ElF-Man LLC Admits It Does Not Hold The Rights To Sue – Lamberson Case – # 2:13-cv-00395 (WA)

4 May 14 Update

On 3 May 14, TorrentFreak ran an article on this case – Accused Pirate Slams Bittorent Tracking Outfit in Court.  On 30 May 14, Attorney Lynch filed a motion to compel Plaintiff to either produce their two German “fact” witnesses (Michael Patzer & Daniel Macek) or issue letters of request to allow for the deposition to occur in Germany.   DecCompel_000395(WA)

As I have previously said, this is a clue that Troll/Plaintiff does not want the inner workings of their operation to be exposed.  It begs the question of “Why?”  It is my belief that this case AND other Malibu Media LLC ones (at the same stage of “stalling discovery”) will be extremely important to how the courts see and handle these BitTorrent cases.  By simply answering the deposition questions, the “fact” witnesses will allow the Defense to see the weak point of the evidence collection, as well as what the “evidence” really means.

It is my belief that from very start, the German firms running these BitTorrent monitoring set-ups never intended them to go this far.  If they had been designed with this in mind, the release of such operating information, procedures, and evidence would not be a big deal.  As their design was to avoid this, I bet they took plenty of short cuts to reduce operating costs.  These short cuts are what will be the down fall of these firms.

Attorney Lynch does a great job of showing the court how central these two witnesses are to this resolving this case.  I hope the court does compel Plaintiff to make them appear at the deposition.  Plaintiff will them have to weigh the option of ignoring the court order or deal with the disclosures that come from it.  Either way, the results are not going to be good for any Troll/Plaintiff that uses such firms.

DieTrollDie 🙂

————————————————————

I have been meaning to do an update on this case, but something always pushes it back.  So here is a short update to the Elf-Man LLC, v. Lamberson case, # 2:13-cv-00395.

Not surprising but Troll Vandermay/Plaintiff are still avoiding the production of discovery items to the Defense.  This is a clue people – ALL of the Troll/Plaintiff’s out there DO NOT want to disclose the inner workings of their “operations.”  They know that their operations cannot survive the disclosure and are willing to risk contempt to avoid it.  Please pay particular attention to document #39 below (Declaration of Attorney Christopher Lynch).

So since the last update, here is what has happened.

  • 17 Mar 14 – Defendant Lamberson filed his Second Amended Answer, Affirmative Defenses,  and Counterclaims.   2ndAAnswerCC_00395(WA)   2ndAAnswerCC_Exhibits_00395(WA)
  • 31 Mar 14 – Plaintiff’s Motions in Response to Defendant’s Second Amended Answer, Affirmative Defenses,  and Counterclaims.   In this document, Troll/Plaintiff makes three motions – 1) Motion to Dismiss Counterclaims Pursuant to Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim Upon Which Relief Can Be Granted; 2) Motion to Dismiss Counterclaims and/or Strike Affirmative Defenses Based Upon Allegations of Fraud Pursuant to Fed. R. Civ. P. 9(b); & 3) Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) the following redundant, immaterial, impertinent and/or scandalous matter in Defendant’s second amended answer as listed:    Doc37_ Plaintiff Resp_00395(WA)
  • 11 Apr 14 – Defendant Lamberson’s Responds to Plaintiff motions to dismiss counterclaims/affirmative defenses.   Doc38_ Lamb_Response_00395(WA)
  • 11 Apr 14 – Declaration of J. Christopher Lynch in support of Defendant Lamberson’s response to Plaintiff’s Response/Motions to Dismiss.   Doc39_ Decl_Lynch_00395(WA)

They are all worth reading, but I want to focus on the Declaration of Lamberson’s attorney, Christopher Lynch.  This declaration makes it exceedingly clear to the court (and anyone who reads it) that Troll/Plaintiff’s allegations are baseless and they have no intention of actually having the cases judged on their merits or even producing discovery material that could hurt their case.

The damning part is that Elf-Man LLC, does not hold the exclusive rights to the movie “Elf-Man!”- agreement filed under seal

Through discovery, Mr. Lamberson requested production of any agreements between Elf-Man LLC and Vision Films, Inc. Plaintiff produced such an agreement dated May 1, 2012. That agreement is attached separately under seal as Exhibit 1 hereto. That agreement at page 1 makes an assignment of the exclusive rights in the movie Elf-Man from Elf-Man LLC to Vision Films, Inc. (“Vision Films”).

As well as…

On February 15, 2013, Elf-Man LLC issued a “to whom it may concern” memorandum wherein it acknowledged that it had assigned the exclusive rights in Elf-Man to Vision Films. That memorandum is attached separately under seal as Exhibit 2 hereto.

