Guardaley | X-Art
In a well prepared and mighty counter-attack, defendant turned tables against Malibu Media / X-Art
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.
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:
- Exhibit E: Declaration of a John Doe defendant, David Kerr’s client, telling the story of the harassment he suffered from a call center — debt collectors to whom copyright troll Keith Lipscomb and his Mafioso organization outsource the actual blackmail and harassment. Note that the goons a) threatened to damage Doe’s reputation (“see your name in the Denver Post by the end of the week”), and b) threatened to report (nonexistent) criminal actions (“exposing minors to pornography”). The latter is a very definition of blackmail, and pretty much damning evidence as such.
- Exhibit B: a business proposal by a German IP “harvester” APMS to a lawfirm, a cynical confession of immorality of the extortion scheme.
- Exhibit F and Exhibit G: Emails that a piece of crap Lipscomb, who has an audacity to call himself a lawyer, sent to a defense attorney Brad Patrick a year ago. No comments necessary, one thing is clear — that Lipscomb is a much more serious enemy than a clown John Steele: the former is clever, inventive and merciless. Crushing his extortion outfit is critical, and I think we need to concentrate more on this previously neglected villain.
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.
Updates
- 12/12/2012: Follow-up post: Copyright trolls: “We don’t care if you did it or not, we just want your money!”
- 11/9/2012: Follow-up post: Malibu Media v. Fantalis et al: update. Second Amended Answer; discovery sabotage; hearing on the Motion to Compel.
Fight © Trolls 
SubsCribe!!!
Nice. This is exactly what they deserve. Wish all these jerks were watching Batman last night instead of those innocent people.
Call I can say is. I doubt to the bottom of my gleeful little soul after reading that in it’s entirety, that the motion was drawn up by a Pro Se defendant with no understanding or knowledge of the legal system. Perhaps they didn’t do their homework and stumbled on trying to sue an ACTUAL IP lawyer?
Speculative invoicing is so yesterday, the new business model is troll trapping.
Just sitting around waiting for more evidence to call.
Nice post SJD!!
These counterclaims are going nowhere. What this pro se defendant, and the operators of this web site miss is that copyright infringement cases are civil, not criminal. Under our legal system, in a civil case, the burden of proof on the plaintiff is by the preponderance of the evidence–and not beyond a reasonable doubt as in a civil case. The authors of this counterclaim admit that in 70% of these cases, the IP addresses correctly matches the identity of the infringer. A 70% batting average is more than sufficient under the preponderance of the evidence test. Further, a 70% batting average is more than sufficient to justify the issuance of subpoenas. Our pre-trial discovery system is designed to allow parties to use the subpoena process to investigate their claims, and that is what is going on here.
Further, my research indicate that the 70% number is way to low—-about 85-90 percent of the time the IP address matches the infringing party. But even if the number was only 50% it would be sufficient to justify commencement of these proceedings. Infringement is a plague on our entire entertainment and publishing system, and I cannot fathom why the authors of this cite believe that there is anything wrong with the private lawyers to go after infringers on behalf of clients,
Innocent infringers do have a powerful weapon in this situation—that few of them apparently are using. If you are found innocent in a copyright case, the court can award the innocent party its costs and attorneys fees. Since 30% of the people are purportedly innocent, surely there are law firms willing to take these cases in view of their likely recovery of substantial legal fees. The best way to deter copyright trolls is to fight them in court by proving that the alleged infringer is innocent. Anyone who receives a demand letter has the right to start a declaratory judgment action in their own jurisdiction against the accuser to vindicate their position—and if the accused infringer is right, the accused infringer should be awarded attorneys fees and costs. This is a powerful weapon in the hands of accused infringers—I certainly would be willing to take such cases on behalf of truly innocent accused infringers.
But here is the real problem—must of the persons accused of infringement are guilty. They just feel that the demand letters from copyright trolls are unfair—-that they ought to be able to infringe copyrights with impunity. After all, most people get away with it. Guess what, infringers who are caught deserve to pay an expensive price for their misdeeds.
Finally, the assertion that settlement demand letters are illegal or extortionate is, frankly, absurd. As even the author of these misplaced counterclaims admits, in at least 70% of the cases the IP address does correctly identify the name and address of the infringer. That certainly gives counsel a reasonable basis to demand a settlement. Further, a truly innocent person has been given a remedy by Congress—take the troll to court, prove your innocence, and collect attorneys fees from the troll. There are many times in life where unfair or untrue allegations are made against people—but your legal system gives the victims of such unfair or untrue allegations the opportunity to defend themselves in court. Of course, if the cost of defending against such allegations significantly exceeds the settlement demand, it may be economically advantages for the person accused of wrongdoing to settle rather than fight. But the decision to settle is in the hands of the accused wrong-doer; no one can force the accused wrongdoer to settle. And as stated above, the wrongfully accused wrongdoer has a powerful weapon—fight in court, win and collect attorneys fees against the trolls. A legitimate fight trolls movement would make use of that weapon—but most of the hyperbole and misguided legal arguments made on this web-site are counterproductive (because they are so absurd they actually strengthen the hands of the trolls). Go after the trolls—by all means, but do so based on the law rather than fictional and misplaced assertions that that tactics that the lawyers for the “trolls” are using are unfair or misleading—they are perfectly proper precisely because in the vast majority of cases, the accused infringer is guilty.
Finally, on a personal note—beginning in 2009 I became involved in creating and running a record label featuring many young (primarily minority and gay) artists who were shunned by the major labels and did not have a platform to showcase their work. Since then, we have released hundreds of tracks, many of which have “charted” and are heard in dance clubs throughout the world. Yet our record sales are anemic—income for the label is disappointing despite having numerous “hits” and we are forced to scrap for other revenue streams. Why did this happen? Because I can put in the name of any of our songs, and find that they are available for free on the internet though illegal file-sharing sites or “bit-torrent” sites. Fans of our music and my artists are not stupid—why pay for something that they can get for free with only a minor risk of getting caught. Most of my artists can barely pay the bills, and are taking day jobs—-despite having hit records. This is the sad economic impact of illegal copyright infringement—-the persons who are hurt are not the major record labels and movie studios—it is the independent, small business owner (like me and my partners in the record label) and even more importantly, the artists who make the music that enriches our lives–who are not getting paid because their music is being ripped off. We have thus far made a decision that we are not joining forces with “copyright trolls” because we are worried about alienating our fan base. But we are between a rock and a hard place—we will go out of business if this situation continues, so we need to find alternative revenue streams. We are debating whether to hand our infringement cases over to the “copyright trolls”, and soon we may have no choice other than to do so.
