Have some spare bitcoins?
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With coinbase.com you can connect your bank account and buy/sell bitcoins seamlessly! Extremely easy to send funds. Will use donated bitcoins for Pacer/Recap and flowers to Judge Wright.
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DieTrollDie: posts R Cashman: posts Copyright Clerk: posts Popehat: posts
I added a new page featuring information about Steve “Lightspeed” Jones’s Arcadia Security. This allegedly forensic company’s website is currently unavailable, but I preserved the screenshots and posted them.
This page complements the Lightspeed password hacking cases page, which lists relevant documents and links.
Copyright troll M Keith Lipscomb
Supertrolls are liars too, though they are inventive when finding their way around the truth. They are relatively more brazen too.
M. Keith Lipscomb is one of the few main masterminds of the scheme aimed at extorting money from thousands of Internet users based solely on poorly-substantiated allegations of copyrighted porn sharing.
On June 25 Lipscomb was ordered to explain why instead of one case against 37 John Does he filed two identical cases, one against 19 John Does, the other — 18 (3:12-cv-00335 and 3:12-cv-00336). These cases are indeed identical as the allegedly shared file is the same in both cases, same swarm.
I hope you already know the answer, and it is called forum shopping: cases are assigned to judges randomly and if one case is killed by a judge, the other one can survive if it lands on the docket of a troll-friendly judge. You can imagine what kind of reaction telling this simple truth would provoke in a judge. Therefore Lipscomb, unsurprisingly, replied with 3 pages of bullshit trying to avoid inevitable admonition:
This is not even funny. If I was the judge, I would be insulted: this reply assumes that whoever reads this document has a very low IQ.
Basically, Lipscomb tells that he broke the case in two because (in his own words)
To debunk this reasoning, I turned to Pacer. While Lipscomb pulls the strings of many puppet trolls in various states (Leemore Kushner, Jason Kotzker, Wayne O’Bryan, Christopher Fiore etc.), I did not even bother checking those “package boys,” and searched only for complaints signed by Mr. Lipscomb himself. So, I quickly found the Malibu Media, LLC v. John Does 1-45 case (8:12-cv-01421), which was filed on 6/27/2012: 3 months later than those two cases.
Looking at this case, I cannot help asking Mr. Lipscomb two questions — one per each of his bogus explanations:
Actually it’s not me who should be asking these questions, but Judge Toomey. Anyone volunteers to deliver them to his chambers? Please handle the question marks with care, bubble-wrap them.
Raul (who, by the way, pointed to this hilariously bulshitty document) comments:
It is also interesting how Lipscomb uses some curious math to justify the split so as to arrive at the figure of 2 To 6 Does, against whom he will litigate his client’s case “based on Plaintiff’s experience”. This is also a lie as Lipscomb, to my knowledge, has never named an individual in a troll lawsuit much less brought one to trial. In fact, there will never be a troll initiated trial on the merits of these lawsuits, Lipscomb knows it and, hopefully, Judge Toomey knows it as well.
7/28/12
There are some developments on the 3:12-cv-00336 case: Lipscomb dismissed 15 does out of 18 and simultaneously moved for the extension of time. Two does, 10 and 11, represented by Daniel Tamaroff, were dismissed with prejudice earlier: apparently they stipulated the dismissal, with settlements or without, we’ll never know. According to Lipscomb, Doe 8 has notified Comcast about the motion to quash he was supposed to file, but either he did not do it or his motion was not filed for some reason.
Now Lipscomb tries to go after that Doe and asks the court for more time. Pretty lame and arrogant reasoning. Judge Toomey was not amused: instead of granting the extension, he set a hearing on 8/20 and dared the troll to explain the mass dismissal. I will keep an eye on this case.
Although these letters are absolute hogwash and do not deserve to be taken seriously, the discomfort of tedious waiting is not for everyone, and some recipients will want to reply formally. David Kerr, an IP attorney from Colorado, who defended many troll victims, has drafted a reply that is featured below for your reference. If you (or your attorney) is resolved to reply to Steele’s Halloween greeting card for whatever reason, this is an excellent template to consider. In any case, it is useful to read this reply as it complements my emotional speculations with solid legal argument.
