Malibu Media sues its former counsel Keith Lipscomb and his firm for professional negligence and breach of fiduciary duty

Thank you Sophisticated Jane Doe/Fightcopyrighttrolls.com. The downfall of Malibu Media LLC/X-Art/Troll Keith Lipscomp is hopefully at hand.

DTD🙂

Fight © Trolls

Keith LipscombM. Keith Lipscomb

Today Malibu Media (a litigation shell of a hardcore “barely legal” pornography producer X-Art), represented by its new counsel, Pillar Law Group, filed a lawsuit in Central District of California against its former counsel, Michael Keith Lipscomb and his firm, Lipscomb, Eisenberg and Baker (CACD 16-cv-04715). I reported about an apparent quarrel between X-Art and Lipscomb, but I did not know the details. Now we have an opportunity to peek into the reasons behind the breakdown and the specifics of the shakedown operation in general.

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Queen of the Desert – Forgettable Movies & BT Copyright Trolls

QOTD_Poster1The phenomenon of BitTorrent Copyright Trolling is something that moves like a snake through the grass. The Trolls adjust their actions as needed to best generate settlements, while maintaining the Fear Uncertainty, and Doubt (FUD) of their claims and evidence.   One recent snake is “Queen of the Desert,” (QOTD FILM INVESTMENT LTD.) an otherwise forgettable film that according to limited reporting, made less than $2 Million at the box office and had a production cost of at least $15 Million (One report claimed $30 Million). We call that a LOSS.

So what do you do with a flop??? You turn it into a reason to Copyright Troll and hopefully recoup some of your losses.  I don’t know how many cases have been filed or total John Does, but I would assume at least a couple hundred John Does.

QOTD_Stats_Suck

Now as you take a look at the US Copyright Office records, there are six records for “QOTD FILM INVESTMENT LTD.” The copyright records are for the following: Blue-ray disc, printed material (screenplay), two Security Agreements, and two Copyright mortgage and assignment and power of attorney. The Troll of course only lists the copyright for the Blue-ray disc (movie). I would sure love you see what the mortgage/assignment and power of attorney documents have to say.   6_QOTD_Copyrights

Looking at one of the QOTD cases disclosed nothing new in the way of the BT Copyright Trolls.  The attached documents are the same general template based crap we have seen for some time – not too surprising.

Case Documents – Complaint_00928(NV)   Complaint_EX1_00928(NV) Complaint_EX2_00928(NV)   Motion_Discovery_00928(NV) Motion_Discovery_Macek_Decl_00928(NV)

What I did get a good laugh from was in the supporting declaration for Early Discovery by Daniel Macek, MAVERICKEYE UG (a German company – go figure! – AKA: Guardaley, IPP, & Excipio).  If you don’t know who Daniel Macek is, then read one of my articles concerning the Australian Dallas Buyers Club case.   Daniel Macek / AU DBC  

The bottom line (my opinion) is that Daniel Macek is a clueless stooge when it comes to Maverickeye. Here is what Attorney Morgan Pietz had to say about the German investigators in a MD Malibu Media/X-Art case.

Recent proceedings in Elf-Man, LLC v. Lamberson, E.D. Wa. No. 2:13-cv-395-TOR, ECF No. 50, 5/20/14, at 7:26 (attached to the Pietz Reply Decl. as Exhibit AA) corroborate Movant’s arguments that Guardaley, IPP and Excipio is run by the same group of people playing a global shell game. In ElfMan, Michael Patzer and Daniel Macek—the very same computer witnesses Malibu talks about in the instant opposition—were caught red handed trying to hide behind yet another series of phony shell companies. In addition, the proceedings also show how Patzer and Macek are trying to use the Hague Convention so as to avoid being hailed into American courts to be deposed about their supposed evidence of infringement.  (Case 1:14-cv-00223-MJG, Document 27, Filed 05/31/14)   Germans_Macek_27-main

Also, Daniel Macek was mentioned by name in the Anti-Piracy Management Company (APMC) presentation on Prezi. In the presentation notes section, the author states that Daniel Macek will provide the declarations (just like in this case) and they hope the judge “won’t question his qualifications too much.”

apmc_d_macek1

APMC_Transcript

So things haven’t changed that much for the BT Copyright Trolls. So according to the docket in this case, the Troll was granted early discovery of the ISP subscriber data and sent out his settlement demands.  *** If you are a recipient of such settlement demand letters, please email me a copy – dietrolldie@dietrolldie.com. ***

Chaz RaineyIn doing some QOTD research I came across some documents from a Doe.  It appears that Copyright Troll attorney Charles Rainey, Rainey Legal Group PLLC, Las Vegas, NV, has requested $6,000 to settle this allegation (AKA: Pay to make it go away!). Now the amount is in the range of what I currently see as a “starting” amount of approx. $5-8K.

Well this Doe didn’t like what he was reading and fired off a response to Troll Rainey. Now I generally don’t recommend corresponding with the Trolls, as there is a risk of saying something that could be misconstrued or just sounding so nervous the Troll increases the threats to force a settlement. The Doe denied the downloading by him or family members and even told Troll Rainey that until recently they had an OPEN WiFi. The Troll Rainey of course told the Doe was he was still responsible and unless he paid the $6K, Troll/Plaintiff would seek the maximum damages. Troll Rainey claims that the Doe’s ISP “contract” and “contributory and vicarious” copyright law make the Doe responsible. What a load of crap. Take a read and tell me what you think.  Oh, and you have to LOVE that “PRIVATE AND CONFIDENTIAL” footnote. LOL! As soon as the Troll sent the email, he voluntarily released control (AKA: consented) to the recipients (The Doe). If the Doe then released it and it made its way to the general public/Internet, it is gone for good.   emails_Redacted

I am in receipt of your email dated June 18, 2016. Despite the arguments made in your email, my client QOTD Film Investment Ltd. (the “Plaintiff”) is proceeding with its case against you and, in the absence of a settlement, will seek the highest possible award of damages allowable under the law. The subpoenaed information provided by your ISP, coupled with the data gathered from our third-party investigator, conclusively proves that your Internet access point was utilized to illegally download and disseminate the Plaintiff’s motion picture entitled QUEEN OF THE DESERT.

Meanwhile, further data gathered by our investigators shows that this was not an isolated instance. Indeed, the subject IP address, accessing the Internet from your home, is associated with dozens of illegal downloads.

While you may argue that you were unaware of the infringing activity occurring at your address, that is not a satisfactory excuse. Pursuant to your contract with your ISP, as well as under the laws governing contributory and vicarious copyright infringement, you are responsible for reasonably policing your Internet access point. Even if you were not directly responsible for the infringing activity, your failure to implement reasonable precautions for securing your Internet connection has enabled the unlawful pirating of our client’s intellectual property.

Furthermore, I feel it necessary to explain that your threat to change Internet Service Providers holds no bearing on whether or not we move forward in prosecuting this case against you. The Plaintiff in this case is the producer of the above-referenced motion picture and has no affiliation with your ISP. The only reason that your ISP was contacted in this matter was to acquire data pertaining to the above-referenced IP address. Indeed, your ISP is legally obligated to cooperate with our investigation of this matter.

Consequently, the arguments set forth in your letter fail to provide any basis for dismissing my client’s claims against you; nor do those arguments provide any grounds for reducing our original demand of Six Thousand dollars (USD$6,000.00).

However, if you can prove a financial hardship or special circumstances to justify a reduction in our original demand, we are happy to work with you. For instance, we generally offer demand reductions for current or former members of the armed services. We also reduce our demand in cases where individuals can demonstrate (either through tax returns or W2 statements) that their household income is below the median income for the region.

