Prenda
Copyright troll M. Keith Lipscomb loses on home turf, traditionally troll-friendly Tampa court
Attorney M. Keith Lipscomb operates a nationwide copyright infringement lawsuit machine out of the offices of Lipscomb, Eisenberg & Baker, PL in Miami, Florida. It is widely assumed that he directs and oversees the operations of a small army of copyright troll attorneys who range from California to New York and terrorize United States citizens with their porn copyright infringement lawsuits which have been judicially declared “essentially an extortion scheme.” Indeed these copyright troll attorneys have been judicially compared to predatory locusts.
For Lipscomb the most fruitful judicial district to ply his predatory extortion racket has been the Federal District Court for the Middle District of Florida (FLMD). Since March of 2011 his law firm has filed countless porn copyright infringement lawsuits against countless “John Does” and has extracted millions of dollars in settlement monies (an educated guess, admittedly).
The reason for this is clear: the FLMD welcomes copyright troll lawsuits. Judges from this district have never refused Lipscomb’s motions to expedite discovery to ascertain the personal info of the “John Does” so they can be harassed into settlements. Likewise no judge from this district has granted a “John Doe” motion to sever the numerous “John Does” from the main lawsuit as is frequently granted in other judicial districts for a variety of reasons but which has the effect of dampening the explosion of these types of lawsuits. Accordingly as of today the FLMD hosts “83 copyright cases against 11,597 John Does”. So, you could say, things were going great for Lipscomb with the lawsuits going out one door and the settlements coming in another — until today.
Thanks in no small part to the efforts of Cynthia Conlin, Esq., the Hon. James D. Whittmore granted her motion to sever in the lawsuit entitled Malibu Media v. John does 1-28 (12-cv-01667). Judge Whittmore’s Order read a lot like that of Judge Young of the District Court of Massachusetts in Third Degree Films v. Does 1-47 (MAD 12-cv-10761). In fact Conlin cited the MAD case as Supplemental Authority and Judge Whittemore cited it approvingly in his Order.
The Order itself approves of the copyright troll theory of “swarm joinder” which the judge notes has been disapproved of by many other federal justices. Nonetheless he moves on to grant severance on the ground that joinder of so many “John Does” violates Federal Rules of Civil Procedure 21 for essentially two reasons.
Reason One:
The likelihood of multiple unrelated motions and defenses leads to a conclusion that there are few, if any, litigation or judicial economies to be gained by joining these claims, notwithstanding the allegations that the Doe Defendants participated in the same swarm.
Reason Two:
By filing a single lawsuit against twenty-eight defendants, Malibu has paid only $350 in filing fees, rather than the $9,800 it would have paid if the lawsuits had been brought separately.
The judge notes that filing fees provide a “threshold barrier” against the filing of meritless or frivolous lawsuits which he finds is an appropriate reason for Malibu Media to start filing separate lawsuits. Additionally the judge observes that:
By filing multi-defendant complaints, Malibu’s lawsuits have deprived the court of hundreds of thousands of dollars in much needed revenue, while burdening the docket with cases that are difficult to manage, in the traditional sense, without extraordinary judicial time and labor. Severance will enable efficient management of each case, preserve the purpose of filing fees and protect the docket against problematic filing practices.
In conclusion the judge holds that:
Although joinder is permissive under Rule 20(a)(2), concerns of fairness, prejudice, expedience, cost, practicality, and case management warrant severance of the individual claims.
We can only hope that other justices of the FLMD will see the wisdom of this approach and follow suit.
12/07 Cynthia Conlin comments:
Raul, this is an awesome post! Thank you for the credit but I need to make a correction. Although I did file a motion in the case for one of the Does (my Doe is #7 in this case), the first motion filed, and the one that was granted, in this case was by Attorney Michael Savage, who practices out of Punta Gorda, Florida. He filed the motion on behalf of Doe No. 2. Also, I think that Whittemore considered not only the motions in this case, however, but also motions filed in other Middle District cases from William Wohlsifer (Tallahassee), Daniel Simon (Miami), Daniel Tamaroff (Miami), Graham W. Syfert (Jacksonville), as well as myself — we’ve all been filing a TON of motions in the Middle District of Florida, and Whittemore has been seeing these cases for many months now. This order was a long time coming, and I can tell he and his law clerks put lot of thought was put into it.
