Troll Hierl (Dallas Buyers Club LLC) Claims DC Appeals Court Was Wrong In AF Holdings Ruling (1:14-cv-02162)

In an ongoing Copyright Troll case (1:14-cv-02162) in ILND, Troll Michael Hierl tells the court that the Electronic Frontier Foundation’s (EFF) “Blackjack” analogy that the DC Court of Appeals adopted in AF Holdings case (1:12-cv-00048 / 12-7135) was wrong.   Docket_15Aug14_02162(IL)   On 23 Jun 14, Troll/Plaintiff filed it’s memorandum on joinder and responded to Doe #17’s motion to quash.   Troll Response_02162(IL)   Troll Response_EXs_02162(IL)   It was refreshing to see an ILND court actually considering a motion to quash from a Pro Se Doe.   MTQ_Doe17_02162(IL)

Note: the court did inform Doe #17, that prior to accepting the motion, she would need to take part in a hearing scheduled for 9 Jun 14.  Doe #17 took part in the hearing via telephone and the judge accepted the motion.   During the hearing judge Gary Feinerman also raised the issue of the recent Appeals court ruling (AF Holdings, LLC v. Does 1-1058, — F.3d —-, 2014 WL 2178839 (D.C.Cir. 2014)), as well as how it may affect Doe #17’s Motion.

On 23 Jun 14, Doe #17 filed the following letter with the court.  In it, she informs the court she is 52 years old, denies downloading/sharing Dallas Buyers Club, and doesn’t know how this could have happened.  She states that for approx. 5 months they had continuing Internet issues/problems.  Once the problems were fixed, the WiFi Internet password was freely given to multiple friends and guests to use when visiting the residence.   Doc_29_Doe17_Ltter_02162(IL)

Subsequently the judge gave Doe #17 until 29 Aug 14, to make a reply to Troll/Plaintiff’s response, as well as setting status hearing for 11 Sep 14.   Doc_30_MinOrder_02162(IL)

Of course Troll Hierl does not care as to actually download/shared the movie, as that would mean doing a real investigation.  What is really interesting is I’ve been informed that during the hearing, the judge repeatedly asked Troll Hierl if he was going to dismiss Doe #17 based on what he was hearing.  Troll Hierl decided to ignore the request/suggestion from the court – probably not the smartest thing.

Troll Response To Doe #17’s Motion

In its response, Troll/Plaintiff claims that

  1. The AF Holdings decision is not controlling upon the court.
  2. There are material errors in the legal analysis in AF Holdings.
  3. Additional technical arguments relating to how BitTorrent works support joinder.
  4. The AF Holdings ruling was intended to punish and corral an out-of-control litigant, and its should not be extended to Plaintiffs who follow the rules.  {This is the one I nearly choked on when I first read it.}
  5. Defendant’s remaining arguments do not merit quashing the subpoena.

I hope this judge gets wind of Daniel Macek, Crystal Bay Corporation (CBC), and the apparent fraud associated with the bogus “Shelf-Company.”  I hope Doe #17 files some sort of a reply, as the judge is clearly open to the possibility of quashing the subpoena and severing the Does.  For now I will talk about the ridiculous claim that the AF Holdings decision was flawed.

Blackjack Analogy – A Refresher (Quote from the DC Appeals Court Decision)

But AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time. Instead, it has simply set forth snapshots of a precise moment in which each of these 1,058 Does allegedly shared the copyrighted work snapshots that span a period of nearly five months. Two individuals who downloaded the same file five months apart are exceedingly unlikely to have had any interaction with one another whatsoever. Their only relationship is that they used the same protocol to access the same work. To paraphrase an analogy offered by amicus counsel at oral argument, two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times. They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions. And “[s]imply committing the same type of violation in the same way does not link defendants together for the purposes of joinder.” {My Emphsis}

In his response, Troll Hierl states that members of a BT swarm are more akin to a cooperating group of “card-counters” working together to gain an advantage against the Blackjack dealer.  He claims that joinder of ALL 36 Does in this case is proper because like the cooperation of the card-counters, the Does all took part downloading/sharing the same movie (torrent/SHA-1 hash file).  Where did Troll Hierl get this idea???  From our friendly German players – Daniel Macek.  If you remember, Daniel Macek is responsible for providing early discovery declarations to the Anti-Piracy Management Company (APMC) and the local Troll counsels.   Daniel_Macek_Cardcounting_EX4_02162(IL)

