DieTrollDie Podcast (2016-02) – BT Copyright Troll Depositions

BuddyC_Lawsuit1Welcome to another DieTrollDie podcast. On this podcast, I’m going to talk about BitTorrent Copyright Troll Depositions and what to expect.  This is a follow-on to my previous podcast where I talked about Troll David Lowe had asked the WA court to allow him to depose unresponsive ISP subscribers. The court has not come back with a decision (as of 14 Jan 16).

Bottom line: A deposition is a serious matter and I would not recommend going into one unprepared – even if innocent. The Troll attorney is not your friend, he works for the Plaintiff (copyright owner), and they both want settlements to be paid.

For this discussion, I decided to use a real BT Copyright Troll case from California as an example. The case is Dallas Buyers Club v. Doe (IP address 72.199.251.97), 3:15-cv-02033, Southern District of CA, filled on 11 Sep 15.  The Troll attorney is James Stephen Davis, Chula Vista, CA.

The ISP subscriber replied to the Troll’s letter and told him he didn’t have a computer and didn’t do this. The ISP subscriber told the Troll that his roommate was the one with a computer, but the ISP account was in his name. The ISP subscriber refused to give the Troll the name of the roommate and the Troll eventually motioned the court to depose both parties.  The court denied the request for FRCP 45 subpoena/deposition and told the Troll he could still name the ISP subscriber and move ahead with Discovery.  The Troll amended the complaint with the name of the ISP subscriber and the court issued the summons. The ISP subscriber/Defendant now has to answer the complaint.

Case Documents:

Docket_14Jan16_02033(CA)   Doc_3_02033(CA) Doc_3-1_02033(CA) Doc_8_02033(CA) Doc_8-1_02033(CA) Doc_8-3_02033(CA) Doc_8-2_02033(CA) Doc_8-5_02033(CA) Doc_8-4_02033(CA) Doc_8-6_02033(CA) Doc_8-7_02033(CA) Doc_9_02033(CA)

AmendedComplaint_02033(CA)   Summons_Issued_02033(CA)

Here are some links to information on depositions. It doesn’t replace advice from an attorney specific to your case.

21 Things To Tell A Client About A Discovery Deposition

Refusing To Testify In Civil Depositions Based On The Fifth Amendment

Fifth Amendment Right Against Self Incrimination

Surviving A Deposition

Fightcopyrighttrolls Post – Concerned about the copyright trolling situation in the state, Oregon chief judge wants to restrict trolls’ free reign

Cheers!

DieTrollDie🙂  Bartleby: You know, here’s what I don’t get about you. You know for a fact that there is a God. You’ve been in His presence. He’s spoken to you personally. Yet I just heard you claim to be an atheist.   Loki: I just like to fuck with the clergy, man. I just love it, I love to keep those guys on their toes.”  {Dogma, 1999}

 

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DieTrollDie Podcast (2016-1) – Troll David Lowe – “Voluntary Or ELSE!”

CobblerNV_VolORelse1*** 26 Jan 16 Update ***

Today Judge Zilly told Troll Lowe that he was not going to grant the request to depose ISP subscribers prior to official Discovery (FRCP 26(f)).  No_Depo_Doc_16_01406(WA)

Plaintiff’s motion for leave to extend time for service and to conduct early discovery, docket no. 14, is DENIED. As a general matter, a party may not seek discovery before the Rule 26(f) conference has taken place. Fed. R. Civ. P. 26(d)(1). Plaintiff seeks the Court’s authorization to conduct depositions, prior to the Rule 26(f) conference, of the persons associated with the IP addresses that allegedly infringed plaintiff’s copyright. The Court “has wide discretion in controlling discovery.” Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 862 (9th Cir. 2014) (internal quotation marks omitted). While deposing the IP address holders may help to identify the true infringer in some circumstances, the Court concludes that there is significant potential prejudice to the responding parties. “Expedited discovery may be inappropriate where defendants are required to unwarily incriminate themselves before they have a chance to review the facts of the case and to retain counsel.” Pod-Ners, LLC v. N. Feed & Bean of Lucerne Ltd. Liab. Co., 204 F.R.D. 675, 676 (D. Colo. 2002) (internal quotations omitted). Plaintiff has the names of the holders of each IP address that allegedly infringed its film, and can proceed by naming those parties as defendants and conducting discovery in the normal course prescribed by the Federal Rules. See, e.g., Hard Drive Prods., Inc. v. Doe, 2012 WL 90412, *2-3 (E.D. Cal. Jan. 11, 2012) (denying request to depose identified IP address holders). To the extent subsequent case developments show that the IP holders are not the infringing parties, plaintiff may seek to amend the Complaint as necessary.

The news is good, but it still leaves Troll Lowe with the option of naming the ISP subscriber as a Defendant and moving ahead with Discovery. Not something he or Plaintiff likely wants, but they may start to do this on a limited basis.  We will see.

————————————————————————

Hello 2016!!!  I hope the new year is going well for you and your family.  For my first podcast of 2016, I was going to talk about US Copyright Law, how it relates to these BitTorrent copyright infringement law suits, and what parts I think are broken.  I got approximately half way done and I came across a couple of document recently filed in a Cobbler Nevada LLC case in the Western District of Washington.  I will come back to the Copyright Law podcast at a later date.  I felt this case required my immediate attention.

Case 2:15-cv-01406, Cobbler Nevada LLC v. Does 1-11, filed on 2 Sep 15.   Docket_8Jan16_01406(WA)

Please take a listen to the podcast and review the documents. I think it is pretty telling that “Voluntarily” talking with the Troll is not a good idea.

Take a look at the last section of Lowe’s declaration.  It has two references to Web pages on DieTrollDie.com and Fightcopyrighttrolls.com  – they are both old (2011 & 2012) postings.  I guess Troll Lowe is trying to say we are part of some Internet Hate Groups and making his life harder.  SJD had a great response to such Troll actions, “Douchebag.” 😉

Daniel Macek (Anti Piracy Management Company) get special mention in Troll Lowe’s Motion (Page 5). He calls him a Forensic Expert, while the APMC prefers that the courts do not ever see his qualifications.  DTD Article on Macek

Troll Lowe forgets to Tell Judge Zilly.  On page 7 of the Motion, Troll Lowe “preemptively” submits that joinder of the Doe Defendants is proper in such cases. He goes on to list a groups of case that support his assertion.  One of thees cases is Cobbler Nevada v. Does 1-38, out of the Northern District of IL.  WHAT he forget to tell the court is that on 17 Dec 15, the ILND actually reaffirmed that joinder of Does in these cases has to based on REAL evidence and not simplistic claims with NO evidence. All the Does except for #1 were dismissed.  DTD Article1   DTD Article2

Docket_8Jan16_09851(IL)   Min_Entry_Joinder_Doc7_09851(IL)   DoesDismissed_NoJoinder_09851(IL)

Please give me your feedback and send me any questions you may have. Make comments or send me an email – dietrolldie@dietrolldie.com

Late additionA Guide On Defending Depositions from the Philly Law Blog (Jordan Rushie)

Cheers!

DieTrollDie :)  {Jack Sparrow}What? You’ve seen it all, done it all. Survived. That’s the trick isn’t it? To survive?{Captain Teague} It’s not just about living forever, Jackie. The trick is still living with yourself forever.”  {Pirates of the Caribbean: At World’s End}

APMC_D_Macek1

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DieTrollDie Podcast (2015-1) – BMG Rights Management v. Cox Communications

I decided to try a little something different from my normal.  I’m hoping that a podcast will offset my writing and still be of some value to the good people out there.  Please bear with me as this is an ongoing project.  I look forward to some feedback on the podcast, as well as any suggested topics or cases you would like to hear about.  Please send me your suggestions – comment below or send to Dietrolldie@dietrolldie.com.

The first topic will cover the recent court verdict that Cox Communication was liable for the copyright infringement of 1398 songs by its subscribers.  The decision only came about because the judge found that Cox lost its DMCA Safe Harbor protections because it failed to failed to implement a repeat-infringer policy.