I guess trolls gotta troll…
Wonderful logic… “The accused wrong doer has a powerful weapon, fight them in court”
You didn’t do anything wrong, since you’re innocent, guess what? you get to waste our time, energy and money worrying about a frivolous lawsuit in a state you dont even live in…. Congratulations! Geese whizz thank you copyright trolls for allowing me to use this “powerful weapon”.
It shows the fundamental amorality of Maurice and many in his profession, particularly copyright trolls.
He believes in guilty until proven innocent, that is exactly what he said he just used many, many words and lots of rationalization to do it. Actually at one point he did say very concisely:
“take the troll to court, prove your innocence”
His own words, I don’t even need to draw conclusions about Maurice’s ethics, as he is happy to admit to being the lowest form of amoral scum.
As I suggested last time Maurice commented on an article here, he is free to provide us with case law that establishes the validity of the claims made by plaintiffs in mass-Doe BitTorrent lawsuits. Not settlements or default judgements but cases decided on the merits. I won’t hold my breath though because the only one I know of that hasn’t been dismissed, settled or defaulted is Liuxia Wong v. Hard Drive Productions, Inc. and that one says Wong had not infringed Hard Drive’s copyright! He has lots of definitive statements to make but the only evidence or “research” he can provide is is own opinion. But don’t expect him to address these facts, he didn’t last time.
As I stated before, I’m done debating with Mr. Ross. Most of you do a wonderful job anyway. I only ask you to be civil and refrain from personal insults: no matter how delusional Maurice is, obviously he believes in what he says, unlike the majority of troll lawyers — hypocritical manure.
As for me, any discussion with indiscriminate mass lawsuit supporters boils down to:
Even at the time when I was not aware of the trolling plague, I knew that “we have no choice” is a fallacious argument. Not even an argument, but an excuse of a tired, unimaginative mind. The choice is always there, but often it requires willingness to see it, humbleness and courage.
Sigh; just more of the same lackluster factually unsupported arguments and erroneous assertions all to common from those who defend the troll business, and one that fails miserably to convince any fair minded rational person that the trolls and their abuse of the American legal system is anything other then the immoral racket that it is. I’m sorry but the copyright troll business model in predicated on going after alleged infringers, thus they have no incentive to stop or mitigate the hypothetical asserted damages caused by online illegal downloading of copyright material, which is the reason they do nothing to stop the torrents infringing their clients works online or send DMCA notices to Internet Service Providers who then pass them on to their customer who ip’s have been associated with online infringement. In fact, ample evidence exists to show that the troll’s actually encouragement infringement of their clients works to entrap future targets. Which makes sense, as their entire business model was created to profit from going after alleged online infringers of copyrighted material, therefore why would they try a cripple their business by using the far less draconian measures used by most content providers such as DMCA notices to alleged infringer through their ISP’s.
I find your claim that innocent alleged infringers have legal recourse to defend themselves to be highly disingenuous on your part. While technically you are right, the reality of the situation for most accused Does is that they based on their limited financial resources have no way to really fight the troll in the court or a means to defend themselves from the trolls predatory and unethical settlement demand practices. There is no excuse for inexcusable behavior; your attempt to defend and window dress the troll’s abuse of the legal system as some kind of righteous crusade on behalf of content owners to stop online infringement of their works is so farcically comical and unconvincing when one looks at the facts of what the trolls are doing.
While people illegally downloading content online are wrong, I find the troll’s behavior as well as their brethren who represent more reputable entertainment industries to be far worse. Someone downloading a song or movie online illegally is not going to ruin the copyright owner’s life or financially destroy them, no matter how much propaganda put out by the entertainment industries claim otherwise. The trolls litigation and settlement practices though by design do these very things. They threaten massive financial damages, naming of the defendant to publically associate them with hardcore pornography, harassing letters and phones calls (sometimes to ones place of work or the homes of family members), and even the settlement amount demanded itself is often enough to be very financially burdensome to the average person or family. It is a clear case of someone’s or business entities with more resources and power using the legal system to benefit themselves at the expense of people who lack those very same means to the detriment of our entire society. This is unfortunately an all to common occurrence in our world today; those with money and power use the legal system as means of coercion to get things they want and the rest of use suffer the consequences.
“But here is the real problem—must of the persons accused of infringement are guilty. They just feel that the demand letters from copyright trolls are unfair—-that they ought to be able to infringe copyrights with impunity. After all, most people get away with it. Guess what, infringers who are caught deserve to pay an expensive price for their misdeeds.”
FFFFFFFFFFUUUUUUUUUUUCCCCCCCCCCCKKKKKKK YYYYYYYYYYOOOOOOOOUUUUU
Mr. Ross makes good points regarding the impact of piracy to small businesses and independent artists. As the owner of a small recording studio (certainly not a money making proposition!), I have seen the impact of digital piracy to artists. The business model for artists and producers is changing completely, and many are using litigation to try and hang on to the old business model rather than adapt. Mr. Ross sues supposition (offering no proof that 85%-90% of defendants are guilty) to further his argument.
The primary difference between porn trolls and the recording industry trolls is that the former rely on the threat of shame or embarrassment as a part of their strategy. They have not once…NOT ONCE…litigated one of these cases and won on the merits of the case. And yes, Mr. Ross, it is akin to extortion to use the courts for the sole purpose of gaining personally identifying information and then sending demand letters with no intent to prosecute a case.
They use their own proprietary technology to harvest data and have dropped any case where there is even a whiff of independent verification of the underlying technology. They have refused multiple offers to turn over devices for forensic analysis. They use fraudulent, official-looking letters to scare does into settlement or, more recently, to engage in “informal discovery” (a tactic used by scam mortgage providers with their official looking junk mail). The plaintiffs and their attorneys are uninterested in guilt or innocence, and they will do everything within their power to keep their business model out of the sunlight because they are terrified of being exposed for what they are — failed attorneys and saw an opportunity to make money as shakedown artists.
@skruuball. I bow before your post. That was pure artistry. Thank You. Why should Plaintiffs/troll lawyers go through the proper channels and use DMCA notices when the mere correlation to PORN is enough to scare a fair number of Does into forking over their credit card for a good old fashioned gang bang session.
I would also like to hear Maurice’s opinion on why Trolls refuse (and I mean ACTIVELY refuse) to litigate their cases.
If Maurice thinks it is so easy and such a minor inconvenience for a Doe to mount a defense to one of these cases, then should it not be equally fair to expect a Troll to follow through with a case that Maurice believes is 90% likely to be a slam-dunk?