What the Troll doesn’t tell the court is that even with this pretty “card-counting” analogy add-on and explanation of the “Distributed Hash Table” and “Peer Exchange,” there is still NO evidence to show that ANY of these 36 Does shared ANY part of the movie with EACH OTHER.  Where is the “Cooperation” that makes the card-counting analogy work???  If there is direct evidence showing cooperation, please disclose it – not a simplistic claim based on the protocol.  The problem the Troll has is that they have NO records to back this up – Period – their system does not and cannot record this information.

BT Discussion

The Troll BT clients appear to other swarm BT clients a new swarm member (a leecher with no data to share).  It then makes its request for data from a swarm member (seeder or leecher).  When the Troll BT client get a small piece of data from a swarm member, it records the public IP address, date/time, as well as packet capture (PCAP) data showing how it got the data.  Their system may record all the data they obtained from various “individual” swarm members, but they have NO insight into which BT clients shared data between themselves.  They would need to actually be inside the individual systems to see and record who shares with whom.  The only basis for their claims of proper joinder is the SHA-1 hash file.

Consider This Scenario

A Troll files a case in the ILND against 25 public IP addresses that resolve back to this district.  The time frame of the alleged infringement is 30 days.  At the beginning of the monitoring period, only 5 of the 25 ILND swarm members are seeders and not sharing data between other seeders (they already have a full copy of the data).  So we can accurately state that no data exchange would have occurred between the seeders – only seeders to leechers AND leechers to leechers.  BUT, the Trolls do NOT show anything like this.  WHY???  Because their system ONLY records the data they obtain from “individual” BT clients/IP addresses.   They claim that since the hash files match and the jurisdiction is correct, joinder is appropriate.  What the Troll actually has is 25 “individual” records that their BT client received a small amount of data from the 25 BT clients on a date/time.  Possibly sufficient to file 25 single Doe cases, but nothing to support joinder.

BT Monitoring By The Trolls

The Trolls monitor for infringing torrent files belonging to their clients.  As the BT protocol is used world-wide, the IP locations are all around the world.  Now the Trolls may record ALL the data world-wide for a particular torrent/hash file, but I suspect for economy sake, they limit their actual recording to IP addresses in jurisdictions they file suit in.  Note: You may notice that we don’t currently have Malibu Media/X-Art or Voltage Pictures copyright infringement law suits in California.  That isn’t because no one in CA uses BT to infringe upon these Plaintiffs.  It is only because the Trolls choose not to ply their business model in an environment that doesn’t trust them and will raise uncomfortable question. Here is a quote from the APMC presentation dealing with the declarations Daniel Macek is responsible for providing to local counsels.

– paragraph 1 is a serious declaration that’s stating everything is true & accurate.
– paragraph 2 in regards to software consultant (i.e., he can talk about software issues), & we’re hoping the judge won’t question his qualifications too much. {My Emphasis}

My point with mentioning Troll BT “filtering” is it actually removes the BT clients that were probably more likely to have shared data among the swarm members in these cases.

Troll Actions Show Why Joinder Is Improper

IID1 - CopyWhen the Trolls filter their BT monitoring results to fit a specific hash file, jurisdiction, and time period, they are actually hurting themselves.  Why so???  Isn’t it proper to only file suits against the IP addresses in the proper jurisdiction???  It is proper to file cases in the right jurisdiction and have a single hash file, but by “filtering” the IP addresses they significantly reduce the probability that these swarm members actually shared data among themselves.

Going back to the previous scenario swarm of 25 BT clients filtered down to the ILND jurisdiction.  If we were able to remove the Troll filter, we may find out that for the same 30 day time-frame, there were actually 500 other “World-Wide” BT swarm members for this hash file.  That means that the ILND IP addresses only made up 5% of the world wide swarm (single hash file) for that time period.  NOTE: Swarm participant numbers can and do vary, but the likelihood that a majority came from ILND (or any single district) is ridiculous.  That means it is much more probable that a leeching member of this BT swarm got its data from a swarm member residing outside of the ILND jurisdiction – approx. 95% likelihood.  Percentages vary, but not in favor of the Troll.