Here are couple links to what other sites are saying about this decision.  Arstechnica   Torrentfreak   Philly Law Blog   (Yes I know, Jordan Rushie – but I got a good chuckle when he likened the copyright infringement claims in this case to drugs and prostitution)

DieTrollDie🙂   “We’re so glad to see so many of you lovely people here tonight. And we would especially like to welcome all the representatives of Illinois’s law enforcement community that have chosen to join us here in the Palace Hotel Ballroom at this time. We certainly hope you all enjoy the show. And remember, people, that no matter who you are and what you do to live, thrive and survive, there’re still some things that makes us all the same. You. Me. Them. Everybody. Everybody. ”  {Elwood, The Blues Brothers (1980)}

DTD_BlueBrosLP1

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Happy Holiday Wishes From DieTrollDie – Multi-Topic Post

As we get closer to the end of 2015, I want to wish everyone a great end of year and ask that you spend some extra time sharing your love with family, friends, and those you might not otherwise socialize with. It will do your heart and soul good, as well as possibly lifting someone up from their despair. My life has taken an abrupt change on a personal side and some in my professional. I haven’t had the opportunity to do as much writing here, but I will continue as best I can for the time being. Don’t forget to follow me on Twitter (https://twitter.com/DieTrollDie) Saying this, I would like to talk about the general state of BT Copyright Trolling, as well as highlight some interesting stories, cases, and documents.

Elf_Shelf_Box1

State Of The BT Copyright Troll

In very general terms we have three types BT Copyright Trolls in the US

  1. Bottom Feeders
  2. Mass-Doe Cases
  3. Single-Doe cases. Note: some of the Trolls/Plaintiffs (Voltage Pictures, etc.) generally file Mass-Doe cases, with some single Doe cases in select jurisdictions.

Bottom Feeder Trolls (CEG-TEK & Rightscorp)

Late Addition – See the last part of this post (“BMG Rights Management awarded $25 Million v. Cox”) – The bottom feeder Trolls are CEG-TEK and Rightscorp. These Trolls monitor BT network activity and record IP addresses sharing content owned by their clients. They then send bastardized Digital Millennia Copyright Act (DMCA) notices to the ISPs that own the IP addresses they recorded. With these notices they try to get the ISP subscriber to respond and pay a settlement. CEG-TEK has been seeking $300 per infringement and Rightscorp seeks $20. For the most part, the copyright owners who employ these bottom feeders do not want the financial risks and negative publicity that filing a “real” copyright infringement law suit entails. My suggestion for dealing with this is to:

  1. Stop the BT activity that is occurring on your network
  2. Do not call or otherwise respond to the Troll
  3. Contact your ISP and tell them you have taken steps to ensure this doesn’t happen again (No details on how it occurred).
  4. Move on with your life.

Mass-Doe Cases

These are the mainstay of the BT Copyright Troll business model. It is the most efficient way for them to make money. It only costs $400 to file a Federal copyright infringement case based off of a template – simply add IP addresses and dates/times of infringement. File a case with 26 Does/IP addresses and they have a really good chance of making a profit. If only 50% of the Does pay a settlement of $4K, they take in $52K. Most courts don’t like to see cases with 100 plus Does in them, so the numbers will not likely go up per case. For a vast majority of these Mass-Doe cases, the Troll has no intention of taking anyone who fights back to trial. There will be case-by-case exceptions to this, but the overwhelming history shows that the Trolls will milk each case for as long as a court allows it. I have seen multiple Mass-Doe cases that were kept open for up to a year plus without naming/serving any of the Defendants. In the few cases where people are named/served, the case is eventually voluntarily dismissed by the Troll (possible walk-away deal between the parties) or a defendant defaults (does not show up or otherwise fight back) and the Troll is awarded damages. Even if they are unable to collect their damages, they use default judgments as a way to scare other Does (“See, we will sue you!”) and claim that they are not afraid of going to trial – Total BS.

My suggestion for dealing with this is to:

  1. Stop the BT activity that is occurring on your network
  2. Resecure the WiFi (new password)
  3. Determine if unknown/unauthorized computers were connected to your network (take screenshots/write details down)
  4. Do not call or otherwise respond to the Troll
  5. Contact your ISP and tell them you have taken steps to ensure this doesn’t happen again (Don’t provide details on who or what caused this)
  6. Find an attorney in your jurisdiction who knows the Trolls and obtain a consult. I personally do not recommend settling with the Trolls, but each situation/case is different. Also each person/family handles the stress of this differently.

Single-Doe Cases

For the most part, the single-doe cases are the realm of Troll Keith Lipscomb/Malibu Media/X-Art. Some other single-doe cases are filed by other Troll/Plaintiffs, but it is a small number and most likely only done on specific facts that lead the Trolls to believe they can force a settlement. The single-doe cases are a more serious matter, as Malibu Media has fine-tuned their operation. They target IP addresses (only in limited jurisdictions) in which the monitoring service has recorded multiple Malibu Media/X-Art movies (10+) being shared via BT over a longer time frame (30+ days). They generally record multiple date/time periods of the same IP address/BT client sharing Plaintiff’s movies. They also record ALL of the other (non-Plaintiff) files that are also available from the BT client. They use this list to claim the offender is a “prolific” downloader (not an accident – should have known it was illegal, etc.) AND it can possibly give some insight into WHO the offender is. Such a list of files generally describes what the BT user likes (movies, TV, music, games, eBooks, software), their interests, and maybe even what their job/profession is. It also gives them things to look for IF they go as far as a forensic examination by the infamous, “Never Convicted” computer examiner, Patrick Page.

In my opinion these cases are much more serious to a Doe. Troll Lipscomb/Malibu Media have a well-designed playbook on running these cases. Their efforts will follow a general path (my opinion); 1) Obtain a settlement ($750 per movie – 15 movies = $11,250, etc.); 2) Name/serve a non-responsive Defendant in hopes it brings a settlement; 3) Run up a Defendant’s legal bills and stress in hope it brings a settlement; 4) Convince Defendant to accept a walk-away deal (cover their own legal bills); 5) Obtain a default judgment from non-responsive Defendant. The effort of such a course of actions is to make it extremely clear to any Defense attorney/Defendant, that fighting back is going to cost more than simply settling at the onset.

My suggestion for dealing with this is to:

  1. Stop the BT activity that is occurring on your network
  2. Resecure the WiFi (new password)
  3. Determine if unknown/unauthorized computers were connected to your network (take screenshots/write details down)
  4. Do not call or otherwise respond to the Troll
  5. Contact your ISP and tell them you have taken steps to ensure this doesn’t happen again (Don’t provide details on who or what caused this)
  6. Make sure ALL your social media accounts (Facebook, Twitter, etc.) are not open for ANYONE to view – The Troll will do this
  7. Find an attorney in your jurisdiction who knows the Trolls (Malibu Media) and obtain a consult.

I’m sorry to say but even if you are innocent, Malibu Media DOES NOT CARE. For them to admit that even one person is innocent, jeopardizes their operation. It will start a chink in their armor that will cause them trouble. It will establish a precedent of what Defense strategy will work. We are still waiting for the Malibu Media case in which the court awards reasonable costs/fees to a prevailing Defendant. This is best highlighted by the WA Elf-Man case ((WAED 13-cv-00395) Fightcopyrighttrolls Article), in which the Defendant was awarded approximately $100K. Troll Lipscomb knows this will eventually happen. It is just a matter of time.

8th Circuit Court of Appeal – L. Leverton Case

Here is the 8th Circuit Court of Appeal opinion on the Killer Joe NV case v. Leigh Leverton, 14-3274.   14-3274_Opinion

I’m sad to report that the 8th Circuit said the district court did not error as it considered
the parties’ submissions on the attorney’s fee issue. The court said that “Nothing more was required by Rule 54.” Because Leaverton had an opportunity to make a record, the district court did not abuse its discretion.

So the case will not be sent back to the lower court and there will be no award of fees/costs. This of course is specific to the lower court/judge, and in NO way says a Troll Defendant is not entitled to them if a judge so decides so. I still think the lower court judge was foolish for not seeing how Troll/Plaintiff was abusing the court to pressure people into settling. You win some and you lose some. A different judge may see things differently the next time. The Troll knows the next time may not work out so well. This was a great effort by Attorney Ray Johnson, Johnson Law Firm, West De Moines, IA. Well done Sir.