We are in receipt of you letter dated _____. Based on our understanding of this correspondence your client is seeking to propound informal discovery requests including, but not limited to the production of documents, informal deposition testimony and even access to my client’s private computer network. Your letter further indicated that failure to comply with these informal discovery requests will precipitate a formal motion to compel compliance. Please note that these requests do not comport with the Federal Rules of Civil Procedure and are invalid on their face. Further, based on a review of relevant Court documents, it appears that such informal requests are not being made within the context of an active and on-going civil lawsuit. As such, my client can only assume that these invalid requests are being offered in bad faith and for a vexatious and harassing purpose. However, providing the maximum benefit of the doubt, my client will assume that you have merely failed to conduct any serious legal inquiry into the issue and have overlooked the great weight of clear case law on the matter. To better inform all parties of their rights, my client’s formal response to your invalid request is as follows:
PLAINTIFF’S INFORMAL REQUEST FOR DISCOVERY IS NOT RECOGNIZED UNDER THE LAW AND CANNOT FORM THE BASIS OF A MOTION TO COMPEL
Please note that previous attempts to circumvent formal discovery in this manner has been universally rejected by the Courts. For example, as the court in Sithon Maritime Co. v. Mansion explained:
the Federal Rules of Civil Procedure provide necessary boundaries and requirements for formal discovery. Parties must comply with such requirements in order to resort to the provisions of Fed. R. Civ. P. 37, governing motions to compel. Informal requests for production lie outside the boundaries of the discovery rules. Formal requests may be filed under some circumstances, not letter requests. Formal requests require certificates of conferring and service. Letters do not. Formal requests certify representations of counsel under Fed. R. Civ. P. 11(b). Letters do not. Formal requests clearly implicate the duties of opposing parties to respond, pursuant to Fed. R. Civ. P. 34. Letters do not. Formal requests may occasion sanctions. Letters usually do not. To treat correspondence between counsel as formal requests for production under Rule 34 would create confusion and chaos in discovery…” 1998 U.S. Dist. LEXIS 5432, 1998 WL 182785, *2 (D. Kan. 1998).
Similarly the court in Schwartz v. Marketing Publishing Co., — specifically rejecting the notion that a party may offer an informal letter requesting discovery — noted that:
it is far easier and quicker to make a formal document request pursuant to Rule 34 than it is to construct and articulate an argument why an informal letter should be treated as a Rule 34 request so as to enable it to be enforced under Rule 37. When parties fashion their own procedure, they remove their cases from the litigative stream and, when a dispute later arises, almost invariably consume more than their fair share of judicial time.” 153 F.R.D. 16, 21 (D. Conn. 1994).
Many other courts have echoed the Sithon Maritime Co. and Schwartz courts’ views and have denied motions to compel because the underlying discovery request was not a formal one. See, e.g., James v. Wash Depot Holdings, Inc., 240 F.R.D. 693, 694-95 (S.D. Fla. 2006); Susko v. City of Weirton, 2011 U.S. Dist. LEXIS 3134, 2011 WL 98557, *2 (N.D. W. Va. 2011); Tex. Democratic Party v. Dallas Cnty., 2010 U.S. Dist. LEXIS 130939, 2010 WL 5141352, *1 (N.D. Tex. 2010) (citing Ledbetter v. United States, 1996 U.S. Dist. LEXIS 20039, 1996 WL 739036, *2 (N.D. Tex. 1996); Garrison v. Dutcher, 2008 U.S. Dist. LEXIS 28267, 2008 WL 938159, *2 (W.D. Mich. 2008)); and Britton v. Dallas Airmotive, Inc., 2010 U.S. Dist. LEXIS 19502, 2010 WL 797177, *9-10 (D. Id. 2010) (citing Suid v. Cigna Corp., 203 F.R.D. 227, 229 (D.V.I. 2001).
THERE EXISTS NO OBLIGATION TO RESPOND TO PLAINTIFF’S INVALID REQUEST
In this instance, Plaintiff’s informal and improper request circumvents the Parties obligations and rights under the Federal Rules of Civil Procedure. Under similar circumstances courts have held that a Parties’ non-response was appropriate and, in fact, justified. See Fleisher v. A 1990 53′ Viking Sport Fishing Vessel, 2011 U.S. Dist. LEXIS 137618 (S.D. Fla. 2011) (“there is nothing sanctionable about a party’s refusal to provide discovery that is only informally requested.”). Our client will respond to, and comply with all legitimate discovery obligations offered in the context of an active civil case. Our position is firm that any motion to compel based on your informal discovery request would be contrary to the clear weight of law, unnecessary, frivolous, and a waste of judicial and client resources. If you wish to address the matter personally feel free to contact me directly.