Attorney Lynch goes on to tell the court that Vision Films, Inc., has filed a copyright infringement case in TN, “3:13-cv-00128, wherein Vision Films states that it is the owner of the exclusive rights in Elf-Man.”  He also informs the court that a subpoena has been served on Vision Films, for a copy of the sales agreement with Elf-man LLC.  “To date, Vision Films has not produced any of the documents.”  Go Figure

Anyone Care for a German Twist???

Funny how “German” firms and investigators like “Michael Patzer” shows up in these cases.  This sounds strikingly similar to the Malibu Media LLC case in MD.  Fightcopyrighttrolls Article

Mr. Lamberson has served Requests for Production on Elf-Man LLC to produce any agreements between it and its German “investigators” Daniel Macek and Michael Patzer. Elf-Man LLC refused to produce these documents. Mr. Lamberson initiated a telephonic discovery conference with the Court which was held February 27, 2014. At the conference, the Court ordered plaintiff to produce these documents or to provide a narrative explanation of the relationship. To date, Elf-Man LLC has not produced any responsive documents or narrative explanation. Defense counsel has sent reminders and requests to comply with the Order on March 14, 2014 (Exhibit 3 hereto), March 31, 2014 (Exhibit 4), but Elf-Man LLC remains in contempt of the Order.

As of 3 Apr 14, we know that Plaintiff has been in contact with Mr. Patzer, as “counsel for Elf-Man LLC informed counsel for Mr. Lamberson that Mr. Patzer “will expect to be paid his hourly rate in addition to his travel expenses” in order to be deposed.”   Doc_39_Ex5_00395(WA)

Plaintiff has also failed to produce other items they were order to by the court.

  • Copies of the links, trackers, and torrent sites allegedly accessed by Mr. Lamberson to allegedly download the movie. Nothing has been produced and plaintiff claims it has no such evidence (despite the allegations of the First Amended Complaint).
  • Copies of the any demand letters or take-down notices to third-parties demanding cessation of infringement of Elf-Man. Nothing has been produced and plaintiff claims it has no such evidence.

Shy1So right now I believe the court is waiting to see if troll Vandermay replies to Lamberson’s response.  I expect that sometime after 25 Apr 14, the court will rule on these issues.  It is going to be interesting to see how Plaintiff tries to get around the fact that it DOES NOT have the right to sue people for copyright infringement of this movie.  Also of interest is the deposition of Mr. Patzer, as it could impact some high-interest Malibu Media LLC cases out there.

Please read over the documents and give me your thoughts.

Previous Lamberson Article

DieTrollDie 🙂

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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15 Responses to ElF-Man LLC Admits It Does Not Hold The Rights To Sue – Lamberson Case – # 2:13-cv-00395 (WA)

  1. Maurice Ross, Esq. says:

    You are missing a key point. The copyright owner commonly licenses exclusive rights to a third party, but maintains ownership of the copyright. That is entirely proper. Both the copyright owner and the exclusive licensee are permitted to sue for infringement.

    • DieTrollDie says:

      Thank you for the input Mr. Ross. My copyright law knowledge is by no means flawless. I would assume that any such agreement allowing both parties to sue people would need to be very specific on that point. As Mr. Lynch states in his declaration (and backed up by two exhibits), the “Exclusive” rights were assigned to Vision Films. Also Vision Films customary sales agreement states that they have “Exclusive” rights to sue. Unless there is some agreed upon difference of what “Exclusive” means in the agreement, it may be hard claim this.

      It is also interesting that the agreement and memorandum (Exhibits 1 & 2 to Lynch Declaration) are filed under seal. This is simply an assignment agreement as same as you will find filed at the US Copyright Office. Why does such an agreement need to be under seal? Maybe there is a good reason… OR maybe something is being hidden from view. I’m sure the court will address this issue in due course.

      DTD 🙂

    • DieTrollDie says:

      I have been informed that there can be TWO exclusive rights holders for the same movie, but that the agreement between both parties is key. If it is poorly written (many are), then the right to sue for one of the parties could be voided.

      As I previously stated, the fact that Troll/Plaintiff filed the agreement & memorandum under seal (hidden from Public view) is VERY suspicious to me. The fact that Plaintiff either DOES or DOES NOT have the right to sue is KEY to this case and in no way should be a secret. The Troll/Plaintiff filed this case knowing full well that it could go to trial and they might have to disclose this information. I bet Attorney Lynch agreed to the “under seal” aspect just so Plaintiff would provide it to him. I hope he makes a motion to unseal it, as it is clearly not a confidential mater.

