Today Judge Baylson published his Report on the Bellwether trial (Malibu Media, LLC v. John Does 1,6,13,14 and 16, PAED 12-cv-02078). Nothing is too unexpected. I’ll refrain from emotions, leaving my disgust with both “barely legal” pornography genre and copyright trolls for a later post and/or comments.

I urge everyone interested in this trial to revisit the recent post’s comment section: a heated but argumentative discussion features the entire spectrum of opinions.

A couple of quick notes:

  • To Lipscomb’s delight, his outfit was declared “not a copyright troll” based on a definition that trolls are those who don’t produce content but buy copyrights or patents for the sole purpose of litigation instead. While I respect this opinion, I disagree with it: conspiring with a real producer versus procuring copyrights is only one criterion out of many, and this complex phenomenon should be evaluated accordingly. I’m working on my definition and encourage discussion to help me with it.
  • To my pleasure, the majority of Lipscomb’s scandalous wishes did not make its way to the Report. Yet I was astonished that a statement that Malibu’s servers have been “hacked twice” was included. To me this claim sounds as a sneaky maneuver to preempt accusations in Malibu/X-Art seeding of their own content (more is coming on this front: stay tuned). To the best of my knowledge, no evidence was presented to support the hacking claim.
  • It is obvious to me that Baylson is disappointed: once promising trial turned out to be a near mockery that was lacking witness cross-examination and any adversarial arguments whatsoever. A defendant who willfully destroyed evidence, lied under oath and later admitted his wrongdoings was essentially a lottery win for Lipscomb. And it was not just a run-of-the-mill win: Lipscomb “won” a jackpot. If not for the defendant’s conduct, it is plausible that the lowest statutory damages ($750 per work) would be awarded. We saw $750 default judgments in Arizona, which, in my opinion, seriously damaged troll operations in this state.
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  1. […] Today Judge Baylson published his Report on the Bellwether trial (Malibu Media, LLC v. John Does 1,6,13,14 and 16, PAED 12-cv-02078). Nothing is too unexpected. I’ll refrain from emotions, leaving my disgust with both “barely legal” pornography genre and copyright trolls for a later post and/oSee all stories on this topic […]

  2. Raul says:

    As to your first point, how about “copyright tick”?

  3. anodoe says:

    Hey, what’s wrong with “barely legal” pornography genre? Disgust, really?

    • SJD says:

      I don’t claim a monopoly on truth. You have your opinions, I have mine. Majority finds durian disgusting – I enjoy it. Yet when your daughter turns 18 and you don’t change your opinion, I’ll be surprised.

      • anodoe says:

        She’s a little older, and I didn’t. How is her age relevant?

        • SJD says:

          Well, I said I would be surprised, so I’m surprised.

        • anodoe says:

          @SJD: Sure. But why exactly are you surprised? Am I supposed to consider my daughter a vulnerable little girl, gullible and unable to make her decisions, and project that vision onto all girls of her age? I can’t. She was a strong, reasonable, responsible adult even before she turned 16. Or am I supposed to see her in every young porn actress and feel incestuous? Can’t do that either, I’m not that Freudian. So how is her age relevant here?

  4. WTF says:

    How can any Judge write an opinion when he/she only heard one side of the story? The Bellwether Case shows what a mess our legal system is.

    • anodoe says:

      He heard the other side as well. The other side admitted infringement, not to mention Doe#16′s achievements.

      • WTF says:

        Not really. The judge heard mostly that secret confidential settlements were reached. If it wasn’t for perjury and tampering with evidence by Doe 16, he would have simply dismissed case.

        All of the Judges of EDPA were happily going along with the claim by plaintiff that a conspiracy had taken place and all Does should be joined. A proper Bellwether would have tried all 51 Does as the plaintiff had demanded.

      • Anonymous says:

        Doe #16′s achievements really illustrate the nightmare of actually contesting a civil trial.