ILND Mass-Doe Cases – Change Is In The Wind – ILND Case Dismissal (17 Dec 15)

In my previous post (Veterans Double Feature), I mentioned that the ILND Chief Justice, the Honorable Ruben Castillo had Sue Sponte dismissed a Cobbler Nevada case that was barely 11 days old. The judge still allowed the Troll to issue the ISP subpoena for the 20 Does, but said that they were “Gently” reminded that joinder of Defendants needed to be based on real facts, not BS (My emphasis below).  Judge_Castillo_CaseDismissed_08398(IL)

MINUTE entry before the Honorable Ruben Castillo:After careful review of this recently filed complaint, said Doe complaint is dismissed without prejudice to the filing of any amended complaint which expressly names any appropriate defendant(s). Plaintiff’s counsel is hereby authorized to proceed and issue subpoena(s) to determine the identity of the Doe defendant(s). All discovery and third party subpoena(s) must be complied with even though the initial Doe complaint is dismissed without prejudice. Finally, plaintiff’s counsel is gently reminded that the joinder of multiple defendants in one lawsuit must be supported by concerted action of the defendants.Mailed notice(rao, )

Joinder is a key issue to the Troll’s business model. It allows them to run a case cheaper ($400 to file) and gives them multiple settlements opportunities. Again, at the 50% settlement rate (est. $4K settlement average), they could recoup $40K from 10 Does.

I recently looked into how Judge Castillo’s Minute Entry has affected ILND Troll filings. What I found was not too much of a surprise. Note: If I missed any cases, please tell me. Here is a snapshot of the Mass-Doe BT copyright infringement cases filed in the ILND after the 5 Oct 15, dismissal/Minute Entry.

Survivor Productions

  • 1:15-cv-09851, Does 1-30, 3 Nov 15
  • 1:15-cv-09852, Does 1-34, 3 Nov 15
  • 1:15-cv-09855, Does 1-20, 3 Nov 15
  • 1:15-cv-09858, Does 1-30, 3 Nov 15
  • 1:15-cv-09860, Does 1-19, 3 Nov 15
  • 1:15-cv-09861, Does 1-23, 3 Nov 15

Here are some other postings on this Troll/Plaintiff – Troll Defense & Antonelli Law

STTN Capitol LLC

  • 1:15-cv-10113, Does 1-20, 6 Nov 15
  • 1:15-cv-10115, Does 1-34, 6 Nov 15
  • 1:15-cv-10116, Does 1-28, 6 Nov 15
  • 1:15-cv-10118, Does 1-12, 6 Nov 15
  • 1:15-cv-10120, Does 1-17, 6 Nov 15

Here is another post on this Troll/Plaintiff – Antonelli Law

So upon closer inspection of one of these cases (Survivor, 1:15-cv-09851), it becomes clear What Troll Michael Hierl and the Plaintiff are doing.   Docket_11Dec15_09851(IL)   Complaint_09851(IL)   Complaint_EXA_09851(IL)   Min_Entry_Joinder_Doc7_09851(IL)   SupportForJoinder_Doc11_09851(IL)   StatusRpt_Doc13_09851(IL)   

These few cases filed approximately one month after Judge Castillo’s Minute Entry are a test. Three days after filing the initial case, the judge in this case told Troll/Plaintiff that NLT 23 Nov 15, they had to file a brief showing why joinder of the Does was proper. The Troll of course filed their brief on the last day. The Troll has filed an initial case status report and the court has set a conference date of 17 Dec 15, to address Troll/Plaintiff’s Motion for early discovery of ISP information on the Does. Please take a look at the Troll MFR and see that even with the multiple pages, there is not a single instance/statement/fact that claims that ANY of the Does in this case shares ANY of Plaintiff’s movie with ANY other Doe in the case. WHY??? Because their system of BT monitoring does not have the ability to track who the data IS shared between I can only hope the court is aware of the previous work done by a Mr. Delvan Neville, Amaragh Associates, LLC, regarding the unlikely possibility that joinder happens.  I don’t know what the probability estimate is for this case, but in a previous one, Mr. Neville declared the chances  were roughly 1 in 300 Million (Article – DBC Joinder of Does Is Unjustified – 1 in 300 Million Chance)   D_Neville_Decl_03517(IL)

Well the 17 Dec 15, hearing DIDN’T go well for the Troll

From what I have heard (Thank you!), the court relied on the DC Circuit’s previous ruling that the downloads in the swarm were NOT necessarily part of the same series of occurrences.  The judge even brought up the EFF example of different people playing blackjack at the same table at different times in the day not being related. For joinder to be proper, the downloads would need to happen “somewhat contemporaneously” and the 3 days that they currently spanned did not qualify.

The court dismissed Does 2-30, but granted the discovery motion for Doe 1. He did tell the Troll Todd Parkhurst that IF they could show that other Does were sharing at the same time, they could amend the complaint.  Troll/Plaintiff has 28 days to amend their complaint.

This essentially means now that in the ILND, multi-Doe/mass-Doe cases should be the exception and not the rule.

Dallas Buyers Club – Still Chomping At The Australian Apple FAILED

Late Addition – On 16 Dec 15, the justice in the AU Dallas Buyers Club (DBC) case essentially killed the case.  Theguardian Article

Justice Nye Perram on Wednesday made an order to terminate the proceedings on 11 February after rejecting the latest proposed method by Voltage Pictures to deal with the more than 4,700 internet users it claimed had pirated the 2013 film. The studio can appeal the decision before then.

On 8 Dec 15, Copyright Troll Dallas Buyers Club (DBC) was back in the AU court still trying to get the court to authorize them to claim/charge alleged pirates larger amounts than the court previously allowed. DBC wants cost of the film ($20), a single license fee for upload, and damages for its court costs. DBC told the court that the total for all three would be “modest.” The exact amount was confidential, but the Justice Perram described the amount as “not modest.” The ISP in question also stated that the difference in the amounts was “massive.” The court will rule on DBC’srequest for additional damages sometime in the future. On 16 Dec 15, the court is due to decide if DBC will be allowed to have the names of 472 (10%) of the 4726 ISP subscribers alleged to have pirated DBC.  They also asked that the security bond be reduced from the original $600K to $60K (10%).  

The simple fact of the matter is that IF the Troll can get at least half (236) of the 472 ISP subscribers to pay a $4K settlement, they will have recouped a huge profit. 236 X $4K (on average) = $944,000!  You can see why they are fighting so hard. GREED!  If 50% of the 4726 ISP subscriber pay $4K, then they could make $9,452,000!

News Articles on DBC in AU – Itnews & Zdnet

Last Minute News – BMG Rights Management awarded $25 Million v. Cox

Looks like BMG Rights Management was just awarded $25 Million
verdict against Cox Communications.  The BT Copyright Troll aspect is that
BMG hired Rightscorp to monitor and send Digital Millennium Copyright Act
(DMCA) take-down notices to the ISPs. Rightscorp was unhappy with Cox,
because the ISP did not forward the “Settlement” portion of the notices onto
the ISP subscriber. Many of the ISPs do forward the complete DMCA notices to
the subscribers, some who do pay a settlement. NOTE: There is nothing in the
DMCA that requires the “settlement” portion of a notice to be forwarded. The
judge in the case ruled that since Cox failed to implement a
repeat-infringer policy, it couldn’t have safe harbor status (protection
from being sued) under the DMCA. The decision is bound to make ALL the ISPs
rethink how they deal with subscribers who receive DMCA take-down notices.
I expect the ISPs will implement some sort of policy to suspend and/or
terminate service once a certain number of DMCA notices are reached. The key
point is the ISPs will have to actually show that they have terminated
repeat infringers (actually “alleged” infringers – there will not have been
any conviction). Failing to do this could lead to additional law suits
against ISPs from deep-pocket copyright owners. This is a win for Rightscorp
also, as the only reason it is able to survive is by getting ISP subscribers
to pay a settlement. Here is a fun idea the ISPs might want to consider.
Implement a “reasonable” graduated suspension/termination policy for repeat
DMCA notices; BUT only forward the portions of the notice required by the
DMCA – remove the settlements portion from the notices.

Hollywoord Report     Techdirt

DieTrollDie🙂

“To solve a riddle older than the Sphinx. To answer the question which has plagued us since we first crawled from this Earth and stood erect in the sun. Is man, indeed, a walrus at heart?” {Howard Howe, Tusk (The Movie}

 

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Veterans Day Double Feature, 2015 (Dallas Buyers Club & Cobbler Nevada)

Dallas Buyers Club FAILS in WA

In the world of BitTorrent (BT) Copyright Trolls, change is often slow and only occurs after a Troll/Plaintiff is forced. One recently reported (2 Nov 15) change came from Doe Defender John Whitaker, “Dallas Buyers Club Update.”  Archive Docket

Attorney Whitaker explains that Dallas Buyers Club (DBC) has been filing cases and telling the WA court it needed to subpoena the ISPs to obtain names of the offenders so it could amend the complaints (Name them) in the law suits. We all know this is BS when you look at the BT Copyright Troll Playbook. The Troll then came back to the court and asked to be allowed to depose the ISP subscribers, which was initially granted. After the Troll’s behavior in demanding deposition compliance was seen as excessive (motions to quash were filed), the judge agreed and quashed them. The Troll soon came back to the court with less aggressive deposition demands, which the court allowed. The court also advised Plaintiff to move the cases along or face dismissal. Of course Troll/Plaintiff acted stupidly and FAILED to name anyone or move the cases forward. The depositions were only used to pressure people into paying a settlement in fear of a trial. The judge then decided to hit DBC where it courts.

