Motion To Dismiss Copyright Troll Malibu Media Case – AKA: “Necessary Volition” – 1:14-cv-00262 (CO)

Many of you know how I feel about the Colorado courts (namely Judge Hegarty & Judge Daniel) and their “rubber-stamping” of BitTorrent Copyright Troll cases (Multi-Doe & Single Doe cases) in the State. {On a side-note, please see the following Shared Folder in which Judge Hegarty approved early discovery the SAME DAY the case was filed!}  The IL Northern District has a higher volume of Copyright Troll cases, but the singular assignment of CO cases to these two judges is extremely troubling.

guilt1In Malibu Media LLC v, Richard Sadowski (IP address 75.71.118.123), case 1:14-cv-00262 (CO), Doe Defender John Arsenault, Wessels & Arsenault LLC, recently filed a motion to dismiss for failure to state a claim of relief.   MTD_FSC_Doc26_00262(CO)   Now this may not seem too shocking, as this Defense strategy has been tried before with no real success.  Please take a read of this straightforward motion and see if the logic makes sense to you.  I assume attorney Maurice Ross will chime in and claim that Plaintiff has “adequately” stated a claim and this is simply a content owner exercising her rights.  Other case documents – FAC_Doc12_00262(CO)   FAC_EXA_Doc12-1_00262(CO)   Docket_18Jul14_00262(CO)   Decl_P_Paige_00262(CO)   Decl_P_Fieser_00262(CO)

Plaintiff Failed to Plead a Necessary Volitional Act in its Amended Complaint

Attorney Arsenault makes these points to highlight why Plaintiff has failed to plead the volitional acts required.

  • Troll/Plaintiff makes a claim direct copyright infringement against Defendant Sadowski for 21 Malibu Media/X-Art movies.
  • Troll/Plaintiff fails to adequately tie the alleged infringement directly back to Defendant Sadowski.
  • The only thing Troll/Plaintiff has to tie the alleged infringement back to defendant Sadowski is the public IP address.
  • The only reason Defendant Sadowski is tied to the public IP address is because he pays for the Internet subscription from the ISP.
  • Troll/Plaintiff has only made unsupported conjecture which does not support a claim to the level required by Federal Rules.

Attorney Arsenault makes the extremely clear and understandable comparison between this allegation via a public IP address and an allegation from a telephone number.

Associating the Defendant with the claim at this point is similar to suing the subscriber of a telephone line where an allegedly illegal phone call took place without having evidence of who is responsible for the unlawful act. At best, Plaintiff has demonstrated that the internet protocol (“IP”) address used at Defendant’s home is allegedly used for the infringing activity claimed herein. In the FAC, Plaintiff does not properly associate Defendant’s activities to the activity reported from the IP address claimed by Plaintiff’s investigator, instead making unsupported conjecture. {My Emphasis}

Attorney Arsenault goes on to supports his motion with some rather well know case-law.

Fed. R. Civ. P. 8(a) does not require detailed factual allegations, but it does require more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” Id., quoting Twombly, 550 U.S. at 554. “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id., quoting Twombly, 550 U.S. at 557. Accordingly, Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S.Ct. at 1951. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the pleader is entitled to relief.” Id., citing Fed. R. Civ. P. 8(a)(2).

Now I’m NOT overly confident the motion will be approved, as Judge Hegarty’s history on the matter is clear.  I’m no attorney or judge, but as there is some solid case-law supporting this motion, Judge Hegarty may have to take some time to adequately review all aspects of this case.  If this motion is successful, it will kill the Malibu Media cases (as currently written) until if/when they decide to file with some real evidence tied back to a Defendant.  For the Non-Malibu Media (Voltage Pictures) Mass Doe cases in CO, it would be devastating, as they conduct even less of a so-called “investigation” into the Defendants.
If the motion is denied, I hope an appeal is possible.  Any attorney please chime in on this.

I personally believe that for the majority of these BitTorrent Copyright Troll cases, there is NO investigation beyond obtaining the ISP subscriber data.  I assume that for a minimal number of cases, Troll Lipscomb/German Controlling Firm do make some investigative steps (LexusNexus background checks & social media checks) on the ISP subscriber.  Still this is NO “Investigation;” only simple data collection efforts, template based case filings, and high-pressure settlement generation efforts.  Combine these aspects with a court that is willing to rubber-stamp the proceedings and we have a mess.  For some people (Mr. Ross) this is OK, as our system of Democracy is so flawed – we should be willing to accept the fact that some Copyright Trolls are going to abuse people.  I guess he would call this the “Cost Of Doing Business.”  Well it isn’t a cost I will easily accept.