        Pretend he didn’t perjure himself, didn’t falsify evidence, didn’t get a 10x punishment bonus for lying the court. He would have come away with an eminently survivable damages verdict of around 11K. But the bottom line would still have been a life changing $250-300,000 because the real cost is paying two sets of lawyers at $3-400 an hour, per.

        • anodoe says:

          And the prompt settlement would have cost him what? Less than a grand per movie probably, and he had just five, not thirty.

          I wonder if anybody would fight MM after this disaster.

        • SJD says:

          Really? You may guess that I communicate with a lot of defense attorneys, 2-3 dozens would be a fair estimate. None of them is amused. More over, I can say they are seriously pissed (Rushie: are you pissed too?). Lipscomb may be drunk from his perceived victory, but I assure you sobering will be unpleasant.

        • I am of two minds. On the one hand, his perjury was, to put it mildly, completely unacceptable. It was unfair to the court, unfair to Malibu, unfair to the other Does, and disgrace to the justice system.

          On the other hand, Doe 16 didn’t ask to get wrapped up in this trial. He was put in a difficult situation, involuntarily, and probably panicked. While his reaction certainly was not the best, it was a human one…

      • Exactly.

        To put this in the context of a more bread and butter personal injury case…

        If a person is smashed into by a car while sitting in a tollbooth, chances are the insurance carrier is going to pay out the claim. They aren’t going to fight liability because there isn’t a good basis for it. 99% of personal injury claims get resolved via settlements because after discovery, everyone knows exactly what happened. The point of the civil discovery process is to encourage settlements.

        There are many cases that should never ever see the inside of a courtroom.

        This case was one of them. All the Does admitted that they did it. (or they should have in the discovery process).

        What issues were there for a jury to determine? “It’s so unfair!” and “Everyone else is doing it!” isn’t a defense a trial. It’s just not.

  5. […] Jun 2013 Comment – Judge Baylson issued his report on the Bellwether trial.  Fightcopyrighttrolls and The Philly Law Blog (Jordan Rushie) have postings on the report.  Not a shocking report and […]

  6. PleasePassThePopcorn says:

    One definition of a troll? An officer of the court that by himself decides your guilt and demands payment.

    Judge Dredd – I AM THE LAW: https://www.youtube.com/watch?v=itmNiTwHOsM

    If I buy something from a flea market that was stolen but I didn’t know it, am I liable? To me, a lot of judges miss the forest for the trees, the “infringer” is the “ONE PERSON” who uploads something to a place where all of the internets can then download it. (sometimes the plaintiff themselves) Do judges really think people are knowingly taking possession of stolen property when downloading via Bit Torrent?

    No disrespect but it’s a simplified opinion that your not a troll just because you represent a real pornographer. A troll is hard to define but I know one when I see it.

  7. SJD says:

    Since my statement that I find “barely legal” pornography genre disgusting caused some eyebrows here and on Twitter, I feel compelled to elaborate.

    Firstly, I do not conflate minimum age to participate in porno with consent age. Love is beautiful, and sex is a natural part of love, so I’m not concerned about teenagers explore the beauty of relationships (given they are properly educated, so their parents wouldn’t be prematurely burdened :) )

    Second, I’m not anti-porn, period. I think it does not require corroboration.

    What I’m struggling with is a vulnerability and gullibility of 18 year olds. I do not believe they are mature enough to withstand the soul-draining intensity of the pornography world.

    In addition, at this age a fallacious fantasy “from high school to stardom via porn” is quite popular, and it is shamelessly exploited by Colette and Brigham. Look at their Moscow ad last year:

    [sjd update: Colette in her comment below claims that she has nothing to do with the following ad. Indeed, the email casting@x-art-model.com refers to a domain name that is nor registered]

    Отбор моделей для шикарного проекта X-ART

    Город: Москва
    Текст:
    Представительство американской студии X-ART (http://x-art.com/) открывает в г. Москва (http://x-art-model.com/) набор на кастинг юношей и девушек для съёмок шикарных и красивых фильмов эротического содержания.