Well Judge Jones is having none of it. He penned an order denying DBC any more subpoena power until DBC either demonstrates that this is legitimate litigation or starts dropping cases. Particularly interesting is Judge Jones’ reference to a Whitaker Law Group client, Jeff Pleake, who has been very vocal with his dissatisfaction over being wrongly accused of downloading movies he’s never even seen.” (John Whitaker, Attorney)

Doc_36_Order_01819(WA)

So right now the Troll/Plaintiff has to put up or shut up. That means for the cases it has obtained ISP subscriber information and/or taken depositions, it has to dismiss them or start naming Defendants and amending the complaints to show this. This is not where the Troll wants to be. I expect the Troll could name a select few (or one) defendants, as well as dismissing the remaining cases. Doing so will cost them more money and the added risk that a person(s) will fight back. Dismissing all of the cases is an option, but it sends a clear signal that this Troll/Plaintiff will NOT take a person to trial and you simply need to ignore them. Whitaker’s client appears willing to defend himself, so lets see what the Troll does. This judge doesn’t appear to like being used as a tool for Plaintiff’s money-making business model. More to come.

Is The Northern District Of IL Getting Tired Of BT Copyright Trolls???

This is really an interesting development for those of us who follow BT Copyright Trolls. The Northern District of IL has long been seen as a haven for BT Copyright Trolls. One judge in NDIL who has dealt with these cases since at least 2010 is the Honorable Ruben Castillo. Judge Castillo has seen Steele Hansmeier/Prenda Law from its start and likely sees the same slimy operation from the other Trolls filing in his jurisdiction.

In a recent order (5 Oct 15), Judge Castillo gave one particular BT Copyright Troll (Michael Hierl) a “double-tap” on one of his cases – COBBLER NEVADA, LLC v. DOES 1-20, 1:15-cv-08398 (NDIL).   Docket_08398(IL)   Complaint_08398(IL)   Complaint_EXA_IPs_08398(IL)  

The case was opened on 24 Sep 15, and Judge Castillo wasted no time in issuing the order (sua sponte). the Troll didn’t even get to file his request for early discovery of ISP subscriber information.   Judge_Castillo_CaseDismissed_08398(IL)

MINUTE entry before the Honorable Ruben Castillo:After careful review of this recently filed complaint, said Doe complaint is dismissed without prejudice to the filing of any amended complaint which expressly names any appropriate defendant(s). Plaintiff’s counsel is hereby authorized to proceed and issue subpoena(s) to determine the identity of the Doe defendant(s). All discovery and third party subpoena(s) must be complied with even though the initial Doe complaint is dismissed without prejudice. Finally, plaintiff’s counsel is gently reminded that the joinder of multiple defendants in one lawsuit must be supported by concerted action of the defendants.Mailed notice(rao, )

Key Points

  1. Case 1:15-cv-08398 is DISMISSED.
  2. Troll/Plaintiff is ALLOWED to subpoena the ISP for the subscriber information.
  3. ANY filing of cases based off of the Subpoena/Discovery has to “expressly name” the Defendant.
  4. Joinder of Defendants will ONLY be allowed if the Troll can show EVIDENCE of a concerted effort between the joinded Defendants. I loved how the judge used the word “Gently” – take heed Troll.😉

So what will Troll Hierl/DBC likely do? I fully expect them to subpoena the ISPs and then send out settlement demand letters for approximately $3800. They have already spent $400 to file the case, even one settlement will repay this amount. The settlement letters will NO doubt fail to inform the ISP subscribers that the case is DISMISSED or how the court obviously not impressed with the Troll case filings. Judge Castillo (and others) probably sees the mess these cases bring to the court and that they only seek to fleece people for thousands of dollars with the fear of financial ruin (My Opinion).

It is true that Troll/Plaintiff COULD file amended complaints with the ISP subscriber as the Defendant. This is a risky move (my opinion), as this judge has made it clear he thinks Troll/Plaintiff is abusing the court in a money-making settlement-generating operation. Simply naming the ISP subscriber as a Defendant without some form of a REAL investigation is good way to lose and possibly be sanctioned by the court. The one thing I could see the Troll do is ask the court to grant a limited deposition of the ISP subscriber (2 hour max.) so they can try to narrow down who the actual offender is. Of course running 20 depositions raises the cost of these cases and does not guarantee they can identify who the true offender is.

Example of the difficulty: ISP subscriber is deposed and tells the Troll: 1) Didn’t download/share Plaintiff movie and doesn’t know who did; 2) The WiFi Internet connection was run “Open” (No Password) or the password was freely shared out to multiple guests, neighbors, etc. EVEN if the ISP subscriber denied the infringement and said the WiFi was password protected, they have to determine if proceeding is financially workable.

The Troll can tell the ISP subscriber about all the “Other” files they recorded as being shared via BT and claim it fits the profile of the ISP subscriber and/or family member. They can also tell the ISP subscriber they will forensically examine the household computers for evidence. Good talk, but doing so raises the cost of their case (if they actually do it- doubtful IMO) and such actions do NOT guarantee a settlement.

The overwhelming history of mass-Doe BT cases in NDIL clearly show that a majority are NEVER named in an amended complaint. This business model works on running as cheap and fast as possible. There of course will be a small number of people who receive additional pressure from the Trolls, but this is done on a case-by-case basis.

For the 20 Does in this case, I suggest you first make sure that BT is not running on your network and to resecure the WiFi Internet access (New Password). Ensure the WiFi password not freely given out and that BT doesn’t start back up again. I would not respond to the Troll on a CLOSED case like this. They only have the public IP address (WiFi Firewall/Router IP address) and a list of “other” files that were being shared by the BT client over a certain time period (likely a month+). If you speak to them, you will undoubtedly given them some sort of information on you, your family, financial situation, etc. Do not make it any easier for them to extort you. Also, when the settlement letter start to go out, please email a copy to dietrolldie@dietrolldie.com.

If you eventually do get subpoenaed for a deposition or receive some other valid legal document/order, please do not simply ignore it. That is the time to consult with an attorney who has gone up against the Trolls. Failure to do so could lead to a default judgment and an award of thousands of dollars to Plaintiff/Troll. I will give the standard caveat that I’m no lawyer, this isn’t legal advice, and each case is individual/different. Saying that, I do think myself and other non-lawyers types who follow these cases have a decent handle on what is going on.

Offend1I’m hopeful this is a signal that Mass-Doe BT cases in the NDIL are coming to a close. This will force the Trolls to either only file single Doe cases (like Malibu Media/X-Art), or move to other jurisdictions that are unfamiliar with BT Copyright Trolls. The judge has just handed the Troll the rope. Hopefully he hangs himself with it.

DieTrollDie🙂

“The pitfall of Bene Gesserit training, she reminded herself, lay in the powers granted: such powers predisposed one to vanity and pride. But power deluded those who used it. One tended to believe power could overcome any barrier . . . including one’s own ignorance.” {Dune Messiah, Frank Herbert}

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Beethoven Is The Devil (AKA: Desperation of Malibu Media LLC/Troll Keith Lipscomb), 14-cv-61957 (SDFL)

I first wanted to say thank you to Sophisticated Jane Doe for the recent article on Malibu Media/X-Art/ Troll Lipscomb – Defendant’s expert witness report suggests that Malibu Media’s investigators doctored evidence. My life is still a bit chaotic, so the writing is limited. Case 14-cv-61957 (SDFL), Malibu Media LLC v. Robert Dare.  Attorney Cynthia Conlin did a great job in writing the Motion for Summary Judgment. It was clear, well-written, and show the world what a scum-bag operation he is running. Well done Mrs. Conlin. I bet Lipscomb will reply with some sort of “turd” which will only show how low he really is. Here is the Motion and Defense Expert Report.   Mot_SumJudge_Doc73_61957(FL)   Expert_Report_Doc73-7_61957(FL)

This case is “Worst Case” scenario for Troll Lipcomb and the Germans Masters. This case is the reason BitTorrent (BT) Copyright Troll Lipscomb will fight so hard to try to get a walk-away deal from a Defendant.  Even if this does go to a civil trial (I doubt it), Troll/Plaintiff is in NO way at a preponderance of evidence level (more than a 50% likelihood that Defendant was the infringer). Yes, it is only my non-lawyer opinion, BUT I really don’t think it will take a professional jurist to come to that conclusion. Why??? Let’s look at the evidence.

