personnel. I would have preferred a general statement at the end of the listed defenses, leaving other possible defenses open, but this is in NO way an “ambush” of Plaintiff. Plaintiff and Lipscomb know the nature of these cases and it is NO shock that it is a possibility. As most people do not actively monitor their WiFi Internet connection, it is very plausible for a device to be compromise or be reset to default and as long as the Internet is accessible, nobody is going to notice a freeloader.

    DTD 🙂 I will post links to the document in a bit (Done see above). 🙂

    • DieTrollDie says:

      Also, take a look at this 2009 Torrenfreak article on Peer Media – Peer Media: MediaDefender and Media Sentry Rebranded

      From the article –

      Despite the hacking chaos that all but destroyed Media Defender’s business, coupled with the controversy when Media Sentry’s investigative tactics were deemed illegal in several US states (and was promptly dropped by the RIAA), ARTISTdirect is still touting the pair as a force to be reckoned with – albeit with a new coat of paint and a new name.

      DTD 🙂

  7. Believeitornot says:

    Doe 16 uses Verizon. Even up to the Spring of last year, it was well known that their wireless router has WPS and can be hacked easily. There are You Tube videos showing how to do it! Verizon had some write up about this on their site and claimed new version of hardware being release Spring of 2012, would prevent future hacking.

    Kind of brings up the question of why router manufacturers are not being sued for failing to provide adequate security. Pretty sure my Cisco router of ’08 was supposed to be as secure as Fort Knox. Most user do not know it can be hacked in around 3 minutes to 6 hours depending on strength of password and signal. The default setup creates a password for user access however it really is easy to hit the wrong choice and end up with open network.

    My 2002 D-Links wireless router’s default setup was open network. One had to dig deep to learn how to apply a password. It still works!

  8. DieTrollDie says:

    Took a look at naughty-hotties.com & IP address 75.72.88.156. Guess what came up for both??? Nothing but a Comcast Business log-in page. I guess someone associated with John Steele is trying to close up shop. “Run Steele Run!”

    ScreenshotsScreenshot

    DTD 🙂

    • that anonymous coward says:

      I await their claims that ‘Anonymous’ hackeded them and they are innocent victims in all of this.

  9. Pingback: Prenda Law Mess – AKA: Tiger By The Tail | DieTrollDie

  10. Just and IT professional says:

    Someone pass the popcorn.

  11. Krono says:

    @DTD
    Thanks, though I don’t think that JD16 is in as much trouble as you think. For starters he’s still got that motion to block all evidence allegedly discovered after the “2nd cut-off Discovery date”. Which I’m pretty sure includes everything Lipscomb has after his first report from his expert. Between LIpscomb diligently ignoring crucial evidence unopened in a box for a month, and if Paige and Lipscomb’s staffer contacting Microsoft in the manner they describe was not ok, the judge may just be displeased enough to grant the motion and Lipscomb would just have to live with the fact that he repeatedly botched discovery.

    Even if the judge does not grant that motion, I don’t think things are as bad for JD16 as you think. Like I already said, file creation dates are not reliable. I already gave one example, for another, the answer to “and the “Program files (x86) folder is from 2009.”, that’s because that’s the standard creation date and time for Windows 7’s standard folders. My Windows 7 computer at home has the exact same thing. Just because JD16 does not have an answer as to why the copies of his drives look like they do, does not mean that there is not a valid answer. It just means that he’s not an expert in computers like Lipscomb would have you believe.

    In general, at the moment Lipscomb is going “Look! Look! Some of your copies of files look to have been created on a date it would be logical for you to be making copies of them! Proof of forgery of evidence!” “Windows may have been activated on November 11th! Proof of forgery of evidence!” When all it really proves is that the drive images may not be a proper forensic copy of the defendants hard drive. You’ll notice that in his current round of filings, neither he, nor his expert appears to make any reference of the status of the free space on the 240gb drive. We know from his expert’s first attempt at examination, the 1tb had data in the free space, so whatever copying JD16 should have gotten the free space for the 240gb as well. If it was completely empty as though formatted, I would expect them to be stating so in support of their attempts to imply that he wiped the computer and reinstalled Windows that day. That they aren’t leads me to suspect the free space looks normal which rather hurts his intended implication.

