PA Bellwether Case – Recap Of The 6 June 2013, Hearing

PA Bellwether Case – Recap Of The 6 June 2013, Hearing

On 6 Jun 13, the PA Bellwether case has turned into a simple bench trial (10 Jun 13) with the remaining three defendants settling with Plaintiff.  Here is the Fightcopyrighttrolls post concerning this development.   Audio File (Hearing)   As we wait to hear the results of the Bench trial for John Does #1, 13, & 16, I was asked to go over what happened at the 6 June 2013 hearing.

The hearing starts off normally and after a short recess, Keith Lipscomb tells the court that they have reached an agreement with John Does #1, 13, & 16, and want to move for a Bench trial (in front of the judge only).  Lipscomb tells the court the following:

  • These John does have decided to admit they did in fact infringe on Plaintiff’s movies via BitTorrent in exchange for a confidential settlement.
  • Lipscomb wants the judge to enter a finding of liability against John Does # 1 & 13.  No damages will be assessed by the court – confidential settlement agreement covers what they will pay.
  • Lipscomb wants the judge to enter a finding of liability and statutory damages (as well as attorneys fees & costs) against John Does # 16.  Lipscomb notes they have an agreement with John Doe #16 for what the minimum to maximum damages can be.
  • Lipscomb requests the court mention in the bench trial that if he had entered a statutory damages for John Doe #1 & 13, the amount would be adjusted based on the fact that John Doe #1 initially denied the activity, but later recanted.  John Doe #13 never denied his activity in any court filing.  Lipscomb requested that the judge mention that since John Doe #1 recanted, his damages would be higher than John Doe #13.
  • The judge stated as there wasn’t going to be a damages finding against John Doe #1 & 13, he was willing to let them proceed anonymously.  He did require that their identifying information be provided to him.  He said it will be kept for the foreseeable future in his chambers – not to be filed in the docket or released unless a legal requirement was produced.
  • John Doe #16 will have to have his name added to the case and cannot proceed anonymously.
  • The judge said the court appointed expert will be available for the bench trial on Monday, 10 Jun 13, in case he or other have questions.

The judge said he would also be issuing a “Plain Vanilla” report concerning this case, as there were many other judges looking to how this case proceeded.  It would cover issues of joinder, severance, motions, experts, etc.  Lipscomb asked the court if he would make certain findings of fact in regards to Malibu Media.  The judge told Lipscomb to file a proposed findings of fact and he would consider it.  The judge made it clear that he was not going to be used an advertise spokesman for Lipscomb/Malibu Media, but would stick to the legally factual aspects.

The judge did mention that there has been much discussion on Copyright trolls (and Patent Trolls) and he didn’t consider Malibu Media as one, because they actually produced copyright protected content.  Lipscomb was very happy to hear this and stated they are constantly being compared to Prenda Law.  Lipscomb also stated that Collette (Owner of Malibu Media) would be providing an hour-long testimony on how copyright infringement has hurt her company.  Needless to say, but I disagree that Keith Lipscomb (and the content owners who employ lawyers such as him) is not a copyright troll.  Just because they have a real product and owner, doesn’t mean their extortion-like actions (my opinion) are justified.

They know that approximately 30% of the public IP addresses they identify do not correlate back to the actual infringer.  The actual history of their actions shows they collect public IP address, obtain ISP subscriber information, and then demand settlement from the subscriber.  They assume the subscriber is the offender and do not care if he/she did it – just that they pay the settlement.  Lipscomb/Malibu Media’s use of the “enhanced surveillance” of BitTorrent activity for the identified public IP address is the extent of their investigation.  This actually almost came back to haunt them in this case when it was identified that the public IP address initially associated to John Doe #16 was still sharing copyright protected material.  The problem was that John Doe #16 was no longer the registered user of that public IP address.  This highlights that their IP monitoring apparatus and business model are not beyond errors.  Lipscomb then had to make a hasty motion to not allow that information to be brought out in court.  He claimed that information was not relevant, as it didn’t cover the period of alleged infringing activity by John Doe #16.  Funny, Lipscomb thinks it is relevant to list all the non-Malibu Media content alleged Does are sharing via BitTorrent.

Now I know this case will be used by Lipscomb and Malibu Media to claim they are justified in their actions.  The fact that copyright infringement occurs to Malibu Media is no justification to threaten people with a civil law suit with little concrete evidence.  This is a business model of generating settlements on a repeatable basis and not to stop the infringing activity.  Just because there is a real content owner does not mean you are not of the same ilk as Prenda Law (my opinion).  You are just a different variety of Copyright Troll in my eyes.

The fact that all three of the remaining Does are admitting to the infringement does not mean all the people they target are offenders.   Three out of Ten (30%) are not the infringer according to one Troll.  The destruction of evidence by John Doe #16 does hurt us, but it still doesn’t mean an innocent person should settle.  It will be interesting to see if Lipscomb/Malibu Media will actually take some Defendants to trial on their own in the future.  I still doubt it unless they have some really good evidence.  In my opinion they got lucky with these Does.  If the forensic examination had not turned up anything incriminating on John Doe #16, this case would have turned out differently.

DieTrollDie  🙂    “The Fight Goes On”

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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9 Responses to PA Bellwether Case – Recap Of The 6 June 2013, Hearing

  1. SJD says:

    Great recap and analysis. I was too busy (or lazy) to do the same, yet you speak the same words and ideas as I would. Thank you, DTD.

    • DieTrollDie says:

      Thank you. I doubt you were too lazy. 🙂 So much is going on. I nice Doe asked for it and thought it was a good idea. Lets see what today brings.