On June 29 Judge O’Sullivan denied motions to quash and for protective order filed by four does, represented by Daniel Simon and Bradford Patrick (First Time Videos, LLC v. Does 1-76, 1:12-cv-20921). The judge declared that “there is a minimal expectation of privacy for information provided to internet providers,” apparently not being aware how blatantly this information is misused. Although this ruling is unfortunate, decisions like this become rarer as the case law is being developed and the unprecedented mass abuse of the judicial system gains publicity.
This decision was interpreted by a John Steele’s disciple, immature troll Joseph Perea, in a very crooked way: he decided that if motions were denied, defense counsels must have dropped their clients automatically (see Exhibit B linked below)! As a result, at least two Does still (of course!) represented by Daniel Simon of Lalchandani Simon PL, started receiving harassing mails and phone calls in violation of one of the most obvious and hard-to-misinterpret Rules of Ethics: a lawyer absolutely cannot directly contact an opposing party if the latter retained an attorney.
Thus, Lanchandani Simon has moved for sanctions and requested a hearing. It was not an opportunistic way to attack an opposing party: according to Daniel Simon, this is not the first time Prenda has shown the middle finger to the Rule of Ethics:
The undersigned counsel files this motion for sanctions begrudgingly, and only after having confronted this issue several other times in identical circumstances.
Even if a judge is misled regarding the nature of these shake-down lawsuits, I don’t’ see why he should tolerate the arrogant disregard of rules by a green lawyer.
Also, Daniel Simon does a good job analyzing the content of the ransom letter, exposing additional highly unethical statements (in particular, those that discourage putative defendants from retaining a counsel).
To the best of my knowledge, Joseph Perea is currently investigated by the Florida Bar. I believe that dropping the Florida address from the ransom letter is somehow related to this fact, as well as attempts to mislead courts by listing Perea as an independent (from Prenda) attorney on the court filings. I hope this motion and exhibits will find their way to the investigators’ desk.
Yet there are few who are not so effortlessly scared and who won’t go away easily. These folks are a real threat to the trolls “business.” So, statistically, yes: there is just a handful of real fighters, those that trolls would never target if they possessed a time machine, but given that the entire trolls’ business is essentially a house of cards, even a single serious counter-strike can severely damage extortionists. I’m not talking about motions to quash/dismiss/sever: I’m happy to see how many are being filed daily, and en masse these motions do make a difference, but, as I mentioned, trolls adapted and learned to live with the necessity to do a mountain of paperwork responding to those motions: a mass BitTorrent lawsuit is still a super-lucrative undertaking despite this unavoidable nuisance.
Getting back to the super-fighters, we witnessed some in the past, and I hope that there are much more on the horizon. Liuxia Wong, with the help of Steven Yuen, inflicted significant damage to Prenda and the entire trolling scheme: she has shown victims that one can fight back and win (yes, win: although the case has been settled, one does not have to be a genius to understand who paid whom).
A class action lawsuit filed recently against five pornographers is also a significant event, but given the nature of class action litigation, it will take years for its fruits to ripen: just look at Dmitriy Shirokov’s class action lawsuit v. Dunlap, Grubb and Blumpkin that Booth Sweet LLC has been litigating for 20 months, and which is not even close to a conclusion.
For the record, it is worth to mention Seth Abrahams, who is currently suing Prenda and Hard Drive Productions and Bailey Zwarycz, who is a sharp bone in the throat of a weretroll Mike Meier.
Copyright troll Jason A Kotzker
So I have finally arrived to new and encouraging developments in Colorado, which are the subject of this post. It is kind of unfortunate that the good news from this beautiful state is tainted by a terrible and senseless tragedy.
A month ago we noticed that in one of the Malibu cases run by a super-troll Keith Lipscomb’s puppet Aaron Kotzker, there was a defendant who not only answered to the complaint, declining the wrongdoing, but also included a one million dollar counterclaim. We cheered the defendant, Jeff Fantails, but it was not clear at that time if his claim was convincing enough to be potentially successful. Yesterday, after I read the First Amended Answer and Counterclaim, my doubts evaporated.