My client’s goal is simple: to stop Internet piracy. To this end, we have structured our financial demands to be high enough so as to strongly discourage defendants from engaging in any future infringing activity, meanwhile encouraging those some defendants to implement reasonable precautions against future infringements utilizing their internet access points.

Industry estimates claim that Internet Piracy annually causes up to $250 billion dollars in damage to our nation’s entertainment industry and accounts for the loss of more than 750,000 jobs. While many groups dispute the exact extent of the economic damage caused by Internet Piracy, analysts, academics and policy experts generally agree that Internet Piracy is a net loss for our nation’s economy.

We strongly encourage you to consult with an attorney to review your rights and risk exposure in connection with this matter. If you fail to address this demand, we will proceed to name you as a defendant in the above-referenced case and seek the highest possible award of damages against you.

Chaz Rainey Esq./MBA/LL.M.

Licensed in California, New York, Nevada, Texas, and the District of Columbia RAINEY LEGAL GROUP PLLC

+1.415.578.4600 (ph) / +1.888.867.5734 (fax)

chaz@raineylegal.com < mailto:chaz@raineylegal.com >

San Francisco, CA – Las Vegas, NV – New York, NY

** Registered member of World Link for Law with over 70 law firms in 47 countries **

************PRIVATE AND CONFIDENTIAL************

This transmission and any attached files are privileged, confidential or otherwise the exclusive property of the intended recipient and/or Rainey Legal Group, PLLC (“RLG”). If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is strictly prohibited. If you have received this transmission in error, please contact us immediately by e-mail (info@raineylegal.com < mailto: info@raineylegal.com > ) or telephone (844-730-5100) and promptly destroy the original transmission and its attachments. Opinions, conclusions and other information in this message that do not relate to the official business of RLG shall be understood as neither given nor endorsed by RLG. Any U.S. federal tax advice or federal or state securities advice contained in this communication, including attachments, is not intended or written to be used and cannot be used to (1) avoid penalties under the Internal Revenue Code, (2) avoid civil or criminal liability for securities related activities, (3) or to promote, market or recommend to another party any transaction, investment or other matter addressed herein.

So what should you do if you are a Doe in some of these newer cases??? I suggest (in a non-attorney manner) to do your research and proceed cautiously. As the NV jurisdiction is a newer one for the Trolls, we don’t know how the Troll attorney/Plaintiff and courts will handle this. With these multi-Doe cases, it is highly unlikely the Troll the name and serve all the non-settling Does. The risk Troll/Plaintiff faces is if they name/serve a Defendant that fights back, they may not be able to cut and run like in previous years. A prime example of this can be found at Fightcopyrighttrolls.com – Judge thwarts copyright troll’s sneaky practice of securing safe retreat from potentially meritless lawsuits.  The Trolls are likely to think long and hard on who they actually go after (name & serve). IMO, it is simply easier and far less risky for them if they take whatever settlement they can scare out of people and move on to new cases. Greed is a powerful motivator, so we will have to wait and see what the Trolls do.  If you receive any settlement demands from the Trolls, please email me a copy – dietrolldie@dietrolldie.com.

DieTrollDie :)  I will accept the rules that you feel necessary to your freedom. I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do.”  [The Moon Is A Harsh Mistress, Robert Heinlein]

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The Dangers of Talking To The BT Copyright Troll – They Are NOT Your Friends

*** Attention – If you are a John Doe (or named Defendant) in any past/present BT Copyright Troll case in the Chicago area, please send me an email. I have a reporter who is looking to talk with some John Does. Thank you. DTD🙂    dietrolldie@dietrolldie.com ***

Well the summer is heating up and I hope everyone is able to find some relief and enjoy themselves.  I recently got back from Las Vegas, NV, after experiencing 109’F.  ;(  Still it was a fun trip and good times were had.

Vegas_2016What is NOT a good time is dealing with BitTorrent (BT) Copyright Trolls.  I recently came across a list of questions one BT Copyright Troll was asking a John Doe/ISP subscriber who claimed innocence.  Now once again I will state clearly that none of what I’m talking about here is me trying to practice law.  This is just my thoughts and opinions on the various BT Copyright Troll antics.

Should You Talk To The Trolls?

Now in general, I’m usually very hesitant to suggest to people that they may want to contact the Trolls themselves and state their innocence. As I stated in my previous article, even if you are innocent, you could say something that gets misconstrued or you just sound so nervous the Troll figures some more pressure and you will pay up even if innocent.  YES, people do this.  These BT Copyright Trolling efforts are simply greed rationalized by the fact that peer-to-peer file sharing occurs.

Each BT Copyright Troll/Plaintiff is different and so is how each one runs their cases.   For many of the mass-Doe copyright infringement cases, I don’t suggest getting an attorney unless named/served or receive a deposition subpoena.  For many of the single-Doe cases, I do recommend at least talking with an attorney. With many of the single-Doe cases, the Troll for some reason appears to be more confidant and will go to the naming/serving stage with little hesitation. There is no hard and fast rules either; as well as things can change very fast. I have recently seen some mass Doe cases where the Troll got as many settlements as possible and finally named/served the remaining handful of Defendants.

In general I believe it is preferable to have an attorney speak for you, but if some reason it is not possible (no money, etc.), you can do it yourself.  Just be very careful.

So here are the basic questions a Troll attorney is going to be asking anyone who claims innocence. The questions will generally come in a written form (preferable to the Troll), but verbal is better than nothing. NOTE: One thing I didn’t see printed on the question form was that this was part a settlement negotiation. Why is this important???

This is important because without this, the questioning is simply part of the Troll investigation. As it is NOT part of a settlement negotiation, the protections of Federal Rules of Evidence (FRE), Rule 408 are not generally going to be applied. The Troll will simply state that you voluntarily agreed to assist them in their investigation.  So what is wrong with that???

  • Again, based on the past activity of BT Copyright Trolls, they are NOT your friends and they are NOT here to help you – even if innocent. ANY response to Troll questions needs to have (My Opinion) “(FRE 408) – Confidential/For Settlement Purposes Only” placed at the beginning and end of each page or other correspondence.

Now someone might say, “Well, the questioning isn’t part of a settlement, so FRE 408 doesn’t apply.WRONG! – A settlement doesn’t have to mean YOU (John Doe/ISP subscriber) are going to pay Troll/Plaintiff anything. It simply means you are coming to an agreement on how to settle the issue at hand (Copyright Infringement). If Troll/Plaintiff decides to drop the case against the John Doe/ISP subscriber based on the information provided, then a settlement has been reached. Making sure FRE 408 is plastered on all such correspondence is important; it generally makes is so Troll/Plaintiff cannot use the content of the settlement negotiation to prove their case. Now FRE 408 is not a perfect protection, but it makes it significantly harder for the Troll to use such information to prove their case. AND make no mistake, if YOU are a John Doe (IP address is listed in the complaint), this is an adversarial process and you want all the protections you can get.

So Here Are The Questions

Question No. 1. Identify all computers (including equipment which performs computational functions) and electronic storage devices used at your address, that may have had access to an IP address assigned to your address at any time in the 2016 calendar year, including providing dates of use, date of purchase, current location, any brand and model number or other identifying designation, and the storage capacity of each such device listing number of drives, model and size where available. If any such computer or storage device is no longer at the location, in your possession, or subject to your control, describe how, when and why you no longer have possession or control of the device.

Why This Question?

