Pandora’s Box – Elf-Man LLC v. Does 1-29, 2:13-cv-00115 (WAED)

TrollVal1Happy 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 & DTD2FCT Article

Reckless?

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.

Next Move

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 dietrolldie@dietrolldie.com.

As we have been having some issues with RECAPing case files, here is a folder containing some of the documents.

DieTrollDie 🙂

Under The Bridge Consulting & Prenda Law Inc.

Under The Bridge Consulting & Prenda Law Inc.

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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4 Responses to Pandora’s Box – Elf-Man LLC v. Does 1-29, 2:13-cv-00115 (WAED)

  1. Maurice Ross says:

    I cannot imagine how any court could award Rule 11 Sanctions. There certainly is a reasonable basis for naming the defendants here—ten have already settled and others have defaulted. The scoreboard favors the plaintiff here—achieving that many settlements is alone sufficient to establish that the infringement allegations had merit. I defend these cases all the time, but it is not helpful for those in the “anti-troll” movement to spread misinformation about how these cases work. People have been complaining that plaintiffs don’t work these cases, and now when a plaintiff starts to work a case, the plaintiff’s client is criticized for doing so. This seems a bit unfair and hypocritical. Further, in my experience defense counsel are successful when they garner reasonable evidence showing that their client should not have been named as an infringer—we often get rid of these cases against innocent infringers with a phone call and some letters—once counsel articulates a viable defense, most plaintiff lawyers will drop their clients from the case voluntarily. Not all lawyers for the plaintiffs in these cases behave like the Prenda gang and many of them are quite honorable and reasonable. What we need is a small claims court to process claims like this–the Copyright Office has already proposed this. This would make it much easier to defend these cases where meritorious defenses exist, and to settle them where there is no defense. The reality in these cases is about 75% of the time, the plaintiff identifies the infringer—that is why in the long run these cases will be allowed to proceed one way or another. A 750 batting average is more than sufficient to justify any lawyer from going forward with a case. For those of us who defend these cases, there is a need to be realistic in order to be successful.

    • DieTrollDie says:

      I cannot imagine how any court could award Rule 11 Sanctions.
      I say this as some courts are beginning to question the blind faith assumption that these Plaintiffs do even a basic inquiry into the allegations. They do not. Please be honest. They obtain ISP subscriber information and then start to apply pressure. The fact that VanderMay had the gall to try the “Negligence” claim shows they don’t care if an ISP subscriber was not the offender. OK, Maurice, hopefully this case will go far enough to test your “belief.” So if depositions and forensics come back with nothing on a defendant, will the Plaintiff dismiss them without a fight??? If you know the history, then you know the answer is “NO.”

      There certainly is a reasonable basis for naming the defendants here—ten have already settled and others have defaulted. The scoreboard favors the plaintiff here—achieving that many settlements is alone sufficient to establish that the infringement allegations had merit.
      The naming of the defendants that didn’t settle has nothing to do with the 10 who did. Really??? The fact that they have two people (a couple) named for ONE IP Address shows they don’t know who did this – or likely have a good idea. So for the couples, did their investigation disclose that both defendants took this action??? So do you think that all the parties that settled only did so because they were guilty? FYI: I recently talked to one defendant (different case) who told me he considered settling even though he and his family did not do this. He found out the cost of fighting it would be far higher than settling and simply wanted to stop the stress the lawsuit was causing.

      I defend these cases all the time, but it is not helpful for those in the “anti-troll” movement to spread misinformation about how these cases work. People have been complaining that plaintiffs don’t work these cases, and now when a plaintiff starts to work a case, the plaintiff’s client is criticized for doing so. This seems a bit unfair and hypocritical.
      If I’m “Anti-Troll,” that must mean you are “Pro-Troll.” Copyright owners have the right to protect their property/content, but “Copyright Trolls” are using the law/courts to follow a sad business model. This Plaintiff didn’t really work this case – not in an investigative sense. She obviously did a lot of paperwork. And even if you claim she did some real investigative work, the quality was sad.

      Further, in my experience defense counsel are successful when they garner reasonable evidence showing that their client should not have been named as an infringer—we often get rid of these cases against innocent infringers with a phone call and some letters—once counsel articulates a viable defense, most plaintiff lawyers will drop their clients from the case voluntarily. Not all lawyers for the plaintiffs in these cases behave like the Prenda gang and many of them are quite honorable and reasonable.
      Who? Malibu Media/X-Art/Lipscomb??? We have all seen the cases in which a defendant denies the allegations and offers up his computer for examination. They do not take the defendant up on the offer and do not dismiss him. A claim of an open WiFi is laughed at by most Troll/Plaintiffs. We also know that if the various Plaintiffs start to dismiss innocent people and cannot silence them with a non-disclosure agreement, they are screwed. Maurice, if a honorable lawyer follows the practice of a Copyright Troll, then he/she is flushing his honor down the toilet. Why do you think so few dare to pick up these cases?

      What we need is a small claims court to process claims like this–the Copyright Office has already proposed this. This would make it much easier to defend these cases where meritorious defenses exist, and to settle them where there is no defense.
      I agree that something else is needed. No one (even if guilty) should have to face the possibility of a $150K + costs/fees judgment over downloading/sharing most copyright content. Even the settlement these Trolls offer is excessive in my opinion. Plus we know it was designed to make it more cost effective and prevent most people from hiring an attorney.

      The reality in these cases is about 75% of the time, the plaintiff identifies the infringer—that is why in the long run these cases will be allowed to proceed one way or another. A 750 batting average is more than sufficient to justify any lawyer from going forward with a case.
      These cases will likely proceed in one way or another. The actions myself and others have taken have helped change the way they are handled OR not handled at all (How many Plaintiff’s are out of this game?). Malibu Media/Troll Lipscomb no longer files mass-Does cases. Other Plaintiff have left these cases in favour of CEG-TEK. Your “750 batting average” is justification to start a case, but simply relying on that average to carry you through a game or season is ridiculous. It takes various actions from all the team members to win.

      For those of us who defend these cases, there is a need to be realistic in order to be successful.
      Of course being realistic is needed. But I would suggest you are not being truthful with yourself when you claim these cases and the large judgments against non-commercial infringers are morally right.

      DTD 🙂

    • Anon says:

      The fact that plaintiffs continue to claim that piracy devastates their businesses while they purchase million-dollar mansions is telling of one fact – your remark that “there is a need to be realistic” is droll rubbish.

  2. anonymous says:

    I believe you are missing the point. The issue at hand is the ridiculous $150,000 per file being levied for what amounts to a shell game. Conceived by sick minds to rape curious people of their life savings, over files arguable and evidently uploaded by the producers / copyright holders themselves. But from Germany, etc, so getting discovery and face time with the accuser gets expensive. Add in vague international IP regulations and you have a get rich quick scheme that has no end. This is not about people stealing, it’s about people getting caught in a trap, a honeypot.
    BTW, I am in the same business. I scan for my clients work being stolen, I don’t post it and sue downloaders. That would violate the white hat code.

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