Malibu Media LLC And The Plausibility Test (Defendant Butler, 1:13-cv-02707 (CO)

14 Mar 14 Update

On a side note, Troll Jason Kotzker filed 10 new Malibu Media cases in Colorado District court on 14 Mar 14.   Case Opening database

——————————–

It has been a while since I wrote about Copyright Trolls in Colorado.  Our friend Raul (@Raul15340965) was kind enough to tweet about a wonderful ‘Reply’ from Malibu Media defendant John Butler (via attorney Richard Hanes, HANES & BARTELS LLC).   Def_Reply_Doc_26_02707(CO)   Doc_26-1_02707(CO)   Doc_26-2_02707(CO)   Thanks Raul!

The single Doe case (IP address 71.229.236.179) case was opened in the District of Colorado on 3 Oct 2013, with the court granting early discovery for the ISP records on 7 Oct 13.  On 23 Dec 13, the complaint was amended to list John Butler as the defendant.   FAC_02707(CO)   FAC_EX_A_02707(CO)   FAC_EX_B_02707(CO)   On 10 Jan 14, Mr. Butler was served with the summons/complaint.  Though it appears that Troll Kotzker forgot he already did thissee footnote 2.  On 12 Feb 14, Defendant Butler filed a motion to dismiss.   MTD_Doc_20_02707(CO)   On 5 mar 14, Troll Jason Kotzker filed an opposition to the motion to dismiss.  On 11 Mar 14, Defendant Butler filed a reply to the Plaintiff’s opposition.   Archive Docket

Also of note is the telephonic scheduling conference and scheduling order from 25 Feb 14, and 3 Mar 14.   SchedulingOrder_Doc_24_02707(CO) SchedulingConf_Doc_23_02707(CO)

Defendant’s Motion to Dismiss is worth reading as it attacks Plaintiff’s allegation and failure to tie the defendant to the activity.

The plausibility of Plaintiff’s Amended Complaint is on the same level as a personal injury complaint alleging that the named defendant is the one liable for plaintiff’s injuries, occasioned when struck in the cross walk by a red and white pick up truck, because defendant owns and drives a red and white pick up truck. The Plaintiff has not “nudge[d] [its] claims across the line from conceivable to plausible” Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012). The naked conclusions that attempt to recite the elements of a cause of action for copyright infringement are based solely on an eddy of contradictory and misleading technological assertions that are intended to intimidate the reader with an aura of factual content implied by such imposing terms as “cryptographic,” “file hash,” “independent calculation,” “digital media file,” “hash value,” “digital fingerprint,” “TCP/IP connection,” “IPP International UG,” “air traffic control,” “computer forensic purposes” and the use of 40 digit File Hash values and such official terms as “UTC Universal Time” in order to endow the Amended Complaint with factual legitimacy. However, when the reader drills down though the technological smoke screen it is discovered that the factual background of the Amended Complaint is nothing but smoke and mirrors cut and pasted from a thousand other complaints and does not provide the “factual enhancement” necessary to support the naked conclusions of copying and distribution by this Defendant. {Doc # 20, Conclusion}

hurt1The Reply is equally a good read and further sets to dismantling Plaintiff’s response to the Motion to Dismiss.  I am sure the various points brought up by attorney Hanes will be read and used by other Doe Defenders across the US.  Attorney Hanes makes it very clear that Troll/Plaintiff has not done an investigation (or possibly done a substandard one) to link the Defendant to the infringing activity.   Attorney Hanes states the allegations against Mr. Butler are a “…compilation of conclusory allegations supported, not by factual allegations relative to this Defendant, but by a camouflage of technical jargon and contradictory and irrelevant contentions by a mystery investigator whose actual report, if one even exists, is not applicable to this case or to this Defendant or this Defendant’s IP address.”  He also claims that “…there are no factual allegations in the Amended Complaint that plausibly connect this Defendant to the complained of infringement.”

Attorney Hanes tells the court that are many ‘omissions’ (i.e. Plaintiff chose not to respond to them) in Plaintiff’s response.

On page 6 of his Motion Defendant states: “There is not a single fact asserted in the Amended Complaint that would justify the allegation in paragraphs 17, 19 and 20 that ‘UG downloaded from Defendant’ …” Plaintiff’s Response does not dispute this assertion of Defendant in his motion to dismiss.

Plaintiff does not deny that its present counsel has admitted that an estimated 30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material.

Plaintiff does not deny that one of its two co-owners admitted in her declaration that an open wireless connection would prevent them from pursuing a claim.