  1. Public IP Address Shared A Small Portion of Plaintiff’s Movie: Troll/Plaintiff logs showing a very small portion (67 KB) of ONE of Plaintiff’s movies uploaded to Plaintiff’s monitoring company by a public IP assigned to the defendant by the ISP (Defendant is the bill payer). Note: the other 16 movies Troll/Plaintiff claimed CANNOT be associated back to the Defendant because Troll Lipscomb and crew screwed up and only asked for one date/time group associated to ONE movie.
  2. IP Address Is Associated To Defendant’s WiFi Firewall/Router: The public IP address recorded by Troll/Plaintiff only comes back to Defendant’s WiFi Firewall/Router and NOT the specific computers connected to the WiFi.
  3. Open WiFi: The Defendant’s WiFi Firewall/Router had “Guest” access portal that was run OPEN – No password required. This was left open during the alleged period of infringement.
  4. Multiple WiFi Signal In The Area Of Defendant’s Residence: The Defendant’s residence shared common walls with two other residents, as well as had multiple WiFi signals in the area (at least 12 distinct signals). These “other” systems were NOT owned/controlled by Defendant, but could access his OPEN WiFi network.
  5. Denies The Infringement: Defendant and his wife were deposed by Troll/Plaintiff and DENIED being the infringers of Plaintiff’s works.
  6. No Evidence From Neighbors: Troll/Plaintiff only interviewed ONE neighbor (not even the next door neighbors) and failed to obtain any evidence. Note: Troll/Plaintiff likely didn’t interview the next door neighbors for FEAR if they could not obtain conflicting statements/new evidence supporting Plaintiff’s claim, the statements would have hurt their case. i.e. Neighbor: Yes, I did see that Defendant had an OPEN WiFi network during the period of alleged infringement.
  7. No Forensic Evidence: Examination of Defendant computer failed to disclose any evidence of BitTorrent (BT) activity OR that evidence on the computer was destroyed or removed. The best Troll/Plaintiff can do is say the BT client was used on a Macintosh and Defendant’s computer is a Macintosh. Macs are not as common as PCs, but they are FAR from a rarity and not indicative of who the infringer was.

This speculation is almost like if a Plaintiff found an empty discarded Monster Energy drink can at the scene of a car accident and, without analyzing tire tracks or other forensics, concluded that a random individual who likes Monster Energy must have caused the accident. Such is the logical fallacy of jumping to conclusions. Moreover, Plaintiff speaks of BitTorrent as if it were rare; however, BitTorrent “is one of the most popular ways internet subscribers transfer data from one device (a peer) to another (peer).”   (Motion For Summary Judgement, page 8)

  1. Defendant’s Computer Expert Found Troll/Plaintiff’s Monitoring Evidence Lacking At Best: The PCAP data Troll/Plaintiff claims indicates the defendant’s IP address was responsible for the infringement appears to be “filtered” and may indicate certain aspects of the BT monitoring is being hidden by Troll/Plaintiff. The integrity of the PCAP files is in question. Troll/Plaintiff’s Forensic examiner reports (Patrick Paige) were also found to be “incomplete” – differences in Paige’s report and the associated PCAP files. The log files provided by Michael Patzer were also found to be incomplete and misleading. The log makes it appear that Plaintiff’s entire movie was downloaded, when in fact each PCAP file only cover 67 KB of the movie (Very Small Portion).
  2. Old Computer Not Examined: Troll/Plaintiff asked for computers used during the period of alleged infringement. This old computer was only used prior to Plaintiff’s claimed period of infringement. Note: this is where the Troll is likely to complain that Defendant hid his infringement activity. Plaintiff’s motion to compel production of it was DENIED – AKA: NO EVIDENCE.
  3. The “Other” Evidence (Non-Plaintiff Movies) Does NOT Tie Back To Defendant: These are the “Other” files that were being shared by the BT client using the public IP address assigned to Defendant. For most people who use BT, the “Other” files is simply the list of movies, music, eBooks, applications, etc., which have been downloaded to the BT client and are available to be shared out. The Trolls collect this information on these files from the BT client and use it to profile who the infringer likely is. It can give some indications of what interests the BT user, but it is far from a smoking gun as far as “evidence.” After looking at Defendant’s (and wife’s) social media profile, private records checks, and deposition responses, the best Troll/Plaintiff was able to do is point to a single YouTube video. In the “Other” evidence, there is a copy of Beethoven’s 5th Symphony. Plaintiff claims that because Defendant (unverified YouTube account) “liked” a video of Beethoven’s Moonlight Sonata on YouTube, that the copy of Beethoven’s 5th means Defendant is the infringer. I just looked at one YouTube video for Moonlight Sonota and it had over 200K likes.

LudvigNow I know that some attorneys out there will say they are only doing what the client wants. Well, what this Troll/Plaintiff wants is to send a clear message to ANY Does and Defense attorneys that it is cheaper to pay a settlement than actually fight, EVEN if innocent. The reason Troll Lipscomb and crew are fighting this is NOT because they truly feel this Defendant is lying, it is because if he obtains a summary judgment and is awarded reasonable attorney costs/fees, it could open the door for other Defendants to do the same.

Troll Lipscomb and the other Trolls out there know it does not take a “rocket scientist” to make it hard for them to win a case. Lipscomb even stated in the June 2013 PA Bellwether Trial that at first he thought proving these cases would be hard because a Doe would simply get rid of the offending computer and he would have no evidence.The following is the closing statement of Keith Lipscomb in that joke of a show-trial.

It is actually requires a bit more effort but, this is just one aspect of “This” case. When you look at ALL the evidence (or lack of), it is clear that a “preponderance of evidence” does not support Troll/Plaintiff. The best Troll/Plaintiff can do is try to limit the award of costs/fees, by claiming the Defense misconduct by unnecessarily running up costs. If Lipscomb is not testing the waters to see if the Defendant will accept a settlement from Plaintiff to make this go-away, I would be surprised. I hope this Defendant does stay the course and the court is able to rule on the motion. Even if denied, a trial is not an option Lipscomb wants. Such a loss could destroy what little help the PA Bellwether trial provides them.

I will leave you with the “Conclusion” from Attorney Cynthia Conlin – it sums it up beautifully.

First, Plaintiff cannot prove that Defendant was the subscriber of IP address 98.249.146.169 for all the dates and times that Plaintiff alleged its videos were downloaded. It only obtained evidence that Defendant subscribed to IP address 98.249.146.169 on the precise date and time of 06/08/2014 at 00:13:41 UTC, which was the alleged hit date for only one of Plaintiff’s videos. Secondly, Plaintiff failed to obtain any evidence that Defendant downloaded its videos. It has no admission from Defendant, no eyewitness, and no forensic or computer evidence linking Defendant to the downloads. Furthermore, Plaintiff’s own evidence does not connect Defendant specifically to the downloads; rather, it only links IP address 98.249.146.169, not any particular computer or individual, to the alleged downloads. Because Defendant was running an open guest network that neighbors could access by without a password during the alleged download period, evidence linking Defendant, and not just an IP address, is essential. Plaintiff’s much touted “additional evidence” is not evidence of the downloading of Plaintiff’s videos because it is a list of entirely different files allegedly downloaded at different times, and there is nothing linking such evidence to Defendant. Lastly, at best, Plaintiff’s evidence indicates the copying of not an entire movie but rather a single, unusable fragment. As the evidence produced by Plaintiff and recovered by Plaintiff during discovery is not sufficient to support a claim of copyright infringement, summary judgment should be had in favor of Defendant.

