Archive for October, 2012

A must-follow strategy

Every time I see Nick Ranallo’s work, I want to take off my hat. John Steele, annoyed by too much truth being publicized about his shady practices, labeled Nick as “underemployed lawyer trolling for business.” We know that Steele usually tries to brush off someone’s actions publicly only when these actions seriously hurt Prenda’s shakedown “business.” Therefore, it is not an understatement to call Nick one of the most capable Prenda’s foes: indeed, Nick continues delivering very serious blows to copyright trolls with every new case he defends. Embedded below is a new must-read Motion to Post Undertaking in one of the numerous Prenda’s individual cases, AF Holdings v. David Trinh (CAND 12-cv-02393-CRB) filed by Prenda’s California agent, Brett “Pinocchio” Gibbs.

Basically, defendant asks court to tell Prenda to put its money where its mouth is and deposit an $85K bond. The likelihood of defendant’s prevalence is great, but the likelihood that a secretive offshore “rights holder” will pay quickly and seamlessly in case if it loses is minuscule. That’s one of the reasons why offshore companies have been created in the first place: to make things opaque and difficult for creditors when those companies are eventually ordered to return what they stole from their victims.

This motion is so well written and so compelling that I can’t imagine how judge’s decision can be potentially swayed by Gibbs’s apoplectic opposition that he filed on 10/19. In that opposition Pinocchio has proudly showcased his long nose while calling this blog a “piracy forum.” A troll from Colorado Jason Kotzker labels our forums “anti-copyright”: laughable, but at least Kotzker has guts to post links in footnotes. Gibbs, on the other hand, cowardly cut the URL from his exhibit and did not provide a link anywhere in the motion. This childish fear of truth being learned by judges gives me some comfort, and I don’t want to spend more time discussing the obvious: if someone calls you a camel on the street, you don’t argue — you just raise your eyebrows for a second and move forward¹.

Defendant invokes California’s CCP 1030: I don’t know if similar rules exist in other states, let lawyers stop by and discuss, but if this is the case and most states allow such things, I see Nick’s primer as a serious game changer.

 

Prenda’s new game

I don’t know if this way to secure fair outcome can be invoked if individual defendants are not served, which is seemingly a new Steele’s strategy. The brief history of Prenda Law, which is presented in the Chapter II of Ranallo’s motion, is nearly impeccable and can be included in virtually any motion where Prenda’s “client” is an opposing party. In short, it explains how Steele moved from mass suing but not naming to blindly serving individuals (Gibbs’s own words). What is missing in Nick’s vision of Prenda’s history is the interim strategy. While indeed some individuals have been served, they comprise only a tiny fraction of those who have been named over the last months. So, naming but not serving is the stage of Prenda’s “genesis” that Nick has missed in his otherwise excellent educational field trip.

Look, Prenda recently filed a shitload of cases and promised to file more. It is physically impossible (at least in this universe) to litigate all these cases with a handful of cheap crooks Steele and Co. were able to find across the US. The talk about “representatives” in all states is just a hollow talk a-la Steele: currently two hands are more than enough to count all the local scumbags. Each of them files far more cases than he can even watch, less handle diligently (which leads us to a blatant violation of the rules of professional conduct, but that’s a different story).

Sure Steele and his goons still can make an effort and heave a couple of summons, but what about all of the currently named cases that rot in dockets all over the country? What will they do with this load? What is going to happen when it comes to depositions?

Prenda can’t even organize the complaints on its site, listing unrelated Duffy’s cases together with extortion lawsuits. In another occasion, an individually named defendant has not been dismissed from the underlying mass lawsuit. And this is just the tip of the iceberg: these guys absolutely, positively cannot manage the load they announced.

If you decided to settle (and you know, it upsets me), at least wait to be served. And if you are resolved to fight, just imagine what will happen if everyone files a simple Answer to Complaint denying wrongdoing, but each with an individual twist: the crooks will pop as soap bubbles when they attempt to file oppositions to 100+ Answers.

And, getting back to the topic, what is going to happen if every one of these 100+ defendants requests an $85K bond to be posted?

If you ask Steele, he will tell you a different story: you know him. Don’t be gullible. Don’t listen to him. Don’t listen to me. Simply turn on the common sense and do the 4th grade level math.

Update

10/28/2012

I was pointed to the fact that Morgan Pietz filed a similar motion to furnish security in an individual Prenda/Lihghspeed case back in September, so it maybe unfair that I dedicated lots of praise to Nick and did not mention Morgan. On the other hand, I know that many attorneys, including those two, exchange ideas all the time, and it really does not matter who came up first with a particular approach. What matters is that both Nick and Morgan (and many others) do a terrific job of healing our system from the trolling disease.

10/29/2012

On 10/26 Nick Ranallo replied to an angry Prenda’s opposition with Memo in support of defendant’s motion to post undertaking. Mr. Ranallo, not resorting to emotions, absolutely ignoring ad hominem attacks (kudos for that: for the majority of people — even good people — it’s admittedly not an easy task), calmly and professionally killed each troll’s “argument.” The following quote from the Nick’s response deserves applause. Seriously (emphasis is mine):

Plaintiff argues that Defendant has articulated no need for security in the instant case. However, as recognized by this court, the need for security arises precisely because of the Plaintiff’s status as a non-resident and the difficulty that can be expected in enforcing a judgment against Plaintiff. This need is even more pressing in the instant case, as Plaintiff herein appears to engage in no business beyond the filing of lawsuits.

Plaintiff’s opposition opines that no security is necessary, since Defendant can easily attach any of Plaintiff’s judgments. See ECF No. 21 at 11. There are two fundamental problems with this. First, Plaintiff does not appear to have ever actually obtained judgment against a California defendant. Second, as laid out in Defendant’s original brief and this reply, Plaintiff’s copyright claims are extremely specious and are based on admittedly insufficient evidence. Thus, defendant doubts Plaintiff’s ability to actually obtain judgment on future claims in this state. Defendant likewise expects a long line of prevailing defendants with whom he must compete to attach any judgment that is ultimately obtained by AF Holdings during the course of this campaign. Simply put, Plaintiff is engaged in a highly questionable litigation campaign and would like Mr. Trinh, a victim of that campaign, to place his hopes for recompense on the success of the campaign. Mr. Trinh is acutely aware of the weakness of Plaintiff’s claims, and has no confidence that AF Holdings’ other suits will result in an attachable judgment of sufficient size to satisfy an award of costs and fees in the instant action.

Good news update

11/9/2012

Nick’s motion has been GRANTED! Motion underwent a “haircut,” but still the judge ordered Prenda to deposit $48,000 within 30 days or face dismissal!

 


¹After reading Prenda’s opposition one more time, I’m not so sure about the authorship: despite the fact that Gibbs signed this document, it very well may be John Steele himself — I hear some familiar hysterical notes: “There is no finer opposing counsel than one who declines to research the law,” “Mr. Ranallo would have done well to remember his role,” “His client’s future hangs in the balance. Instead of engaging in cathartic name-calling, Mr. Ranallo should have focused on the legal issues that control his client’s destiny.” “If Mr. Ranallo had spent his time conducting legal research…” etc.