Substitute Lipscomb for Old Grinch:
Fight © Trolls 
Raul this is an awesome blog! Thank you for the credit but I need to make a correction. Although I did file a motion in the case for one of the Does (my Doe is #7 in this case), the first motion filed, and the one that was granted, in this case was by Attorney Michael Savage, who practices out of Punta Gorda, Florida. He filed the motion on behalf of Doe No. 2. Also, I think that Whittemore considered not only the motions in this case, however, but also motions filed in other Middle District cases from William Wohlsifer (Tallahassee), Daniel Simon (Miami), Daniel Tamaroff (Miami), as well as myself — we’ve all been filing a TON of motions in the Middle District of Florida, and Whittemore has been seeing these cases for many months now. This order was a long time coming, and I can tell he and his law clerks put lot of thought was put into it.
Forgot to mention Graham W. Syfert (Jacksonville) – he’s been filing a bunch of motions too and also deserves credit.
Thank you for the clarification. I try to give credit to all involved but in this case could not decipher the available RECAP archive all that well.
Judge Whittemore has the perfect response to Collette Leah’s sob story that showed up in the Bellwether trial.
“Malibu certainly has the right to protect its copyright, assuming it owns a protectible copyrighted work, by bringing infringement actions against those it believes engaged in infringing conduct. It is the manner in which Malibu has chosen to prosecute those cases which is problematic, not the nature of the cause of action. ”
Collette Leah cries that that their small business is losing millions to downloaders, and all they want is for the downloading to stop, not to hurt families and profit from litigation. She claims they listen to exculpatory evidence, and only target those who are guilty.
Actions speak louder than words, and their actions to date are dragnet copyright litigation suits that scoop up any and all individuals, ruining families, careers, finances, without any regard to their actions.
Judge Whittemore has it right: by all means you have the right to protect your copyrights, Collette. But this is not the *right* way to do it if you’re interested at all in the lives of the people you’re suing and not out to just profit from litigation.
Until you change your litigation tactics, you and your husband are greedy monsters, and in no way should you be mentioning “the American dream” with respect to your actions.
I forgot which document filed states that MM “does not use the court system for profit” or something along those lines. OK, then put your money where your mouth is and disclose your firm’s audited (hell I’ll take unaudited) financials, specifically statements of cash flows and income statements. Redact whatever they want that has confidential info, but I wanna see where the cash flows are coming from, where the money is going, volume, compare settlement income to revenues from their website, etc. I’d like at least 3 years but not possible since the place was the just incorporated. Reason is I’d like to see their cash flows and income statements BEFORE all of this shit started.
Another question would be: Have your annual and monthly site subscriptions risen or fallen since you started suing potential customers?
Her American Dream…. become a multimillionaire pimpin’ porn. Don’t need no education, no hard work, just turn on the cam while yer high girl friends play with each others anus. Call it art, get a copyright…like it’s a treatment for cancer and then sue everyone.
Thanks for the excellent post Raul!
A quick clarification of statistics, based on quick survey:
In Florida Middle District, since mid February 2011, there have been 116 (mostly porn) video copyright trolling cases filed. Among those filings, there appear to be 9 individuals named at filing, leaving 107 John Doe cases. (A few are single John doe cases.)
Most of these case were filed after 2/15/2012. Only 16 of the cases were filed before 2/15/12. Since mid February of 2012, the rate of (porn purveyor) copyright trolling cases in Florida Middle District ALONE is about TEN per month.
Based on the tally of 11,597 Does, the LOST income of separate filings fees for the additional unjoined Does would total about $4, 018,000. That’s right. The extra filing fees for unjoined Does would amount to over $200,000 per month in Florida Middle District alone.
If the extra fees were only figured starting with the more FREQUENT filings starting in February 2012, the extra fees would average over $260,00 per MONTH for the Florida Middle District.
I’m no expert in judicial administration. But I’d guess that the extra two hundred thousand dollars or more per month would support extra staffing for the district. Talk about Judicial Economy!
Phyrric victory in my opinion. Malibu is going to run an asset search and re-file individually against Does who have (a) assets; and (b) have downloaded a signifcant amount of stuff.
Now three or four people will end up bearing the burden and Malibu will still recover the same amount it would have in a mass action.