DieTrollDie🙂

I woke up. The pain and sickness all over me like an animal. Then I realized what it was. The music coming up from the floor was our old friend, Ludwig Van, and the dreaded Ninth Symphony.” {Alex, A Clockwork Orange}ViddyWellLipscomb

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It Is Up! – 8th Circuit Court of Appeal Oral Argument in BT Copyright Troll Case (Killer Joe NV v. Leaverton, 14-3274)

Killer-Joe-Sucks-Balls

OK.  The 8th Circuit Court of Appeal oral argument is up.  14-3274, Killer Joe NV v. Leigh Leaverton.   Thank you attorney Ray Johnson, Johnson Law Firm, West De Moines, IA, for fighting the good fight. Hopefully the 8th Circuit will see the truth of what these cases are about – Greed and Coercion. I don’t know when the 8th Circuit will announce its ruling, but I wouldn’t expect it anytime soon.

SAVE THE DATE — On 21 Sep 15, The 8th Circuit Court of Appeals will hear oral arguments on case 14-3274, Killer Joe Nevada (KJN) v. Leigh Leaverton. This is an appeal on a BitTorrent (BT) Copyright Troll case, KJN v. Does, 5:13-cv-04036 (ND of Iowa).

Here are Previous articles on this case.   1st ARTICLE    2nd ARTICLE   The first article gives the full case background; the second article details KJN’s claims by the FICTITIOUS Darren M. Griffen (Crystal Bay Corporation(CBC)) and the TRUE masterminds behind these cases, the Anti-Piracy Management Company (APMC).

Synopsis: Copyright Troll Jay Hamilton/Plaintiff initially filed a template based mass-Doe cases against 20 IA John Does (ISP subscribers) who allegedly downloaded/shared the movie “Killer Joe.” He eventually named five as non-settling Defendants. Two of the Defendants (Leaverton and Bolan) denied downloading/sharing the movie or knowing who did it. 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!). Both Defendants filed answers denying the claims. In May 2014, Attorney Johnson sent Troll/Plaintiff interrogatories, as well as requests for admissions and productions. In keeping with the standard “Copyright Troll Play Book,” Troll/Plaintiff did not respond and soon after motioned the court to dismiss Defendants. The court granted the motion, but then denied Leaverton’s declaratory judgment counterclaim and request for attorney fees – even as the “Prevailing” party. The appeal is based on the fact that Troll/Plaintiff named them as Defendants with NO information OTHER than they were the ISP subscribers (they paid the ISP bill). 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 that the District court did not apply the standard ruling on a fee award and implement requirements to determine fees. As the “Prevailing Party,” the court should have allowed Leaverton to submit a record of her fees to the court. The following are also worthy to note:

  1. KJN used the fictitious person/company/declarations of “Darren M. Griffin, Crystal Bay Corporation (CBC)” in the District and Appellate cases. Can you say False Statements & Mail/Wire Fraud at a minimum??? (18 USC, Chapter 47)
  2. When questioned about Darren Griffin, CBC, Troll Hamilton told attorney Johnson that his law firm had ENDED “its engagement with APMC.” The APMC has NEVER been listed on any copyright infringement case as an interested party. More deception

On 21 Aug 15, the Appeals court set 21 Sep 15, as the date of oral arguments for this case. KJN will likely be represented by Troll Keith Vogt, as he took over when Troll Hamilton removed himself. If you are in the St. Louis area on 21 September, consider bringing some popcorn to enjoy the show. It looks like both sides will have 15 minutes to get their point across to the three-judge panel. I don’t think the oral arguments will be streamed, but the audio recording should be eventually posted. (Search for case 14-3274) I will keep an eye out for it.

An appeals court ruling in favor or the Defendants could have an impact on BT Copyright Trolling in the US, at least in the areas of recklessly naming an ISP subscriber as a Defendant AND allowing the prevailing party to at least submit a record of fees to the court. Naming/serving an ISP subscriber with a complaint/summons is a powerful tool of the court that the Trolls have abused with great success. This abuse was highlighted by Attorneys Booth/Sweet in their recent filing in a Malibu Media case in Ohio (OHSD 14-cv-00493), where they asked Malibu Media to be declared a vexatious litigant .   FCT ARTICLE

Here is my version of the Copyright Troll Play book – Greed over Guilt

DieTrollDie🙂

Where do you think you’re going? Nobody’s leaving. Nobody’s walking out on this fun, old-fashioned family Christmas. No, no. We’re all in this together. This is a full-blown, four-alarm holiday emergency here. We’re gonna press on, and we’re gonna have the hap, hap, happiest Christmas since Bing Crosby tap-danced with Danny fucking Kaye. And when Santa squeezes his fat white ass down that chimney tonight, he’s gonna find the jolliest bunch of assholes this side of the nuthouse.” {Clark Griswold – National Lampoons Christmas Vacation}

14-3274_motion

 

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The Pirate Hunter Is Back! (well sort of…), BT Copyright Troll Carl Crowell (OR)

LSS1In case you missed it, the Willamette Week, ran an article titled,”The Pirate Hunter,” covering the work of Oregon BitTorrent Copyright Troll attorney, Carl Crowell, Crowell Law, Salem, OR. I bet Troll Crowell cringed a little bit when he the saw the story title. It eerily uses the moniker made infamous by failed BT Copyright Troll (and idiot son-in-law) John L. Steele (AKA: Prenda Law).  John Steele is currently facing multiple court sanctions and a disciplinary investigation for his BT Copyright Troll activities (Techdirt Article).

Now, I don’t think Troll Crowell is in the same league (“Welcome to the big leagues”) as the Prenda crew, but he is still part of a copyright monetization apparatus that rationalizes its actions behind the claim of stopping BT piracy.

Troll Crowell is most notable for filing single Doe cases, similar to Copyright Troll Malibu Media LLC/X-Art. I assume Troll Crowell took a hint from Malibu Media and decided to try his hand at this type of case filing. Slide note: Take a look at the following Defendant reply in a Malibu Media LLC case; specifically “Section 2. Plaintiff and its Counsel Place Greed
over Guilt” (Pages 10-11) for the Malibu Media Play book.   Def_Reply_Doc_40_00493(OH)

The single Doe cases require more up front work, but in turn, they likely lead to higher settlement rates overall. Couple this with a reduced chance of a court denying the Discovery request of the ISP subscriber information and he is in the money. Even for the small percentages of people who don’t settle, the Troll extracts a heavy toll from the Defendants – Time, Money, and Stress. It sends a message that it is cheaper to pay a settlement than
fight, even if innocent.  See The BT Copyright Troll Play Book.   Greed over Guilt

First I want to make it clear to everyone who may be affected by Trolls such as Crowell.  Each case/situation is different and needs to be assessed individually. I have no information to suggest that Troll Crowell is as hard-core as Malibu Media in terms of going after people.  Saying that, his tactics are stronger in comparison to the other mass-Doe cases (i.e. Dallas
Buyers Club (DBC) v. Does 1-25, etc.) that Voltage Pictures files in various  jurisdictions. One thing Troll Crowell likes to do is get the court to authorize depositions of the ISP subscribers.
First thing I recommend is to make sure once you get a notification (DMCA take down notice or subpoena letter), you ensure any BT activity on your network stops and doesn’t start back up again. It may not stop a law suit, but it is better than letting the activity continue. NOTE: According to the article, if the activity stops Troll Crowell will not file a complaint –
Total BS in my opinion.

The studios buy that data in bulk from a service that scrapes the lists from popular torrents and narrows it down by location. Crowell then begins the slow process of identifying the most prolific torrenters and compiling a list of all their downloads. When the record is complete, Crowell will subpoena the pirate’s Internet service provider to get the address holder’s name. The provider usually also sends the person a warning letter. If the person doesn’t stop, then Crowell will move in with a copyright complaint.

BS_NO BULLSHIT ALERT!!!  If Troll/Plaintiff has issued a subpoena, then a case has already been filed and they are already out a $400 filing fee.  They are not going to simply walk away from a case at that point. One thing the author didn’t ask was why Crowells’ clients don’t send out DMCA notices to the ISP subscribers. It is such a simple step that could actually get people to stop. I believe it is because the Trolls don’t want these long-term BT users to stop until a case is filed and settlements are about to be locked-in.

