How NOT To Run A Single-Doe BT Copyright Infringement Case, 3:15-cv-00866 (OR)

TrollHolio1Here is another example of how a BitTorrent (BT) Copyright Troll can run their cases – POORLY.  This case is 3:15-cv-00866, Cobbler Nevada, LLC, v. John Doe 24.21.136.125, District of Oregon, filed on 20 May 16, by Drew Taylor and Carl D. Crowell, Crowell Law.   Doc1_Complaint_00866(OR)   Doc3_Discovery_00866(OR) Doc8_Motion FRCP45_00866(OR)

The case appears to be the standard single Doe/IP address/ISP subscriber case Crowell Law has been filing for some time.  These single Doe cases appear to be more focused on going after IP address within their jurisdictions that have a longer history of BT activity (1-2+ months) and many “other” (non-Plaintiff) files/content being shared via the BT client. The Trolls appear to be under the impression that because of this, there is a greater chance of settlement – regardless of what the evidence may show.

The only thing that was a bit unusual was the two claims for relief – 1) Copyright Infringement (Direct); 2) Indirect Copyright Infringement. I find this funny that the Troll would try to run both of these claims, it has been tried before multiple times before in BT cases and they generally don’t work out well for the Troll.

The use of the dual claim is simply a “shot-gun” method of trying to cover all targets. The Troll is hoping that if for some reason the Direct Copyright Infringement fails, the Indirect claim will still hold up. When in all likelihood, trying to use both makes it appear that the Plaintiff hasn’t got a real clue on who the true offender is. AND it looks like the court in this case has got the same idea. Stupid Troll.   

This Doe/ISP subscriber did not respond to the Troll (settlement demands), was deposed, and eventually named/served as the Defendant.  At the end of December 2015, the Defendant hired David H. Madden, Mersenne Law LLC, OR, and a Motion to Dismiss Troll/Plaintiff’s second claim for relief (for Indirect Copyright Infringement) was filed.   Doc27_Def_MTD_00866(OR)   On 18 Mar 16, the court issued a  Findings and Recommendations report on this case.   Doc35_FindingsRec_00866(OR)

Essentially the court dismissed the Indirect Copyright Infringement claim WITH PREJUDICE, and dismissed the Direct Copyright Infringement claim WITHOUT PREJUDICE.   Doc39_Order_00866(OR)

Yes, the court said that NOT ONLY is your “Indirect” claim a load of crap – so much that I’m dismissing it so you cannot file it again against this Defendant, BUT I don’t believe you even pled the “Direct” Copyright Infringement claim enough to convince me that the ISP subscriber was the likely offender.

Twombly and Iqbal do not allow Plaintiff to guess at who is liable, and attempt to confirm liability through discovery. “Plausible” does not mean certain, but it does mean “likely,” and Plaintiff has not pled sufficient facts to support its allegation that Gonzales is the likely infringer here. Accordingly, the district judge should dismiss Plaintiff’s claim for copyright infringement. See Omar v. Sea–Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6).”).  {Doc #35, FINDINGS AND RECOMMENDATION}

I will not go into too much of all the pleadings on this (It is well worth reading IMO), but Troll/Plaintiff clearly only targeted the Defendant because his name was on the ISP account and they figure they could either force a settlement, get him to name the offender, or accept a walk-away deal.   Doc38_DefResponse_00866(OR)

PLAINTIFF’S FIRST CAUSE OF ACTION: DIRECT COPYRIGHT INFRINGEMENT

While Defendant GONZALES did not initially challenge Plaintiff’s first cause of action, Plaintiff’s counsel acknowledged at oral argument that it knew a number of other individuals resided at the site of the alleged infringement (Exhibit A, Hearing Transcript, 6:7-15) and that it did not know “whether or not [GONZALES] was for sure the first party direct infringer.” (Id., 6:2-4) Plaintiff had admitted in its initial pleadings that it only knew the defendant by way of a computer address (Complaint, doc. 1, ¶12; Ex Parte Motion to Expedite Discovery, doc. 3, p. 2) and Plaintiff’s counsel was unable to offer a single fact uncovered during early discovery that would make Mr. GONZALES a more likely candidate for the role of direct infringer.  {Doc #38, DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS TO MAGISTRATE’S FINDINGS & RECOMMENDATION}