Nothing Phyrric about it if you look at the larger picture. Historically anytime, anywhere copyright trolls begin to feel judicial resistance in the form of severances or otherwise, their filings evaporate. Examples include, MAD, SDNY, EDNY, NDGA, EDVA, WDMI and MD. In fact in your own backyard, how many lawsuits has Lipscomb’s proxy Fiore filed since the announcement of Bellwether?
Likewise the FLMD fuels his enterprise to a large degree as he does not have to split fees with his minions and if that revenue stream begins to dry up, his enterprise will suffer for it. Moreover, I do not believe Lipscomb will do as you predict. Granted his calling center may harass these Does but do you truly believe he still has the stomach for individual filings seeing how he is meeting resistance just about every time he does it in FL?https://fightcopyrighttrolls.com/2012/10/16/the-first-individual-lawsuit-filed-by-a-copyright-troll-lipscomb-results-in-a-dual-blooper/ Lastly, Malibu Media still has a gigantic standing problem as you well know.
Jordan/Raul:
How do the trolls know who downloaded a “signifcant amount of stuff”?
1) Most ISP’s issue dynamic IP addresses
2) ISP typically only confirms who was the subscriber of the IP at a very specific date and time
How can “logged infringements” with the same IP even be used against a single Doe if his IP is dynamic and the ISP only corroborated IP and subscriber at a specific time stamp?
Just because the same IP address shows up for a different file or video at a different time, it could very well be dynamically issued to a different person at that different time. Basically, the troll would have to have to get the ISP to correlate the the same user with the same IP address at multiple times (and not just one time) for the alleged multiple infringements before the IP logs are purged on the ISP end.
Now, if the ISP coughs up a TIME SPAN or if the Doe’s IP is static, then that’s a different story. BUT, most IP addresses are dynamic and most ISP’s only give the subscriber info for that one date and time down to the second.
What am I trying to say? Without more than thy typical evidence (single IP at a specific time down to the second) the trolls are just guessing or assuming multiple infringement when they try to shake the Doe down for more than one file. So, if you don’t say anything and if they don’t get an additional subpoena in time to correlate all the other time stamps, then the troll has nothing regarding alleged infringements #2 through whatever.
IF the does are severed before the ISPs turned over the PII of the subscriber (I.E. objections were filed before the information was turned over) how would MM even be able to do an asset search and re-file individually?
They’d still have to get the PII first?
This is the way it works…
Malibu retained IPP, Ltd. IPP has software that monitors the internet for infringements 24 hours a day by tracking torrent files associated with a hash tag. IPP will monitor an IP address for days, weeks, or even months. Then it will generate a report saying “From March through July, we monitored IP address 12.34.567.8 sharing these files associated with these hash tags. It had this many hits over this period of time.”
Then Malibu will serve a subpoena on the ISP and say “Who had this IP address on these dates?” and the ISP will tell them.
From there, Malibu will propound discovery and ask the Doe associated with the IP address under penalty of perjury whether they were downloading the file. If no, they will ask the Doe who had access to their internet account, then ask those people the same question. They’ll also demand copies of all hard drives in the house.
An IP address isn’t a person no more than a license plate is a driver of a car. However, it’s a clue that usually leads to the person who was driving on a certain date, basically.
Your specific issue of dynamic IP addresses was just briefed in the bellwether cases.
The only thing I’m going to say is that your analogy of an IP address to a license plate of a car is disingenuous.
Granted, someone could steal another person’s license plate and put it on their car, one cannot spoof a license plate. Nor can they hack into the ECU on the engine block to control the car with that license plate to run red lights with excessive speed.
It is extremely easy for anyone to hack a router, just as it is easy for anyone with the desire to do so to spoof an IP address. Whether it is as likely as someone stealing another person’s license plate is debatable, sure. But it can happen and it certainly is easier than physically stealing a license plate. And its even easier to hack into someone’s wifi.
Now I’m not saying that this happens all the time or that it is frequent. But it is something that IPP and Malibu and Prenda and Ra-Hool from Siberia have failed to address. And I believe the onus is on them to prove that their software is reliable. And every time that the opportunity has come for a defendant to challenge their methods, MM or Prenda or whoever pulls the case.
And well I recognize that it doesn’t matter legally, it certainly shows a lack of candor, a lack of faith in their technology, and a pattern of deceptive practices that align almost perfectly with the belief that these are predatory litigation tactics designed to extort settlement monies from people.