Updates
  • On 11/14 Gibbs filed a motion for reconsideration. Seems that he does not want to deposit a bond, even such a negligible amount as $48,000, especially if he has no doubt that he wins in the end of the day.
  • On 12/7 Judge Breyer denied Gibbs’s motion:

    Plaintiff’s final argument, that the Court’s Order is “inapposite to [the] principle” that the “United States is supposed to demonstrate leadership in promoting the rule of law” is simply hyperbolic. Although the Court recognizes, and recognized in its Order, that posting an undertaking of any real amount is inconvenient to Plaintiff, see Order at 3 (reiterating Plaintiff’s concern that undertaking would bar it from proceeding in any copyright case and concluding that undertaking should be “no greater than necessary”), Plaintiff’s doomsday predictions about the fate of commerce in California, see Mot. at 9 (“many organizations might simply choose to exclude California residents from accessing their businesses”) strain its credibility. Only this case is before the Court, and Defendant has met his burden in this case.

  • On 02/01/2013 a judge on another similarly frivolous (and very active) case, AF Holdings v. Joe Navasca (CAND 12-cv-02396), granted Nicholas Ranallo’s motion to post undertaking requiring plaintiff (a fake entity AF Holdings — a mere facade for Steele & Co.) to post a $50,000 bond. Read this beautiful order by Judge Chen. “Coopergate” maybe was not instrumental in granting Nick’s motion, but definitely played a big role (emphasis is mine):

    [...] based on the evidence of record, there are serious questions as to whether AF has standing to sue for infringement because of the “Alan Cooper” issue. Notably, in spite of a declaration from an Alan Cooper suggesting that AF or persons or entities affiliated with AF have fraudulently used his identity, AF has made no effort to provide any evidence to counter the declaration. AF could have, but did not, present a declaration from its own Alan Cooper or a declaration from its manager and/or CEO. As the Court stated at the hearing, even if there was a sufficient transfer for purposes of the Copyright Act, which focuses on proper authorization by the copyright transfer or, not the transferee, that is a separate issue from (1) whether AF has Article III standing in this Court to assert infringement based on claimed ownership of the copyright at issue and (2) whether AF is a real party in interest with capacity and authority to sue. See Fed. R. Civ. P. 17. The “Alan Cooper” issue raises serious questions that remain unanswered.

  • Related
    Followup

    Previous coverage:

     

    After defense attorneys called out copyright troll Chris Fiore’s lies and informed Judge Baylson, the judge ruled (emphasis is mine):

    …within ten (10) days, if service of the Complaint on the Defendants is not effectuated, Plaintiff shall file a “memorandum advising the Court as to why service has not been made on any Defendant, and how Plaintiff intends to proceed with regard to that Defendant.” Plaintiff has filed no such memorandum. Moreover, contrary to Plaintiff’s representation that it forwarded this Court’s October 3, 2012 Order to each Defendants’ Internet Service Provider (“ISP”), counsel for one Defendant has advised the Court that, based on a conversation with the Legal Response Center at Comcast Cable, which is the ISP for most of the defendants, Plaintiff never informed Comcast Cable of the Court’s Order.

    In light of these recent developments, it is hereby ORDERED as follows:

    1. Plaintiff shall promptly file a memorandum and certificate under oath subject to the penalties of perjury advising the Court, in detail, with names and dates, what contact Plaintiff has had with any ISP concerning the subject matter of this Court’s October 3, 2012 Order, and any follow-up.

    Not being a lawyer, I initially described the order as “balanced,” but shortly I received a tweet from an attorney:

     

    After this useful lesson in Legalese, I realized that things were getting much more interesting than I thought. As Raul put it,

    This places Fiore in a double bind: if he tells the truth under oath, he may get hit with sanctions, yet, if he files a falsehood under oath to avoid sanctions, he can face perjury problems.

    I did not have a slightest idea how Fiore would squeeze himself from between a rock and a hard place, and waited for his sworn memo impatiently. Fortunately, it did not take long, and today we have an entertaining read, although not written by our little troll: his master Keith Lipscomb came to rescue and lent the helping lissome furry body hand to his disciple.

    I don’t want to analyze this masterpiece: read it, and I hope you’ll laugh uncontrollably as I did. While discussing this timeless piece in the comments, don’t be hard on Lipscomb: he did his best to entertain all of us. Also, according to Homer Simpson, this type of behavior should be encouraged:

     

    Enjoy the memo:

     

    The open question of the day: Will Judge Baylson be as amused as we are?

    First reactions :)

    First comments were hilarious, not unexpected. Thank you, guys.

    I hope this judge has a sturdy bullshit detector, because I ran this document through mine and it EXPLODED! It’s a damn shame he couldn’t work a dog into the story somehow. Then maybe he could have brought the dog with him to court and said something like “Toby didn’t mean it your honor–didya little guy?” and then rubbed his head.

    I was wondering what you were getting at in your comments and I figured it would just be more of the usual bread and butter Troll BS, maybe some condescension and insults directed at the court, judge, defendants and their attorneys, but this load of crap is well beyond unexpected. [...]

    I was waiting for the aliens and their ray guns to be the cause of the burst pipe. I bet they were under orders from some cigarette smoking man. Seriously? How lame can you get. There was this legal assistant didn’t get the info to the paralegal who then couldn’t get the info to Fiore who, of course, can’t possibly be expected to keep track of a case he is litigating—and all because we had a pipe burst in our office. Are you kidding me? I think I lost 50 IQ points just reading that memo.

    Update: bullshitting or outright lies?

    10/24/2012

    A commenter who I know for a long time and have no slightest reason to question her credibility, reports:

    Good Morning Ladies & Gentlemen,

    I read Mr. Lipscomb’s “Memorandum Advising The Court As To What Contact Plaintiff Has Had With The ISP Concerning The Subject Matter Of The Court’s October 03, 2012 Order And Any Followup” document, and offer here the following:

    The name of the building where Mr. Lipscomb’s office is located is called One Biscayne Tower. The phone number of the building is 305-374-5678. The name of the receptionist (today) who answers the phone for the entire building is “Vanessa.” I spoke to her two minutes ago.

    I told her that it was my understanding that the building had a flood in the penthouse. She became alarmed, thinking I was talking about a flood occurring today, and she was initially confused. She then said no one had reported a flood to her today, but then offered information about a penthouse flood that occurred “a long time ago.” I asked her how long ago. She said the flood occurred in June of 2012. I asked her if there had been another flood in October, she said no, just in June.

    I then asked her if everything was “back to normal now.” She said the flood damage was localized and repaired within less than a week.