The First Amended Answer asserts nineteen(!) affirmative defenses and attacks Malibu Media with six claims including abuse of process, invasion of privacy, defamation, and intentional infliction of emotional distress. The relief sought is one million dollars (in most of the claims). In addition (p. 40), there is an amusing yet reasonable request to run an advertisement in the Sunday edition of a major Denver newspapers stating that defendant was never guilty of the alleged torts. I hope that judge will consider this relief seriously, as reputational damage is much more serious than the loss of property.
The Answer was carefully rewritten, and now it is probably the best explanation of the extortion scheme that exists to date. Like a sponge, it absorbed all the best what was written about copyright trolling, both on sites like this and in the court filings. Reading this document (especially pages 12-33) is essential if you want to understand the gruesomely huge extent of the harm copyright trolls inflicted on the court system, society and legal profession.
Here is this gem:
Another new and important change from the original Answer: exhibits to this filing are very interesting and critical for shaping a convincing counter-claim. These exhibits themselves deserve a separate couple of posts, and maybe I or someone else will corroborate later. I recommend paying attention to the following documets:
The style, attention to details and overall quality suggest that there are some serious forces behind this “pro se” defendant, probably more than a single talented defense attorney. This is a strategic strike.
Good luck, Mr. Fantalis! If you need any help, we will be happy to provide it to the extent that our humble abilities allow.
Nope. Certain people have been born to prove that the ethical abyss is bottomless.
As DieTrollDie reports, Prenda Law started sending out some kind of Nigerian scam letters written in Legalese. Like with robocalls, it seems that Prenda utilizes the entire database of addresses they were able to loot using unsuspecting courts as burglary tools. In particular, not only the Does who are listed in open cases, but also the people who were dismissed long time ago, have received (and continue receiving) “Letter of request for informal discovery.” For example, the letter embedded below refers to a case that was dismissed more than 3 months ago: this is not a mistake, this is a deliberate fraud on the federal court.
DieTrollDie did a good job analyzing the contents of this document, and I’m writing this post mostly to increase visibility and hopefully prevent potential victims from the perils of contacting the troll. In short, Prenda’s mailing is simply another attempt to lure people into contacting the con-men and possibly saying something self-incriminating.
If you have received this document, you absolutely don’t have any duty to reply to it. And don’t even think about contacting Prenda without an attorney. If you have time and resources to strike back, hire a good lawyer, who will monitor the situation; if Prenda fulfills its threats of trying to compel you (which is extremely unlikely), your lawyer can send a counter-request for discovery (yes it’s a two-way street!), which, believe me, will devastate the fraudsters. Or, this lawyer can kindly ask Prenda to pay for a reputable (and expensive) licensed forensic investigator of your choice: if they don’t agree (and they won’t), they will definitely shut up.
The letter threatens to file a “motion to compel” (BTW it is stated that a sample motion is attached, but no such attachment exists). Hogwash: first, in many situations there is no open case to begin with, so how the hell can they manage to file a motion without a case? Second, and most important: I’m not aware of any precedent of a judge allowing such a bizarrely broad discovery request (which includes a visit to Doe’s premises and raiding his private documents and financial records): on the contrary, any previous attempts to secure invasive discovery were unsuccessful. So, there is no way that any judge will approve such a motion (which will never be filed to begin with).
Fortunately, less and less people really think that Prenda has slightest merits to harm anyone beyond bullying. Yet, no matter how reasonable our arguments are, there will always be a few who are not used to listening to the voice of reason: such people allow fears to rule their lives. Hell, believe it or not, the 419 (Nigerian) scam is still alive and well, given that virtually anyone knows about it. It is beyond anyone’s abilities to prevent some people from irrational actions.
For the reference, here are the contents of the scary package for your amusement (and I’m sure that FBI, Attorneys General or IARDC would also enjoy reading this document knowing the circumstances):
Please answer the following questions: who knows, maybe the poll results will assist federal investigators:
that anonymous coward says:
July 18, 2012 at 1:05 am
A deeper question one needs to ask oneself is…
If their case was so awesome, the evidence so overwhelming… why do they need you to give them evidence to make a case?
Maybe because they never had a case that would survive.
This is another dirty trick in a long list of dirty tricks, how much longer are the courts going to allow these cases and lawyers to continue before ending this spree of terror?
7/24/2012
The follow-up post: Prenda’s “Letter of request for informal discovery”: an attorney explains why it is patently invalid.
DieTrollDie’s follow-up post with practical recommendations: What to Do About the Prenda Law “Informal Discovery” Papers?