  • The only thing the Troll knows (at this time) is on specific dates/times, their BT monitoring service recorded a public IP address assigned to you (the ISP subscriber), the BT client used to share Plaintiff’s content (likely recorded at multiple times), and the “other” (non-Plaintiff) files that were also available to be shared via the BT client using your public IP address.
  • The Troll needs you to tell them what computers are/were on the internal network – behind your WiFi Firewall/Router. Otherwise they don’t have a clue. Now based on the specific BT client they recorded, they can make assumptions on what OS the BT client was running on.
  • They will also use this information to narrow down who is the most likely BT user, based on periods of use, specific user, and the types of “other (non-Plaintiff) files available via the BT client.

Question No. 2. Please identify all persons who are known to have used or operated any of the items identified in response to Question #1, including the computer or device used, nature of each person’s use, best known dates of use, each person’s relationship to you, and the current best known contact information including address, telephone number and email and representation by counsel if any.

Why This Question?

  • Same as above; the Troll only knows the name of ISP subscriber because of the ISP subpoena. Now once they have your name and address, they can do some Internet and Lexus/Nexus searches to see who is likely at the residence. Spouse, children, adult children, roommates, etc.
  • Again, the information provided will be used to select who the most likely BT user is. NOTE: I said “most likely” and not the person responsible. Bottom line is the Troll doesn’t care who did this, just that someone is going to pay a settlement to make the law suit go away (my opinion). The answers to these questions are NOT being used to rule out people; they are used to identify a specific target(s) for the Troll attorney.

Question No. 3. Please identify all clients or software used for peer-to-peer file transfers on any of the items identified in response to Question #1, including the name of the software, version, date of installation, the person who performed installation, any person who used the software, and date of removal or deletion if removed or deleted, and the person who removed or deleted the software.

Why This Question?

  • If they can get you to provide what BT client was used and it matches what their BT monitors recorded, they have more evidence. But even if the BT client doesn’t match, they will simply say that you are/were a BT user and likely a serial infringer of protected content. They will say you simply switched BT clients since they recorded the activity.
  • This information will also tie back to a specific computer and the person(s) who normally uses it – narrowing the target.

Question No. 4. Please state whether any file deleting programs or hard drive cleaning software has been used on any of the computers identified in Question #1 in the 2016 calendar year, including computer or device on which such software was used, the date of first installation of any such software, the dates of use, and the purpose of such use.

Why This Question?

  • The Troll is looking for anything to support their claims if/when a forensic analysis comes back with NO Plaintiff’s movie/content, NO torrent files, NO BT client, NO “other” (Non-Plaintiff) files shared by BT client, etc. Simply claiming a person deleted/wiped the files is standard Troll tactic when evidence is lacking. Another claim is that a person removed/hid/destroyed/donated the offending computer (where the BT client was run) from the residence. This was BT Copyright Troll attorney Keith Lipscomb’s (Malibu Media, X-Art) worry – as he stated in the closing arguments in the PA Bell Weather trial.
  • For most of the current Non-Malibu Media cases, the chance of a forensic examination is going to be unlikely at best. The simple imaging and analysis of one hard drive is likely to cost the Troll a $1,000+. Note: As of writing this article Sophisticated Jane Doe reports that it has been two months since the last Malibu Media cases was filed. As I previous said, things can change fast with the BT Copyright Trolls. Still we have other Troll/Plaintiff who are willing to file these cases.

Question No. 5. Describe your Internet service as made available for use at your address anytime in the 2016 calendar year, including make and model of any modems, network routers, WiFi routers, network access points, passwords used, and any changes made in the 2016 calendar year, and dates of such changes including changes to passwords.

Why This Question?

  • The Troll does not know how your network was set-up/run. Here is where they hope to lock you into saying that the network was password protected, you never gave out the password to others, and never saw any instances of unknown/unauthorized computers using your network. If you tell them that password changes were made at specific dates and the BT activity continued, they will assume it is from an authorized network user.

Question No. 6. Attached is a list of confirmed acts of distributions of copyrighted content in violation of U.S. Copyright Law observed as originating from the IP address assigned to you. Provide a list of all parties who had access to the Internet service at your address at any of the times and dates noted in the exhibit, including parties who may have left a computer running whether or not they were then present at the address.

Why This Question?

  • More narrowing of targets by the Trolls. Who had access to the network during the dates in question? Did someone leave a computer running a BT client for any time period(s)?

Question No. 7. Also attached is a list of BitTorrent activity observed associated with your assigned IP address. Please identify by item number any titles or files that you observed (through any means), shared, downloaded or attempted to download through the BitTorrent protocol at any time by file number. For each such identified title or file, state:

  • the BitTorrent client or software used;
  • the torrent web site, portal, or index used to find the torrent associated with each file;
  • the item from Question #1 that was used to operate the client or software;
  • the item from Question #1 where any such content was stored;
  • whether the content has been deleted;
  • the date of such deletion and the manner or software used for such deletion.

Why This Question?

  • The Troll is trying to narrow down who may have used the BT client to share Plaintiff’s movie/content. Even if you are the ISP subscriber and did NOT do this, saying that you knew of the copyright infringement activity via BT could give way to a claim of contributory copyright infringement against you. Essentially a Troll could claim that by YOU knowing of the BT copyright Infringement by another person and then allowing that person to use your network to do so, you have contributed to copyright infringement.   

Question No. 8. Identity any file you have downloaded in the last three years in whole or part using a peer-to-peer or BitTorrent protocol which is not identified in response to Question #7. For each such file, state:

  • The name of the file downloaded and common name of the content of the file (title of book, movie, etc.;
  • the BitTorrent client or software used;
  • the torrent web site, portal, or index used to find the torrent associated with each file;
  • the item from Question #1 that was used to operate the client or software;
  • the item from Question #1 where any such content was stored;
  • whether the content has been deleted; and
  • the date of such deletion and the manner or software used for such deletion.

Why This Question?

  • Again, on the chance that there is no evidence disclosed, the Troll attorney will be looking to point to something that they believe indicates you are responsible – going back three years! As BT is a large part of on-line copyright infringement, the Troll will claim you must be responsible – “Nobody use BT for purely legal reasons.”

Question No. 9. Describe all known BT related activity conducted by others through an IP address assigned to your residence in the last three years, including who conducted such activity, dates of such conduct, dates of notification of such conduct, and items identified in response to Question #1 that were used for such conduct and the basis for your knowledge.

Why This Question?

  • As previous said, if you tell the Troll that you knew of BT activity ongoing on your network, there could come a claim of contributory infringement, because you did not attempt to stop the illegal activity and let it persist.
  • Otherwise they are simply looking for evidence from you to point out who the infringer is/was. This of course comes out as a veiled threat IMO – do our investigative work OR you may be named/served with a complaint summons.

Question No. 10. Identify each website, blog or message board you have visited, or to which you have subscribed, posted or hosted, which refers to, relates to, or discusses, Internet piracy, BitTorrent, file sharing, or which provides information to people regarding suits which allege that people have committed on-line copyright infringement. For each site, identify any email used associated with the site, handle, user name, or any postings or communications made to or through such site in which you were a party to such communication.

Why This Question?

  • OK, you got to love this question! They are looking for you to implicate yourself by what you may have posted on-line. They need you to tell them what site/blogs you posted to, names used, email address used. They will then search the sites to see what was said and if it implicates you or others.
  • FUNNY, but if you read and/listen to the PA Bell Weather trial; you will see that Keith Lipscomb had very similar questions posed to the Defendants during depositions. 