    Accordingly, for the statements made in Case No. 12-02084, whereby Mr. Lipscomb claims to make it sound as though he had been swimming in water in his penthouse suite in October of 2012, no such swimming occurred because the water and the ensuing damage had long since been corrected.

    It is beyond my comprehension how arrogant the crooks are to think that no one is watching and performing elementary fact checking.

    10/24 late afternoon update:

    Tamaroff & Tamaroff say in a tweet that they (Lipscomb) did work from home:

    we saw the damage. It actually was fairly extensive & they were working from home, but that’s what Worldox is for.

    That does not make Lipscomb’s excuses less lame though.

    Followup

    Bellwether trial update: Telephone conference, new filings. New updates will be posted there.

    The Center for Copyright Information. Sounds good doesn’t it? A place where you can get information about Copyright. But it isn’t. This unholy alliance between the copyright cartels and ISPs, is trying to create laws they control.

    The plan

    A third party company is going to monitor torrents of popular files, record IP addresses, and submit those matching member ISPs to the ISP. The ISP then sends a Copyright Alert System notice to the person who pays the bill. They want you to think of them as helpful notices, like when the bank alerts you to possible fraud on your account. When you get your 4th, 5th or 6th notice… things change. The ISPs each get to pick their own methods of “Mitigation Methods”, while there is no common system of these in place, they can include:

    • throttling down your speed;
    • sending you a scary message that the cartels can sue you and they will gleefully hand over your details if a court orders it;
    • blocking popular websites until you complete an educational program about copyright.

    They claim disconnection is not a possible option.

    Now if you think you got one of these notices in error, you can challenge the notice. You have to pay $35 to them, and pick one of a few limited responses they allowed you. This is then reviewed by an Arbitrator, who decided if the notice is legit or not.

    Lets go over some of the problems here

    The company gathering the information is MarkMonitor who acquired DtecNet. Lets then look at their amazing history:

    If this is such a wonderful system, why all the secrecy? Given the RIAA’s wonderful history with this sort of tech… One would think they would be much more open about it to remove any doubts as to how the system works and how accurate it is. But instead we have a secret system, pushing different punishments on consumers on mere allegations, and it costs you money to challenge their findings with an arbitrator who I have severe reservations about being able to crawl through code to verify the veracity of statements being made.

    But then these are the same people who wanted to break the Internet to protect an outdated business model, have ICE running raids of websites, went after a $10 Million government handout to make sure they could get ICE to do more, wanted police to have the right to search mp3 players and make sure all of the music was licensed, and a bunch of other really stupid stuff.

    Here is the really sick thing…

    The IP gathering here is the same as what the trolls are doing now. Except the cartels don’t have to pay $350 to file a case.
    They don’t have to even prove any uploading or downloading happened. (Not that they could as IP spoofings been around since the first time the RIAA sued everyone on the Internet.)

    They don’t have to send out a DMCA notice affirming the facts.
    They just have to say your subscriber did it… and you get a black mark against your name.
    Doesn’t matter if your Wi-Fi was open or hacked, you are at fault.
    Doesn’t matter if it was the neighbors’ kid visiting, you are at fault.
    Doesn’t matter… you are always at fault because the ISP’s Terms of Service and Acceptable Use Policies are the “law.”
    This also allows them to avoid having to prove who did it, and get bogged down in justice and fairness.

    But wait, TAC, where is the Government stopping this obvious antitrust case?

    “The joining of Internet service providers and entertainment companies in a cooperative effort to combat online infringement can further this goal and we commend them for reaching this agreement. We believe it will have a significant impact on reducing online piracy,” said U.S. Intellectual Property Enforcement Coordinator Victoria Espinel.

    They picked a “board” to help them deal with privacy issues and such, and they are very clear that the cartels never know the names… except they are ignoring some of what the board is saying and the board is rubber stamping this monstrosity.

    But wait, TAC, they had experts look over their system and prove it was accurate!

    Yeah.. about that “expert”… Ernesto at TorrentFreak.com followed a tip I submitted about them formerly being lobbyists for the RIAA. And he uncovered something I had missed…

    Stroz Friedberg is indeed a technology expert, but the group was also the RIAA’s lobbying firm for half a decade.

    Between 2004 and 2009 Stroz Friedberg lobbied extensively in Washington on behalf of the RIAA. This consulting job earned the company more than half a million dollars ($637,000).

    One of the leading lobbyists on record was Executive Managing Director Beryl Howell, who lobbied U.S. Congress and Senate for copyright laws regarding digital music.

    Now if you follow copyright trolls you know the name Beryl Howell and curse it like the rest of us do. She believes that an IP address is a proof of infringement, that ISPs aren’t doing enough to stop “piracy,” and that people don’t have the right to fight against copyright trolls getting their names to try and extort money.

    So the promised review of the tech… done by a company who the RIAA pays well… Not the guys who tore apart IP monitoring at the University, but people who stand to lose a client.

    Yep… seems legit to me.

    What can we do?

    So it might be time to reach out to those morons you voted for, and ask them why corporations get to make their own laws now.
    Copyright law and the overreach with it has gotten stupid… but this one this takes the cake.
    Why are we letting them slip SOPA into being the law of the internet?
    Why are we allowing accusations to be taken as fact?
    Why are we paying billions to fund companies who are supposed to be supplying the digital super highway, who instead are going to become the private enforcer of the copyright cartels?

    They call the program “6 strikes,” because Americans would riot if they tried 3 strikes here. They quickly claimed disconnection was off the table, yet the words still exist in the memorandum of understanding they signed to form this.

    Take a look at 3 strikes around the globe, and see the abject failure it has become.

    • The French are going to abandon their vaunted program after taking one customer to court… who had to pay for his wife downloading music… because it was his connection. He didn’t know, wasn’t involved, but he was punished as if he had done it.
    • In New Zealand they just dropped their first case after turning it into a giant clusterfuck. The young lady who’s name is on the bill and claims innocence is left hanging after wasting time, effort and money to defend her good name against a claim that suddenly wasn’t 100% perfect. But they did manage to compute damages she should pay… except those were nowhere in the law allowing their 3 strikes program and it was an arbitrary inflated number… sort of like a copyright trolls “win” where they talk about the huge amount they won on paper to scare other people into settling the case for less.

    A copyright troll can capture an IP address, but then they have to go to court, file a lawsuit and have the case tried on the merits. (Well, in a perfect world.)

    Why are we allowing the cartels to make allegations, based on secret methods, and get the ISPs to do anything all? Corporations do not get to make laws and force them on people, they have to do it the old fashioned way… they have to bribe the Congress. Remind your congresscritter today that the elections are coming and if they don’t act to stop this… maybe their replacement will.

    I’m TAC… I think this is fucking horrible, and if you agree you will tell friends, family, and your congresscritter this is wrong and needs to be stopped. Some of these ISPs are the only game in town in many areas, so we can’t vote with our wallets.

    End the cartels reign of terror, or learn to accept only what the cartels decide your allowed to access on the net.