Adding to the unlikely chance that two IP address in the same jurisdiction actually shared is the uncertain nature of BT client member’s connection to the swarm and the Internet in general.  How many swarm members disconnected from BT or simply turned off their computers for various lengths of time – hours, days, weeks???  This also does not take into account that fact that people who run BT are known to stop sharing some content.  I.e. a BT user downloads a file and decides he doesn’t like it, so he deletes the torrent file and data file.  He is no longer sharing it with anyone else.

So the Troll card-counting “cooperation” theory is weak and inaccurate at best.  BT users come and go from swarms all the time, just like at the Blackjack analogy shows. There is NO Troll records to show ANY individual BT swarm members shared files among themselves.  Note: I know that sharing among BT members does occur – it is the nature of the BT protocol.  But it is ridiculous to allow the Trolls to make these claims of joinder simply for the economy of their abusive business model.  The Trolls do not “follow the rules,” they simply play them to their advantage and totally avoid the “spirit” of the law – to the courts and the Does detriment.

DieTrollDie    “The Defendants have liable Plaintiff under the disguise of such childish and unsophisticated pseudonyms as ‘die troll die.’”  – a statement like that could cost you $11K!

CTBC_parody1

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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3 Responses to Troll Hierl (Dallas Buyers Club LLC) Claims DC Appeals Court Was Wrong In AF Holdings Ruling (1:14-cv-02162)

  1. TrollHaterEsquire says:

    Regarding extortion co-conspirator Macek’s declaration bullet point 5: despite BT sharing technology being “turned on by default” at install, as Macek states in his only-half-truth way in the declaration, BT software allows the user to turn-off the sharing capability altogether, some even turned off during the downloading process from others. The user in effect becomes a ‘leech’ only, and is not sharing anything. This defeats the potential promise of BT for others (sorry), but also weakens or lessens the potential for liability and extortionate demands for a BT user.

    BT programs allow this ‘off’ switch regarding sharing to be flipped to “off” at a minimum of when a download is finished, and it can certainly be ‘off’ for any and all other files on the users computer that may have come from BT in the past. This means that any BT user can be shown to not be sharing anything, with anyone, at anytime. It certainly would help defeat any trolls’ bullshit joinder theory or pleading, such as in this case, that is based on anything other than two users being on-line at EXACTLY the same time.

    It may also assist in weakening any troll file-sharing argument overall if it can be shown, or at least pleaded, that despite have BT software loaded on a computer the user/defendants BT program ‘sharing’ setting is ‘off’ and that the user/defendant could not have been sharing or broadcasting anything to the trolls entrapment IP-recording extortion-scheme co-conspirator.

  2. Jane Doe says:

    A judge sitting on the US Federal Court should not be accepting a lawyers statements as fact or evidence. There certainly are nuances of how BT and various clients work and how they can be configured by end user. Also firewalls can be configured to block uploading. The trolls have submitted declarations from their investigators. However they never provide any information that qualify them as experts in any field. So this declaration are largely meaningless. The judge at the same time is to accept the claim as mostly true. Seeing how know of these every go to trail, one would think the judges would realized they have little to no evidence.

    Most BT users would not be sharing much because most ISP throttle back baud rate for uploads. For example, I can download at 25GB/s while upload is limited to 3GB/s. A user can also close the client as soon as download is complete and move download file so that it cannot be used by the client in the future.

    As the German spies only capture milliseconds of digital exchange they really don’t know if anything that is perceptible to the human eye was downloaded. A user could mistakenly start a download, realize they made a mistake and terminate the download.

    A more significant factor about joinder is that each defendant’s situation and defense is unique and would make a trial impossible. Costs would be astronomical and management impossible.

  3. Pingback: Dallas Buyers Club, LLC, Versus The Gaslight Coffee Roasters – 1:14-cv-04010 (NDIL) | DieTrollDie

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