    On an only somewhat related note, I find it amusing that despite JD16 and spouse having talked about it during deposition, Lipscomb is attemting to get discussion of wifi hacking thrown out on the grounds that it would effectively “ambush” him. Meanwhile he’s effectively ambushing the defendant with a last minute “Wait, why does Microsoft say you activated Windows on November 11th?”

    Anyways, looking at some of the individual things he filed:

    170-1

    Looking at the images they put in it, I note that they only show creation date, and last access date, not last modified date. That’s rather important as I’ve already established that copying files can result in a file with a new creation date, and a modification date from years ago. All the files on the list could easily have “last modified” dates well before their creation dates blowing a hole in Lipscomb’s attempts to portray wrongdoing, and we’d never know from the screen shot. Similarly the timestamps involved are about what I’d expect from a drive being copied from the alphabetically first file/directory on down. The only odd thing is the picture with the driver with a creation date timestamp from before creation of the download folder and a last accessed date from a few minutes after the creation of the folder.

    170-2

    This one is a little more favorable from Lipscomb’s point of view, but it’s still lacking in not having the modified dates. More notably it lists windows as having been installed mid morning, which would be more problematic for JD16 if it weren’t for the fact that all non-windows defaults on the drive such as the MFT are listed as having been created after windows was supposedly installed. They follow the same top down timestamp pattern as the 1tb drive. Problematic, but Lipscomb isn’t offering any explanations as to how reinstalling windows would destroy evidence.

    170-3

    This one is about the Linux laptop. Notably they didn’t give a crap about the laptop in the first report from their expert. Just “it appears to contain a working operating system based on it’s file structure.” Also notably this one they show the last modification date, instead of the just last access date. So they have the capability to show the modification date for the windows files, they just chose not to, which really makes me suspicious. In fact, they show last written date and last modification date, but the file created field is blank for everything. I don’t know much about how linux handles copying to say what would result in this, but it still looks to me like an artifact of copying everything rather than reinstalling linux. If linux was reinstalled, then I would expect the “file creation” field to be populated.

    The remaining two supporting filings don’t really have anything worth commenting on that hasn’t been said.

    Though while checking about MFT creation times, I ran accross this interesting post about MFT creation time vs OS install time:

    http://www.forensickb.com/2009/05/file-system-creation-date-vs-operating.html

    Particularly of note is this part near the end:

    “As with all date/time issues, an examiner must be very careful *NOT* to rely on that information as the sole indicator of an event. This example just reinforces that issue and that the date/time you expect to find might not be what you actually find because of the way an application handles it.”

    • DieTrollDie says:

      It will be good to see what the court appointed expert thinks of all this. The problem I see is the Windows activation on 11 Nov 12 – days after Plaintiff said they wanted to conduct a forensic analysis of the systems. If JD#16 was properly notified not to make any significant changes to the systems; then making hardware/system changes requiring a re-activation of Windows was not a good idea. It is one thing to explain it, but to say “I don’t know” could come across as fishy. I understand various OSs better than many people, and even I have to say I don’t know why things happen sometimes. With Windows, more so. 🙂 To be honest, it may come down to how JD#16 comes across when testifying. There is no “smoking gun” (direct evidence) to be found on the systems, so the best Lipscomb can do is try to paint a picture that JD#16 likely did it and hid evidence. As they have noticed that they want JD#16’s wife to testify, I expect they are going to try and find inconsistencies and exploit them. Lipscomb had better be careful and not appear as an a$$hole when questioning her – could be seen as a serious jerk supporting rich porn merchants at the cost of regular people.