     
    Copyright troll of the week

    Recently I wrote about a copyright infringement monetization outfit “Copyright Defenders” that uses unlicensed “experts” to harvest IP addresses from bittorent trackers and solicits help from lawyers across the country in filing mass lawsuits and sending demand letters on behalf of various pornographers. The majority of recipients of such “lucrative offers” smells the scam and ignores attempts to draw them into a reputation-damaging endeavor. Nonetheless, some underemployed attorneys are eager to trade their dignity for a handful of shekels.

    Meet a Colorado attorney Sanjin Mutić, who took the bait and filed two mass bittorent lawsuits in Colorado on behalf of a purveyor of fine arts — romantic movies with poetic titles (link NSFW!) — West Coast Productions Inc., essentially embracing a virtual company of an infamous attorney, who used to represent WCP, now convicted Kenneth Ford.


    Copyright troll
    Sanjin Mutić

        Sanjin Mutić
        Mile High Law Office, LLC
        621 Seventeenth St., Suite 1101
        Denver CO 80293
        Direct 303-204-6141
        Office 303-296-6456
        Fax 888-572-6456
        Sanjin@MileHighLawOffice.com
        Attorney for Plaintiff West Coast Productions, Inc.

     

    Why did I decide to give some bad publicity to a minor underemployed opportunist? So far, he filed only 2 cases (12-cv-02642 and 12-cv-02644) that list 75 Does, and there is a long list of other trolls waiting for my attention¹. I’ll tell you why I’m so mad at this particular troll: Sanjin Mutic is on the Triskеle Foundation board of directors. What is Triskеle Foundation? It is a non-profit with a noble goal of providing “a high school equivalency for all those who want it, first in Colorado, then in the nation”:

    Our focus at the Triskеle Foundation is to help those Americans for whom high school is no longer an option. Our agenda not only humanitarian, it is economic.

    For 10 years, we’ve been told to be vigilant. We’ve been encouraged to show our patriotism through yellow ribbons, bumper stickers, flag waving, and catchy phrases. As the world economies recover, our society needs to be competitive. Now is the time to prepare our ‘human capital’ for success in the global economy.

    Yes, Mr. Mutic is a senior member of a foundation that wants our nation to be a nation of educated people: prosperity is premised on the high level of education. Yet he is also a porn copyright troll. You may ask why these things cannot coexist and why I compare them. I’ll explain. I receive tons of personal emails, and more than once I heard stories about how victims’ education was jeopardized by copyright trolls. Many troll targets succumb to fears of being publicly named in a lawsuit that alleges sharing of a movie such as Mom’s Black Cock Anal Nightmare 2 (yes, this is a “work of art” at the center of one of the two lawsuits filed by Mr. Mutic). So they often settle regardless of guilt. They pay using the money that was set aside for college — their own or their kids’. Even if a teenager indeed shared those “works,” isn’t the price paid not only by a victim, but also by the society as a whole, too high? On one occasion (and it’s the only one I’m aware of) a girl accused of sharing a cheap porno flick couldn’t withstand harassment and agreed to pay, but the only way she could do it was to postpone her college education for a year and find a low-paying job to pay installments. She claimed that she is innocent.

    So, now we witness a double-faced man, who is listed among the leaders of the organization that solicits donations to provide education to everyone, yet at the same time, he is a part of an extortion conspiracy that in many cases results in depriving young men and women of continuing their education, because their savings have been diverted to greedy parasites.

    I hope that the Triskеle Foundation board will take a note: if potential donors learn about one of the organization directors’ shenanigans, it will hardly help their obviously honorable work.

     


    ¹I have not written about a serial scammer, new Prenda’s goon Daniel Ruggiero, for example.

    By Raul

    A bellwether trial, designed to test the validity of trolls’ evidence, was widely covered by press over the last week. Being obviously serious about his intentions to bring this business to completion, Judge Baylson setup a very tight schedule that included a trial date in April 2013. Not surprisingly, Lipscomb/Fiore/Malibu Media are currently trying to sabotage the process in a hope that Baylson will dismiss the case on the procedural grounds. It’s an awkward situation: all 5 defendants will be happy if this nightmare is over, and, of course, we will be happy for them too, yet in a long run a premature dismissal will result in continuing extortion and much, much more victims.

    Raul originally posted the following as a comment to the original post. I don’t think that anyone disagrees that Raul’s comment deserves a wider audience. Hence, a separate post.

    In case people missed SJD’s Twitter feed yesterday, Doe Defender Charles Thomas’ blog details the development pointed out to me without adding any comment, so allow me. :)

    On 10/15, at the 11th hour, just before the deadline was set to expire for Troll Fiore to effect service on the Does, they file their Second Motion for an Extension of Time to Effect Service. The motion requests an additional 30 days insofar as Fiore does not have the personal info for Doe 6 because:

    On October 3, 2012, this Court entered an order granting in part and denying in part John Doe 6’s motion [Dkt. 24]. Plaintiff has forwarded this order to the ISP to obtain John Doe 6’s identity and is waiting on the response.

    In your Bullshit Alarm clanging?

    Charles Thomas files his Brief in Opposition to this motion on 10/16 (embedded below) and makes many excellent points as to why the motion should be denied and I’ll just point to a few of my favorites:

    This delay is outrageous, and clearly leaves the impression that the Plaintiff is less than enthusiastic about actually trying these cases. Indeed, taking these cases to trial is not consistent with the so-called “copyright troll” business model — raise the spectre of statutory damages to obtain quick settlements.

    and

    …this maneuver has an secondary effect on the Defendants and the Court which very clearly evidences the Plaintiff’s blatant attempt to undermine this Court’s clear directive to advance this case a timely trial.

    and

    In essence, the longer the Plaintiff can avoid laying its cards upon the table, the more profitable its shadow business. Already, the Court’s decision to schedule a bellwether trial is rippling through the media and presumably the Plaintiff is aware of the intense scrutiny that this trial will generate.

    and IMPORTANTLY

    In Paragraph 4, Plaintiff states that it has forwarded the Court’s October 3 Order to Comcast, but does not indicate when it did so — this is a very telling omission. Clearly, if Comcast received the Order on October 3 or 4 and failed to reply timely, Plaintiff would surely note all the relevant dates of communication and be well within its rights to lay the blame squarely on Comcast’s shoulders. That is has not spelled out the dates in question suggests that the cause of the delay was simply that Plaintiff failed to act.

    Based on these points Thomas arrives at the logical conclusion that Fiore/Lipscomb are trying to scuttle the lawsuits before they get to a Bellwether Trial:

    All of the above amply demonstrates that Plaintiff is doing its level best to remain in the shadows, almost goading the Court to dismiss its Complaint on procedural grounds — and thus to avoid a precedential ruling that could dismantle what Judge Wright of the Central District of California calls “essentially an extortion scheme.”