The above is analogous to our judicial system based on the case law. Those districts where judges fell for trolls’ lies, are dealing with consequences of letting scumbags use courts as a cheap way to obtain personal information of ISP subscribers. These consequences include clogged dockets, inconsistent rulings, and judges realizing that they were gamed but being reluctant to admit the initial shortsightedness.
On the other hand, those districts where judges sensed abuse at once and killed the disease in its infancy, don’t have this plethora of unnecessary problems. Virginia and Georgia are among the states that ousted trolls quickly, and now Minnesota has joined the club.
On 7/5/2012 Magistrate Judge Franklin L. Noel, killed five identical cases¹ against individuals that Prenda Law (under the disguise of an earlier Steele’s outfit — Alpha Law Firm) brought on behalf of a phony offshore porn purveyor, AF Holdings².
This order is both symbolic and humiliating to Prenda. Symbolic because Minnesota is the state where Steele made his first steps as a troll (and where his wannabe forensic “expert” Peter Hansmeier lives), and humiliating due to its brevity: as if the judge tells us that Prenda’s foul intentions are so painfully clear that it is not worth time and paper to explain the obvious.
Not surprisingly, the crooks appealed the magistrate’s decision to the district judge on the same day, but I bet that this is futile: once judges understand the anatomy of the scam and learn about Prenda’s criminal activity all over the country, there is no way their opinion can be swayed.
For almost a year John Steele promises to hire an army of attorneys, and it was a rolling joke all this time. At best, he was able to hire an army of robots to call and harass people in violation of multiple state and federal laws. Despite the public perception, it is very hard to find an attorney who is eager to take a sleazy, borderline illegal job no matter how good the salary is. However, it is not impossible, especially if a lawyer is an arrogant college graduate and lacks the wisdom of a seasoned professional.
Meet Michael K Dumas (the same last name as another Prenda’s goon Matthew E Dumas that currently terrorizes Indiana — coincidence?), a Prenda employee that I never heard about, though he lists Prenda as his employer since August 2011 (NB: Prenda Law did not exist at that time).
I mentioned arrogance and lack of experience not merely to insult Dumas. Look what he wrote in the above-linked objection:
The final factor on which Magistrate Judge Noel premised his denial of Plaintiff’s expedited discovery application was that “the pornographic copyright holder’s activities in pursuit of settlement agreements may constitute an ‘abuse of the judicial system.’” (ECF No. 7.) (emphasis added). Plaintiff is deeply disturbed by the prospect of inferior access to the federal courts by virtue of its participation in the adult industry. Surely it would not be appropriate for a federal judge to say, “the female copyright holder’s activities”, or “the black copyright holder’s activities,” or “the Muslim copyright holder’s activities.” Yet, for reasons that are unclear, Magistrate Judge Noel was comfortable referencing “the pornographic copyright holder’s activities.” Plaintiff readily concedes that it, as an adult content producer, is unlikely to win a popularity contest with the general public. Nevertheless, it believes that it, as well as every other unpopular group, is entitled to equal access to the courts.
Even for a person who never heard about trolls, it is clear that the emphasis in the judge’s phrase was not the one Dumas was trying to explore, but rather the “activities in pursuit of settlement,” a reasonable concern, to put it mildly. “Pornographic” was just a statement of the fact. As a result, the entire paragraph turned out to be nothing more than a red herring. In addition, invoking racism/sexism analogies was disingenuous.
The objection is also full of lies about how discovery has helped Prenda identify the infringer in the past. Troll cite to Prenda’s negligence cases and deposition cases in support of this, despite the fact that those cases specifically say that Prenda doesn’t know who the infringer is.
To be honest, I’m tired of Steele’s games. When I think about all the mingled connections, real and phony, attempts to hide truth and ongoing puke of a desperate evil mind, I imagine a product of the drain rodding: tangled hair mixed with grease. The good thing is that the rodding is underway, and soon we will forget about the sewer smell Prenda.
¹ 0:12-cv-01445-JNE-FLN, 0:12-cv-01446-JNE-FLN, 0:12-cv-01447-JNE-FLN, 0:12-cv-01448-JNE-FLN, and 0:12-cv-01449-JNE-FLN.