On pages 12-14 of the Motion, Defendant analyzes the illusory content of paragraphs 11, 13, 15, 17, 19 and 20 of the Amended Complaint. Plaintiff’s Response contains no rebuttal to this analysis and therefore, it has be assumed to be true and accurate.

Plaintiff does not deny that the mass of technological jargon about BitTorrent, hash values, cryptography and similar expressions in the Amended Complaint are intended to obfuscate reality and substitute for factual allegations that would actually provide the necessary “factual enhancement” for the many conclusory and legal allegations on which the Amended Complaint is based.

Plaintiff does not deny that one or more “bits” of a work do not constitute the constituent elements of a copyrighted work.  {Document 26, pages 8-9}

Now I don’t know when Judge Hegarty will rule on the motion to dismiss, but I bet Troll Kotzker will try to file something to try to minimize this rather scathing reply.  Even if the motion is unsuccessful (Judge Hegarty has a history of being Troll friendly), Troll Lipscomb and Kotzker will be trying to extricate themselves from this mess.  Attorney Hanes appears eager to conduct depositions of IPP and Malibu Media personnel.  Unless Plaintiff is able to come up with some good forensic evidence on the defendant’s system, it doesn’t look good.  I bet Plaintiff hopes that if no forensic evidence is found, Defendant will motion for a “summary judgment.”  That at least would preclude further discovery and testimony from Malibu Media and IPP – even if they had to pay something to make it go away.  The last thing Troll Lipscomb wants is having the details of their operation fully explored.  Here is something to think about It appears if the Defense indicates they will be deposing Colette Pelissier Field and Brigham Field (X-art/Malibu Media owners), a settlement is soon reached – go figure.  The closest thing we have had so far is the paltry “PA Bellwether trial.”  As there was no cross-examination of the witnesses and experts in the PA Bellwether trial, Plaintiff was allowed to present a one-sided view.  Here is a shared folder with trial transcripts and the audio recording from PA Bellwether trial – good read and listen – I assume attorney Hanes already has this information.  It doesn’t appear attorney Hanes is going to make it that easy for Plaintiff.  You can see attorney Hanes has a good understanding of the technology, as well as where to focus his efforts.  I would expect that Troll/Plaintiff will hold off trying to settle with Defendant Butler until the forensic results come back.

Now depending on how this case works out, Colorado may turn out to be an unwelcome location for the Trolls to ply their trade.  Lets hope.  Who knows, maybe Troll Kotzker will pull a Schulz and call the judge a$$ hole.   😉

Upcoming Dates

  • NLT 18 Mar 14, FRCP 26(a)(1) disclosures will be exchanged.
  • On 23 Apr 14, at 9:30AM, there is a settlement conference scheduled in Colorado Springs, CO – see Doc #23.  I don’t know if the conference is open to the public, but it would be interesting for someone in Colorado to possibly attend. 

DieTrollDie 🙂   “What is your major malfunction numb-nuts? {Gunnery Sgt. Hartman – Full Metal jacket}

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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8 Responses to Malibu Media LLC And The Plausibility Test (Defendant Butler, 1:13-cv-02707 (CO)

  1. Raul says:

    Nice post. It always puts a smile on my face when the Ghost of Mike Meier appears in court filings or judicial orders. Here it is the 30% misidentification of infringing Does as he admitted in SDNY.

  2. Anon says:

    I concur that the technical jargon is smoke & mirrors to confuse judges. When the compliant explains that their German spies recorded one bit being transmitted to an IP address, they actually proved nothing at all.
    The Bellwether case turned in to a dog & pony show. All three defendants had settled before trial. Even the Doe who contaminated evidence and perjured himself settled before bench trial. So in over three years and many thousands of complaints, not a single one has gone to full trial.

  3. Pingback: Colorado Confusion – Malibu Media LLC v. Butler, 1:13-cv-02707 (CO) | DieTrollDie

  4. Thisiswackmalibu says:

    So from the readings and trending I been seeing on Malibu cases especially here in Colorado. It seems the Troll Kotzker is going after people who don’t settle. He will go all the way with trying to get Forensic Evidence too. Is that what is happening here? It seems that the defendant had to spend a pretty penny for his attorney to do all this too?

    • DieTrollDie says:

      Malibu Media is not an easy one-answer type of Plaintiff. They tend to expend time and money on those cases that are most likely to get them some sort of pay off. They do not always go to depositions or forensics. Once a Doe starts to “Actively” go against them, they will fight very hard and try to make it in the best interest to settle – even if it is a walk-away deal. We are seeing this in a few MM cases and hopefully some new evidence will come from it.

      DTD 🙂

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