    Thomas followed his hunch that Fiore never contacted Comcast and the lie is revealed in an Addendum filed also filed on 10/16:

    John Doe 6 has now learned through a conversation with Comcast’s Legal Response Center that Plaintiff never informed Comcast of the Court’s ruling.

    and

    This directly contradicts Plaintiff’s assertion in the Second Motion that it has forwarded the Order to the ISP to obtain John Doe 6’s identity. This even more strongly suggests that Plaintiff is actively attempting to evade judicial oversight of its highly profitable settlement machine.

    In closing Thomas notes that such “shenanigans” should be sanctioned as he had suggested in his Brief.

    Update

    10/17/2012
    Two more defense attorneys on this case filed very similar oppositions to plaintiff’s motion for extension of time to serve. Leonard French was one of them. Note that C. Fiore filed a response to at least one motion, claiming that the Mafioso family plaintiff “welcomes the opportunity to try this case on the merits” and that “defendants [sic] actions make clear that they do not want to proceed with the Bellwether trial.” Pot full of BS calls the kettle back? The claim that defendant made in his addendum (that plaintiff disobeyed the court’s order to forward its ruling to Comcast, and lied that he did) has not been addressed.

    In other news: a telephone conference will be held on 11/1/2012. DieTrollDie is invited :) The phone conference will be transcribed and added to PACER.

    10/18/2012
    Judge Baylson issues an order on Plaintiff’s motion to extend the time. Granted in part and denied in part. The most interesting part is that Baylson wants trolls’ memo to be filed under oath, meaning he no longer takes their word.

    10/23/2012
    A follow-up post: Bellwether trial update: a delicate art of bullshitting under oath.

    11/2/2012
    Bellwether trial update: Telephone conference, new filings. New updates will be posted there.

    We are currently in the phase when mass bittorent lawsuits are quickly becoming history. Virtually any court (maybe except that in corrupt DC) is killing multi-Doe lawsuits as improperly joined. The actual trolls’ goal to obtain settlements rather than litigate has also become obvious to most judges.

    Therefore, trolls have no choice but to file individual lawsuits and name defendants, which is nothing more than a makeup on trolls’ ugly faces. While John Steele plays his last Grand Bluff with dozens of individual suits filed by local orcs across the country¹, other Mafioso families are not that active.

    A wrong target

    M. Keith Lipscomb, who is a mastermind of one of the most powerful extortion outfits that have been terrorizing this country for more than two years, and who wrestled hundreds (if not thousands) of his victims into settling without ever naming a single defendant, has squirted out his first individual lawsuit.

    I always thought that Lipscomb, although being a nauseous creature, had a sharp logical mind. Seems it’s not the case, because he picked a clearly bad target. (Other trolls demonstrate surprising sloppiness in selecting their targets too — look at Lightspeed Media v. Adam Sekora, for instance, a lawsuit that is expected to seriously damage Lighspeed’s new shakedown business model.)

    Lipscomb’s first individual lawsuit (Malibu Media, LLC v. Pelizzo, SDFL 1:12-cv-22768) targets a 61-old man, a citizen of Venezuela who was in that country from January 8 to August 20, while the alleged infringement was taking place from January 3 to May 29², according to the affidavit that was written photocopied by a German non-licensed “investigator” IPP International (Guardaley in disguise). The defendant never heard about Bittorent before the lawsuit, he is not likely a person who had ever downloaded pornography, and the identified address is located in a 700-unit condo AND the defendant has a wireless router, most likely unsecured.

    It is fair to note that since the defendant’s IP address is dynamic, his claim that his IP address is not the one indicated in the complaint is irrelevant. Nonetheless, the very existence of such claim tells volumes about the defendant’s lack of understanding how Internet works, which adds a huge question to the validity of Lipscomb’s claims.

    This affidavit accompanies a short yet decent Motion to Dismiss for Failure to State a Claim (attorney Francisco Ferreiro).

    I have one plausible explanation of Lipscomb’s disastrous choice. According to the subsequent explanation (now sealed), Lipscomb tried to contact the defendant a couple of times, but to no avail. It will be not a big stretch to suggest that Lipscomb smelled a default judgment hoping that the defendant wouldn’t reply to the summons. Trolls love default judgments: although the prospect of recovering tens of thousands is slim, those rulings are very effective in scaring others into submission, pretending that those judgments are victories on merits.

    Mini-Streisand effect

    Whatever the real reason is, Lipscomb was apparently taken off the guard and quickly filed a response full of excuses. Seeing that this response oozes weakness and can potentially damage his future shakedown operations, Lipscomb changed his mind and decided to get rid of this document. To add insult to injury, he also apparently attached a document that he did not want Judge Seitz to see — I’ll talk about it below. He hastily filed a motion to withdraw the embarrassing material (which could jeopardize the case), and asked “that all parties that receive an inadvertent disclosure destroy the disclosure.” Naturally, this motion caught our attention, and we managed to preserve the document while it was available.

    Pure Bill of Discovery or pure mockery of Justice?

    The wrong attachment is a Miami-Dade county court order authorizing discovery, written by Lipscomb and signed by Judge Trawick, apparently without reading (this copy does not have a signature, yet according to a later Lipscomb’s motion, the discovery was officially granted).

    I don’t want to analyze this document: read it and make your own conclusions. I only want to stress one thing. The practice when plaintiff’s and defendant’s attorneys write agreed orders that judges later sign without reading is bad enough, but when there is no opposition, this practice becomes a pure mockery of justice allowing ethically challenged plaintiff’s attorneys smuggle into orders whatever they want.

    Trying to address these two bloopers, Lipscomb submits a Memorandum in Opposition to Motion to Dismiss, written in the familiar tone of a castrated weasel, which had his organ responsible for telling right from wrong removed (instead of testicles).

    I briefly mentioned that this case has landed in the docket of Judge Patricia Seitz, which is an icing on the cake. She is the same judge who referred a miserable arrogant boy Perea to Florida’s bar for investigation. Another not-so-well-known fact is that Patricia Seitz is a daughter of a World War II hero Richard Seitz, and therefore she grew up in a family where “dignity,” “honor” and “honesty” were never bendable words, but real concepts – necessities no less important than food and clothing: something that Lipscomb will never be able to comprehend despite his academic achievements.

    We are impatiently waiting for the judge’s decision.

    Update

    10/16/2012

    It is getting interesting. Defendant’s attorney, Francisco Ferreiro, has filed an opposition to Lipscomb’s motion to withdraw/substitute documents today. While I articulated my opinion why Lipscomb wants to remove the document, I did not elaborate how he attempted to do it. Read the opposition that thoroughly explains Lipscomb’s bad faith, disrespect and outright lies. As a matter of fact, I overlooked another reason for Lipscomb’s desire to withdraw his filing: he filed the original document (and later brazenly lied that it was a honest mistake) right before the deadline, and now he attempts to smuggle a new version using a non-existent error as an excuse, 6 days after the deadline. Unbelievable crookery.