Maurice, what is your opinion of Trolls who drop cases when a judge asks them to name and serve a defendant? The Troll that has been harassing me, John Steele, voluntarily dismissed my IP address from the case before his law firm ever contacted me (because a judge issued an order to show cause why the case should not be dismissed due to lack of service). If Steele already had my name, and there was a 90% chance the Does were guilty, why wasn’t I named and served? Why were none of the other defendants in the case named and served? Why do Trolls routinely drop Does who get representation, or file a motion to quash or dismiss, or file a counterclaim?
Why was I then contacted multiple times in which John Steele’s law firm misrepresented the case as still pending? Why does Prenda Law, Inc. continue to send me correspondence that refers to the case as active even though it was terminated months ago? Why do they say they will file motions to compel this and that and give the number of the terminate case?
How about continuing to join large numbers of defendants to save money, even though judge after judge in jurisdiction after jurisdiction is finding joinder improper?
How about asking for statutory damage awards and attorneys fees when the work has not been registered with the copyright office as required by 17 USC 412? Do you believe, as a rule, that it is acceptable for attorneys to lie in their filings?
Do you have an opinion on this? Are you willing to make a statement regarding whether or not you believe this is ethical behavior?
In short, why do you hold pro se defendants to a higher standard than licensed attorneys when it comes to actually litigating a case?
I’m so happy to see how far we have come with educating so many people on this Troll operation. We are not done by far, but it is so much easier for the new Does to get good information. Thank you everyone for doing something. I love all the responses to this guy.
Cheers
DTD 🙂
Again, Maurice, if you feel that the cases have so much merit then yes, by all means, they should go forward. The lack of many cases going forward clearly counters your alleged “research” and places doubt on your already-limited credibility and accuracy.
And really, trying to play the personal sympathy card, with minorities no less? That’s what’s funny about all supposed “artists” that go to sites like Techdirt to complain – they never, ever say who they are, or what their songs are to prove who they are. They always assume that everyone else who disagrees with them is a filthy pirate. What they are (if they’re even artists to begin with) is scared – scared that once people find out who they are and that they are willing to use dragnet tactics to demand money from people, whatever goodwill and opportunity they have is squandered for good.
If you are really not cooperating with trolls, Maurice, why are you coming here to complain? The people you are posting to here are being intimidated for crimes they did not commit. They did not, and do not, have any intent of “illegally” obtaining your content. In short, they are NOT the people you should be complaining to! You should be using the DMCA and barraging Youtube with takedowns, not coming here to bitch to innocent people. Exactly what do you think coming here to complain to extortion victims will achieve? Would it somehow make us yearn to pay for your content, which we have no idea how to obtain anyway since we don’t know what your label is? “I’m sorry to hear that you risk paying thousands of dollars for a crime you didn’t commit; please support us and buy our albums with your already strained finances!”
You’re just mad, Maurice, that more people are figuring out how you play this game. The sympathy card won’t work anymore. It stopped working when the RIAA began their dragnet tactics years ago. Why would you need to join forces with copyright trolls when records state that you are one? Save the weasel words for the judges while they catch on to your “70% accurate IP addresses” while your colleagues continue dismissing cases.
I hope you do, Morry, take your cases to copyright trolls. I hope you walk in the footsteps of Evan Stone and Andrew Crossley. I hope that the names of your alleged record label, signed artists and tracks appear, so that we can associate them to amoral scum that believes everyone else is a guilty, lowlife pirate and avoid their content like the plague.
Why bother stating that you have no wish to request the services of copyright trolls, when you conclude that you have no choice but to do so? Did you think that people would empathise with you having to take individuals to task for crimes they did not commit, based on shoddy evidence, and force them to pay criminal fines for civil allegations?
Shouldn’t have quit your copyright troll day job, Morry. Now you’re taking minority and gay artists down with you in your misguided attempt to play the blame game.
“…about 85-90 percent of the time the IP address matches the infringing party.”
This statement goes to the heart of the problem with these lawsuits.
First of all, how does anyone come to the number 85-90%? Or even 50%? If it is based on the number of people who have settled, that is a false basis. There are in fact people who will settle because IP attorneys can easily cost 200-300/hour versus 3500.00 which can probably be negotiated down. It doesn’t take a rocket scientist to figure out that even if you are innocent, it can cost less to settle – if it escalates into actual litigation it will DEFINITELY cost less to settle. Also, a lot of people would have to travel to different states to go to court. This has its own cost not to mention you might have to ask off of work which might require an explanation to your boss/family as to why.
Second, when you say “matches the infringing party” it is extremely misleading. How many people unknowingly have an open wireless access point? And how many intentionally leave it open considering there is no law that says you have to secure your router? Assuming the software used to track the data is 100% accurate, which it more than likely isn’t (I’m not even going to go into IP spoofing or WEP key hacking), the IP address will match the access point used, not necessarily the infringer. AN IP ADDRESS DOES NOT EQUAL A PERSON. With this is mind, the notion of “proving your own innocence” become tedious. How does someone prove what they didn’t do? How do you prove a negative? Even if you say “ok search my laptop”, that doesn’t prove anything because a wireless access point could be used on any number of PCs or laptops a person might have. So a forensic search of someone’s PC/laptop can ONLY help the plaintiff. If nothing is found on a machine, the plaintiff just says that it must have been downloaded to a different device. So then of course the plaintiff will do the only thing they can do, which is try to characterize the defendant as someone who is “likely” to commit the crime. So the plaintiff will want to look at your internet records, your credit card history, your work history, your criminal record (if you have one), etc… They will try to embarrass you by publicly disclosing details of your personal life even if it has no bearing on copyright infringement, let alone the specific act of infringement in question. This is by design. Of course this only applies to the 1% of the people they actually take to court…it’s just enough to scare and intimidate the rest.
I could go on and on but these facts are so obvious that I’m not going to waste more time on it. It’s like writing a book on why we need air. It’s too bad that it takes our judges so long to see what is right in front of them. Thankfully we are seeing more and more judges who are “getting it”. Its slow, but it seems to be moving in the right direction.
You make a good argument Maurice, and I am certainly not going to disagree with that. But herein lies the problem: You state that the system allows for remedy to being wrongfully accused through attorneys fees and the like. yes, I would agree. However, if someone is innocent and they are taken to court, named publically, etc and they happen to have a job say as a teacher or other high profile situation then that person not only can but will not only lose their position instantly but will also find it next to impossible to find another like position. Is that right????????? So, along your line of reasoning, is it safe to assume that since the system provides the remedy, then the innocent is also entitled to damages resulting to damage made to their reputation and abi;lity to find work? I would say we are talking about million dollar settlements here, and that is on the conservative side. depending on the income potential and retirement potential of a person, I think it would be safe to assume a liability in the 2 to 3 million dollar range, cash, gold, or even silver. Have a nice day, and remember, when I get named, I am going for the big bucks. Hiding behind shell companies located in secure offshore locales aint gonna fly.