      As Lipscomb doesn’t want the jury to hear about other Copyright Troll Cases, WiFi Hacking/Unauthorized Internet Usage, and what Peer Media Technologies logs show about the public IP address JD#16 previously had, they have some serious concerns about their case.

      Thanks again.

      DTD 🙂

      • Krono says:

        Indeed, the court expert’s analysis would be quite interesting to see as I’d expect him to answer some of these questions that Lipscomb is leaving. The answers may or may not be in JD16’s favor, but they’d be answers. Frankly the more I look at Lipscomb’s expert’s work, the more half-assed and amateurish it looks.

        The “windows install date” is the only thing of real concern Lipscomb has managed to raise. Even that is contingent on what might reset the date, and what JD16 claims to have done. I would not bet on JD16 being “properly notified not to make any significant changes to the systems” either. Lipscomb has pretty much demonstrated that either he knows **** all about computers or that he’s willing to pretend he doesn’t to open as many opportunities for himself to accuse the defendant of deliberate malice when they make a mistake.

        For example Lipscomb claiming that JD16 knew exactly what he was doing and was deliberately spoiling evidence when he demonstrated for the court that the hard drive Lipscomb and his expert claimed was unreadable, and therefore that hard drive should be thrown out as admissible evidence. Despite the fact that very little would have changed as far as the underlying contents of the drive, and his side should still have a forensically sound copy anyways. Anyways, given that they’ve got hearings and such today, we may know more by this evening or tomorrow.

        Also, yeah, I noticed the bit about JD16’s wife being subpeona’d at the same time they were subpeonaing “Custodian for Microsoft”, and “Corporate Representative for Microsoft” to appear at trial. Personally, those subpeonas to MS is part of what makes me suspect that they did not have a proper subpeona for obtaining information about the license key. If it was covered by past subpeonas, they probably wouldn’t feel the need to call the representatives into court as there would be no need.

  12. Pingback: Bellwether trial is looming; Lipscomb’s weaselry continues | Fight Copyright Trolls

  13. John Doe says:

    Again, I didn’t see anything that could tie the Windows activation to a certain computer, only that a license key that has been tied to JD#16 was used to activate Windows. This could have happened on a completely different computer or in a Virtual Machine or any number of other possibilities.

    • DieTrollDie says:

      Yes see your point. The MS custodian of records will hopefully be able to clear this up. So the question is – does the Windows product key extracted from the image of the desktop system (by the forensic examiner) tie back to the reactivation on 11 Nov 12?

      DTD 🙂

    • John Doe says:

      Also, I’m not a Windows expert but can’t Windows decide it needs to be reactivated without be reinstalled? In other words, I thought I read somewhere that if Windows decided that something about your system has changed it forces you to reactivate it to continue using it. Could the process of securing and supplying the disk images caused Windows to think it needed to be reactivated?

      • DieTrollDie says:

        Making a forensic copy of the drives should not change anything that would require a reactivation. The reactivation is usually required after a significant hardware change (more than just adding a single drive) or reloading of the OS.

        DTD 🙂

  14. Krono says:

    Docket’s updated. Looks like they’re set for a bench trial on the 10th.

  15. Believeitornot says:

    They all settled for undisclosed amount. On Monday, a limited bench trial will concern how much Does 16 owes in damages for lying. Colette Pelissier will take the stand to prove Lipscomb has a client unlike Prenda and they are asking Judge Baylson to make a finding of fact that show horse riding Collette actually exists and has copyrights. She will also state she wants a lot more money because her Malibu coastal property isn’t adequate compensation for the obscene video clips her husband films.

    As most of us predicted Lipsomb would never tell this go to jury trial.

  16. Krono says:

    It would be appreciated if you could summarize what happened at the Thursday hearing for those of that don’t care to listen to twenty minutes of audio. Both you and FCT have been pretty vague on the subject and assuming that everyone has listened to the audio.

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