    10/16/2012
    Judge Seitz granted Lipscomb’s motion to withdraw allowing to substitute his “mistakenly”filed memorandum. It is always funny how in XXI century officials still order to destroy electronic documents that have been already made public.

    10/26/2012
    Defendant’s counsel, Francisco Ferreiro, filed a Response/Reply in support of Defendant’s motion to dismiss complaint, where he calmly reiterated why Lipscomb’s complaint should be put in a garbage basket dismissed. I recommend reading it — there are only five pages, which does not imply the lack of arguments: on the contrary, those arguments are clear as mountain air. I highly recommend every attorney to spend more time on Twitter — a mental gym for to exercising the brevity and clarity muscles.

    Followup

     


    ¹Steele wants to convince his victims that he will go after everyone, yet he is not likely to cover a mere 1% of all the potential targets. In addition, named defendants are much more likely inclined to fight back, so the current Steele’s boogieman is already terminally ill.

    ²Lipscomb mentions a couple of times that “Plaintiff’s investigator has recorded Defendant’s IP Address uploading Plaintiff’s movies through the BitTorrent protocol 398 times.” This number is bogus: just look at the complaint’s exhibit and you will see that many instances were “recorded” in minute intervals. With the same impudence, Lipscomb could claim millions of infringements reducing the interval to milliseconds.

    One of the most important battles with copyright trolls is Jeff Fantalis’s dedicated and well-versed counter-attack on a copyright troll extortion outfit comprised of its “boss” Keith M. Lipscomb, a jaded pornographer Brigham Field (Malibu Media), and Lipscomb’s local Colorado puppet Jason Aaron Kotzker. An update to this story has been long due.


    Jeff Fantalis

    What happened since Fantalis filed his excellent First Amended Answer and Counterclaims? I’ll try to briefly cover the main events. If my emotional comments seem overboard, refer to the court filings, and I hope your skepticism will vanish :)

    • On 8/8 Kotzker filed a motion to dismiss Fantalis’s amended counterclaim. This motion contained many assertions that were not supported by case law. Raul called it “a panicked troll bitch response.”
    • On 8/13 Marc Randazza crashed the party with one of his amicus curiae briefs prepared on behalf of the First Amendment Lawyers Association (FALA). This brief’s single topic was the claim that pornography belongs to the company of “useful arts,” and deserves copyright protection. My opinion on this issue was precisely expressed by a blog commenter:

      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 cannot 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. That’s what they get for being greedy short sighted douchebags.

    • On 8/22 Fantalis opposed Randazza’s motion to file the amicus curiae brief, painting FALA as not a disinterested party, but essentially an adult business astroturf. The conclusion was that the brief’s biased opinion is neither welcome nor appropriate. Judge later allowed this brief to be filed.
    • On 8/24 Kotzker filed a motion for protective order (that was later granted), which included some outrageous statements:

      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 pursuant to Fed. R. Civ. P. 26(c). 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.

      Dietrolldie made a post debunking these cowardly lies. I only want to add one thought: as we learned about the impending bellwether trial in Pennsylvania, our blogs’ community became rather excited (just read the recent comments) about the prospect of a fair trial that could take place as early as in April 2013. That alone tells volumes more than trolls’ unsubstantiated accusations: would you expect such an excitement from a community of near criminals, as Mr. Kotzker and other pornotrolls try to portray us?

    • On 8/29 Fantalis filed his Second Amended Answer and Counterclaim. Although this document was later stricken, I highly recommend reading it: it is more refined than the previous one and has many new damning exhibits, including a Berlin Court’s injunction that finds Guardley’s IP harvesting methods erroneous. We were aware of this document for a long time, but it was not translated from German. Now we have an English version, and I advise movants to refer to it in any opposition to trolls’ claims regarding the accuracy of their forensic “experts,” especially in Malibu Media cases: Lipscomb’s outfit employs IPP International, which is merely a Guardaley’s facade.
    • On 8/31 the pot called the kettle back and filed a motion for Rule 11 sanctions. The content of this motion is a pure definition of irony: Kotzker claims that Fantalis’s counterclaims are frivolous. However, the motion does not present any facts that would support this claim, which makes this motion frivolous itself. I’m not sure that Kotzker understands this irony: by this time it became clear that our little troll is scared. His subsequent actions suggest that the fear of discovery overcomes the fear of being disciplined. Kotzker tries everything to stall the process, which is not a surprise: trolls excelled in taking off but did not care to learn how to land: in other words, despite filing hundreds of cases across the country, they did not even think about preparing to litigate.
    • On 9/5 Fantalis replied to plaintiff’s motion for protective order, thoroughly debunking all the phony claims that Kotzker had made on 8/24. I want to thank Jeff for defending our community from baseless attacks:

      The “anti-copyright” blogs, to which Plaintiff refers, are by no means against copyright as a matter of law. What they are dedicated to is to the education and support of John Does who have been sued or otherwise approached by a company like Plaintiff. They are anti-mass-for-profit-infringement-litigation blogs.

    • 9/22 Kotzker’s reply to response to motion for leave to amend is worth reading too.

    So what about this post’s title? The answer is in 9/21 response to trolls’ motion for Rule 11 sanctions. While the document itself is a no less important and must-read than Fantalis’s previous filings, the most incriminatory piece is the exhibit, having seen which even very skeptical person will shake his head in disbelief. Four people — three attorneys and a 66 y.o. defendant — each filed a sworn affidavit that tells essentially the same story: how they approached plaintiff, voluntarily offering their hardware for forensic examination to prove innocence, and (surprise?) the troll said “no.” Or, translated to plain English, “We don’t care if you did it or not, we just want your money”:

     

    So here we are. While this battle rages on, the trolls acquire new headaches every day. So far these headaches are:

  • A class action lawsuit against five pornographers, including Malibu Media;
  • Yesterday 33 Malibu cases in the Central District of California were reduced to a single Doe each;
  • Fast-track bellwether lawsuit in Pennsylvania;
  • Another defendant in Colorado fights back;
  • A defendant in Maryland (with a help of attorney Eric Menhart) comes up with a different set of counterclaims, explicitly accusing trolls of running a honeypot.
  • I’m sure I have missed a few. Moreover, it is clear that this list is destined to grow, as it is clear that trolls’ house of cards is shaking and will soon fall apart.

    Do not feed the trolls. Do not settle. In order to win, you must fight back.

    Updates
    • On 10/5 Plaintiff filed his further support for Rule 11 sanctions. He called this blog “anti-copyright” once again on page 21 (the irony continues: no fact supporting this claim can be presented) and whined that Fantalis should be stopped because… others can use his excellent reasoning in defending themselves! Unbelievable. Yet I’m grateful to the trolls for drawing the judges’ attention to this humble blog one more time. I hope that Judge Hegarty follows the links in the filings and will click on the footnote 12.

      Needless to say, the subject of this post was not addressed at all: seemingly it is not a big deal do extort obviously innocent people.