My guess is you will not agree with the professioanl reputation damage scenario. After all, a person to your lot is nothing more than a cheap disposable commodity, not worth their weight in manure.
Thanks to Cory Doctorow, a link to this post was widely retweeted. Woke up this morning to find 30 new Twitter followers 🙂
once again…how come the copyright holders don’t sue each alleged infringer individually in their local district? if the 90% of the wrongdoers would be slam dunk courtroom wins, don’t these plaintiffs want to fight as hard as Mr. Ross says the innocent defendants should? We continue to see nothing litigated and everyone on the site knows why.
i will say this, i hope that this family man is willing to push this through trial, because a real ruling on weather porn can be copyrighted would be amazing. and a ruling on weather porn is prostitution an thus porn is a product of criminal activity and not copyrightable would also be interesting. (the latter would be harder because this is a federal court and prostitution is a state matter. though if rulled truelly illegal in CO then that would effectively make the sale and distribution of porn illegal in CO, both through the web as well as through b&m locations. i am really curious how that would play out. it won’t happen, but it would truely be interesting.) he brought both of those points up in this motion.
as much as plaintiffs argue that the “owners” of the ip’s are the real infringers and that spoofing and wifi theft only rarely occur.
i ask you this:
who is more likely to be someone stealing your “product”? a person who spoofs ip’s and/or steals wifi, or the person actually paying for his service. theives will cover their own tracks and will also steal things (like your “Int property”). whereas honest paying customers will be much less likely to do such. why would a reasonably intelegent person use their own internet connection to steal anything when they could very easily use someone else’s?
what do you think a jury will think???
Why does Maury show up here in the first place unless he has a agenda to advance. Kinda strikes me as a sad and lonely soul.
A lot of lawyers just like to argue– they tend to be very arrogant people. Trust me– I know from personal experience.
One of the many problems with Mr. Ross’s argument is if you buy into his logic that supposedly 70 percent of the accused did it equals the preponderance of the evidence than everyone should be found liable because that is more than 50 percent. However, that would mean everyone automatically loses. You need to prove that an individual infringed and not just an IP address. We also have no idea what this supposedly proprietary method is to cull these IP addresses. My guess is the “firms” are paying people to connect to certain torrents and just recording all the IP addresses (along with a timestamp) that are connected to it. The odds that that will stand up in court are not high.
I am not sure why I feel compelled to respond, but I wanted to say a few more things. Most people cannot afford the high cost of litigation. That’s why people are forced to settle when they did nothing wrong and why people are forced to take down their websites when they constitute fair use.
Even for people who did the infringing, thousands of dollars is not a fair punishment. We are not talking about people profiting off of someone else’s work. We are not talking about the people who created the torrents or are seeding the files. For the most part, we are talking about people who downloaded one copy of a work that probably retails for about $20. How is $3400 (not to mention $150000) a fair punishment when someone would likely be fined a few hundred dollars for shoplifting– a much more serious crime– a physical copy of the same work? That’s not even getting into the fact that we are talking about low-budget pornography– not music or movies.
If these pornographers wanted to stop this so badly, why not go after the websites or the seeders first? Where are the DMCA takedown notices? Why not make a good-faith effort to settle for a reasonable amount of a few hundred dollars? The fact is they want these torrents out there because this has become an additional source of profits.
The question I have for Mr. Ross is whether he really thinks it is just to destroy people’s lives– and that’s what we are potentially talking about in many cases– because they may have illegally downloaded one porno film? His post came across as really angry and vindictive, and he showed no empathy for people. I’m not sure why he likes to post here, but he just reinforces my negative view of the legal profession.
I have an AR-15 as well as several handguns in my home. Some would consider these to be “powerful weapons” to defend myself from home invaders. So, by having access to these powerful weapons it would be ok if someone tried to rob me? Even if they mistook my home for another persons home it’s ok right? I mean I have access to a powerful weapon so two wrongs make a right, right?
That’s it? That’s all you have?
On Golden Pond retreading these counterclaims which SJD has astutely observed is a brilliant crystallization of the last 6 months of pro Doe developments. Accordingly I am going to cut a fat check and mail it to a fat bastard. Ha, ha! Actually I am going to use the settlement monies to buy everyone here a lobster and enough booze to drown in as we celebrate this splendid new development. Cheers!
My guess is fantalis will take a fraction of what he is asking for in a settlement, thus letting a lot of people down. Let’s face it, the likelihood a judge would actually grant his motion for the millions is slim to none in today’s legal environment. Anyone who thinks judges are legit and aint getting their crank yanked is dreaming. I predict it plays out the way I stated, and if he does insist it go to court then I dont think he is gonna get anything. If I am wrong I will bend over and take it like a man, but I dont think I am wrong. I mean seriously people, just look at how the Supreme court hosed the Constitution with the Health Care law. Peter Schiff has an absolutely amazing disection of that play and anyone who has any interest at all in the Constitution should watch his talk on youtube about it. The Supreme Court is anything but supreme and has proven themselves once again to not be defenders of the Constitution but rather politicians. Honestly, they are a waste of this country’s time. I can only hope Fantalis has a set of balls on him and goes the distance with these assholes. The last thing anyone needs is another let down. Hopefully he dosnt cave to a measley 25k or something.
No one will be taken down: if he decides to settle, the amount will be kept confidential. We have no idea how much Prenda paid to Liuxia Wong…
the mansion where this poor fella Brigham Fields dwells: https://maps.google.com/maps?q=4237+avenida+de+la+encinal+malibu+ca+90265&hl=en&ll=34.045279,-118.886651&spn=0.002042,0.004128&safe=off&hnear=4237+Avenida+De+La+Encinal,+Malibu,+California+90265&gl=us&t=h&z=19
oh yeah, he is immensely hurt by pirates. sure.
Dang. I feel for the guy, you can really see the effects. It’s probably because of piracy that he has to share a driveway with the other mansion next door. Times are tough for all of us, see?
“Do you know how much insurance cost on a Ferrari, Mother Trucker!!!”
When the economy goes completely bust these worthless drains on society will be the first to die off as they have absolutely no skill sets for surviving – Thank God.