² It is rumored that AF Holdings is nothing but MCGIP resurrected in a tax haven of Saint Kitts and Nevis. Now-defunct MGIP has been dubbed as “mini-Righthaven” by Nicholas Ranallo. While it is just a rumor, it is very plausible, especially if you read Nick’s article and notice the role Alpha Law Firm plays in Steele’s criminal activity, and I hope that IRS and/or FBI will be checking this lead soon.
Note that a “reputable” lawfirm Alpha Law erased its website: Steele’s accomplice in extortion, Steve Jones, erased the website of his allegedly forensic company “Arcadia Security” too. An expected behavior of desperate idiots?
Despite the involvement of the Illinois Supreme Court, Ligtspeed Media Corporation v. Doe frivolous case is not dead yet. No doubt, Steele’s evil mind and Jones’s arrogant irrationality work around the clock to produce more sleaze to lubricate their way through the law. Yes, not even around, but brazenly through — thanks to one of the most corrupt judicial districts in the US!
Right before the IL Supreme Court poured a bucket of common sense onto the hot head of judge LeChien, Jason Sweet submitted a motion on behalf of one of the Does. Dan Booth and Jason Sweet don’t need an introduction if you follow copyright trolling cases. To those who don’t know, Booth Sweet LLC pioneered a class action lawsuit v. “fathers of US copyright trolls” Dunlap, Grubb and Weaver, and are currently litigating it rather successfully (yet painfully slowly — not their fault of course). In addition, they filed numerous motions in many courts, and those motions stand out as very thorough and convincing yet very easy to read even for a layperson.
So… Jason Sweet has appeared on the battlefield with his consolidated motion & memorandum to dismiss. I uploaded the motion yesterday linking it from the Lightspeed page, and readers immediately recognized its high value and strongly recommended writing a quick post in order to maximize the exposure. As one commenter said,
…The motion does a great job of addressing and debunking each and every claim in systematic fashion (almost surgical if you will). By bumping it up to its own post, it makes it easier for other Does and attorneys to find this great example that potentially affects 6500+ individuals.
Besides, if LeChien doesn’t dismiss the case or denies every upcoming MTQ next Friday, there are many references in this particular motion that could be incorporated into appeals to a higher court. It’s also a potential template for other Doe defendants to seek dismissal in the unlikely event they get named and served in their own jurisdictions.
I will refrain from analyzing this motion: first, it is well written and self-explanatory, and second, every detail is equally important, so I advise to read it in its entirety.
Obviously, this community contributed many ideas and facts to this motion, and we are happy about it. Hive intelligence of mostly non-lawyers, combined with sharpest legal minds, results in an undefeatable weapon against crooks.
Lightspeed’s goon and copyright troll Kevin T. Hoerner blatantly lied to the high court that we are a community of hackers. The following is obvious not only to any sane and independent person, but even to Prenda bozos: law-breakers would never secure such a wide, strong and sincere public support, as this site has been enjoying. Just imagine for a second a grassroots site “Copyright Trolls,” which has amassed 10,000 comments, 99.9% of which are supportive of Steele, Lightspeed and their noble quest against “pirates”, all without registration and moderation. I see you laugh: does anyone still have doubts regarding who is on the right side of history, and who will prevail soon?
Copyright troll Evan Stone
This is a quick post to break the news. I expect ArsTechnica to come up with a detailed article later today. For those who don’t know who Evan Stone is, read an earlier ArsTechnica’s article “Sanctioned: P2P lawyer fined $10,000 for ‘staggering chutzpah’” by Nate Anderson. “Staggering chutzpah” indeed: although Stone is not active on the porn scene, he did not abandon his greedy habit and currently shakes down anime fans. Not for long, not for long…
Update 07/113/2012: of course ArsTechnica came up with a good story.
Just one quick note. Looking at the following paragraph, I have a warm feeling that this event will reverberate beyond the bridge, under which Evan Stone dwells:
Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars — a tactic that he has employed all across the state and that has been replicated by others across the country.
Why am I so excited? Because it is clear that the Fifth Circuit is aware of the copyright trolling plague and obviously not happy about it: just re-read the quote.
Enjoy the feast of common sense:
Thanks to Steve Glista for breaking the news.
On 7/9/2012, in what we can hope will become the tugboat heard ’round the world, Judge Lewis A. Kaplan summarily dismissed the claim of negligence against Cary Tabora that was brought by Liberty Media Holdings, LLC. in the Southern District of New York.