Question No. 11. Identify any communication or documents received from your ISP or related to your Internet usage in the last three years including any changes regarding the terms of your contract or agreement, and any notices you have received, including but not limited to notices of copyright infringement or DMCA related notices.

Why This Question?

  • They are looking for information that shows that you (the ISP subscriber) knew that your network connection was using an excessive amount of data each month (caused by BT activity) and didn’t care – because YOU were responsible for the BT activity (or at least knew of the BT activity and did nothing).
  • Also if you received any DMCA take-down notices and what you did to stop the BT activity on the network. If you did nothing, then they will claim that is because YOU were responsible for it (or at least allowed it to occur).

Question No. 12. Please provide your travel history for any dates in 2016 in which you were not at your residence.

Why This Question?

  • The Troll wants to know your travel history in case you later claim to be out-of-town during the alleged infringement periods.

Your Decision

Now if you choose to speak with the Troll, please make sure you caveat your answers appropriately if needed.  If you are asked a question and are not sure of the answer, tell them that. Tell them you are unsure and will need to get back to them after you have had an opportunity to research the matter.  Some of the questions go back three years!  I don’t know about you, but going back three years on these otherwise normally mundane matters is going to be near impossible.  Don’t be afraid to state that you don’t know the answer to their questions.

Hopefully most of you will never be faced with this situation, but it is better to be prepared if it happens.

DieTrollDie🙂

“Move according to your opponent.” {One lesson from Master Funakoshi}

miyamoto1

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“Copyright Troll Poker” – OR How To Survive This Troll “No-Limit” Game

PokerCheat1*** Update (10 May 16) – Just in case anyone thinks I’m practicing law by providing my opinions and thoughts – I’m not. PERIOD. If you need an attorney, please hire one. Also remember that you get what you pay for. I make no money or receive anything from this blog – that is not the purpose. ***

So I decided to title this article (it was going to be a Podcast, but was too long), “Troll Poker,” or a primer on how to survive this Troll “No-Limit” game. AND it is a “Game,” in my opinion. The “game” is to make money and damn the little people involved. The Trolls and the Copyright owners will claim that it is the individual infringers who are to blame and they are just doing what is their right by law – “It the thief/pirate didn’t download/share the copyright protected content, then they wouldn’t be in this mess.” On a very basic/simplistic level this is correct. The Troll attorney and copyright owner then rationalize their douche-bag actions as fair and righteous; when it is anything but.

I liken BitTorrent (BT) Copyright Trolling to playing Texas Hold-em Poker. The problem is for most people, their knowledge of this “game” (BT Copyright Trolling) is limited, as well as the Trolls (Copyright Owners & Troll Attorneys) having a larger bank-roll than most of us (if not all Does/Defendants). Now I really enjoy Texas Hold-em, but my tolerance for risking large amounts of money is not very high. I have a pretty good idea of my limits and adjust my strategy and tactics accordingly.

For this article, I will primarily be talking about the Voltage Pictures and Malibu Media/X-Art cases copyright infringement cases, but it can generally be applied to any other BT Copyright Troll out there or for any new ones that pop up. Poker (much like BT Copyright Trolling) is a game in which luck is a factor, but playing the odds and “knowing” your opponent goes a long way in deciding the outcome.