LOL! I love that scene in “The Replacements”
Trolls have their panties in a bunch. On 7-20 Kotzker threatens to make a motion to dismiss the counterclaims and to, ironically, request Rule 11 sanctions for “frivolous conduct”. I smell a bluff. http://ia601204.us.archive.org/12/items/gov.uscourts.cod.132446/gov.uscourts.cod.132446.docket.html
“I’m going to file sanctions and, and, and, all kinds of stuff.” What a crybaby!!
Pinocchio (Brett Gibbs) is probably not happy: his copyright (or patent?) on crying mommy every time he loses is infringed by Kotzker!
BTW, any good suggestions on a nickname for Kotzker?
Ummmm…. Pondering that question.
I would say the DMV would not let him put his last name on his license plate. Thinking it was a hooker or something.
Kotzker is going to start the motion game. He wants to vet out who is helping Jeff. The counterclaim is pretty damning and is backed up by several brutal exhibits. This isn’t a reaction from a defendant but rather an extremely well calculated FU.
All Kotzker can do is drag this out to see if he can break Jeff’s seemingly free flow of outstanding legal advice.
The most disturbing part of this–at least in the eyes of the trolls–is the depth of the motion. It’s written so well and supported with such good exhibits that is can be used as a template by any named Doe; and as a matter of fact if you are a named Doe you should be filing this exact document in your case right now. As a matter of fact, even if you aren’t a named Doe it’s worth filing it pre se as an unnamed Doe. Get this document onto every docket out there.
I don’t know how anyone else could top this.
This is from consolidated California Malibu Media cases recent ruling. I guess they are back in the court today!
MINUTE IN CHAMBERS ORDER Request for Further Briefing, Case ManagementOrder, and Motion for Sanction in 2:12-cv-03614 (DE 10) by Judge R. Gary Klausner: There are two categories of Defendants in these related cases: Defendants who are currently unrepresented and Defendants who are represented by The Pietz Law Firm. The Court will discuss the pending issues as to each group of Defendants separately. First, as to the unrepresented Defendants, the Court requests further briefing from the Plaintiff as to the issue of personal jurisdiction. Plaintiff responded to the Courts Order to Show Cause by submitting information about the accuracy of its IP address tracking in other federal cases. However, this data is unreliable as Plaintiff has not presented the Court with information about how it selected the defendants in those cases or the methods it used to track their location. Further, the success of Plaintiffs methods in other cases is not necessarily indicative of the likelihood that this Court has personal jurisdiction over of the present unrepresented Defendants. Plaintiff is to submit further briefing, of no more than ten pages by Friday, July 27, 2012 addressing the geo locating tools or other relevant technology it has used in the present cases to identify the location of the IP addresses belonging to the unrepresented Defendants and the accuracy and reliability of such technology. The Court will not take further steps as to these unrepresented Defendants until it has resolved the issue of personal jurisdiction. Second, as to the represented Defendants, these Defendants have waived any objections to personal jurisdiction. (See Brief re: Jurisdiction and Sanctions for Related Case Rule Violations, 1: 6-10.) Further, John Doe Number 5 in 2:12-cv-03614 requests that the Court consider its previously filed Motion for Sanctions. Plaintiff has opposed that Motion and Defendant makes reply arguments in its response to the Order to Show Cause. Therefore, that Motion is deemed submitted. Upon full consideration of the arguments and evidence submitted in that case, the Court finds insufficient good cause to impose sanctions and hereby denies the Motion for Sanctions at Docket Entry 10 in 2:12-cv-03614. Because this Courts July 10, 2012 Case Management Order vacated any subpoenas that had previously been issued, Plaintiff may only proceed with discovery as to the represented Defendants upon further motion to the Court. (shb) (Entered: 07/24/2012)
Yes, Ms. Kushner offered an evasive but coherently written response, essentially saying geo-location tools are accurate, citing statistics without source.
As was noted in an older post, it’s unfortunate that at this point jurisdiction but not joinder is being used for validating this case. Judge Klausner thoughtfully notes that just because geo-location tools may work, it does not establish any credibility for supposedly forensic troll software.
The very rule that Ms.Kushner quotes mentions “Ninth Circuit law requires that a Plaintiff be given an opportunity to identify unknown defendants unless it is “clear” that the discovery would not identify the defendants OR the complaint would be dismissed on OTHER grounds.”
Wouldn’t other grounds include improper joinder, fundamental unfairness, abuse of legal process, and massive collateral damage from false positives?
Ms. Kushner asserts only that I.P. addresses are located in the state, not in the jurisdiction of the California Central court. She conveniently does not mention that neither she nor her plaintiff work in the California Central District. Perhaps the recent failures of troll cases in other California federal districts has something to do with choice of venue.
There’s never been any informative detailing of the troll’s alleged tracking methods. It seems unlikely that after hundreds of cases that Ms. Kushner is going to introduce it todays on behalf of the gang appearing to represent porn purveyors. But we’ll see.
Click to access gov.uscourts.cacd.525381.24.0.pdf
“…geolocation tracing process used by Plaintiff accurately predicted in prior cases that a Doe defendant’s IP Address traces to the correct state in which Plaintiff files suit 100% of the time. The score is 468 out of 468. Ninth Circuit law requires that a Plaintiff be given an opportunity to identify unknown defendants unless it is “clear” that the discovery would not identify the defendants or the complaint would be dismissed on other grounds.”
As a brief reminder, THIRTY FIVE cases have been filed in two months (4/26/12 to 6/27/12) on behalf of a SINGLE porn purveyor plaintiff, Malibu Media, in a single district, California Central. The attorneys for the porn purveyor plaintiff were either Deborah B. Baker of Lipscomb Eisenberg & Baker PC or Leemore L Kushner of Kushner Law Group.
Incredible clogging of court docket occurring just to (improperly) profiteer in the name of one porn purveyor. Imagine how the court would grind to a halt if filings increased.
Any further development in this case? What happened on the 27th?
My guess is we dont hear anything about the outcome due to the trolls demanding confidentiality. Bet they bought fantalis off for a pitance of what he was asking for.
I was hinted that we will hear some exciting things from this case soon.
This is somewhat strange.
Today Kotzker filed a motion to extend his time to file a motion to dismiss the counterclaims (deadline is today) because Fantalis would not consent to such an extension (good for him! trolls get no courtesy). RECAPPED it from PACER because Kotker uses the oldest excuse in the book: needs to consult with client before filing motion (BS). Thought it would make for an interesting comment as to how Kotzker is fucking up all over the place but then *poof* it disappeared from PACER.
