8th Circuit Court Of Appeals To Hear BT Copyright Troll Case (Killer Joe NV – IA), 14-3274

Copyright Troll School

Copyright Troll School

Here is an interesting BitTorrent (BT) Copyright Troll case that made it up the 8th Circuit Court of Appeals, St. Louis, MO. The original case (Killer Joe Nevada, LLC. v. Does 1 – 20 (Case 5:13-cv-04036-MWB) was filed in Northern District of IA, on 26 Apr 13, against 20 John Does (ISP subscribers). Please read the case summary and background in the appeals documents.   Appeal_Brief_Leaverton_(14-3274_8th)

Essentially, Copyright Troll Jay Hamilton/Plaintiff filed one of its template based case against 20 IA John Does and eventually named five as non-settling Defendants.  Two of the Defendants (Leaverton and Bolan) denied downloading/sharing the movie (Killer Joe Nevada) or knowing who did it.  Note: Bolan did tell the Troll it was likely her boyfriend and NOT her.  Leaverton is a mother of three who makes $13 an hours and Bolan is a single mother who receives child support. 

Eventually Leaverton and Bolan were able to hire Attorney Ray Johnson, Johnson Law Firm, West De Moines, IA, for a reduced retainer of only $300 (for both!).  Thank you Mr. Johnson!  On 4 Apr 14, Defendant Leaverton filed an answer denying the claims and requesting a declaratory judgment that she had not infringed Plaintiff’s work.  Note: Bolan’s also answered the complaint, but at that time she was in “default” status.  

On 22 May 14, Attorney Johnson sent Troll/Plaintiff interrogatories, as well as requests for admissions and productions.  As could be expected, Troll/Plaintiff did not respond to this and soon after motioned the court to dismiss Defendant Leaverton WITH prejudice.  The court granted this motion, but then did something ridiculous in my opinion.  Even with being the “Prevailing” party, the court denied Leaverton’s declaratory judgment counterclaim and denied her request for attorney fees.  The court did not feel Troll/Plaintiff did anything wrong in NAMING HER in the amended complaint (as a defendant) SOLELY based on the fact that she was the ISP subscriber (ISP bill was in her name).  The court also felt that since the Troll/Plaintiff dismissed the case “at the pleading stage,” the harm to her was “minimal.”  Defendant Leaverton motioned the court to amend the findings and conclusions, provide proof, and to file a record of the fees she incurred to defend herself. The court also denied these requests.  Following the dismissal of the last of the 20 defendants, Attorney Johnson filed the appeal.

The appeal is based on the fact that Troll/Plaintiff named her as a Defendant with no other information than she was the ISP subscriber.  Naming a person on that basis is reckless and simply designed to scare the ISP subscriber into paying some sort of settlement.  Also at issue was the District court did not apply the standard ruling on a fee award and implement requirement to determine fees. As the “Prevailing Party,” the court should have allowed Leaverton to submit a record of her fees to the court.

Leaverton’s Appeal Makes The Following Arguments

  • The District court erred by failing to allow Leaverton to make a record of her attorney fees
  • The plausibility that the ISP subscriber is the offender is unsupported by the record and using that as a basis for non-award of fees is in an abuse of discretion
  • The District court erred when it determined it is not relevant for fee award that a Plaintiff was unable to prove the ISP subscriber was the offender
  • The DMCA allows a Plaintiff to obtain ISP subscriber information (via subpoena), BUT it does not authorize a Plaintiff to then allege (name/amend the complaint) the ISP subscriber was the offender without some factual basis/evidence
  • The District court abused its discretion by failing to consider or give weight to relevant factors AND that irrelevant/improper factors were given significant weight by the District court
  • The district court erred when refused to award fees based on the fact that Leaverton answered the complaint prior to contacting Plaintiff’s attorney
  • The court abused its discretion when it found that fees would not be awarded based on the fact that the dismissal was filed at the pleading stage OR promptly after Leaverton filed her answer

The addendum to the Leaverton Appeal Brief is pending, as there needs to be some corrections made. Once I have it, I will post.  Addendum_Note_(14-3274_8th)

This appeal goes to the heart of the matter that WITHOUT a REAL investigation, a Troll/Plaintiff who names/serves an ISP subscriber is in violation of FRCP 11.  Attorney Johnson makes it clear the appeal has nothing to do with Troll/Plaintiff getting a subpoena for Leaverton’s personal information, but on naming her specifically as a defendant with no reasonable evidence to support such an action.