      DTD 🙂

      • Donot Spamm says:

        No doubt in my mind plaintiff offered a sweetheart deal to #1 and #13. Make a quick buck and then use this ruling to further his cause.

        Unfortunately, how can we blame any of the Does for settling guilty or not. Anyone in their shoe and offered a quick settlement of $1 or $1000 or $5000, or whatever the amount is within reason, and not have their name drag in a lawsuit, most would settle. This is plaintiff’s goal.

        At least it is abundantly clear IPP was not hired by MM (as claimed in filing) but instead sold info to them (we all know this) and MM don’t even have experts verifying the results. No doubt they came off mostly unscathed and now will have to find an expert willing to certify their findings. But also hoping judge would rule that their methods are solid and avoid even this preliminary step.

        The injustice. Hopefully Judge will do as he said and not be the ad person.

      • Andrew Tandrew says:

        Doe #6 settled early and cooperatively as soon as he discovered that his kid had done it. It cost him $10,000. I don’t see how Doe #13 much less #1 who continued to deny it would have gotten off any more easily.

        That isn’t any kind of reasonable in my book. But looking at what Doe #16 was put through – leaving out the trouble he made for himself with his idiotic forged evidence – I can’t fault anyone for paying to avoid that. I would have. The large majority of Lipscum’s victims do. That’s why it’s called extortion.

      • It's the Law says:

        I don’t think we can reasonably assume because one defendant settled for x then another settles for same. Keep in mind both parties did not want to go to trial. Obviously Lipscomb has no desire to fully expose his operation to any Court. So it is possible the settlement amount was very low. It certainly is conceivable that if this ever goes to trial a jury would find the videos obscene and therefore not copyrightable. That would destroy Lipscomb’s business at least with his best client Malibu Media.

  2. Pingback: Bellwether: essentially settled, it will be only a quick bench trial (no jury) | Fight Copyright Trolls

  3. Krono says:

    Thanks a bunch. It’s a real pity it turned out how it did, and hopefully Lipscomb won’t get everything he’s asking for here.

    Still at least it shed some light on how flimsy most of his cases are. It was amazing how lazy his computer “expert” was. And I can’t help wonder how crappy his monitoring software is. It’d be interesting to get someone with clean computers, have them configuring a bit torrent client to monitor but not download, join the swarms for MM’s files, and see if MM tries to extort them.

  4. NintenDOE 64 says:

    I have to agree, just because they are real content owners it doesn’t meant they are not the same as prenda. *sigh* although i agree in part i fear that the comment paraphrased is misguided. It is really disappointing to see how many people are so obsessed with “innocence” that they are willing to deliberately ignore the realities of the underlying facts. If I may remind the rabble, Judge Wright didn’t just declare prenda’s use of shell companies as illegal, he declared the whole racket as unlawful, I did read that ruling thoroughly. He declared that the sheer lack of evidence to positively show copyright infringement against anyone, typically used by trolls, as insufficient to support any claims and thus subject to rule 11(b) sanctions. He also declared that the use of these faulty and bogus lawsuits to force people, regardless of whether or not they downloaded the work, to pay money to make the claims disappear. Sure the shell companies are one degree of their fraud but let us not over look the other details so that we can both demonize the “trolls” and demonize those who download torrents at the same time. It is deliberately choosing to ignore certain legal aspects of the issue in order raise the mantle of copyright champions and shun those who do use torrents, such an ideal makes the community who supports it no better than the copyright trolls. Really, if we were to debate the reality of how the trolls determine what files or works to track and how they go about it, legitimate content owner or not, we will see that, from a legal stand point, all people caught in the web, yes even those who downloaded the work, are innocent. But it seems there is this attitude in which those whose IPs were used or stolen hold them selves to a position of “holier than thow” because they don’t do anything so low as use those “criminal” torrents. I’m sorry, but just because they are suffering a case of “wrong place, wrong time” doesn’t make them any more or less a “worthy” victim. Once we start separating ourselves on the basis who is more victim than another we begin to cast out viable and valuable members of the community of victims. The issue at hand, at its core, is rampant copyright abuse and misuse against the public at large not the fact that innocent people so happen to get caught, after all, downloaded or not, all are being subjected to the same extortion so what really makes the difference? If we spend our time trying to defend only those supposedly holding the moral high ground we miss the real issue, the fact that most of these companies are giving their works away (or allowing them to be taken) for the purpose of extorting money from their victims, legitimate copyright holder or not, the download is simply not copyright infringement no matter what legal argument you choose to use. The simple truth is copyright law is consent dependent and there are forms of secret consent that are legally recognized, since these content owners have entered into agreements for other companies to secretly monitor their works without taking down the “offending” work they have legally consented to the taking of their work, after all these entities, shell or legit companies, can only profit from the scheme when people take the work, and that is something they plan and intend to have happen. rather than attempting to be exclusive, lets try to make a real difference in copyright law in all facets, copyright abuse, copyright protection, what entitles works to copyrights, and limits on those copyrights. The problem is clearly how corporatized copyright law has become on top of the rampant abuses of copyright law. We must all remember that copyright law was created to balance the rights of content creators and the rights of the public when concerning works made public by the creators, those laws have now practically stripped the public of their rights to public made works and the rights of creators to support the special “rights” of corporations to own and commoditize everything whether they intend to use it or not. Consider this fact, “It’s a Wonderful Life” was public domain until Disney found out it was popular on community access, now they own the copyright hanks to their lobbying to change the laws to favor themselves. Sorry about the rant, seems there are a number of problems at hand, the exclusive attitude, the willful lack of focus, and the abusive corporatized law that makes trolling possible.

  5. WDS says:

    Do we have any idea what happened at the actual Bench Trial yesterday?

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