DieTrollDie 🙂

“DAMN THE TORPEDOS, FULL SPEED AHEAD!!”  –  {John Steele comment (My belief) made on 20 Feb 12} – failed attempt to portray himself as Admiral David Glasgow Farragut (1801-1870)

Bike_Fine1

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 Motion To Dismiss Copyright Troll Malibu Media Case – AKA: “Necessary Volition” – 1:14-cv-00262 (CO)

  1. Maurice Ross says:

    This motion is doomed to fail (or at least it should fail). The analogy to telephone harassment cases is a great one. If someone is the victim of telephonic harassment, threats, bullying, etc, that violates the FCC Act and numerous state statutes. Where the victim cannot identify the individual responsible, it is standard, accepted practice for law enforcement (FBI, local police etc) to require the telephone company to identify the owner of the phone number account and then arrest, detain or at least question that person to determine if he, or someone else using the number, is responsible for the harassment. The number, itself, is the key to the investigation and it is clear and beyond dispute that the police or FBI can pursue a CRIMINAL investigation against the owner of the number.

    In civil matters such as infringement, prosecution is left to private attorneys rather than law enforcement, and private attorneys can’t use the same tactics as police to investigate and prosecute. Private attorneys must, instead, use the subpoena power of the Court. That requires commencement of litigation. Just as it is sufficient for police to commence an investigation based on the telephone number tied to harassing calls, it is sufficient for private attorneys to commence suit and issue subpoenas to investigate the source of illegal downloads tied to IP addresses. It is absurd to assert that it is abusive for attorneys to engage in such investigation—that is the essence of how our civil litigation system works. Would you rather turn over these cases to law enforcement and treat individuals who engage in illegal downloads as criminal. Remember, technically speaking intentional copyright infringement via illegal downloading is a criminal offense—a federal felony. Law enforcement as a matter of discretion do not pursue these cases against individuals—but they legally do so. Law enforcement as a policy matter relies on copyright owners to enforce their rights via civil litigation. When an attorney seeks subpoenas to investigate the owner of IP addresses associated with illegal downloads, he is doing nothing more than what law enforcement would be permitted to do if a decision was made to prosecute criminally. Wouldn’t you prefer that these matters be treated as civil rather than criminal (even though they are technically speaking criminal law violations)?

    Perhaps the answer should be to encourage law enforcement to pursue these illegal download cases against individuals and charge them with criminal copyright infringement. Would you prefer the FBI, police and prosecutors replace the “troll” attorneys”? Maybe in the long run that would be a good thing—perhaps there would be stronger deterrence which would lead to less infringement.

    Indeed the analogy to illegal telephone calls is telling–and it shows why and IP address associated with an illegal download (or illegal upload) should be sufficient to allow private attorneys (replacing law enforcement) to use the court subpoena power to investigate the situation, identify the guilty party, and pursue litigation.

    You complain that the troll lawyers get paid—but they are just doing their job and they deserve to be reasonably compensated for it. You complain that most cases settle and are not prosecuted. But 95% of criminal cases end up in plea bargains. Only a tiny fraction of criminal cases go to trial. The same is true in the civil system. The system is designed to force parties to acknowledge wrongdoing and settle, and to do so on an economically reasonable basis. Yes sometimes people settle because the case is a nuisance and the cost of litigating would be worse. But there is no perfect system—isn’t it better to let the troll lawyers do their thing than to turn these cases over to law enforcement for criminal prosecution? Illegal downloading is technically speaking a federal crime? Do you really want to convert these civil matters into criminal cases—making it even harder and more expensive for defense lawyers like myself to defend the individuals (remember—in our system even the guilty deserve and are entitled to a good defense). I think the anti-troll hysteria could backfire big-time. Take these cases out of the hands civil attorneys and put them into the hands of the FBI and prosecutions? Seriously?

    • DieTrollDie says:

      I think the motion more doomed to fail because of Judge Hegarty than anything else. You missed the point of the telephone – nobody said it was a criminal matter. Let’s keep it to a civil matter. No AUSA or Federal Investigative agency is going to touch criminal copyright infringement unless it means a LARGE $$$$ recovery and/or significant convictions. Investigating this as a criminal matter is getting off topic – red herring. The point in this comparison is simply if this was a case in which telephone number was the source of the offense; would a court allow a complaint to be filed against the Telephone subscriber verses keeping it a John Doe until enough evidence is gathered??? If not, why is the public IP address any different???

      Nobody said a John Doe case could not be filed and early discovery obtained based on the recording of the public IP address as downloading/sharing the movie(s) via BT. The motion clearly states that in naming this defendant (not the John Doe # or IP address), Plaintiff has NOT linked the copyright infringement activity to the Defendant. The Plaintiff has NOT done any real investigative work and instead relieves on the “most likely” option for naming/serving. For this case and many others, the pleadings in the complaint NEVER progress past this. You hit the nail on the head with –

      Indeed the analogy to illegal telephone calls is telling–and it shows why and IP address associated with an illegal download (or illegal upload) should be sufficient to allow private attorneys (replacing law enforcement) to use the court subpoena power to investigate the situation, identify the guilty party, and pursue litigation.

      EXCEPT, for most of these cases, the Plaintiff does NOT investigate after the ISP subscriber information is released. To simply rely on the ISP record as the indicator of who to sue is reckless IMO. It is a starting point only.