Even before the fun begins, you need to ask yourself

  • Are you even playing the “GAME?” If you are worried about an email notice you received from CEG-TEK or Rightscorp, relax. You haven’t even sat down at the poker table and been dealt your cards. Ignore the offer to “play” with the Troll and ensure the BT activity that brought about the email notice stops; – and doesn’t start back up again – simple.The bottom feeding Trolls will then move onto other unsuspecting people to scare into paying.
  • Have you received any official notification from your ISP or the court?  For the rest of you, I assume you have received some sort of letter/package from your ISP informing you of a Federal Copyright Infringement law suit was filed – either against your IP address singularly (John Doe IP address 123.45.67.890) or as a group (John Does 1-17).  As well as the Troll has been likely granted Early Discovery to obtain the subscriber information on your ISP account – Name, address, etc.
  • My first suggestion – How did this happen? – try to determine how this happened. Was it you? Was it another authorized network user? A neighbor using your network?, Roommate?, etc.
    • I suggest resecuring your WiFi password and only giving it out once you determine that authorized users are NOT running BT. (Yes I know BT isn’t illegal – this is an immediate action to hopefully limit further recording by the Troll of any BT activity on your network.)
  • Check you WiFi Firewall/Router logs (usually VERY limited on home Firewall/Routers) for any unknown systems that were connected to your network. See you device manual for specific instructions.
    • If this is found, take screen-shots (save them!) and write down all the details – IP address used, MAC address, date, time, etc. The logs will NOT be for the time period the Troll is citing in the complaint, BUT, it will show that you found unknown computers/systems using your network. If it happened once, it could have happened before.
    • Don’t lose this information. Don’t worry too much if you cannot find anything – logs/records on these devices are VERY limited in nature. It still could have happened.
  • Social Media is NOT your friend.  Secure your Social media accounts (Lock-down ALL of themPERIOD) – not just Facebook. LinkedIn, Google+, YouTube, Twitter, etc., etc.
    • Do this early, especially if this is a Malibu Media/X-Art case. Once the Troll has the subscriber information from the ISP, they will likely start to collect any/all social media information they can. Now I’m NOT telling you to go and delete any information, I just wouldn’t make it easy for the Troll to freely collect information on you – restrict/cut-off access is my suggestion AND it is your RIGHT to do so.
    • The Troll can easily take something as simple as a Facebook “Like” of the HBO series “Game of Thrones” and claim you are the likely infringer because the “Other” files being shared via a BT client on your public IP address contained pirated copies of the Game of Thrones series. They could also see that you are an amateur photographer and claim that some pirated photography eBooks and photo-editing software (Adobe Photoshop) indicates you are the infringer.The goal is to make it as hard as possible for the Trolls to get any type of edge on you.
  • Motion to Quash? For a majority of people, filing a motion to quash the ISP subpoena is going to be a waste of time (my opinion). NOTE: A few courts are not taking the Trolls prima-facie claims of proper jurisdiction on face value – I don’t think this will kill these cases, just that the Troll is going to have to make more of a show with some judges at first.
  • Who is the Troll? Next you should determine who is the Troll/Copyright owner who wants to play, as well as the local Troll attorney, type of case filed (single-Doe or Multi-Doe), and any other notable tactics they like to employ.
  • I would suggest you sign-up for a PACER account (https://www.pacer.gov/reg_pacer.html) and review the case docket. Please see the examples/Links on the blog – I have a copy of a case docket and some files from it. Monitor the case at least weekly – any new activity?
  1. Example: Dallas Buyers Club case in CO. Multi-Doe – 16 John Does. The local Troll running this case is Troll David Stephenson – not known to be an overly aggressive Troll.
  2. Example: Cobbler Nevada case in WA. Single-Doe case. More aggressive – as this is a single doe case (they appear to be more confident with the single Doe cases). Still not as aggressive as the Malibu Media Trolls. They do seem to like depositions – IF the courts will authorize them.
  3. Example: Troll is Malibu Media/X-Art in the Northern District of CA. Single-Doe case. Malibu Media is known to be aggressive even when the evidence clearly shows the defendant wasn’t the offender. When that happens, they try to force a defendant to accept a walk-away deal and not have to pay Defense attorney fees/costs.  *** NOTE: Malibu Media may be have a bit of a melt-down in the works – see the 18 April Fightcopyrighttrolls article.
  • To send a settlement letter or NOT. In general, the Voltage Pictures Trolls are going to send out some sort of settlement demand letter OR possibly a VERY generic letter stating the allegation (case #, etc.) and that YOU NEED to contact them to resolve this issue.
    • Malibu Media is NOT going to send you a letter. They have invested too much time and effort in being known as a hard ass to do that – their reputation speaks for them. They also like to point out that they don’t send settlement letters like the others – for some reason it makes them think they are not a BT Copyright Troll. When in fact they are simply Prenda Law’s slightly smarter cousin.
  • I would suggest you do some research and note the defense attorneys who are experienced with the BT Copyright Trolls. I don’t suggest a general attorney (Non IP attorney) who doesn’t understand how the BT Copyright Trolls work. See if these attorneys give free consults or reduced rate consultation. NOTE: The old saying is true – you get what you pay for.
  • Regardless of who the Troll/Copyright owner is, I generally advise against contacting the Troll.
    • There are exceptions, but even being totally innocent is NO guarantee the Trolls will back down when you show them the proof.
    • You are NOT going to be able to convince them that you, your family, roommates, etc., are not responsible. PLUS, you run the risk of saying something that the Troll could be use against you. Even if you do not say ANYTHING incriminating (because your innocent!), you could sound so nervous that it tell the Trolls that additional pressure will likely result in a settlement (Verbal & Non-verbal clues OR “Tells” in Poker)
    • Don’t ever believe these actions are simply “justice” for the Copyright owner. They are simply based on “GREED.” 
    • Even if you say something incriminating during settlement negotiations (They generally cannot use this against you), it will give the Troll insight into how successful they will be if they apply pressure – if they have to.
    • I would also recommend you reference FRCP 408 (Compromise Offers and Negotiations) in any/all negotiations with the Troll. “As a matter of general agreement, evidence of an offer-to compromise a claim is not receivable in evidence as an admission of, as the case may be, the validity or invalidity of the claim.”
  • For the multi-Doe cases (like the CO DBC case I mentioned), my suggestion is to stop the BT activity AND don’t respond to the Troll – calls, emails, letters, etc.
    • For the Multi-Doe cases, there is NO way a Troll can name and serve ALL the Defendants – PERIOD. For that 16 Doe case in my example, the Troll appears to have received settlements from 6 Defendants (Settled With Prejudice). He dismissed 10 Defendants Without Prejudice – No settlements, and named ONE person. So what are those odds? Overall assessment – 1 in 16 = 6.25% chance. Now that is a very simplistic assessment. In reality, more facts likely come into play.
    • So for this case, if the Defendants simply didn’t respond to the Troll, there was a 93.75% chance they would eventually be dismissed. OK, let’s only use the Defendants who didn’t voluntarily settle (11). 11 Defendants – only one of them was named and served. 1 in 11 = approx. 9.1% chance. 90% of not being named/served is pretty good odds!
    • There was likely some reason as to why the Troll decided to name and serve this person. Maybe the Defendant talked with the Troll and they said the wrong things. Hard to say why.
    • Now for the Malibu Media/X-Art cases, the chance is much greater. As I said the Troll uses this as his reputation to scare people. This is like going head-to-head against a World Series of Poker Champion. You can do it alone, BUT it isn’t a simple or easy matter.
  • So what happens next if I don’t pay the settlement or engage in negotiation? You have “Checked” (a Pass in Poker) and it goes back to the Troll. The Troll now has to decide what his next move is. – Send more letters – claim to “escalate” the matter – talk is cheap.
    • They can also seek approval from the court to depose the ISP subscriber prior to formal Discovery. Most Troll don’t do this, but some in the US North West prefer to do this. NOTE: Most courts now are NOT going to approve this anymore. If this does happen – consult with an attorney.
  • If the “Game” (case) reaches this point, the Troll is likely to take one of these actions:
  1. Leave the case open (not named or serve anyone) – for as long as the court will allow
  2. Amend the complaint (Name the Defendant – but not serve the him/her)
  3. Name and serve the defendant
    • Attorney John Whiatker’s view is that if a Defendant does not sign the WOS, then the Troll have to pay a process-server – He can then file a motion with the court to recoup the service fee ($75-100), as well as the cost of writing a motion to recoup the process-server fee – because the Doe did not sign the WOS.
    • As I haven’t seen a Troll do this, I’m still of the opinion not to sign. In my view, if the Troll actually wants to serve you (and scare you) he is going to pay someone to do this. If Defendant doesn’t sign the WOS and the Troll never pays a process-server, then there is NO issue.
    • IF a person does sign the WOS, then they MUST then file an answer with the court. OTHERWISE a default judgment is very likely.
    • Now the Troll doesn’t want a default over a settlement – getting money from the Doe (Voluntarily) is much more preferable than trying to enforce a default judgement. Also, more and more courts are simply awarding the absolute minimum damage award of $750 (per movie/file) and attorney fees & costs. For a Voltage Pictures case, this could mean an award of only $750 + $1800 – 2500 (Fees/Costs). It of course could be much more – each case/court/situation is different.
  • Delay of “Game. The court is eventually going to tell the Troll to name and serve the Defendant or to dismiss the case before the court does for failure to prosecute. Each court/judge is different – so time frames will vary. Federal Rules of Civil Procedure state that a Plaintiff NOW has 90 days (it was 120 days) to name/serve the Defendant. For these cases, this is generally 90 days after the ISP provides the name of the ISP subscriber. Note: Some courts have no problem letting the Troll bust this suspense by weeks and months! If it goes past 90 days, a Doe can motion the court to dismiss the case due to failure to name/serve – prosecute the case. Be aware that if a Doe does this, the Troll may go after that specific Doe and name/serve them – It sends a message to other Does and serves as “Pay Back!” Sometimes an anonymous letter to the court asking for them dismiss the case goes a long way. The Doe could explain to the court way the letter is anonymous – fear of reprisal.
  • Malibu Media/X-Art will generally name and serve a defendant to bring them to the negotiating table or to force the settlement if it has stagnated. Even if a person does default, it simply builds up the reputation of Malibu media/X-Art – ignoring them will NOT make this go away.
  • For the multi-Does cases (like the example), the Troll will either dismiss ALL the remaining defendants (close the case – WI Cobbler NV case example) OR dismiss all but one Defendant – One named Defendant per case is manageable.
  • Troll Raises the Stakes/Bets. Once a Defendant is named and served (Process server OR WOS), they have a limited amount of time to “Answer” the complaint –
    • To “Answer” the complaint, you have to “admit,” “deny,” or say you “don’t know” to each allegation in the complaint. It is usually 21 days if served OR 60 days if the WOS is signed.
    • Failure to “answer” the complaint after service can result in the Troll seeking a default judgment – Troll tells the court that the Defendant ignored the summons and thus he wants him to rule in favor of the Troll.
      • Damages can range from a min of $750 per movie/file to a Max of $150K per file. PLUS attorney fees and costs – likely around $2.5 – $3K.
  • GOING ALL IN.  You may ask, why doesn’t the Troll serve all of the Defendants OR why doesn’t he file single Defendant cases against the non-settling Defendants & then serve them?
    • Managing/running a cases takes time and money – especially if a defendant is fighting back – Pro Se or via an attorney.
    • It costs more money to run a case where the ONE Defendant is fighting. Also the risk of a loss increases – there is no risk by not naming/serving – only that they are likely to get some settlements
      • In the Elf-Man v. Lamberton case, the Defense was awarded approx. $100K and the case was barely into Discovery.
      • Discovery is a Two-way street – the defense can depose key Plaintiff witnesses, experts, information/evidence on the BT monitoring can be examined – IPP/Excipio, etc.
      • Depositions are costly
      • Copyright owners like Collette Field do NOT want to be deposed repeatedly
      • Computer forensics are expensive – Forensic consultants are on par with good IP attorney rates – $300-400 min per hour. How long does it take to image a 1 TB hard drive? How many hours of analysis will it take to find direct evidence or spoliation? What if nothing is found?
      • For most of the Defendants, if the case reaches this point, their money (if they had any to begin with) has been depleted by the attorney fees. Even if a Plaintiff did win – there is unlikely to be funds to pay the damage award & legal fees/costs.
    • These cases – Troll business model – were built to obtain settlements with as little actual case/court work as possible. TEMPLATE BASED The more the Troll has to do, the more it costs them – Less Profit. They may claim they will simply increase the settlement amount, but it eventually reaches a point where the Defendant isn’t going to be able to pay the damages and what was actually spent by the Troll.
      • The PA Bellwether case is a prime example of this.
  • Now Malibu Media/X-Art is known to run cases to a point where Defense costs and stress are high enough to get a Defendant to accept a walk-away deal – both sides cover their own legal bills.
    • This reinforces Malibu Media/X-Art/Troll Lipscomb’s reputation of being a hard-ass. The word gets out that it is cheaper and less stressful to simply pay the settlement demand in the beginning, rather than fight it out.
      • They supposedly start off with wanting $750 per movie – 10 movies = $7,500; 20 movies = $15,000, etc. I think there is a chance of reducing the amount, but it is likely an uphill battle.
      • If a person defaults (doesn’t answer the complaint), Malibu will often seek three-time the minimum amount per movie – So $2,250 per movie PLUS attorney fees/costs.
      • Default judgments look good, but it can be a pain in the rear to actually be able to collect any damages. The Troll may end up selling the debt to a collection agency for pennies on the dollar.
      • Here is one recent default judgment where the court only awarded the MINIMUM $750 per movie – for 127 movies the total damage award was $95,250!!!!! Case number 1:15-cv-01700 (MD), Doc #20. I would love to hear what settlement amount they start out with on a 127 movie case. The attorney’s fees/costs was only $ 1,632 – which if you figure at $300 an hour (I don’t know his rate) = 5.44 hours of work – See, minimal work for maximum profit – business model. Not that they will be able to collect from this Defendant.
  • Judge or Jury Trial: Then jury selection (if Jury trial), opening statement, plaintiff’s case presentation, defendant’s case presentation, plaintiff’s rebuttal case, closing argument, jury instructions, jury deliberations, verdict, and judgment.
  • If none of the motions are approved – dismissed or summary judgment, then it will go to a Pretrial conference.
  • Now if the case finishes up with Discovery, the Troll will likely motion the court for a summary judgment (ask the court to rule in their favor) OR motion to dismiss the case (without prejudice) for some reason – allows them to cut and run. We are seeing this right now with the Ricupero case in OH – See FCT and DTD for posts on this case.
  • Take a listen to the PA Bellwether Trial (search my site) for an example of the ONLY BT Copyright Troll case to ever go that far – AND it ONLY was because the Judge mandated it. ALSO note that it was a “show trial,” meaning that the Defendants agreed to plead guilty and NOT fight back or ask embarrassing questions – for this, they received something in return – as it was a secret agreement – we don’t know. 
  • So essentially this will boil down to the Troll attempting to get up and walk away from the table prior to having to seeing the “River” card (Last dealt card) – final round of betting, and the showdown.