    Если Вам до 30 лет,Вы амбициозны,хотите хорошо зарабатывать,то это предложение для Вас,помните,что многие звёзды шоу бизнеса начинали свою карьеру именно со съёмок в откровенных сценах,может быть это Ваш шанс пробиться на большой экран,дерзайте!

    Стоимость съёмочного часа от 5000€ до 10000€,обсуждается с успешным кандидатом лично,после кастинга,с обязательным подписанием договора.

    Для подачи заявки на участие требуется отправить 3 фото хорошего качества в полный рост(вид спереди,сбоку,сзади) в купальнике либо в плавках и краткое резюме,с указанием контактного телефона на casting@x-art-model.com с обязательным указанием в теме письма “Кастинг. Москва”.

    Прошедшим предварительный отбор будет дополнительно сообщено время и место проведения кастинга,а так же дополнительные детали для участия в съёмках.

    You can translate it using Google, but the key is the second paragraph (emphasis is mine):

    If you are below 30, and you are ambitious, want to make good money, this is an offer for you. Remember that many celebrities started their careers precisely with being filmed in explicit scenes. Maybe this is your golden opportunity to breakthrough to the celebrity status, go for it!

    Again, again, and again: it’s my opinion, I’m aware that other views exist, increasing the porn minimum age is not something I would dedicate my time fighting for. If you disagree, lay down your arguments, articulate your believes, but there is no reason to be angry: Well, if you are angry, it’s fine: lots of people are angry for a cause, but if you are angry at me for my views regarding teens and pornography, I think that your anger is misplaced.

    • Raul says:

      Look there is a reason states raised the legal drinking age from 18 to 21. Quite simply at age 18 you neither possess the experience or self-control that you do at 21 and drunk driving fatalities were proving it. Likewise it is unreasonable to think that the average (I am sure there are rare exceptions)18 year old is possessed of the world experience and self-control to make a well reasoned decision to become porn talent. I have a 17 year old son and I would not entirely entrust him to decide what’s in his best interests at this stage of his life.

      • battywriter says:

        I am also not a fan of this genre, or really of porn in general. If someone wanted to enact a law raising the age to 21, I probably would not spend time fighting it or even commenting on it. In short, I pretty much agree with you, SJD. However, I think it is just kind of ridiculous that we think that an 18 year old can make a decision to get married, (something which is at least theoretically supposed to be forever) join the military & go to war, if they commit murder be subject to execution for it, and be generally sui iuris …but we say they can’t make this decision? What is so different about a 18 year old’s (probably stupid) decision to be in porn other than the fact that it makes us uncomfortable?

        • Anonymous says:

          It makes us uncomfortable for a reason. Letting some pimp use up (and get rich) off your daughter’s fertile years runs against every genetic survival instinct that there is.

          IMO commercial porn is no different from prostitution and the pimps belong in prison.

        • SJD says:

          You have referred to a couple of unopened cans of worms. “Try as an adult” concept makes me depressed. This society has moved from “punish, deter and rehabilitate” to “punish.” Despite trying to be a world cop, the USA is one of the cruelest societies when it comes to “punishment.”

          Army is a different matter: 18 y.o. males possess high level of estrogen critical to fight without asking questions. No politician would admit it.

    • I encourage you to check out Maggie McNeill’s blog about sex work if you’re interested in this topic:

      http://maggiemcneill.wordpress.com

      Maggie is a former escort. Her blog posts are fascinating and well worth reading. Her position is that the problem with sex work are the laws and the social stigma surrounding it – not the work itself.

      Confirming Maggie’s position, last year Salon published an article referencing a study confirming that people who act in adult films usually enjoy the work and are actually very well adjusted:

      http://www.salon.com/2012/11/28/study_porn_stars_arent_damaged/

      Regardless of how you feel about pornography, I don’t think there is much of a basis to suggest the actors and actresses in the porn industry are victims.