One thing that was made abundantly clear is that Troll Crowell targets those Oregon IP addresses that have a long history of BT usage.  This is NOT because he is targeting the “worst” offenders, it just gives him more leverage.  By going after an IP address with a long history of BT usage, he gets the following advantage – Harder to claim it was an  “outsider” using your Open WiFi connection AND the “other” non-Plaintiff files that were being shared (over BT) give some insight into possibly identifying the true offender.  With such information, it is easier to get a person to agree to pay a settlement.  Here is an example of the information the Trolls collect from BT clients.  Example of Non-Plaintiff Files

Even with the focused targeting of a Defendant, the Trolls sometimes find an ISP subscriber doesn’t have any money to pay a settlement.  In a previous post, I spoke about Troll Crowell case (Dallas Buyers Club (DBC)) in which the ISP subscriber agreed to a “stipulated dismissal” of case (she didn’t have to pay anything). This was due to financial hardship and extenuating circumstances. The dismissal allowed Troll/Plaintiff to seem like a “decent” person. Not likely in my opinion. More like they could get anything out of this Defendant and it was better to cut their losses.

One thing I did notice in the news article and the stipulated dismissal, the settlement amount sought was the same – $7,500. In the stipulated dismissal, Troll Crowell claimed the $7,500 was for attorney fees/costs and did NOT include “damages.”  While in the news article the average settlement Troll Crowell obtained was approximately $7,500.  So if that is true, then for the 80 claimed cases he settled (per the article), they were able to generate something in the area of $600,000. Even with having to split it between Troll attorney, Plaintiff, and the Anti-Piracy Management Company (APMC), the “take” is still good.

The settlement amounts Troll Crowell and other seek are excessive to say the least; especially for some of the crap that comes out of Voltage Pictures. Please don’t think I believe copyright infringement is OK. I just don’t agree with the actions of the Trolls in trying to extort settlements from people. There is NO true effort to stop BT copyright infringement from ANY of the Troll/Plaintiffs or their attorneys. They simply go after people who have enough money to pay a settlement and not enough to fight. (my opinions)

So if you’re an Oregonian faced with a law suit from Troll Crowell, here are my suggestions.

  1. Make sure any/all BT activity on your networks stops and doesn’t start back up.
  2. Resecure your WiFi/Router with a new password.
  3. Contact an attorney with experience dealing with Troll Crowell for a consult. I would not contact Troll Crowell on your own.
  4. Hire an attorney if you are served with a complaint/summons or a deposition subpoena.

31 Jul 14 Troll Crowell Article

DieTrollDie :)   “Guns tell the truth. Guns never say, “I’m only kidding.” War is ugly because the truth can be ugly and war is very sincere.”  {The Short-Timers, Gustav Hasford}

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WA Court Set Limits As To What BitTorrent Copyright Troll (Dallas Buyers Club) Can Do (CASE 2:14-cv-01819)

Recently courts in the US and Australia have begun to set limits on what BitTorrent (BT) Copyright Trolls are allowed to do – in terms of “actually” running a case and not simply “Speculative Invoicing” (AKA: Threatening to sue unless a settlement is paid – “Copyright Trolling”). Recently Techdirt posted an article in which the “King of the Trolls,” Malibu Media LLC/X-Art/Troll Keith Lipscomb was reined in by a MD court.  Techdirt Article   Also see a recent DTD Posting on the AU Dallas Buyers Club court order.

DBC and Troll David Lowe

DBC_Troll_LoweRecently, the Western District of Washington issued an order on a group of Dallas Buyers Club (DBC) copyright infringement cases. The attached order is for 2:14-cv-01819, DBC v. Does 1-10, opened on 26 Nov 14.   Archive Docket   This order also applies to five other DBC cases in the district (2:14-cv-01336, 2:14-cv-01684, 2:14-cv-01926, 2:15-cv-00133, and 2:15-cv-00134). The Troll attorney for these cases is David Lowe, LOWE GRAHAM JONES. Troll Lowe is most noted for his work on the Elf-Man LLC v. Lamberson, case # 2:13-cv-00395, where the Troll (Elf-Man LLC) had to pay Mr. Lamberson $100K –  FCT Article

On 4 May 15, Judge Richard Jones, Western District of Washington, issued case management orders for 13 DBC mass-Doe cases. The orders required Troll/Plaintiff to show what progress it was making to bring these cases to a conclusion.  Doc_26_Order_01819(WA)

The 4 May 15, order stopped Troll/Plaintiff from issuing subpoenas for depositions and document production from the Does. Note: In the previous subpoenas, Troll Lowe only gave the ISP subscriber a seven-day notice to appear for a deposition (which could take up to seven hours – FRCP default). The court also said Troll/Plaintiffs document production requests were burdensome to the ISP subscriber.

On 1 Jul 15, the court decided that due to the lackluster performance by the Troll, some limits needed to be placed on them.   Doc_36_Order_01819(WA)

In this case and 5 others like it, Plaintiff faced an early June deadline to either file an amended complaint that named no John Doe defendants, or file a motion to amend in which Plaintiff explained why it wished to continue to name one or more John Doe defendants. Plaintiff elected to file 6 “motions to amend.” The court uses quotation marks because, as it will soon discuss, Plaintiff prefers to delay filing an amended complaint for months at least.

AND

Plaintiff’s justification for being unable to name the vast majority of the people it is still suing (in cases that have been pending for at least 5 months, and as many as 10 months) is that although it has learned (via subpoenas to an internet service provider) the names of the subscriber whose internet account was allegedly used to download copies of Plaintiff’s copyrighted motion picture, Dallas Buyers Club, it has been unable to confirm that the subscriber is the person who allegedly infringed its copyright. In some instances (the court has no idea how many), that is because the subscribers have refused to confer voluntarily with Plaintiff. In other instances (the court has no idea how many), that is because the subscriber has denied responsibility for the copyright infringement and Plaintiff has not determined who is responsible.

Troll/Plaintiff then decided it had better make the appearance of trying to working with the court. Troll/Plaintiff informed the court they would change how they handle the deposition subpoenas. They said they would give the ISP subscribers at least a 30 day notice for the deposition, limit the deposition time to two hours, and work with the Does to reschedule depositions as needed. The court noted that even with these proposed changes, it still left “dozens” of Does disadvantaged by Troll/Plaintiff’s slow-moving investigation. The court in turn placed the following restrictions on Troll/Plaintiff.

  1. Troll/Plaintiff does not need to file an amended complaint at this time.
  2. For ANY future document filed by Troll/Plaintiff in these cases; OR ANY future order the court issues (including this order), Plaintiff has to “serve” a copy to anyone it is prepared to name as a Defendant, AND it shall also serve a copy on any person who is the target of a pending subpoena or a subpoena it plans to issue. After serving these copies, Troll/Plaintiff WILL file a certificate of service reflecting its compliance with this order/requirement.
  3. Troll/Plaintiff WILL cease to file ex parte motions, except in cases where Troll/Plaintiff has yet to identify (by name) a potential defendant or subpoena target. Troll/Plaintiff shall note its motions for relief on the third Friday following their filing, and any person whose interests are impacted by the motion may oppose it no later than the Monday preceding that third Friday.
  4. Troll/Plaintiff may issue a subpoena (deposition), in the manner it proposed in its motion, on the two ISP subscribers it has the names of. Those subpoenas shall demand ONLY deposition testimony (two hours or less), and it will be at least 30 days from the date of service.
  5. Within 90 days of service of each deposition subpoena, Troll/Plaintiff MUST either dismiss its claim against the two Does, file a statement that it is prepared to name him or her, file an amended complaint naming him or her, or file a statement explaining why it has not taken one of the other options.
  6. When Troll/Plaintiff is prepared to name a defendant, it shall notify that person with a letter stating that Troll/Plaintiff is prepared to name him or her as a defendant, but they prefers to delay the naming until it can name all other remaining defendants in the case (i.e. Does 1, 3-6 ALL have to be named at once). That letter shall inform the person that they CAN demand Troll/Plaintiff name him or her. If the person exercises that option, and Plaintiff is not prepared to file an amended complaint naming ALL the remaining defendants, Plaintiff shall file a new civil action naming ONLY that person, and shall thereafter dismiss that person from the original lawsuit.
  7. Troll/Plaintiff need not provide a copy of this order or take any further action with respect to any individual or entity with which it has reached a settlement or other permanent resolution of its claims.

So what does this mean for all the remaining DBC Does in these six WA cases? I have it on good accord that Troll Lowe/DBC has started to issue deposition subpoenas for some of the ISP subscribers. The time frame for the depositions is limited to two hours, but that is more than enough time to assess who the likely infringer is OR find out the ISP subscriber/family is NOT responsible.