Ha Ha! Troll Kotzker (Lipscomb?) files a 23 page motion to dismiss the counterclaims, lots of assertion that are not supported by caselaw. In other words a panicked troll bitch response. whcich ought to hit RECAP soon http://ia601204.us.archive.org/12/items/gov.uscourts.cod.132446/gov.uscourts.cod.132446.docket.html Expect to see more of these in the future. Fantalis will take this thing apart like a homicide autopsy.
MOTION to File Amicus Brief by Amicus First Amendment Lawyers Association. (Attachments: # 1 Proposed Document)(Randazza, Marc) (Entered: 08/13/2012)
Hmmm… Randazza is chiming in on this one? I always thought an amicus brief was for the benefit of the unrepresented to expound on the law. I realize Randazza has been playing both sides of the coin, but is this brief really going to support Fiore, or Kotzker. Does anyone have access to the brief?
This looks to be a motion to file the AC brief (AKA: Dear court, can I file this information as a from of the court?). Haven’t looked at PACER yet. Once the court OKs it, they can submit it. Will be interesting to see what comes from it if allowed.
DTD 🙂
From the motion:
“Amicus seeks leave to file a brief to address the legal issue raised in Count II of Fantalis’ counterclaim, i.e., concerning Fantalis’ position that pornography is not copyrightable. Amicus takes no position on any other issues raised in this litigation, and while Amicus disagrees with this particular counterclaim, Amicus supports neither party on any other issue or claim in the litigation.”
Click to access gov.uscourts.cod.132446.55.0.pdf
This is becoming a hot issue.
antikosmos pointed to this article which links to the proposed Amicus Brief http://www.xbiz.com/news/152616
Randazza and the other copyright trolls brought this on themselves by abusing the court system with their predatory litigation practices. While I am definitely not one for censorship or limiting the ability of people to create works, even adult ones, I can not help but be amused that the court system that the trolls and their adult film clients abused so egregiously of late could now potentially destroy them all if pornography is ruled to be uncopyrightable. Thats what they get for being greedy short sighted douchebags.
Exactly. I doubt anyone would have seriously considered this issue if not for copyright trolling by the adult industry. Even if they were filing copyright lawsuits along traditional lines (copied script, going after bootleggers who are profiting from selling copies, etc.) this probably would never have come up. But now that we have seen the adult industry turn to copyright law to run a criminal, for-profit extortion scam, we even have judges spontaneously questioning the copyrightability of porn. I think what we are seeing here is the judiciary acting like a parent trying to reign in a child, basically saying “look, we gave you guys a little more privilege and responsibility, we thought you had grown up enough to handle it, but it looks like maybe we’re going to have to take it back.” Copyright trolls have been pushing the legal system to its limits, daring courts to find ways to stop them, and this is what they have provoked in response. To have a judge spontaneously question the copyrightability of porn must have these guys shitting bricks, as it is a very clear warning that the judiciary’s patience is running out. I’ll bet if you looked at all copyright lawsuits brought be the porn industry in US history, by now less than 10% of them are non-trolling lawsuits, so clearly this is an industry that has shown a lack of respect for its access to the courts.
I do not believe pornography should be treated any differently than other media, and I doubt porn would be found to be uncopyrightable if this went all the way to the Supreme Court. The danger here for xbiz and the trolls isn’t whether the ultimate outcome would be in their favor on not, but that they have no crossed into the danger zone of provoking the legal battle that will cost them years in court and millions in attorney’s fees. The funny part is that the trolls won’t be the ones who suffer the most for their own bad behavior. Sure, if this shuts them down they’ll lose out on potential future troll revenues but they won’t pay out of pocket; they’ll slink off with their cash and leave the bigger players in the adult industry, who have the most to lose, to pay the legal bills.
I’ll give Randazza credit, at least he’s on the forefront here after being one of the players responsible for stirring shit up as a copyright troll. Don’t expect to see guys like John Steele, Mike Meier or Ira Siegel jumping in to clean up their own mess (not that they could do more good than harm if they tried). But Marc is a guy I expect to see in it to the end.
This quote is from Randazza about Fantalis’ position is absolutely astounding:
“The casualties of such legal poison will be far-reaching and indiscriminate.”
Which precisely describes the problem with the copyright troll suits. Seriously, can he not see the hypocrisy?
New docket entry for this case on discovery scheduling:
8/20/2012 58 COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Michael E. Hegarty: Telephonic Status Conference held on 8/20/2012. FTR: C. Coomes — Courtroom A-501. (mehcd) (Entered: 08/20/2012)
Most cases don’t make it this far, correct? I wonder what was said at the conference.
8/24/2012 60 MOTION for Protective Order by Plaintiff Malibu Media, LLC. (Attachments: # 1 Proposed Order (PDF Only))(Kotzker, Jason) (Entered: 08/24/2012)
Huh? Why is Kotzker motioning for a protective order? Is Fantalis scaring him so much he needs the judge to protect him?
Guessing Kotzker just received the first set of discovery demands 🙂
Please please please! I’m sure Fantalis is demanding to dissect their “forensic investigator.” I’ve been stocking up on popcorn to read something like that.
There’s been some more action by Fantalis today. I’m recapping now… let you know what it’s all up.
Wow, so this one is a doozey…
Fantalis has filed a massive 123 page ammended counterclaim (including exhibits). I haven’t given it a read of course, since I just downloaded it, but I took a glance at some of the exhibits. He’s hitting some advanced stuff that’s not normally argued, including the university of washington paper on bittorrent IP injection, and the german Guardley case we’ve been talking about in the Pennsylvania thread. I’m curious to see if he argues exactly what I was hoping to see.
Interestingly, the German court document he submits is a fully english translated one, unlike the German language one we were working off of. This will be a great asset for future motions.
Also, Raul was right about Kotzker: his motion r protective order is for discovery of confidential trade secrets. The hippocrisy is absolutely astounding:
“Plaintiff has good cause for a protective order because if this information is
provided to the public, Plaintiff, its employees and affiliates will be subject to annoyance,
embarrassment, oppression, or undue burden and expense”
And yet he sends letters daily to hundreds of individuals threatening to expose their names, calling them daily, and subjecting them to annoyance, embarrassment, oppression, and undue burden. My God this guy needs to look in the mirror.
Further, it looks like he wants their bussines and legal strategies, including the IP tracking software to remain under lock and key:
“Further, several of Defendant’s discovery requests relate directly to trade secrets
and other confidential research, development, and commercial information. If this information is
disseminated to the public, Plaintiff’s competitors will have direct access to sales and revenue
information, corporate strategies, investor funding and relations, marketing strategies, and
several other aspects relating to the inner workings of Plaintiff’s business. This information
includes litigation strategies as well as attorney-client privileged information.”
So it will be interesting to see how this goes… recapping that one as well as we speak.