    • On 10/11 Fantalis, tired of plaintiff’s games, filed a motion to compel to produce requested documents. Must read.
    • On 10/12 Fantalis filed an objection to an earlier magistrate judge’s Report and Recommendation that advised to entry a default judgement against another defendant on this case, Bruce Dunn. As a commenter below noted, “it has much more to do with how a judgment against Bruce Dunn would prejudice his own case rather that out of charity. Fantalis is absolutely correct, that judgment against Dunn would be paradoxical if (read: when) Fantalis prevails at trial.”
    • On 10/18 Judge Hegarty granted Fantalis’ motion for time extension to file second amended answer and counterclaim, motion for leave to file second amended answer and counterclaim, denied Kotzker’s motion for Rule 11 sanctions, and denied as moot Fantalis’ second amended answer and counterclaim.

    11/9/2012. Follow-up post: Malibu Media v. Fantalis et al: update. Second Amended Answer; discovery sabotage; hearing on the Motion to Compel. All further updates will be posted there.

    Today’s surprising and Kafkaesque default judgment, as well as John Steele, who confused this blog and Twitter with a public restroom, hardly kept my mood elevated. Fortunately at the end of the day I was pointed to a hilarious document that resulted from Marvin Cable’s failure to show up on a hearing of his own motion. The opposition to plaintiff’s renewed motion for early discovery and motion for sanctions was written by Dan Booth (is there a synonym to “write” that is used exclusively do describe a poem creation?) Below I embedded the document for your enjoyment.


    President John Adams
    (1735 – 1826)

    Poor troll Marvin Cable… Recently he embarrassed himself by comparing his questionable conduct to John Adams’s actions:

    Plaintiff is reminded of John Adams’ defense of the six soldiers in the Boston Massacre, in December 1770, where he took the case despite the reputational blow to his career as a lawyer, and said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” Here, the facts are that Doe defendants violated Plaintiff’s rights, and federal rules allow for permissive joinder of these defendants. There are no facts, there are only speculations, that the Plaintiff is ill-ly using the Court system to fill its belly and that this Court cannot find ways to adjudicate each defendant in one civil action. As this Court respectfully noted in it’s denial of defendant’s request to recuse a judge in U.S. v. Bulger, it is irresponsible for this Court to comply to requests where parties “have chosen to make untrue accusations in the possible hope of subverting that process, or at the very least, forcing a delay of a trial by injecting a diversionary issue into the proceedings.” 1:99-cr-10371-RGS (D. Mass) at 9. Plaintiff feels this Court would agree that Defendants’ requests to sever based on tall tales or misconduct should not be complied with.

    I suspect that another Adams, namely Samuel, was the inspiration of such passion.

    I’m sure John Adams is turning in his grave, hearing that his noble actions are being compared to using underage pornography to extort quick cash from people who are defendants during the day but turn ISP subscribers at night. (As a weretroll himself, Marvin seemingly does not have any problem with this transformation.)

    To commemorate this flabbergasting arrogance, Marvin Cable’s nickname will be “President Adams” from now on.

    The brave defender of the “work of art” Dirty Little Schoolgirl Stories #4 proudly regards himself as a role model:

    Another Court in this District noted there has been no report of Plaintiff’s Counsel (who is the same Counsel here in a similar case) engaging in any unethical or coercive tactics, using the content-matter to persuade people into settling. It has even been stated on the record in another Court in a similar case during a hearing (transcript for that hearing is currently being worked on by stenographer) that this Counsel (who is the same Counsel here), as opposed to many others around the country, is one of the most ethical and best to deal with. Plaintiff can nearly guarantee that every defense counsel that has dealt with plaintiffs’ counsel would agree, even those who submit fierce motions against plaintiff.

    Well, Dan Booth agrees… kind of:

    Note how Marvin “President Adams” Cable explained the reason why he missed the hearing: he did not check his email on a daily basis! Since courts went all electronic, dogs are dying from hunger: no more homework judge’s orders to eat. This lame excuse resulted in short but entertaining order:

    Ch. Magistrate Judge Leo T. Sorokin: ELECTRONIC ORDER entered. ORDER Setting Hearing on Plaintiff’s Renewed Motion for Early Discovery (Docket # 43). Plaintiff’s counsel failed to appear for the hearing scheduled for October 5, 2012. The Court has re-scheduled this hearing for October 12, 2012 at 10:00 a.m. in Courtroom 24. Plaintiff’s Counsel is directed to check his email notices from the Court on a daily rather than weekly basis. (Chernetsky, James) (Entered: 10/09/2012)

    Update

    10/10/2012
    Things go fast and downhill for Marvin “President Adams” Cable. The very same case, where he compared himself to Adams, just crumbled:

    Docket Text: Judge Richard G. Stearns: ELECTRONIC ORDER severing all defendants but Doe 1 entered. Beneath the cloud of rhetoric, New Sensations, Inc., raises nothing in its Response beyond conjecture to suggest that these defendants are appropriately joined together. The court accepts counsel’s representation of good faith in attempting to litigate these cases. However, under the civil rules, in fairness to all involved, including the court, these cases should be litigated and defended in separate causes of action. Therefore, the court will dismiss without prejudice defendants 2 – 201. (Zierk, Marsha)

    An anonymous commenter, who brought the news, also quoted John Adams, and this wisdom can serve as an epigraph to this site:

    It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, “whether I do good or whether I do evil is immaterial, for innocence itself is no protection,” and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.

    ― John Adams

    10/7/2012
    Judge Leo Sorokin is tired of troll Marvin Cable’s lies, denies ex-parte discovery.

    This is a big event. Copyright trolling disease that affected dozens of federal district courts in the United States, clogged judges’ dockets and brought misery to hundreds of thousands families and unjustly enriched a handful of swindlers, may be healed once and forever as soon as in April. Pennsylvania may become a state that will send the healing waves across the country.We saw the first indication that PA judges were fed up with trolls wasting court resources when Chief Judge Curtis Joyner referred all the 31 Malibu Media cases to Judge Michael M. Baylson (in addition, 17 Patrick Collins cases were referred to the same judge).

    On October 3, Judge Baylson decided to take an unprecedented step and ordered a bellwether trial, picking five Does who had previously filed motions. Bellwether trial is a process designed to fast track a test case that is representative of many similar ones. Here is how uslegal.com defines this concept:

    By definition Bellwether is an indicator of future trends. Courts utilize a bellwether approach when large numbers of plaintiffs are proceeding on the same theory or claim and there is no other feasible way for the courts to handle the enormous caseload. This approach has been used in many cases including asbestos litigation. A group of plaintiffs are chosen to represent all the plaintiffs. The issues for trial should concern common claims or theories among all the plaintiffs. These representative cases go for trial and the results act as the bellwether for the other plaintiffs’ trials. The verdict from this grouping is extrapolated to the remaining plaintiffs’ cases. The actual results may be utilized for valuing groups of claims in settlements. The plaintiffs can also choose to continue with their own individual trial.