Recommendations

If you are one of the Does who receive a deposition subpoena, I suggest consulting with an attorney who has experience with DBC/Troll Lowe. I would not go into a deposition blind, even if you/your family are not the infringer. DBC/Troll Lowe is NOT out for justice. The Trolls are doing this to generate settlement dollars. They are not your friends and it doesn’t matter how nice he appears to be. Keep this words of advice in mind – “The bigger the smile, the sharper the knife.” {My Opinions}

Essentially these depositions are an interrogation done with a hand shake and a smile. Troll Lowe’s goal is to get you on record either admitting or denying the infringement. In addition he will try to obtain as much personal detail about you, your network (Password/No password), and others who use it. The questions will likely include downloading habits of the network users, BT usage, jobs, hobbies, interests, network set-up, etc. They will compare all the information they get to the list of “Other” BT files (Non-Dallas Buyers Club movies) that were being shared over your IP address, as well as any social media profiles related to the Doe. They of course will only focus on the files that seem to indicate guilt.

Once the depositions are complete, Troll/Plaintiff will likely try to get the ISP subscriber to settle. I would bet he will tell you that based on their “evidence” and what you told them, you (or family member) are the infringer. He will likely say that a court/jury will see that they have enough evidence to get a decision in their favor. Note: In a civil case it only takes a “Preponderance of Evidence” to prevail. 

Failing that, they will have to determine if they feel strong enough to move forward or simply dismiss the case. If they do not dismiss the case, they will have to send a letter to the Doe, explaining they plan on naming them (see #6 above). It is at this point that the Doe has the option of DEMANDING DBC/Troll Lowe name them and amend the complaint. DBC/Troll Lowe will then be forced to either name ALL the remaining Does in that case OR dismiss the one Doe and immediately refile a separate single defendant case naming the Doe ($400 filing fee – new case). The Doe can of course decide not to be named and it will be postponed.

If a Doe is dismissed from the original case and then made part of a new case, Troll/Plaintiff will have their hands full in my opinion. This court is surely going to make sure Troll/Plaintiff moves forward with Discovery and any half-ass delay excuses will get them in trouble. The main part of this Discovery will be the forensic examination of the computer hard drives in the residence. This is NOT cheap and Troll/Plaintiff will want to avoid this at all costs. Malibu Media LLC/Troll Lipscomb may be willing to pay $300+ an hour for a computer forensic analysis, but DBC has not been so keen on this expensive measure. A simple analysis and report on one computer can easily take up to 12-24 hours ($3,600 -$7,200).

Also keep in mind that your financial situation is a key factor in determining how far Troll/Plaintiff will go. They have made it very clear that they target people who are likely to be able to afford a settlement.

Anti-Piracy Management Company (APMC)

Anti-Piracy Management Company (APMC)

Finally, if you do receive a deposition subpoena from DBC/Troll Lowe OR have been through a deposition by him, please contact me.

DieTrollDie🙂

“Fuck what you know. You need to forget about what you know, that’s your problem. Forget about what you think you know about life, about friendship, and especially about you and me.” {Tyler Durden, Fight Club}

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DieTrollDie Update 17 Aug 15 (TaylorMadeClips – Dallas Buyers Club – Rightscorp)

Samurais_drawWSorry but I still haven’t been able to return to writing and posting as usual. Life is still chaotic for me and dealing with loss is a trying matter at best. I know that things will get better – that fact I’m sure of. Please don’t let life get you down and show love whenever you can.

In the meantime, here are some BitTorrent (BT) Copyright Troll stories of interest:

  • TaylorMadeClips/Mark Borghese
  • Recent Dallas Buyers Club Set-Back in AU
  • RightsCorp/Hire a Copyright Troll Law Firm while The Company Continues to
    Lose Money

TaylorMadeClips/Mark Boghese (TMC/MB)

TaylorMadeClips (TMC) and Copyright Troll attorney Mark Borghese (MB) are back at work again.  Please see the TorrentFreak article on their recent activity.  TMC/MB sent settlement demand letters to multiple Pornhub members, seeking $5k+ for uploading various TMC videos.  It is unknown how TMC/MB obtained the details on the Pornhub members (some of which is incorrect – except for the email address), but TMC has in the past purchased information on who is uploading their content – Bodyinflation forum post. This purchased information was used to send out settlement demand letters (February 2015) to people with Empornium.me accounts.

As TMC/MB has only ever filed three cases (31 Jul 15) in Nevada, the chance
they will again file is low in my opinion. Details concerning these cases can be found by doing a copyright infringement search on RFC Express for “Kimberly Knight.” Previous DTD Post on TMC/MB.

Dallas Buyers Club (DBC) Gets Bitch-Slapped in Australia

Thank you TechDirt for posting this information – TechDirt Article. On 14 Aug 15, Copyright Troll Dallas Buyers Club (DBC), was dealt a set-back in its efforts to obtain the ISP subscriber information of 4,726 Australians accused of downloading the movie via BitTorrent.  The court basically said that after reviewing the draft letter DBC planned to send to the ISP subscribers, it decided not to release the information to the trolls.

The main problems the court had with DBC’s draft letter and amount they were seeking (the
court deemed the amount to be confidential and would not disclose it – likely in the range of $5K), was:

  1. DBC was clearly practicing “Speculative Invoicing” (AKA: Copyright Trolling)
  2. DBC was a foreign Corporation with no AU presence it could punish if they ignored the
    courts instruction as far as settlement amounts

The court did not like the fact that DBC was trying to increase its settlement amount based on the alleged “Widespread” uploading/distribution of DBC by each alleged infringer, as well as additional punitive damages it was alleging based on how many “Other” (Non-DBC) works were being shared over BT. The AU court said it would only allow the release of the ISP subscriber information if it did the following.

  1. DBC posts a $600K bond with the court
  2. DBC can only seek settlement amounts based on the cost of a single online purchase/download (iTunes, etc.) AND the amount of money DBC paid out
    to obtain ISP subscriber information (Attorney Costs/Fees, etc.)

The $600K bond will be used to ensure that if DBC violates the court’s order
on settlement limits, the bond forfeiture will be used as a punishment.

So now we wait and see if the limits imposed by the AU court still makes it
cost-effective for DBC to send out settlement demands.  The single on-line purchase
amount is a joke for DBC. They may be able to bump up the settlement demand
amount based on their legal fees (divided among ALL the AU ISP subscribers), but it still hurts their bottom line.  Still, with over 4,000 ISP subscribers, they are bound to generate some cash.

RightsCorp – Hiring a Copyright Troll Firm/Attorney & Operating Losses In Excess of $1.72 Million

Rightscorp is one of those companies that you wonder how much longer they will be around.  Their history of losing money is almost as funny as the news that they are now working with the law firm of Flynn Wirkus Young. Please see the following TorrentFreak article.

The names of persistent infringers of Rightscorp clients’ works will be turned over to the law firm. This is the law firm where Copyright Troll attorney Jordan Rushie resides.  This comes on the heels of six copyright infringement cases they files on behalf of “Rotten Records” – DTD Post on Rotten Records.

The amount of people the firm can actually sue (not just threaten to sue) is going to be dependent on what jurisdictions the law firm/attorneys are licensed to practice in.  It is going to be hard to sue a persistent infringer in Arizona, when you don’t have Copyright Troll attorneys licensed to practice there. I would expect the most likely course of action is going to be a letter from FWY/Troll Rushie, asking for a settlement to avoid a lawsuit – similar to what TaylorMadeClips/Mark Borghese is doing (see above).

TorrentFreak also reported that Rightscorp is doing as well as expected (sarcasm) and the company is operating “In The Red.” TorrentFreak article

The bottom line is that Rightscorp had an operating loss of  $1,722,507, close to a million more than the $743,599 it lost in the same period last year. That brings Rightscorp’s 2015 losses thus far to a little over $2.65m.

Rightscorp has increased its settlement amount to $30 (previously $20), but I think their problems goes much deeper.  I wonder how long Rightscorp can maintain this pattern of failure?
MugRightsCorp1

Prenda Law Side Note

We cannot forget the sad state of affairs the Prenda Law crew is currently in. John Steele and Mark Lutz may have cut and run from BT Copyright Trolling, but they are certainly not afraid to threaten new people/business to make fast cash. CBS Chicago News Report on filing ADA-related lawsuits.

Also on 10 Aug 15, Prenda attorney Paul Duffy passed away. Madison Record News Report

DieTrollDie🙂

“To Suspect your Own Mortality is to Know the Beginning of Terror; To Learn Irrefutably that you are mortal is to Know the End of Terror.” {Children of Dune, Frank Herbert} 

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