But that’s the point of discovery. They’re allowed to depose the subscriber and say “If you didn’t do this, who did? Who else could have?” In some cases, it might come out in discovery that the router was hacked.
However, you don’t need to prove your case in your Complaint – a plaintiff must simply state enough facts that they’ll figure out who caused the injury through discovery, basically. That is how the legal system works.
The problem is that the legal system is heavily skewed in their favor, though. One can debate whether their evidence they present in the claim is adequate (even though I don’t think “they’ll figure out who caused the injury through discovery”), but the problem remains they have all the advantages.
They’re not interested in litigating. They’re not interested in discovery. At least, not based on their actions. Their actions have shown they are only interested in extortion. I fail to find any other description for their actions.
They file one $350 fee. Ignore whatever exculpatory evidence people offer to turn over. And extort settlements until the judge forces them to name someone of GTFO. Well, whenever they have named someone, it usually ends badly for them, so they GTFO.
Their actions have shown that they have no use for the legal system other than to obtain people’s PII and extort money. Remember, Malibu was FORCED into the Bellweather trial. They did not ask for it.
In California, judges are forcing Prenda to place bonds before trial because there is a “reasonable assumption” that the defendant will prevail. If that’s the case, then why should these companies be allowed to abuse the legal system to get PII to scare people into settling before dropping a case before trial putting families savings and security at risk based on flimsy evidence?
Jordan, despite the philosophical debate regarding whether IP is property or privilege, you’ve fallen into the logical fallacy of equating actual property to something that, for lack of a better term, “magically” exists. It’s like balls and strikes in baseball. A social construct. Except these are technological constructs.
A license plate is a physical object attached to another physical object that is driven by yet another physical object. If say a license plate is issued to a blue Chevy Malibu, but it is being driven by a red Ford pickup, it’s clear that the over of the license plate would probably not be the one their looking for.
Since IP addresses do not exist as physical objects and are assigned by a provider and can be easily manipulated, there should be some standard of proof required before allowing someone to engage in litigation against them.
For example, sending a DMCA notice to the subscriber to let them know their IP is being used for piracy. If it continues, then you can sue them since they had the opportunity to correct the issue. Hell, that might even make negligence a viable legal theory.
If the infringement stops, then either they got scared or they secured their router or changed their security settings. Either way, the goal of stopping the infringement is complete and it gives Malibu or any other company a higher ground to stand on when suits are filed.
Erm, I really should learn to stop typing two things at a time. What I meant to say in the first sentence was: “Despite the philosophical debate regarding whether IP addresses can be used like physical addresses to identify someone, you’ve fallen into the logical fallacy of actually giving IP addresses a physical property…”
That’s what I get for trying to summarize a video that’s still playing while typing this out….multitasking fail!
Thanks for the explanation. But wouldn’t that be expensive for the plaintiff to analyze ALL hard drives? Wouldn’t they also have to analyze any device, including flash memory based ones like mobile phones and tablets, capable of running torrent software? What about TRIM-enabled solid state devices that do full garbage collection and zeroing on their own WITHOUT user intervention and intent? Every new Mac or Apple device and most new Windows laptops are pretty much sold with TRIM enabled solid state disks by default. And this would have to be done for just for one Doe. Now start multiplying that out for MM across the country. Seems risky and pretty costly for the plaintiff. They’d have to have a pretty good idea that they’d find something to go down that route.
Also, do you think Lipscomb or any of his local attorneys are really interested in doing all that? I’m sure you’re aware that Fantalis offered everything up in his possession, and they never took him up on it. In fact, didn’t Fantalis have declarations from other folks/defendants who offered up their devices for analysis and those offers were never acted upon by plaintiff? There’s many reports out there of devices being offered up, negating the need for the plaintiff to even have to go through the trouble of getting a subpoena for access to the device/devices.
Not arguing with you. I think what you’re saying is what the plaintiff and plaintiff’s attorney would or should do if they were actually interested in litigating any particular case. But WOULD and SHOULD can often be a far stretch from WILL. Agree? Disagree?
Sorry…meant to say COULD instead of WOULD in the reply above. SHOULD and WILL were used as I intended.
It’s expensive for everyone involved.
Most Does (even ones who are completely innocent) don’t want to have their hard drives searched or allow Google to give up their search histories – in addition to lawyer fees. I sure as hell wouldn’t.