      DTD 🙂

    • Guest says:

      “Screw due process, I want your money!”
      – Sorry Morry

  2. Anon E.Mous says:

    Why am I having a Righthaven flashback moment after reading that.

  3. Raul says:

    Does the agreement mention that Elf-Man LLC retains the exclusive right to be sanctioned as filed of vexatious frivolous lawsuits? I hope these asshats get sanctioned.

  4. Really???? Same investigator as in Malibooboo Mediocrity cases??? This defendant needs to be reading Pietz’s stuff on fightcopyrighttrolls.com from Maryland about those “instigators” and honeypotting and Guardaley as he writes his sanctions motion, and from the Prenda Appeal…for the public service aspects.

    Maybe nobody with a reputation to protect is willing to work for these guys!

  5. Anon E.Mous says:

    The mere fact that Vandermay and ELF MAN LLC are ignoring the courts order to turn over the discovery items the Lynch requested and the repeated follow up requests that were sent as a professional courtesy and ignored should have the l Vandermay and ELF MAN LLC sanctioned..

    I am sure Vandermay and ELF MAN LLC has in this case and past cases sought early discovery and been granted that request many times in the past and had asked to examine the alleged infringers computer for any incriminating evidence of illegal downloads of ELF MAN LLC works.

    Why Vandermay and ELF MAN LLC think it is perfectly fine to seek and use the courts to get defendants they have sued and their ISP to turn over information, but when Vandermay and ELF MAN LLC are required to turn over information they blatantly flout court orders and defense counsel is not only a breach of rules of the court and their professional obligation as an officer of the court but of the law itself.

    Vandermay may think this is the smart play, but obviously has learned nothing from the decisions in various courts across the U.S. that have gone against Prenda in it’s torrent cases and how Judges in those cases ( Judge Wright comes to mind ) have not only sanctioned the lawyers and ordered costs but referred their actions to the IRS Criminal Division and to the U.S. Attorney General and the various state bars that they have been licensed under and I won’t even bring up the possibility that their could be a grand jury looking at RICO.

    Lynch will obviously seek to have Sanctions brought against Vandermay and ELF MAN LLC and one would believe ask the Judge presiding over this case for an OSC hearing due to Vandermay’s total disregard for the courts order to turn over discovery. ( and we all know how well those OSC hearings have gone for the Prenda gang.

    It looks like the use off IPP/Guardaley as a monitoring firm and their investigative techniques and affidavits in cases and the weight they carry with the court is about to come worthless ( not that I thought it was worth anything before hand but that’s my opinion ) I see many Troll cases soon to be circling the drain after Pietz and Mailbu and the case at hand with Vandermay and ELF MAN LLC.

    This will be another example to courts across the U.S. as to why Troll lawsuits regarding torrents and their ilk are soon to be nothing but a death sentence and a good way to sanctioned for costs and a referral to your state bar

    It will be interesting to see how the Judge is going to treat this flagrant disregard for the court and it’s order. I predict the chap stick will come out and Vandermay and ELF MAN LLC will be doing their best to say ” whoops sorry about that “.

    Whether the Judge will tolerate the excuses that will follow and let them off the hook, I don’t see it happening in light of the various litigation the IPP/Guardaley is being used in. I would think we are going to see a lot of torrent cases start to crater.It will take a lot of spit and polish to put the lip stick back on the pig.

  6. WDS says:

    I’m not sure how to describe someone who would thinks that the following position makes sense.

    We sued you.
    We chose to use an investigator in Germany.
    We have stated that his information and testimony is the entire bases of our case.
    If you want to talk to him, pay for his flight, and pay him an hourly wage as well.

    Hubris, isn’t quite right. Maybe, Bat-Shit-Loony?

    • Pepi says:

      It makes sense because the game is to scare people out of their money, whether they are innocent or not and to make any attempt of a defense outrageously expensive, such that they would settle prior to trial.

  7. Pingback: Devil’s cookbook: Guardaley’s presentation | Fight Copyright Trolls

  8. DieTrollDie says:

    Please see the recent Fightcopyrighttrolls article on the “Guardaley’s Presentation.” http://fightcopyrighttrolls.com/2014/04/21/devils-cookbook-guardaleys-presentation/

    I have made a copy of the Prezi presentation – http://prezi.com/b_f7djco81ri/copy-of-themanako123/?utm_campaign=share&utm_medium=copy

    Please enjoy and share.

    DTD 🙂

  9. Pingback: Elf-Man LLC and The German Investigators – Lamberson Case – # 2:13-cv-00395 (WA) | DieTrollDie

  10. Pingback: Elf Man v. Lamberson: presented with the evidence of wrongdoing, plaintiff attempts to run away | Fight Copyright Trolls

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