    There is only one plaintiff in this case — Malibu Media, represented by a veteran PA troll Christopher Fiore, but this is obviously enough to conduct a valid experiment, because all the mass bittorent cases are essentially the same. Four defendants are represented by various attorneys and one is pro se at this time.


    Senior Federal Judge
    Michael M. Baylson

    Baylson recognizes that it is unfair to pick defendants who fought rather than waited their ordeals out, but he promised that if defendants prevail, at least their financial burden would be remedied:

    The Court also acknowledges that the five John Does who will be defendants in the Bellwether trial are, in a sense, being penalized for filing motions challenging the third-party subpoenas presently at issue, given that all proceedings against the remaining John Does will be stayed until further order of the Court. In the court’s view, however, under the present circumstances, this is the fairest and most efficient means of resolving these actions. These defendants have objected to Plaintiff’s strategy and two of them have filed declarations asserting that Plaintiff’s claims are false. A Bellwether trial is the best means of testing the viability of Plaintiff’s claims, as well as Plaintiff’s sincerity in pursuing them.

    In the event Plaintiff’s allegations cannot be sustained, the five John Does will have adequate remedies to recover most, if not all, of these litigation expenses and/or damages from Plaintiff, such as a Rule 54 motion for costs, a lawsuit for abuse of civil process, a Rule 11 motion for sanctions, and a motion to recover excessive costs under 28 USC § 1927. More fundamentally, as mentioned above, because this is a copyright case, a successful defense will likely result in an award of attorney’s fees to any John Doe who prevails under 17 U.S.C. § 505.

    As courts, attorneys and the Internet community chase copyright trolls, exposing multiple weaknesses in their meritless quest for easy money, trolls adapt: they drop tactics that were defeated and invent new ones. So far, mostly successful legal fight against trolls was centered primarily on procedural issues — joinder and jurisdiction. There are some instances where the merits are being tested, but these are individual cases that won’t have proper effect until a critical mass of decisions is made, and this process is painfully slow. The beauty of a bellwether trial design is both in its pace and in its binding power: finally, trolls’ evidence (or lack thereof) will be tested. You won’t be surprised to learn that I really doubt that trolls will present enough evidence to declare victory; that’s why I’m excited and full of expectations.

    I won’t go into further details: read the order, where you will find and the history of this case, its aggressive schedule, and the explanation of the rationale behind the judge’s decision.

    Note that judge discusses DieTrollDie’s declaration (“torpedo,” as DTD calls it). Obviously, it was a success, as the judge considered this declarations’ arguments seriously, while he could to simply brush it off on the grounds that it had been filed anonymously by a non-party. All the PA Does are immensely grateful to DTD, and so am I. If you think that a single person can’t make a difference, try to sleep in a room with a single mosquito in it and all the doors and windows closed. Remember about it and be proactive.

    Update

    Follow-up posts:

    For intellectually curious: A history of the word Bellwether.

    Press coverage

    TorrentFreak; Finally: BitTorrent Piracy Evidence to be Tested in Court by Ernesto.
    Digital Trends: Copyright troll tactic faces fateful legal battle in Pennsylvania by Andrew Couts
    PC World: Pivotal piracy case could put copyright trolls out of business by Sarah Jacobsson Purewal.
    ArsTechnica: Judge tells copyright troll to put up or shut up on porn lawsuits by Timothy Lee.
    TechDirt: Judge Calls Copyright Troll’s Bluff by Mike Masnick.
    WebWereld: Pornopiraten vechten terug tegen copyrighthouders by Henk-Jan Buist.
    Tietoviikko: Tuomari kyllästyi tekijänoikeustrolliin: “nostakaa syytteet tai pitäkää turpanne kiinni” by Olli Vänskä.
    Techgear: “Η διεύθυνση IP δεν είναι επαρκές αποδεικτικό στοιχείο.” Για πρώτη φορά το BitTorrent εξετάζεται σε δικαστήριο! by Elpidis Chris.

    BBC News: US judge orders piracy trial to test IP evidence.

    Massachusetts is becoming too hot for copyright trolls. Lawyers, such as a veteran attorney Samuel Perkins, armed with Judge Sorokin’s ruling, continue hammering hapless young troll Marvin Cable. In addition, judges’ strong discontent with lawsuit abuse is growing. Judges Stearns, Boal, Saylor — to name a few, issued orders to show cause why mass cases shouldn’t be reduced to a single-defendant ones. I’m not aware of any case when an MA judge has been lenient to Cable and the trolling “business model” in general. True, the majority of judges initially allowed fishing expeditions, feeding Marvin’s arrogance, but note that all the known mass scams in human history initially succeeded, there is nothing surprising here. There is also nothing surprising and wrong when a judge changes his opinion after he understands the situation¹. As I noted many times, this is not a sign of weakness but wisdom.

    These days another scammer, Daniel Ruggiero, who represents John Steele’s Prenda Law, files dozens of frivolous cases against individuals on the East Coast, including Massachusetts². I think that MA is his biggest mistake.


    Federal Judge
    William G. Young

    This week District Judge William Young added an especially excellent page to the Troll Exterminator’s Guide. This is one of the rulings that will be quoted widely, not less than the famous rulings by judges Brown, McMahon, Write, Baer, as well as other classical examples of responsible case law building.

    The Court acknowledges without reservation Third Degree’s right to assert copyright protection of the Film and to sue individuals who infringe on its intellectual property. But after a careful weighing of the balance of potential injustices in this case and like cases, the Court determines that any efficiency gains and cost benefits to Third Degree from joining the Doe defendants in a single action are substantially outweighed by the fairness concerns and inefficiencies at trial, the potential prejudice from what seems to be a developing pattern of extortionate settlement demands, and the evasion of thousands of dollars of filing fees.

    As a result of rulings like this being quoted extensively, corrupt pro-troll DC judges will be in a greater and greater isolation, and a judge who deals with trolls for the first time won’t think twice before doing the right thing.

    Enjoy the entire Memorandum and Order:

    Thanks to Nicholas Guerrera and Jason Sweet for keeping me updated and bringing good news. 

    Update

    10/16/2012
    Today Judge Young severed Does from three of Marvin Cable’s cases, leaving a single Doe per each case:

    • 1:12-cv-10535-WGY Third Degree Films v. Does 1-80 filed 03/23/12
    • 1:12-cv-10762-WGY Third Degree Films v. Does 1-47 filed 04/28/12
    • 1:12-cv-10763-WGY Third Degree Films v. Does 1-39 filed 04/28/12

     


    ¹ Thanks to MA Doe defendants. Unlike in other states (except maybe for Florida), per capita rate of talented IP attorneys in Massachusetts is astounding. I plan to redesign my Resources page and list defense attorneys on the state pages: visit the Massachusetts page in a while to see the list.

    ² I plan to write about Ruggiero’s sanctionable activities soon.