Similarly, plaintiffs don’t want to spend all the money doing that stuff.
That is one reason why most of these cases settle for a relatively small amount.
> This is the way it works…
This is the way the trolls tells us it works. Especially the last chapter: with raiding all the hard drives in the house etc. We’ve been hearing this for two years and developed some kind of immunity to the BS.
You call this victory “Pyrrhic” and speculate what happens next. How much are you willing to bet on the fact that the events will go as you predicted?
But this is all irrelevant because you are starting to forget about the most important element of this “game” — people. Somehow the game of finding out whether that guy downloaded this smut or not and the methods of proving/defending it takes over your enthusiasm, and you get excited. But what about “that guy”? Assuming that he is “guilty” of sharing “Teen Anal Sluts,” is it good that he is “brought to justice” and his life derailed, and if it is good, than for whom?
This is not paintball, Jordan. People suffer. Someone calls the realization of this simple fact “religion.”
Friendly wager: if Malibu does not re-file against a few individuals within six months, I will ship you a bona fide Philly cheesesteak. Or alternatively, make a $250 donation to the EFF, c/o Fightcopyrighttrolls.
Nice: you’ve already estimated the odds of things of going your way 1:25 (based on $10 for a steak). And that’s only for “naming,” which is not a big deal: Steele names by packs. You’ve predicted more, much more, including things that never happened even if defendants nicely asked:
Why are you trying, contrary to the zero evidence, extrapolate today’s absence of certain events to tomorrow’s certainty?
There is only one lawyer who would break his teeth but drive the things to the end, but simply because he is there not for money, or not only for money. Lipscomb is a different story, he is 100% for the silver coins, he is not interested in orgasm-inducing domination over random lives.
“Within six months…a few.” Six months…? A few…? Out of how many suits per month? And how many does per month? Yeah…they’re serious alright.
And I’ll eat my hat if they actually name someone and take it through all the way to trial without a judge intervening and forcing it to go the distance.
I’ve got to chime in here because I don’t think you answered the question (or I’m misunderstanding your response). If “Lipscum” is making accusations as he is in the Bellwether trial that one of the defendants in fact downloaded popular songs, books, software, etc. as well as a bunch of MM stuff how can assert that without subpoenaing the ISP for EACH and EVERY ONE of the accusations he is making?!
Sure, the ISP confirmed on “X” time and date that an IP was downloading a MM file. “Lipscum” then goes on to say that over several months the same IP was downloading copyrighted material of all kinds.
Given that IPs are dynamic wouldn’t it stand to reason that he shouldn’t be allowed to assert that it was the same person all those months? He didn’t subpoena for months worth of data; only a particular incident. “Lipscum” is making an assumption that it was the same person but I doubt the ISP ever verified this. Or am I way off base here?
On a side note, I know Jordan you are no longer a troll but I find it troubling that you seem to pass judgement (using a broad brush) that most of these people are guilty. Even reporters are required to use the term “alleged” before someone is convicted even if they were caught red handed. I have to give these defendants and other alleged file sharers the benefit of the doubt given the lack of certified proof that people did what they are accused of and the high rate false positives. That’s how our system is supposed to work.
I raised the issue of dynamic IP addresses in the bellwether briefing. Here is their response:
I am not going to comment any further because the issue is still before the court.
I am anti-troll but I’m going to play devil’s advocate for just one reply. Jordan is now an attorney defending Does (or at least one Doe).
Once you obtain a defense attorney, you probably tell that attorney if you really did it or if you didn’t do it.
If you’re a defense attorney and you’ve represented many Does, you probably have a rough idea of what percentage of your clients did it vs didn’t. But only the defense attorney would know that and wouldn’t be able to divulge that due to client privilege.
Of the Does who do fight, I’m sure many of them are innocent but I’d bet some defense attorneys recommend to some of their truly infringing clients to fight given particular situations in conjunction with weak evidence.
So if Jordan now has a large sample set of Does he officially represents on the defense side, then he probably has a rough idea of the percentage of that particular sample set that infringed vs didn’t infringe. That sample set may or may not be representative of the whole, but it’s a sample set none-the-less that personal opinions and rough guesstimates can be based on.
However, none of this excuses the piss-poor mass-Doe tactics that the trolls employ.
