Happy Valentine’s Day to you all. Please don’t forget to show you love on the other 364 days of the year. 🙂 Here is an update on case 2:13-cv-00115, Elf-Man LLC v. Does 1-29, WAED. The case has taken some interesting twists and turns and doesn’t appear to be ending too soon. Archive Docket
Since it was opened on 22 Mar 13, Troll Maureen VanderMay has named ISP subscribers, requested waivers or service, and even had summons/complaints served on 24 of the 32 defendants. The number of defendants grew to “32” because 3 of the IP addresses they recorded had two people associated with it. The ISP subscriber information most likely had both people (couple/partner) on the account. We even had 8 defendants answer the complaint, one of which makes a counterclaim against Plaintiff. Also do not forget about Defendant Lamberson (Doe #22), who was severed from this case, became a single defendant, and made counterclaims – case # 2:13-cv-00395. Previous Elf-Man articles – DTD1 & DTD2. FCT Article
The fact that Troll/Plaintiff would amend the complaint with the names of the ISP subscribers smacks of recklessness. There is no way they have done any type of investigation to determine who the real infringer is. The best they can say is that some of the ISP subscribers declined to answer their questions or failed to settle – “So they must be the offender!” This could lead to FRCP 11 sanctions – See section (b) (3). Here is a nice Rule 11 Handout from the Stetson University. Even Malibu Media/Troll Lipscomb is more cautious in the naming of defendants. If there was just one or two named defendants, they might be able to get away with it. As they have named all of the ISP subscribers (barring those who settled early), to include the couples, the court will find it hard not to ask what steps Plaintiff took to determine who the infringers were. I hears crickets or some babbling response (equivalent to the “Chewbacca defense”) coming from Troll VanderMay.
This amount of activity is unusual for most Trolls, as more work tends to be more expensive and draws unwanted attention to the operation. With all the activity, I decided to put it in a spreadsheet and look at it that way. It is a bit of an eye chart, but still quite interesting. Here are some of the highlights.
- 10 defendants settled
- Seven defaults judgments
- Eight defendants answered the complaint (Pro Se & Attorney)
- One severed defendant (now a single defendant case)
- Two counterclaims against Plaintiff
- Negligence claim killed
Well that is a fine mess Troll VanderMay has created. If you figure $5,000 per settlement, Troll/Plaintiff may have taken in $50,000 so far. The defaults may add more potential money to the mix, but that will probably only happen after the remaining 15 defendants have had their day. Then it goes into attempts to collect from the defendants – have fun with that. Right now we have Four separate law firms handling a few of the defendant’s cases. Troll/Plaintiff is going to have their hands full simply dealing with one active defendant.
The costs of dealing with this case could skyrocket for Troll/Plaintiff. Using the PA Bellwether trial (Malibu Media/X-Art) as a comparison, the costs of actively working this case will easily go over $200,000. As these cases were not designed to go this far, Plaintiff is in a bit of a bind as they cannot now easily shut it down. I would expect that Troll/Plaintiff will first try to string this case out as long as possible, then try to make deals with the defendants who are tired. They are bound to get some settlements. I really doubt everyone will agree to drop the case and walk-away, so more “combat tactics” are in order.
I would expect the court to soon start asking for a discovery plan from Plaintiff and the defendants. Depositions and forensic examinations are the next logical step, but these cases have nothing to do with logic. What I can next see happening is some depositions of defendants and the Troll/Plaintiff failing to provide discovery related information on Crystal Bay Corporation (CBC) and software consultant, Darren M Griffin. CBC and Griffin were the BitTorrent technical collection aspect of this case (and many others). DTD Article on CBC. This case may end up disclosing various gems on who makes up this Plaintiff, their operation, and what “other” Plaintiffs and personnel are tied to them. As the judge in this case has already killed the “Indirect Infringement Claim” (AKA: Negligence) aspect of the case, Troll/Plaintiff have their work cut-out for them. Here is the 22 Jan 14, Order. Doc106_00115(WA)
Applying that principle here, the Court finds that holding private internet users vicariously liable for copyright infringement committed by a third party on an “intended beneficiary” theory runs counter to the underlying purpose of the Copyright Act. …
If you are one of the defendants in this case, please feel free to contact me at firstname.lastname@example.org.
As we have been having some issues with RECAPing case files, here is a folder containing some of the documents.