Defendant Butler Answers Malibu Media LLC, 1:13-cv-02707 (CO)

Time for an update on a Colorado Malibu Media LLC case with the potential to become interesting.  The case is Malibu Media LLC v. John Butler, 1:13-cv-02707.  Previous article on this case.

Since may last article, we had the following activity.

They are all worth a read, but I wanted to draw everyone’s attention to Defendant Butler’s Answer.  I have even added this document to my “Defendant Answers” page, as it is straight forward and clear in the denial, as well as using some new “Affirmative Defenses.”

AFDef1

Right now we have another CO cases that is testing out the “Failure to State a Claim” issue – Motion To Dismiss Copyright Troll Malibu Media Case – AKA: “Necessary Volition” – 1:14-cv-00262 (CO)

I like the “Assumption of Risk” defense, but I doubt Judge Hegarty will buy it.

The “Estoppel” and “Copyright Misuse” defenses are good, but I think they will need additional support to be effective.  Such information may become available as the judge in the Elf-Man LLV v. Lambersen case (2:13-cv-00395, WA) addresses the sanctions issue -the German BitTorrent monitoring firm/investigators (IPP/Guardaley/Excipio) and the Anti Piracy Monitoring Company, LLC (APMC).  As well as what eventually comes out of the MD Malibu Media cases that attorney Morgan Pietz is working.

The “Intervening Cause” defense is another good, especially if the WiFi Internet connection was run “Open,” or there were network guests who did this without the knowledge or consent of Defendant Butler.

So now the ball is in Troll Lipscomb/Kotzker’s court.  The best they can hope for is that a background investigation and deposition comes back with some information they can use to force a settlement.  Following this, computer forensics would be needed.  It would be really nice if the CO courts would take a similar forensics analysis stance as in Malibu Media v Gerald Shekoski (MIED 13-cv-12217).  If nothing is found, Troll/Plaintiff is not sitting pretty.  Attorney Richard Hanes could then motion the court for a summary judgement or get Troll/Plaintiff to agree to dismiss Mr. Butler WITH prejudice.  More to come on this case.

DieTrollDie 🙂    “You know how you get to Carnegie Hall, don’t ya? Practice.  {Lt. Aldo Raine – Inglourious Bastards}

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 Defendant Butler Answers Malibu Media LLC, 1:13-cv-02707 (CO)

  1. Jane Doe says:

    It is amazing that Judge Michael E. Hegarty hasn’t caught onto his being played as a fool. The Plaintiff will never go to trial with their vanishing German investigators that work at rent-a-mail box addresses. How many hundreds of thousands of cases need to be filed in federal court until these Judges wake up to this.

    • Quiet Lurcker says:

      I THINK not taking into consideration the defendant’s pleadings, and not closely reading the complaint would be described as manifest errors and grounds not just for appeal but for reversal. If someone is smart, they’ll file an appeal as soon as possible, while still obeying the rules of civil procedure. Now, if there is an appeal and if the appellate court doesn’t decide to punt the matter, the lower court will find out quite soon, thank you all the same.

  2. Rumplestien says:

    It would be interesting to know how many times Malibu Media cut and ran away prior to discovery in cases before Judge Hegarty. Justice requires more than the rubberstamp brigade that pretend to be justices. .

  3. Anon E. Mous says:

    IMHO the problem is that some courts are so overburdened that Judges don’t have the time to look at a lot of cases details, Malibu/X-art cases are all filler and thin on evidence we all know this and of course defense counsel know this and yes even some Judges are seeing this.

    The problem is the Trolls know the courts are overburdened and are playing that fact to their adavantage, and that a lot of Judges aren’t very technical savvy when it comes to to knowing how bit torrent works and all the associated terminology with Wi-Fi and IP addresses.

    Lipscomb and local Troll’s know this which is why they like to file 27 pages of technical gobbledygook.to make it appear that there was some big technical investigation with special software and all these trained investigators and how they under took this investigation for months on end painstakingly tracking these alleged infringers.

    We all know there is a lot of hooey in their filings, the problem is the Judges aren’t catching on to it yet. While some Judges have picked up on it, most have not. These type of lawsuits are ripe for abuse in the courts due to their low filing costs for the Plaintiff and high cost to defend. The trolls know it and play that angle to the hilt.

    It also does not help when the Judges are rubber stamping extension after extension after extension for the trolls to drag out the threat of a lawsuit unless you settle with us letters and phone calls. It only encourages them to try and grab as much cash as they can before they tuck tail and run. If court gave them a drop dead date and stuck to it, it would make these less profitable for the trolls as well.

    If these lawsuits cost 2.5 k or 5k for each filing, do you think the trolls would file these to the extent they have been with single IP addresses ? I doubt it. They would have to really increase their settlement offer andthe would be harmful to their game, people would be more adapt to hire a lawyer to defend themselves against the infringement allegation and the trolls would risk the chances they could come out with no settlement or one that may be just above the filing costs.

    The courts know these are abusive but, until they set their foot down and stop the nonsense this has become and stop encouraging these troll suits, the epidemic will continue.

    While we are seeing trouble on some of the troll cases in various states, the troll filings continue and the dash is on to grab the settlement cash now while the getting is good. There is a very good chance some of the trolls troubled fronts could bring trouble in the days and weeks ahead. The trolls know this as well which is why we are seeing the filings come fast and furious.

    Just remember it didn’t take much for Judges in the various Prenda cases around the U.S. to start looking at Judge Wright’s order and looking at their cases and going Hmmm…

    We all have seen the Malibu/x-Art/Lipscomb recent Judgments in some of the various cases that were in the tens of thousands ranges, but remember these were default Judgements mainly ( never mind the 57 movies guy, that guy was a moron… mind you I disagree with the fee award, but not with his guilt ) As for the other Judgments that the trolls love to point out as sucessful to other courts as how they are so on point and successful in proving their case..Please..Gag me with a spoon already!

    Pretty easy to say what a rousing success it is when the defendants didn’t acknowledge or participate in the case and the Judge awarded whatever number the plaintiff threw the courts way that fell in scope of the act. If that is their vision of success, then it’s no wonder they try to cut out of cases when counsel for the defendants put up evidence and a fight. It a different beast to go up against someone who fights back.

    Fortunately we are starting to see this, and in my opinion it’s about damn time. It should be telling to see what and how the trolls are going to be effected in the litigation strategy with these cases hanging over them. Ought to be interesting for all of us who have been watching these closely

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