The BT Copyright Trolling apparatus we all know does NOT base their naming/serving decisions on a “factual contention” or evidence.  I believe they decide who to name and serve defendants based on the likelihood that such action will drive the defendant to the settlement table.

Here is what Troll/Plaintiffs often claims is their “evidence” – Most of which is ONLY developed after a Defendant fails to come to the settlement table and is then named/served.

  • They (their agents) recorded the public IP address (tied back to the ISP subscriber) as using BT to download/share Plaintiff’s content.
  • A search of various open source resources and paid databases (Lexus/Nexus, etc.) indicate that a male in the age range of 14-65, at some time resided at the residence.
  • A check of Facebook or other open source/social media Web sites indicates the defendant “likes” a particular topic, hobby, or interest that is somehow tied back to the other “non-Plaintiff” owned content that was allegedly being shared via BT over the Defendant’s IP address (AKA: Malibu Media’s Exhibit C OR Extended Surveillance).

The fact that Troll/Plaintiff was so quick to dismiss Leaverton indicates that “their” evidence OR factual contentions were severally lacking at best. It also indicates that Troll/Plaintiff does not want to really litigate these matters – their idea of litigation is to generate settlements or cut and run.

It is seriously sad that the only way these two women were able to adequately proclaim their innocence in the court was because their attorney decided to do it for a $300 retainer!  Attorney Johnson knew Troll/Plaintiff was not going to dismiss an obviously innocent defendant unless forced to.  He was right and IMO the District court erred by not awarding fees/costs IAW the Copyright Act/Title 17 § 505.

MoneyClip1I have to really wonder how clueless some judges must be as far as what it costs to adequately defend oneself in a civil BT Copyright Infringement case. Troll/Plaintiff was willing to take $500 (half of her bank account) from an innocent single mother (Bolan) supporting her children even when their was NO proof she was the offender (And she even told the Troll who possibly did it!) – classy, very classy.  I guess some courts believe no frivolous cases would ever be filed in their court by ethically challenged attorneys – time to get a clue.

Hopefully the appeals court will be more reasonable and understanding of the issues. I also hope that some other players are able to come forward and add some weight to the arguments presented by attorney Johnson.  Keep an eye of this one, as it builds on the DC appeals court ruling that kicked Prenda Law in their junk.  You will also see that Mr. Johnson brings a new view to taking on the Copyright Trolls.  Bravo Mr. Johnson.  

DieTrollDie 🙂    All right, but apart from the sanitation, medicine, education, wine, public order, irrigation, roads, the fresh water system and public health, what have the Romans ever done for us?”  {Reg – Monty Python’s Life Of Brain}

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 8th Circuit Court Of Appeals To Hear BT Copyright Troll Case (Killer Joe NV – IA), 14-3274

  1. John says:

    How could rule 68 work in these cases without admitting guilt? Or is it not applicable at all?

    http://www.law.cornell.edu/rules/frcp/rule_68

  2. Pingback: Where is Waldo (Darren M. Griffin/CBC/APMC)? – 8th Circuit Court Of Appeals, 14-3274 (Killer Joe NV) | DieTrollDie

  3. Pingback: Pending 8th Circuit Court of Appeal Oral Argument in BT Copyright Troll Case (Killer Joe NV v. Leaverton, 14-3274) | DieTrollDie

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