I wish “Lipscum” would wander too close to a stray alligator (or is it crocodile over there). ‘Course it would probably leave him alone because of the stench emanating from his body.
From the Memorandum: “This argument should be rejected because it is not only “plausible” –
it is highly probable – that since John Doe 1 stole one of Plaintiff’s movies on December 22, 2011, using IP Address 174.60.32.79, that it was John Doe 1 who also stole three (3) more of Plaintiff’s movies between December 16, 2011 and December 22, 2011, by using the exact same IP Address 174.60.32.79.”
This illustrates my point perfectly. Plaintiff will not be able to prove it. IP address 174.60.32.79 is a dynamic IP that belongs to Comcast, who only retains IP logs for “up to 180 days” according to their legal response handbook.
http://whatismyipaddress.com/ip/174.60.32.79
http://torrentfreak.com/how-long-does-your-isp-store-ip-address-logs-120629/
Dec 16-22, 2011 was a year ago. To prove the multiple alleged infringements on this dynamic IP, the plaintiff needs the ISP to correlate each and every accused infringement before they purge their logs. This will be impossible to prove what they claim to be “highly probable” in this specific instance UNLESS they find the other files on a device belonging to Doe #1. In this specific case they will not get what they want from further discovery of Comcast regarding IP date/time.
So, If plaintiff wants to claim and EVENTUALLY be able to prove multiple infringements on a single dynamic IP, they need to get the info from the ISP before it’s gone. Time is against the troll and not the Doe when it comes to dynamic IPs. If the multiple infringements were really that well correlated by IPP, the troll would seek multiple time/date stamps for that IP address upfront in the initial early discovery requet, but they haven’t in this case, and haven’t done that historically. But that’s just practically possible in an individual vs a mass doe suit, because they’d do that at the expense of finding multiple does at first. Their goal is to cast that wide net and not the narrow one to stop/deter a particular infringer. Their MO is that once you don’t settle they try to scare you with multiple infringements for which they don’t have the evidence for yet and will never be able to get if they drag their heels too long, like Fiore did in http://www.scribd.com/doc/116068433/MM-reply-to-MTD-Doe-1.
Sorry. The additional IP logs for 174.60.32.79 between December 16, 2011 and December 22, 2011 are simply gone, but the troll never anticipated that they’d never need them or that things would get this far, and that’s because the upfront intent is not to litigate.
If I was SERIOUS about going after A SPECIFIC PERSON OR ENTITY, I’d try to get all relevant info as early as possible. The wide net tactics make it possible but HIGHLY IMPROBABLE that the trolls will be unable to do it when things escalate beyond the initial harassment for settlement.
Are you sure the info is gone? They are claiming the initial infringement took place 12/22/11, right? Obviously they got the Doe’s info more than six months later (wasn’t this suit filed in September). Maybe Comcast keeps info for more than six months now. I still say Comcast should be required to validate each and every claim of infringement before they can argue multiple infringements though.
No the the original suits that the five John Doe’s were selected from for the bellwether trial were all filed back on April 19. After the complaint has been filed and the “Motion for Leave to Serve Third Party Subpoenas” has taken place, ISP have to continue retaining the ip logs of the requested IP Addresses until the judge in charge of the case grants or denies the motion from the trolls. The alleged infringement to place back on 12/22/11, the suits were filed on 4/19/12, and the motion to subpoena the ISP’s for Doe’s personal information was filed on 4/24/12. As Comcast stated data retention in 6 months on IP logs, Comcast would still have the IP logs of the subpoenaed IP addresses as the retention period has not yet expired between the alleged time of infringement and the filing of the infringement complaint.
Jordan, quit using this board as a way to tell lies about how thoroughly you pursue these cases in order to scare people into settling. You know that trolls will never run discovery on a hard drive, subpoena an ISP for more detailed history of a user or subpoena Google for search history. If you trolls were real lawyers who could actually litigate a case or had a soul and didn’t want to implicate innocent people, that’s what you’d do. But instead you prey on people’s fear of the legal system to extort money out of them whether they are innocent or guilty.
And the funny thing is, if you did things right and followed the tenants of our legal system, hiring a real forensic company, running discovery and subpoenas ISPs/Google, you’d probably win 80% of your cases on their merits. However, none of you are interested on winning a case on its merits because anytime you are given the opportunity to do so, you run away like a coward. Despite troll’s assertions to the contrary, we aren’t in favor of piracy. What we are in favor of is fighting these cases on their merits rather than finding ways to abuse the legal system to win the case through extorting settlements.