Troll/Plaintiff was allowed to amend the Complaint for Direct Copyright Infringement no later than 18 July.  On 5 July, Troll Crowell filed his Second Amended Complaint (SAC) against “DOE-24.21.136.125” and NOT against the ISP Subscriber (Previous Defendant).   Doc41_SAC_00866(OR)

I find it exceedingly funny that in this SAC, The “Defendant,” has reverted back to the IP address assigned to ISP subscriber, with a note that there is 2-3 other regular occupants at the residence, to include the previous Defendant.  They also did not mention any of the “Other” files that were being shared by the BT client on this IP address. I guess none of the other shared files could be associated back to the ISP subscriber or the roommates.

I know that Troll/Plaintiff deposed the ISP subscriber/Defendant and it got them nothing. I am unsure if they deposed the 2-3 “other” residents. So they could depose the roommates/occupants, but if that gets them nothing, the case is dead in the water in my opinion.

Some will ask why the Troll amended the complaint and did not simply let die. The view of this court was clearly that unless you can provide some reasonable information to point to why a person is a defendant – beyond a simple guess – then they have NOT reached a level where plausible equals likely.

Now I will say that the last dockets entries are interesting and funny.   Docket_15Jul16_00866(OR)   Three days after Troll/Plaintiff filed the SAC, the court ordered a conference call between all parties to take place on 11 July. The conference call took place, but nothing else is noted by it on the docket (a bit telling). Then on 13 July, the court issued another ORDER.

ORDER TO SHOW CAUSE. The Court ORDERS plaintiff to show cause in writing, within 21 days, why its Second Amended Complaint 41 should not be dismissed for failure to cure the deficiencies identified in the Court’s Order of Dismissal 39 and the Court’s Findings and Recommendation 35 , or for failure to identify the Doe defendant in a timely manner, pursuant to Fed. R. Civ. P. 4(m). Ordered on 7/13/2016 by Magistrate Judge Stacie F. Beckerman. (gw) (Entered: 07/13/2016)

I expect the Troll will now try to dismiss the case instead of trying to justify its actions. I have been wrong before, so we may see more a$$hatery from the Law Firm Clown Firm of Crowell Law (my opinion). It will also be interesting to see if the court allows the Defendant to seek attorney fees and costs from Plaintiff. One of Plaintiff’s claims was dismissed WITH PREJUDICE, so I believe the Defendant has a really good chance.  Well done Attorney David H. Madden.

DieTrollDie 🙂   “If I’m curt with you, it’s because time is a factor here. I think fast, I talk fast, and I need you guys to act fast if you want to get out of this. So, pretty please, with sugar on top, clean the fucking car.”  {Pulp Fiction, Winston Wolf}

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 How NOT To Run A Single-Doe BT Copyright Infringement Case, 3:15-cv-00866 (OR)

  1. Pingback: Two breathtaking first-time precedents demonstrate that copyright troll lawsuits cannot withstand meaningful judicial scrutiny | Fight © Trolls

  2. Raul says:

    On 7/19 Crowell/Cobbler Nevada dropped its legally meritless lawsuit and Doe’s attorney moved for attorneys fees and costs the same day. https://t.co/A24mq92s8G Stay tuned!

  3. Pingback: Criminal Contempt? (John Steele/Prenda Law) & Cobbler NV Cuts & Runs | DieTrollDie

  4. Pingback: OR Court – BT Copyright Troll Tactics Overly Aggressive – Awards Defendant $17K In Fees (3:15-cv-00866) | DieTrollDie

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