For some background on the case, it started in the normal troll way with Marc “Tugboat” Randazza filing a lawsuit in the Southern District of California back in March 2011 against the defendant, alleging that defendant shared LMH’s copyrighted gay porno flick, Down on the Farm, on BitTorrent. However, this lawsuit never got off the ground. While Tabora’s co-defendant was nowhere to be found, Tabora fought and won two different motions to dismiss (lack of personal jurisdiction — Tabora resides in New York).
Liberty Media Holdings also took some normal troll steps to motion for entry of a default judgement against Schyler Whetstone, which were also summarily dismissed. I think that the analysis provided by the court is very strong and I was glad to see the Judge take steps to prevent this abuse:
A district court “has an affirmative duty” to determine whether it has personal jurisdiction over the defendant before entering a default judgment. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). In considering whether to enter a default judgment, a court may dismiss an action sua sponte for lack of personal jurisdiction.
In its motion for default judgment, Plaintiff contends that this Court has personal jurisdiction over Defendant Whetstone and makes the same arguments in support of this contention that Plaintiff made with respect to Defendant Tabora. [Doc. No. 27 at 1.] As stated above, Plaintiff has failed to make a prima showing of jurisdictional facts establishing that the second and third elements of the Calder-effects test are met in this case.
This dismissal occured on 1/4/2012, however this was not the end of the case. LMH continued to try to pursue Mr. Tabora in his local jurisdiction. On 3/27/2012 a complaint was filed by LMH in SDNY again against Tabora and Whetstone. Since Mr. Randazza is not licensed to practice Law in New York, LMH obtained a local counsel — Nesenoff & Miltenberg LLP. With new information in their pocket as a result of Tabora’s innocent attempt at trying to talk to the troll and declare innocenece, LMH included a new cause of action, negligence. This is where the tugboat comes in.
Marc Randazza declared in a comment to a recent TechDirt article:
The negligence theory is that if T knows that W is committing a crime with his account, and still lets him use is, then T is negligent.
The Tugboat case to quote dates back to 1932 (yes, 1932, welcome to the Internet age!):
Two tugboats, one of which was The T.J. Hooper, were towing barges. During a storm, the barges sunk and their cargoes were lost. The owners of the cargo sued the barge owners, which in turn sued the tugboat owners. They claimed that the tug operators were negligent because they failed to equip their tugs with radios that would have warned them of the bad weather.
I know, your head is saying the same thing as mine at this point: what does this have to do with Internet file sharing? Well let’s again go to Mr. Randazza himself quoted from TechDirt:
The TJ Hooper case stands for the proposition that it is the province of the court to recognize duties in negligence cases — even new ones that have not existed before.
You focus on the legal rule, not the boat. If you focus on the boat, you’ll be confused. If you focus on the legal rule, you’ll understand.
Ah, once again I was caught staring at the boat. Luckily, Judge Kaplan was focusing on the law and not the boat (which makes me wonder what Mr. Randazza was focused on). As with the first case, Tabora was not going to sit back and get trolled. Through counsel, he filed a motion to dismiss the complaint on various counts:
The EFF also stepped in and filed and Amicus Curiae Brief in support or Tabora.
LMH filed a 20-page response in opposition to the motion to dismiss that was all over the map. Plantiff’s counsel went so far to as admit:
With respect to the duty, the Plantiff acknowledges that it is asking this Court to recognize a duty that has never been facutally before a court in the past.
They even claimed that because his ISP had its terms of service in place to protect third parties, and since Tabora violated these TOS, the duty to LMH was in place. I can see the tugboat through the fog now.
Just two business days after plantiff filed its opposition to the motion to dismiss, Judge Kaplan issued a memoradum opinion rejecting Plantiff’s claims and granted Tabora’s motion to dismiss. As to LMH’s negligence claim, the Judge wrote:
Federal Judge Lewis A. Kaplan
The negligence claim suffers from at least two problems, each independently fatal to its survival. It is necessary, however, to discuss only the first.
and…
…as the Court understands the argument, the negligence claim rests on infringement by others whereas the Copyright Act provides a remedy only against a direct infringer. In light of the preceding discussion and the doctrine of contributory infringement — which Liberty’s memorandum ignores entirely — that position is untenable.
The Judge also found the the misnamed copyright registration was and issue and that in order to proceed on any claim of direct or contributory copyright infringement, they must filed and amended complaint by 7/25/2012 to assert any claim.
Fight Copyright Trolls