Playing poker when the stakes are reasonable can be a challenge – Playing when it goes high stakes (your livelihood, finances, health, etc.) is nerve-racking. By knowing your opponent you can reduce the stress and better be able to make the decisions that are right for you.

The biggest problem with this game of “Troll Poker” is that it DOESN’T ever reach the “Showdown.” The Trolls/Copyright owners will claim that it does and the PA Bellwether trail proves I’m wrong. Well, ONE case out of how many to date??? It ONLY came about when PA court forced the issue. Troll Lipscomb them struck secret deals with the three Defendants to avoid any real details being released to the world. So since 2010, we have only had ONE BT Copyright Troll “Show Trial???” Yes, a majority of Federal civil law suits are settled out of trial, but with the sheer number of cases since 2010, we should have had more than ONE joke trial. This tells you how fearful the Trolls are and what is the best course of action.

DieTrollDie🙂

“All right, sweethearts, what are you waiting for? Breakfast in bed? Another glorious day in the Corps! A day in the Marine Corps is like a day on the farm. Every meal’s a banquet! Every paycheck a fortune! Every formation a parade! I LOVE the Corps!.” {Aliens, SGT Apone}

My45ACP

 

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DieTrollDie Podcast (2016-05) – “Don’t Be A Stain” – CEG-TEK/Rightscorp and Troll Lipscomb/X-Art

ColletteField_Xart1

 

 

 

Hello everyone!  The world of BitTorrent (BT) Copyright Trolls is a busy one.  I’m sorry to say I have a hard time keeping up with all the scams, rulings, and other douche-bag moves the Trolls and their supporters keep making.  I apologize for the delay in getting this up, but the information is still good in my opinion.

For this DieTrollDie podcast, I have split it up into two separate recordings.  First one is in response to an increase in questions I recently received from people receiving settlement demand letters from CEG-TEK or Rightscorp.  The second audio file is a discussion concerning Troll Lipscomb/Malibu Media/X-Art attempt to dismiss the case against David Ricupero, 2:14-cv-00821 (SDOH).  Archive Docket  Def_OppositionDismiss_Doc80_00821(OH)

CEG-TEK / Rightscorp

Rightscorp messages #1, #2, #3, #4

Troll Lipscomb/Malibu Media v. Ricupero

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO DISMISS

After more than a year of motion practice and discovery, Plaintiff Malibu Media seeks dismissal of this action without condition pursuant to Fed.R.Civ.P. 41(a)(2). Malibu is moving to dismiss “because proceeding with this case is not economically justified,” i.e. the Defendant David Ricupero is broke. Plaintiff’s Motion to Dismiss, pp. 9, 13 (hereinafter “Motion to Dismiss”). Malibu’s position is disingenuous. Malibu was advised early and often that their claims were baseless [See e.g. Doc. 7]; that Ricupero had evidence of his innocence [See e.g. Doc. 70]; and that Ricupero, like most individuals, was of limited financial means [See e.g. Doc. 58 p. 10]. Ricupero specifically rebutted, under oath, Malibu’s allegations of infringement. Moreover, Ricupero has expended significant resources. Malibu’ explanation for needing to take a non-suit is inaccurate, as evidenced by Defendant’s Motion for Default Judgment [Doc. 78] and Defendant’s Motion for Summary Judgment [Doc. 79] showing that Malibu sought non-suit only after: failing to comply with the Court’s October 26, 2015 discovery order; completing their discovery of Ricupero; knowing a summary judgment motion was forthcoming [See e.g. Doc. 78 p. 4; Doc. 78-24 p. 4].

I expect the judge in this case is going to take his time and make sure there is no wiggle room for the Troll weasel its way out of this on appeal. Oh, I’m sure there will be an appeal. Troll Lipscomb is too far into the greed to stop now.

Last Note: I also wanted to point out that for the people affected by Dallas Buyers Club, Cobbler Nevada, or other Voltage pictures Trolls, please take a read of attorney John Whitaker’s article entitled, “Dallas Buyers Club & Cobbler Nevada: Sample Pro Se Answer.