How bout we place a friendly little wager…for every case where trolls ran discovery on a hard drive, subpoenaed ISPs for information on the network activity of a user (as opposed to the initial discovery on who had the IP address) or Google, I will send you a $100 gift card to Mortons. For every instance where a Doe or named defendant has offered their hard drive for discovery but it was declined, you send me (via email) a $100 gift card to Morton’s.
I’m looking forward to a weekly steak dinner for the next year.
Jordan is not a troll, but he loves to play a devil advocate and other board games, which is welcome.
Sorry Jordan…I wish I would have read one more post that noted you were defending Does as I had interpreted you were a troll…in reading your posts from that perspective, I see we are probably on the same page in agreeing that if these cases were litigated on their merits, many of the cases would find for the trolls. But I think you’d also agree that the trolls have absolutely no interest in weeding out the many defendants who are innocent.
For the most part, it depends. “The trolls” is a pretty broad brush. Prenda, Malibu, CEG, and DGW are all different, but everyone wants to lump them together.
That is one big observation I’ve made. Sometimes the courts even make the mistake of lumping “the trolls” into one group and impute the behavior of one onto another. However, I don’t think you can do that.
I think you need to evaluate everything on a case by case basis. For instance, Malibu might be serious about taking someone to trial if (a) they downloaded a lot of content; and (b) they have sigificant assets. Another law firm might not, even under the same scenario. I know this is a typical lawyer answer but it depends on a lot of different factors.
That said, I will tell you this – I would not recommend anyone underestimate the potential damage in a copyright lawsuit. In fact, if I’ve seen one common thread as a defense lawyer it’s this – people assume all the law firms are the same, underestimate them, and then ignore the lawsuit. Do not underestimate these lawsuits, and do not assume that all the firms / clients are the same.
Moreover, even every troll in a given Mafioso family is a different fruit. You can’t compare chronically uninformed clown Brett Gibbs with almost perfect asshole Timothy Anderson, for example. Nonetheless, as you correctly noted, everything what’s going on in this world, is going on inside a context, and every particular situation should be generalized with caution. Yet there are more topics where “the trolls” can be perfectly lumped together (by us, judges, defense lawyers) than when they cannot. Their “Business models” and “Modus operandi” are not so drastically different to justify breaking this blog into “Fight CEG trolls,” “Fight John Steele,” etc.
Some tactics do differ indeed, 100% agree, but don’t forget to freeze and think for a moment: the tactics of what? Not litigation per se tactics — this is a secondary consideration. The primary one is to create an illusion of a credible pursuit, an old good scarecrow. The primary revenue of every troll outfit is a mass settlement cash flow with the smallest investment possible: that’s one of the definitions of the trolls’ “business.” Some bark loudly but almost don’t bite (CEG, DGW). Some bark a little, bite a dozen, but not too strongly (Lipscomb), some go straight for the jugular (Randazza).
Then why does Lipscomb back down any time he has a chance to litigate?anonymous It appears as if that guy in colorado had significant resources and poffered up his hard drive.
On 12-11-12 Judge Whittmore sua sponte ordered Lipscomb to show cause why all Does except for Doe 1 should not be likewise severed in Patrick Collins v. Does 1-17 (12-cv-1668). http://ia601609.us.archive.org/32/items/gov.uscourts.flmd.274083/gov.uscourts.flmd.274083.8.0.pdf
On 12-27 Judge Chappell follows Judge Whittemore’s example and severs all Does except Doe 1 http://www.rfcexpress.com/lawsuits/copyright-lawsuits/florida-middle-district-court/96386/malibu-media-llc-v-john-does-1-67/summary/
The massacre continues, on 12-26 Judge Merryday follows Judge Whittemore’s example and severs all Does except Doe 9 (?!) http://ia600808.us.archive.org/6/items/gov.uscourts.flmd.271501/gov.uscourts.flmd.271501.23.0.pdf
Actually Judge Merryday crashed several of Lipscomb’s Malibu Media lawsuits on 12-26. An example http://www.rfcexpress.com/lawsuits/copyright-lawsuits/florida-middle-district-court/97665/malibu-media-llc-v-john-does-1-26/summary/