7 Feb 2014 Update – Case Closed
Here is the archived docket. On 9 Jan 14, the Troll asked for additional time to serve the remain 12 Does. They blamed the ISPs for being slow and even when they received the information from Comcast (27 Sep 13), they only had “limited or no contact” with the Does until a motion to sever/dismiss was decided. BUT wait…. If the Troll had limited contact during this time, the issue of the motion wasn’t that big of a deal to them. Note: 120 days after 27 Sep 13 is 25 Jan 14. So IAW with FRCP 4(m) the Troll has failed to serve the remaining Does. Well, the judge did grant them an extension to 4 Feb 14, and told them “The Court will grant no further extensions of this deadline absent a showing of exceptional circumstances.” As there was no exceptional circumstances, Troll David J. Stephenson, Jr.dismissed the case (Doe # 1-3, 5-10, 12, & 15-16) without prejudice (3 Feb 14).
Now the Troll/Plaintiff can still refile the case, but as they already know the names of the ISP subscribers, FRCP 4(m) takes effect immediately. The Troll has already shown that it has no intention of actually doing any type of investigation to determine who the actual infringer is. I doubt that anything else will happen to these Does.
For the Does who toughed it out – Thank you. You have made some history in showing the true nature of the Troll/Plaintiffs and every little bit helps. Even with only getting 5 settlements, the profitability of this business model is apparent. If they obtained $5K from the Five, then the take is $25K. Not a great score, but it is still a profit.
I know I have gone over BKGTH cases previously, but I was asked to look into this case, 1:13-cv-01778, BKGTH Productions LLC (A Texas LLC) v. John Does 1-17, District of Colorado. The Troll in this matter is David J. Stephenson, Jr., The Rocky Mountain Thunder Law Firm. Complaint_01778(CO) Complaint_IPs_01778(CO)
The complaint is your standard mass-Doe BitTorrent copyright infringement case, alleging direct and contributory copyright infringement of the movie, Bad Kids Go To Hell (IMDb Link), hash file # 8618617DFBDE71C08949E35257343E26DEB2080A – Previous post. The period of infringement for the 17 Does is 15 May – 11 Jun 2013.
The first thing I found to be different was a notice of related cases. Related_Cases_01778(CO) – Elf-man, The Thompsons, Killer Joe Nevada, The Ledge Distribution, and TCYK **** These all appear to be BT copyright infringement cases filed by Troll Stephenson for other Plaintiffs in Colorado. ***
On 9 Jul 13, The Troll motioned the court for early discovery (Does identities) from the ISPs and provided supporting documentation from Darren M. Griffin, Crystal Bay Corporation (CBC). Motion_Discovery_01788(CO) Motion_Discovery_Supp_01788(CO) This caught my eye, as Mr. Griffin has been on a few other copyright troll cases as a “Computer Investigator.” Note – Finding anything on Mr. Griffin and CBC is about as hard as finding information on 6881 Forensics LLC. Here is a previous case/post where Mr. Griffin and CBC are part of.
When I looked over the complaint, I note something that seemed a bit odd. In sections 36. & 37., Plaintiff states they retained IPP Limited to identify the public IP address.
36. The Plaintiff retained IPP, Limited (“IPP”) to identify the IP addresses that are being used by those people that are using the BitTorrent protocol and the internet to reproduce, distribute, display or perform the Plaintiff’s copyrighted Work.
37. IPP used forensic software named INTERNATIONAL IPTRACKER v1.2.1 and related technology enabling the scanning of peer-to-peer networks for the presence of infringing transactions.
So Mr. Griffin is an employee or a contractor for IPP Limited??? This is the first time I have heard this. Why hide this fact??? There is no mention of this in the motion for early discovery or the declaration by Mr, Griffin.
On 10 Jul 13, Judge Michael Hegarty granted Plaintiff’s motion for early discovery. DiscoveryOrder_01778(CO) The judge did make it clear to Plaintiff that “improper” use of the ISP subscriber information may result in sanctions. He also ordered Plaintiff to file a monthly report on this case (and others) concerning the status of service. MinOrder_01778(CO)
It is hereby ORDERED that the Plaintiff shall file a status report within five (5) days of the date of this order, then on the tenth day of each month thereafter, informing the Court of the status of service in this case. For its monthly reports, the Plaintiff need not file a separate report in each case, but may include this case in one monthly report of associated cases; however, the Plaintiff shall separately notify the Court in which case the monthly status report is filed.
The first monthly status report was filed on 22 Jul 13. StatusRep1_01778(CO) The status report indicates the following.
The Plaintiff has served all of the ISPs identified in Ex. A to the Complaint and requested a return date of August 28, 2013. So far no ISPs have responded to the subpoenas served on them in this action with identifying information.
So by this time (14 Aug 13), some of the Does have likely be notified of the ISP subpoena and are trying to understand this mess they are involved in. I have mixed feelings concerning Judge Hegarty, but it appears he wants to see what Plaintiff is going to do once they get the ISP subscriber information. It does look like he isn’t going to let this case stay open with no defendants being served after a reasonable “settlement” time. I don’t think it will go past the 120 day mark – after the ISPs provide the subscriber information to Plaintiff. Plaintiff will then have to carefully weigh the benefit v. risk of serving the remaining non-settling defendants with a summons/complaint. Based only on the information collected (public IP address/date/time) by Mr. Griffin/IPP Limited, they are taking a risk. There is growing sentiment that simply collecting the public IP address and threatening to sue is a violation of FRCP 11. As it there is only 17 does in this case, the possible settlements generated by this case are not going to be exceedingly big. Just one defendant fighting back will start to eat away at the profit margin.
I know some of you will be asking me, “What do I do???” As this is a newer Troll/Plaintiff, I will recommend getting a free consult (if possible) from an attorney who has worked these cases. As these cases are basically copies of the early porn BT copyright infringement cases, I expect the results to be the same – very limited Does served and no cases going to trial. The evidence (public IP address) and the motive (settlement generation) is the same as before. I don’t think judge Hegarty is going to keep these cases open if Plaintiff appear to be dragging their feet.
When the settlement demand letters start to arrive (after 28 Aug 13), please email me copy so I can post a redacted copy.