It gives some very good insight into why this particular Troll is sending out “waiver of Service” form and why you may want to sign it.  Each case is different in my opinion, so please do your research prior to decided to sign or not to sign.  We have seen previous Trolls attempt to use this form to force settlements with only limited success.

DieTrollDie🙂

“The mind can go either direction under stress—toward positive or toward negative: on or off. Think of it as a spectrum whose extremes are unconsciousness at the negative end and hyperconsciousness at the positive end. The way the mind will lean under stress is strongly influenced by training.” {Dune, Frank Herbert}

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DieTrollDie Podcast (2016-04) – “Better Call Lipscomb” – Motion For Default Judgment (Malibu Media LLC), 2:14-cv-00821(OH)

BetterCallLipscomb1

 

 

 

Hello everyone!  Much has been happening lately concerning BitTorrent (BT) Copyright trolls.  SJD at Fightcopyrighttrolls.com has been keeping us all up to date.  Thanks! For this DieTrollDie podcast, I will briefly go over some of the recent BT Troll activity.  My main point of discussion is DEFENDANT’S MOTION FOR DEFAULT JUDGMENT WITH PREJUDICE PURSUANT TO FRCP 37; Malibu Media, LLC v. David Ricupero, 2:14-cv-00821 (SDOH).  Archive Docket    Motion_Default_FRCP37_Doc78_00821(OH)   Fightcopyrighttrolls Article

7 Mar 16 Update – Here is a Fightcopyrighttrolld article on how Troll Lipscomb want to cut and run from this case.   Defendant opposes Malibu Media’s brazen attempt to cut and run without compensating wrongly accused   The reason???  Argumentum Ad Ignorantiam (an argument from ignorance) – 302702957-OHSD-14-cv-00821-Doc-80

 A court must temper a plaintiff’s right to voluntary dismiss by imposing consequences when it used not in good faith, but rather as a tactical tool to frustrate due process and in such a way that it prejudices a defendant’s rights. See e.g. Collins v. Warden, London Corr. Inst., No. 12-cv-1093, 2014 U.S. Dist. Lexis 72643 (S.D. Ohio May 28, 2014). The fact that Malibu can unilaterally terminate the action under Rule 41(a) does not mean that it should not be held accountable for what occurs in that action. River City Capital, L.P. v. Bd. of County Comm’rs, 491 F.3d 301, 310 (6th Cir. Ohio 2007); Cooter & Gell, 496 U.S. at 397-98. As the Supreme Court has recognized, the purpose of the Rule 41 provisions regarding voluntary dismissal without prejudice is to “curb abuses of the judicial system,” and the policies behind Rule 41 are “completely compatible” with the policies of other Federal Rules whose violation may bring sanctions or impose penalties. Id. at 397. WHEREFORE Ricupero respectfully requests this Court dismiss Malibu’s claims with prejudice pursuant to either the Court’s discretion, Defendant’s Motion for Default Judgment [Doc. 78] or Defendant’s Motion for Summary Judgment [Doc. 79].

DEFENDANT’S MOTION FOR DEFAULT JUDGMENT WITH PREJUDICE PURSUANT TO FRCP 37

Plaintiff Malibu Media LLC refused to produce the only probative evidence it claimed would support liability. When ordered to produce the evidence Malibu Media denied any order had issued. After discovery closed Malibu Media represented that it is contractually prohibited from obtaining and producing the evidence. Malibu Media compounded its intentional failure to meet its discovery obligations with a cascade of belated requests for extensions, unequivocally false statements to the Court and Defendant David Ricupero, and other dilatory and obstructive tactics. While forced to incur costs in his defense, Ricupero was irreparably prejudiced by Malibu Media’s unmitigated failure to provide him with the facts behind this action. He therefore requests the sanction of dismissal with prejudice.

The Motion in my opinion shows the TRUE nature of the Trolls and efforts.  This is NOT a one-off incident, it is the standard operating method for a scum-bag copyright monetization business model (my opinion).

As always, feedback and comments are greatly appreciated.

Articles & Documents

New BT Copyright Trolls

  • Fathers and Daughters Nevada LLC
  • QOTD Film Investment (Queen Of The Desert)
  • PTG Nevada LLC (Pay The Ghost)

Additional information on these and other BT Copyright Trolls can be found at the Antonelli Law blog – Torrent Defenders

DMCA Take Down Attempts Against Fightcopyrighttrolls.com & Dietrolldie.com

Not sure who filed these DMCA Take Down notices/Legal Complaint with Google (Lumen redacted that information), but it is marked “International.” Stupid Trolls.

LumensDMCA_FCT_DTD

 

Fightcopyrighttrolls Articles

Yet another proof that X-Art doesn’t care about reducing piracy as much as about shaking down alleged file-sharers  The defendant claims to be an X-Art subscriber. The troll’s cases is based on a claim that the Defendant was not authorized to download/share the movie(s) via BT and that their agent collected a small amount of data from the Defendant. If Defendant’s claim is true, Troll/Plaintiff has ZERO evidence to show and illegal transfers of data took place.

Copyright trolls hit a new low: Keith Lipscomb wants to depose defendant’s teenage daughter in a porn case   What is a Troll to do when they cannot find evidence showing X-Art movies on the Defendant’s hard drives???  Hell, lets depose his teenage daughter in hopes asking her about barley legal porn downloads gets a settlement or walk-away deal. @$$hat alert

A model Answer to Malibu Media’s frivolous complaint   Welcome back Nicholas Ranallo!  CA Doe Defender files an Answer to Malibu Media’s allegation of BT Copyright Infringement. Attorney Ranallo understands Troll Lipscomb/Malibu media’s weak spot – DISCOVERY.  Discovery is that two-way street Troll Lipscomb likes to claim is only one-way – his way. Pay particular attention to the jointly filed Case Management Report – CaseMgtReport_Doc31_04152(CA).  There isn’t an area that Troll Lipscomb/Malibu media is going to be able to hide from.

DieTrollDie🙂

Gorobei Katayama: “Why didn’t you build a fence there?”   Kambei Shimada: “A good fort needs a gap. The enemy must be lured in. So we can attack them. If we only defend, we lose the war.”  {Seven Samurai, 1954, Akira Kurosawa}

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DieTrollDie Podcast (2016-03) – BT Copyright Troll Activity (and Marc Randazza), 12 Feb 2016

Randazza_DMCA_XbizFor this DieTrollDie podcast, I decided to go over briefly some of the recent BitTorrent Copyright Troll activity.  In addition, I discuss a recent Arstechnica article concerning a DMCA take down notice against Fightcopyrighttrolls. The DMCA notice was filed by Marc Randazza on behalf of Xbiz and was for a story about Mr. Randazza. I will have links and document following the podcast.

As always, feedback and comments are greatly appreciated.

Articles & Documents

Dallas Buyers Club in AustraliaDBC gives up on iiNet piracy case.

Michael Bradley, the managing partner of DBC LLC law firm Marque Lawyers, told iTnews the company would not make any further applications in the case after its bid to access the details of 4726 alleged pirates was blocked in the federal court.

In December, Justice Perram said DBC LLC had failed to prosecute its case to access the details.

I expect the Trolls to revisit the AU courts, but with something much smaller than trying to obtain ISP subscriber information on 4726 alleged pirates.