      I would not complain about Troll lawyers getting paid if their antics were not taking place. As I have stated before and you do not dispute, there are some shady dealing going on and it all cannot be blamed back on Prenda Law. No I don’t have the answer to fix this problem, but that doesn’t mean I should not speak out against what the Trolls are doing. Just because conducting an investigation is hard and expensive is NO reason to allow these Plaintiffs to run half-ass investigation (if any) prior to naming.

      As far as the criminal cases you mention going to a plea bargain (95%), I will concede that. BUT, you have to admit that even a simple beat-cop is likely to have done more of an investigation than what the Trolls do. All attorney Arsenault is saying is that NO investigation took place that will support the naming of the Defendant in this case. There was no reason to name him. Even if the case had to be dismissed, they could have completed their investigation and identified the offender. They could then refile the case and not be risking that 3 out of 10 cases will name the “Wrong” Defendant. The reason the Trolls fight so hard is simple a “Bottom-Line” financial issue, the more they have to put out, the less money they make.

      DTD 🙂

    • Andrew Tandrew says:

      Another Maurice classic here. Unchecked civil litigation is all that stands between America and corporate totalitarianism, a lawyer’s right to bully the unsophisticated is the very core of our democratic system, and now they’re actually doing us a favor because the alternative would be the FBI taking over as torrent police instead.

      Because federal law enforcement that won’t even look at fraud or counterfeiting if it isn’t $150,000 worth has the resources to go after kids who watched a $7 movie on the wrong website.

    • Guest says:

      So you, unsurprisingly, insist that the likes of John Steele and Evan Stone need to get paid. You’re a Prenda fan, through and through.

      You’re also out of your mind if you think that any of these cases – criminal or civil – are worth the damages your kind frequently demand, penalties into five or six digits.

    • Quiet Lurcker says:

      Maurice —

      I invite your attention to Rule 11(b), of the FRCP, which requires in part that an attorney investigate whether there really is a claim (lawyers please don’t jump on me for getting the paraphrase wrong) before bringing suit. In this case, the plaintiff did not do so – he basically side-stepped a part of his duties as a lawyer as outlined by the court, so he did NOT do his job. Result? Bad lawyer. No cookie for you.

      • Guest says:

        Maurice counts on folks like Prenda bringing in more victims for his meal ticket. I’m not counting on him being ethical to point out when plaintiffs aren’t following the rules.

  2. SJD says:

    tl;dr: SNAFU.

  3. Anon E. Mous says:

    ” Perhaps the answer should be to encourage law enforcement to pursue these illegal download cases against individuals and charge them with criminal copyright infringement. Would you prefer the FBI, police and prosecutors replace the “troll” attorneys”? Maybe in the long run that would be a good thing—perhaps there would be stronger deterrence which would lead to less infringement. ”

    LMAO ….Maurice that’s just too funny. I gather your attempt at scare tactics with the above quote is supposed to frighten the supposed alleged infringers into worrying that there is a possibility of criminal prosecution.

    I would more than welcome Malibu to make an attempt at filing their troll copyright litigation efforts with the FBI or any other law enforcement entity. You know as well as anyone that these Malibu cases wouldn’t even meet the requirements to proceed with a case like Malibu has been filing for copyright infringement in a criminal case.

    I would be of the opinion that any.state or federal AG that had a subordinate bring one of these Malibu cases to them for criminal prosecution would be laughed out of the office if anything. We all know WHY this does not happen and that is because you would have to meet a helluva higher threshold of proof to even proceed to get some poor ISP subscriber charged criminally and a conviction on the evidence Malibu supply in it’s civil cases wouldn’t make the grade.

    Malibu’s evidence that they submit in civil cases would be very thin in deciding to pursue a criminal charge in my opinion. I would more than welcome Malibu to try out sending one of their copyright infringement cases to t a state or federal Agency and push to have someone charged criminally.

    Please attempt this and report your results Maurice. I am sure your chances of success are not going to bode well for the exercise. You also seem to forget you need to prove you case beyond a reasonable doubt. to obtain a criminal conviction and based on evidence submitted in porn torrent litigation by Malibu, I dont see a court being able to convict anyone when there is more than enough to refute the allegations.

    We all know that in a civil lawsuit the threshold is a hell of a lot lower than in a criminal case to obtain a judgement and the evidence required to do so. Nice try though in scaring folks.

  4. Mike Matesky says:

    The motion appears to be pretty bare bones. The defendant probably would have done well to cite the opinions of Judge Lasnik in the Elf-Man and The Thompsons cases in the Western District of Washington, where we were fortunate to get the complaints dismissed for failure to meet the pleading standards set forth in Iqbal.

    • DieTrollDie says:

      Good point. Unless the judge up and make a fast decision, Arsenault should be able to add any additional supporting information.

      DTD 🙂

      • Mike Matesky says:

        Yeah. Just to clarify, it was not my intent to criticize defense counsel. It’s always tough to balance a defendant’s cost considerations, the desire to go whole-hog on every argument, and the limitation on how much working for free any attorney can do and still maintain a viable practice.

      • patentsandmore says:

        The magistrate won’t make up his mind that quickly. John will have time to reply to Kotzker’s response to the motion.

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