RECAP seems to be having trouble with 60 MOTION for Protective Order by Plaintiff Malibu Media, LLC. since it looks like PACER combined 60 and 60.1 into a single document, but I have it downloaded and can email it to SJD, or DTD to post.
I also RECAP’d 61, which is “RESPONSE to 55 Second MOTION to Dismiss Defendant’s Counterclaim”
He calls Kotzker’s motions stalling tactics (which is what they are after all, since trolls don’t want to litigate) and asks the judge tell Kotzker to quit stalling and move this proceeding forward.
“This is Plaintiff’s second Motion to Dismiss, and the third time Defendant is filing an Answer and Counterclaim in this action. At this point, nearly five months since Plaintiff filed its Complaint, it is respectfully requested that the Plaintiff be directed to cease its delaying tactics and move forward with the substantive issues in the case which, it should not require pointing out, the Plaintiff started.”
More importantly, Fantalis notes he’s in this until the end. In a role reversing move, Fantalis states:
“Even if Plaintiff succeeds in winning a dismissal of any or all of Defendant’s claims against it (which is highly unlikely), said dismissal will be without prejudice. Discovery will continue, and Defendant will be able to renew those claims at a later date, and may possibly uncover new claims to assert against Plaintiff during course of discovery… Plaintiff will have ample opportunity to renew its opposition … by brining a motion for summary judgement…. whereupon teh Court can evaluate the issues more completely, which, it is respectfully submitted, is the proper way for this issue t obe handled.”
So it looks like Fantalis knows very clearly what the troll game is: avoid litigation at all cost, because their case is flimsy and will fall apart at the first substantive glance. Thus, I believe he feels his best bet to win this thing is to move it forward as fast as possible.
This is really shaping up to be good. Again, if SJD or DTD or anyone else wants docket 60 and 60.1, I have the file, which RECAP seems to be having trouble with,
“This is really shaping up to be good. Again, if SJD or DTD or anyone else wants docket 60 and 60.1, I have the file, which RECAP seems to be having trouble with”
Sorry to post yet again, but scratch that. 58, 60, 60.1, 61, and 62 are all good to go. In return I expect monster posts slamming this in the trolls’ faces from all you 😛
I’ll try but later tonight, if a tall 😦 To many things fell at me at once.
Troll Kotzker blends truth and lies when speaking about this blog and that of DTD in his motion for a protective order:
“Plaintiff is aware of anti-copyright blogs and websites that follow cases by Plaintiff and
disseminate defense strategies and other information. Often these blogs and websites encourage
individuals to harass Plaintiff, its employees and affiliates in order to discourage Plaintiff from
filing suits against individuals that have infringed its copyrights. Several of Plaintiff’s counsel
have received death threats and other harassing letters and emails. Plaintiff has a legitimate fear
that if the information of its employees and affiliates is provided and disseminated to the public,
Plaintiff, its employees and affiliates will be susceptible to similar threats and experience
annoyance, embarrassment and harassment.” http://ia701204.us.archive.org/12/items/gov.uscourts.cod.132446/gov.uscourts.cod.132446.60.0.pdf
“experience
annoyance, embarrassment and harassment.”
You mean the same thing your victims have to fear? Oh no, you poor poor thing
Since February 2012, the apparent plaintiff, Malibu Media, has filed at least 312 Federal cases, more than 2 per business day nationwide. There have been at least 8 case filings in Miami-Dade county court.
In Colorado ALONE, Kotzker filed 43 cases in 123 business days for this porn purveyor plaintiff, involving more than 530 Does. That’s one filing every three working days in Colorado court only for Malibu Media, not including Jason Kotzer’s other porn purveyor clients. Would clog the court docket to enable financial demands for porn purveyors be considered an “annoyance”?
How about having the court get information from both sides? Ask Kotzker to present evidence of “annoyance, embarrassment and harassment” to his client from Colorado residents. At the same time, have the ISP’s send anonymous questionnaires to those Colorado Does, with returned surveys be kept under court seal.
Try to find one example of a Doe respondant who was not annoyed or harassed.
Trolls have reason to fear the light of accurate information. They make accusations about things they are overwhelming guilty of.
He took a page out of the Duffy playbook but toned it down a bit. No statements of defendants committing bank fraud, ID theft, conspiracy to commit murder, etc.
And there’s this:
“6. Further, several of Defendant’s discovery requests relate directly to trade secrets
and other confidential research, development, and commercial information. If this information is
disseminated to the public, Plaintiff’s competitors will have direct access to sales and revenue
information, corporate strategies, investor funding and relations, marketing strategies, and
several other aspects relating to the inner workings of Plaintiff’s business. This information
includes litigation strategies as well as attorney-client privileged information. Public disclosure
of the information could severely impair Plaintiff’s ability to compete in the marketplace and
will intrude on the confidential rights and communications of Plaintiff, its employees and
affiliates.”
Trade secrets and “confidential” R&D? Really Kotzker? I’m not even gonna go after that one. Finances of Malibu Media, now I’d love to comb through that stuff. Impair Plaintiff’s ability to compete? It’s not like they employ people with doctorates from MIT to produce proprietary microchips, they make porn for shit’s sake.
If plaintiff did not want discovery of their business operations and finances they should not have alleged harm to both in the complaint. Is plaintiff going to ask for a star chamber trial with both judge and jury sworn to secrecy, next? I truly hope that Hegarty does not allow this plaintiff to continue to abuse the discovery process and just lets this matter proceed.
Interesting response to plaintiff’s motion to dismiss the counterclaims. Fantalis basically said “Ok I amended the countercalims so all is good now but if plaintiff moves to dismiss again I will amend again per Rule 12 (b) and after discovery I may have new and better counterclaims so lets just get it on already!”
You have to also love how the second amended answer and counterclaims bring up Kotzker’s potentially sanctionable conduct in the EDNY which occurred during the interim between the filing of the first amended answer and counterclaims. Fantalis is very current with the latest troll foibles and disasters. 😉
Fantalis is one slick very very well-informed dude. He’s a better attorney than the actual licensed attorney heh. Systematically outlining and destroying Kotzker’s entire case and nailing Kotzker’s ass to the wall for the bullshit he’s pulled in EDNY and SDNY. Kotzker definitely fucked with the wrong guy here and is gonna have a lot of trouble slithering away from this without having to pay the piper.