Malibu Media/X-Art Loses a Summary Judgment In IL, 1:13-cv-06312 (Archive Docket)

This is a devastating setback for Malibu Media/X-Art/Troll Lipscomb. The judge ruled in favor of the Defendant, stating Plaintiff did NOT show Defendant was the infringer. Hopefully the cost will award reasonable attorneys fee to the Defendant.  This case started in September 2013 and there has been over 180 document filings – the costs could be fairly large.

Malibu has presented no evidence that any part of its works was found on Doe’s computers or other electronic devices that Malibu subjected to forensic examination. In addition, Doe’s statement of undisputed facts includes the statement, “There are no copies of any of Malibu Media works on any of Doe’s devices.” [Dkt 153 ¶ 5.] Malibu responds simply, “Disputed,” without citing anything in the record to support that statement. [Id.] That fact is, therefore, deemed admitted. Fed. R. Civ. P. 56(e)(2); N.D. Ill. L.R. 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (“When a responding party’s statement fails to dispute the facts set forth in the moving party’s statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion.”).

Fightcopyrighttrolls Article

Malibu Media v John Doe (ILND 13-cv-06312) is one of the most advanced and eventful cases. I wrote about it on more than one occasion. It even made headlines in the tech media because of an apoplectic, full of misinterpretations Malibu’s motion for protective order that labeled our community “Fanatical Internet Hate Group.”

Today Judge Geraldine Soat Brown ruled on two motions for summary judgment: one by Malibu, the other by the defendant, denying the former and granting the latter.

Previous DTD Article on Patrick Paige – NEVER CONVICTED

Doe Defender John Whitaker files Amicus Brief in WA BitTorrent Copyright Troll CaseArchive Docket 2:14-cv-01819  (Dallas Buyers Club, LLC v. Does 1-10, 2:14-cv-01819 (WAWD)

The Amicus Brief and Supplement was filed in a Dallas Buyers Club case in which the Troll had motioned the court for a default judgment against a non-responsive Defendant.

Areas covered in the Amicus Brief

  • US Department of Commerce’s Report (concerning Statutory Damages)
  • The “Actual” harm from a non-commercial instance of BT copyright infringement
  • Material facts of the case
  • Plaintiff’s attorney fees
  • Proposal for a standard “Default Judgment” award

Undersigned counsel recommends that an injunction combined with a $1,250 monetary award would be sufficient at the pleading stage. That award represents the statutory minimum of $750 combined with an attorneys fees award of $500, which should be adequate given the boilerplate nature of Plaintiff’s complaint and other initiating documents. Obviously, such an award is likely inappropriate for any case that proceeds past the pleading stage. However, when faced with the daunting spectre of financial ruin that can result from protracted Federal litigation, an early resolution on known terms can adequately address the compensatory and deterrent requirements of a judgment while maintaining a semblance of fairness.

WA Court Tell Copyright Troll to “Put Up Or Shut Up.”  Dallas Buyers Club: Court Orders Case to Move Forward   DBC_Order_ Doc38_01336(WA)

The judge in this case (actually 10 cases) is clearly not impressed with the Troll and his lack of real action to move these case forward. He revoked the previous authorization to conduct Rule 45 subpoenas/depositions. He then gave the Troll  30 days to amend the complaints with named Defendants (the remaining Does) and then another 60 days to serve the Defendants with a complaint/summons. So now the Troll has to decide if it is worth moving forward or simply running away.

Plaintiff may strongly prefer prosecuting its action in the manner it has done thus far, but the Court is not inclined to permit the status quo to proceed. Although there may be advantages to proceeding via Rule 45 subpoenas, so too are there advantages to proceeding by actually naming and serving defendants. In fact, the Court believes that many of the advantages of Rule 45 subpoenas advanced by Plaintiff are shared with naming subscribers as defendants.

Paul Hansmeier (Prenda Law) Bankrupcy Order – “Liar Liar Pants On Fire”

FreshStart_HansThis one is just plain FUNNY to read.  The court in no uncertain terms call Paul Hansmeier a liar and that he cannot be trusted. Paul Hansmeier was trying to delay the conversion of his Chapter 13 bankruptcy case to a Chapter 7, pending an appeal. The judge said, “NO.”  Suck it Paul!    mnd-15-42460-doc-110(1)

On December 3, 2015, the court converted the debtor’s chapter 13 case to a case under chapter 7 pursuant to 28 U.S.C. §§ 1307 and 1325(a)(7). The court found cause to convert due to the debtor’s continuing pattern of misrepresent action to courts prepetition and postpetition. Postpetition, the misrepresentations include his failure to disclose significant transfers of assets, failure to disclose assets, failure to disclose living expenses, failure to file a § 363 motion to sell his residence for $1.2 million in cash until caught by the Chapter 13 Trustee, and failure to disclose significant general unsecured claims. The debtor appealed the conversion order and filed this motion for a stay pending appeal.

How NOT To Use a DMCA Notice – Marc Randazza

Arstechnica Article – Embattled copyright lawyer uses DMCA to remove article about himself (Marc Randazza tells WordPress that the unflattering story “is not fair use.”)

Well-known copyright lawyer Marc Randazza used the Digital Millennium Copyright Act (DMCA) to delete an online article about a dispute between his former employer and himself.

Randazza says he sent the notice on behalf of Xbiz.com, a porn-industry news site that he represents. Last July, Xbiz published an article about Randazza’s legal dispute with a former employer, gay porn publisher Liberty Media. The brouhaha with Liberty Media was also featured here at Ars in a story titled “Bribery, gay porn, and copyright trolls: the rise and fall of lawyer Marc Randazza.” It describes how an arbitrator found that Randazza—the Nevada lawyer once championed for helping bring down copyright troll Righthaven—solicited a bribe in a bid to settle a copyright case for Liberty. Randazza soon found himself under investigation by the State Bar of Nevada.

blog called Fight Copyright Trolls (FCT) mentioned the arbitration award as well. The blog’s owner, who goes by “SJD,” also noticed that the Xbiz article had been changed—but he had kept an original copy, saved and published as a PDF file on his site. On Feb. 1 nearly seven months after the FCT blog published the Xbiz article and related commentary, SJD was on the receiving end of Randazza’s copyright takedown request. The FCT blog had re-published the entire Xbiz story, and Randazza claimed that made it a piratical, infringing copy.

Here is a copy of the DMCA Notice and the email chain between WordPress and Randazza. You tell me what you think. Was Randazza abusing his position at Xbiz to get the Unedited/Original story off the Internet???  DMCA_2518583_Jan2016_Randazza

I did a quick search of Chilling Effects/Lumens database and did not see any notices filed on behalf of Xbiz (Adnet Media d/b/a) for people reposting their articles.  I do see multiple DMCA take down notices filed on behalf of Marc Randazza for pictures and stories – https://lumendatabase.org/notices/254342  Tell me what you can find.

DieTrollDie🙂

“[P]art of his settlement offer was to pay us $20,000 per bar license he is able to keep from having suspended/disbarred,” [Liberty Media COO Brian] Dunlap said. “In other words, he offered us a bounty on his bar licenses — we’d get more of the award if we did not cooperate with bar investigators or send follow–up complaints.”

“In his attorneys’ own words, they said they expect suspension/disbarment in [Florida], so we could expect $80,000 if none of the other four bars took action. We refused this offer because it was insulting, it was unethical — an attorney cannot offer such a bounty on their license — and because we know most all bars use reciprocal discipline — if one suspends/disbars, the others usually do as well.”   {Two deleted Paragraphs from the original Xbiz article, Corbin Fisher Awarded 600k Randazza to Challenge Interim Arbitration Decision, 14 Jul 15}

 

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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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