“confidential research, development and commercial information.” YOU ARE NOT A MISSILE DESIGNING ENGINEERING FIRM, WHAT POSSIBLE PORN RESEARCH COULD YOU HAVE THAT IS SO VITAL TO MAINTAINING YOUR STATUS IN THE PORN INDUSTRY
sorry for the caps but good lord i just want to bash my head against a wall for this tard making people stupider
If Jason Kotzker, M. Keith Lipscomb and associates, on behalf of porn purveyor x-art/Malibu Media, were hoping to get a patent on fornication, that ship has sailed. :->
R&D is what gets me. Researching and developing what? They make porn, not nuclear weapons. Researching anti-troll websites. Developing new positions, websites, and cons.
Yeah, that’s a tell, especially in light of Fantalis’ amended complaint. He has Kotzer and Lipscomb figured out and this request is effectively a tacit acknowledgement that the lawsuit mill/IP address harvesting is the real business rather than porn production.
I would also like to see them file their police reports and other evidence of threats as exhibits. They make these claims like people are just supposed to believe them.
That amended counterclaim is pretty awesome. Even if this suit doesn’t go to far because Kotzer settles or finds a way to slither away and dismiss it, just the fact that a judge is going to read that is great news, he may end up having some pointed questions for Kotzer.
He’s got some pretty damning accusations followed up by a lot of evidence that wasn’t even obtained through discovery, especially Lipscomb’s emails. Going so far as to create a fictitious company’s business plan modeled around what IPP does, that’s brilliant. No sane judge can ignore this, no way will Kotzker slither away and get this dismissed. I shudder to think of what he’ll find if the judge actually grants discovery. The judge will not dismiss this. If Kotzker files a motion to dismiss, Fantalis will just amend the complaint again. I’m hoping Fantalis will take this to trial rather than settle, but he has costs to consider. It’d be interesting, well, fun as hell in this case to see a pro se defendant out-lawyer a troll attorney.
My speculation is that Kotzer and crew have offered at least one settlement already (if true to form, it might have been the lowest of lowballs). This case is already costing Kotzker money in the form of delaying his new case filings and reducing his collections through trying to intimidate Does.
Fantalis is continuing to seek discovery of items that would put the whole troll machine in jeopardy, not only this gang. Let’s hope Fantalis follows through to real discovery (of troll malfeasance) and more.
Kotzker probably pulled a Gibbs like in Wong and Abrahams and crept down the settlement until it was “Just walk away.” You don’t fuck with someone like that and just expect to walk away unscathed. Unfortunately, I don’t think this will go to trial. I’d like it to, but it’s cost-prohibitive and time-consuming. Then again, Fantalis is still seeking discovery and he wants everything so he’s obviously not dicking around. He also doesn’t have to pay attorneys’ fees and whatnot, nor will he since he’s the pro se defendant, yet he’s taking the guy who dropped over $200k on a JD to a shitty law school (good ROI, asshole).
Kotzker’s law school has been ABA accredited for a whopping 20 years! Its median LSAT score is 150, that’s worse than Marvin Cable’s….that’s baaad. 46% acceptance rate, higher than the my undergrad alma mater.
Ihttp://www.top-law-schools.com/st-thomas-school-of-law.html
maybe they are developing ground breaking sex toy tech. they will wow the world with the dildo v 2.0!!!!
The amended counterclaim is getting all the attention but Fantalis’ response to Kotzer’s motion to dismiss is a good read too. He severely calls Kotzer out for being a pussy and trying to delay litigation:
Click to access gov.uscourts.cod.132446.61.0.pdf
—
7. This is Plaintiff’s second Motion to Dismiss, and the third time Defendant is filing an Answer and Counterclaim in this action. At this point, nearly five months since Plaintiff filed its Complaint, it is respectfully requested that the Plaintiff be directed to cease its delaying tactics and move forward with the substantive issues in this case which, it should not require pointing out, the Plaintiff started. Plaintiff’s R.26(a) disclosure did not identify a single witness or list a single document upon which Plaintiff intends to rely at trial. Discovery requests have been met with demands for a blanket protective order covering everything up to and including the identity of Plaintiff’s owners. Plaintiff clearly has no desire to move forward with this case.
—
If nothing else comes of this, at least Jason A. Kotzer’s Permanent Internet Record will show that he is a pathetic pussy slimy piece of garbage coward, with an extra helping of coward.
His response basically states that Kotzker never intended on litigating, as his counterclaim states and it’s what we all know to be true. These asshats need to be taken to task for filing a lawsuit with no intent to actually go to court. Kotzker has zero evidence, his “expert witness” probably has zero credentials and even if he did, it would be a huge problem for Fieser to testify as an expert witness seeing as how you can’t be an expert witness who also collects evidence and is employed or even compensated by the plaintiff. “Oh, here’s my expert witness. Do I pay him do incriminate people? Yes. Does he testify against those he’s been paid to incriminate? Yes. What’s the problem?” This is a sham. Kotzker’s permanent internet record will be permanently bastardized even if this didn’t happen (it’s almost a certainty that someone will fight back). His professional reputation is already shit because his peers all see him as a copyright troll, the lowest of the low on the legal totem pole.
How bad is the supposed troll technology evidence when they can’t dredge up a supportive expert after hundreds of legal proceedings in addition to this case?
These fiends have made millions and can’t buy what they need. This step in their atrocious scam apparently can’t be defended. And other parts of trolling are even less defensible.
His “expert” took a screenshot of a Wikipedia page and submitted it as an exhibit…so pretty bad. On top of that, good luck finding anyone reputable (assuming Kotzker is actually looking) to attest to the veracity of the evidence someone else gathered under more than questionable circumstances.
This technology apparently is similar, if not exactly like Guardaley’s. As in, honeypots and at the very least, can’t tell whether there’s an upstream, downstream, or whether the tracker is throwing out bogus IPs in the swarm. Stupid ass software grabs that bogus IP and bam, you have a new defendant who is completely innocent yet has a valid IP address. Guardaley has also been known to pull they honeypot act. This provides defendants with numerous affirmative defenses, including abandonment, blah blah, you all can read.
Every time Kotzker files a motion to dismiss, Fantalis just amends his complaint. They can either keep doing this, or go to trial. My guess is Kotzker wants to avoid trial like I wanna avoid…well, something very very bad and career-fucking. His client, on the other hand, will be completely boned if this even reaches discovery which is why he filed for the protective order, to which Fantalis won’t assent.
i don’t see how they can justify a protection order in the first place when they initiated the case. if you start the shit then you damn well better be willing to step up and show your goods. more people are fighting and once the actual tech gets cross examined then it will be all over and the counter suits will roll like a hurricane all across the country.
and to all those who say “fantalis will settle eventually” i say “i doubt it.” reading his motions show that he is committed to this and i don’t think anything short of a real and judicially declared victory will slow him down.