    • X-Art - Colette says:

      SJD – We did not place that ad and have nothing to do with it. WE are getting exploited on the internet by you and (whoever created that add obviously). I will find out.

      I know and love all of our models and will only work with performers who are extremely comfortable with and really like the work. I challenge you, ask anyone who has ever worked with us what their experience was.

      Seriously, if you do not stop slandering us and making false accusations we will have to take action.

      I believe sex is beautiful and that men, women and couples should be able to enjoy it together. Our site is made out of love by couples and some amazing talents and many people enjoy it.

      Please stop your false statements and slanderous remarks now. This is my last warning.

      Regards,

      Colette
      Co-Founder
      Malibu Media LLC
      X-Art.com

      And P.S. Everyone: If you like our work just join our site. Please don’t steal on torrents. It really could be so easy :-)

      • Anonymous says:

        Hey Colette, why are you keep threatening SJD with law? Why don’t you simply whisper to your buddy Kevin Beechum so he blows up her house? https://bulk.resource.org/courts.gov/c/F3/49/49.F3d.1275.94-2527.html Don’t tell me he is not your friend: Lipscum listed both you and K-Beech in a single Florida lawsuit.

        You are full of shit.

      • “I know and love all of our models and will only work with performers who are extremely comfortable with and really like the work. I challenge you, ask anyone who has ever worked with us what their experience was.”

        I have to agree with Colette on this point…

        You know who has it kind of sucky? Someone in their 20s or 30s working at a coffee house making close to minimum wage while trying to pay off student loans. That sucks. It’s long hours and it’s no pay. Trust me, I did that to get through law school. So did my partner Leo. THAT was exploitative.

        But people in the adult entertainment industry have well paid jobs that don’t demand long hours. They get a better work environment than most people. When you push aside the social stigma of porn, it’s a good living. They are lucky to be talented enough to make money from being beautiful. I wish I were that lucky.

        It’s not really fair to claim that X-Art models are “victims”, in my opinion. It’s probably a good thing for couples to enjoy porn.

        Again, I am trying to be neutral here.

        • SJD says:

          Let’s get back to this topic in 20 years.

        • IPP German Spy says:

          So if you had a daughter or son, you would encourage him or her to become actor in porn?

        • My personal view?

          I wouldn’t necessarily discourage it, if it’s something they wanted to do, and the decision was an informed one.

          There is this view that everyone has to become doctors, lawyers, or executives. I am of the opinion that people should pursue what makes them happy. For instance, my little brother decided to forego college in order to pursue a rap career. I wrote about it here:

          http://phillylawblog.wordpress.com/2012/09/24/rockstar-or-lawyer-the-definitive-post-on-should-i-go-to-law-school-and-which-law-school-should-i-go-to/

          Maybe my view will change when I have kids.

          But I don’t see the porn industry as exploitative. It’s certainly less exploitative than industries that pay their workers minimum wage with no hopes of advancement.

        • SJD says:

          > Maybe my view will change when I have kids.

          It will (or I will be surprised). One can be a porn actress for a couple of years, then what? Will she put it on her resume? Few are businessmen(women) who can be Candida Royale after quitting porn, but, seriously, how does it help an average girl’s future?

          > I wouldn’t necessarily discourage it,

          I would discourage it, I wouldn’t be happy, but I wouldn’t dedicate all my time to stopping it (at the expense of loosing my child’s trust). Treating our kids as simultaneously adults and children is a tough and delicate job.

          BTW you used the term “actress,” and Baylson did in his report. Pornographers (even “fine” pornographers as XArt) refer to their expendable material as “performers.”

      • SJD says:

        While I never succumb to threats, at the second look the ad above looks fishy: it refers to casting@x-art-model.com, an email that does not exist, and even domain name is not registered. So I do apologize for this particular accusation, I acted in a good faith. I updated the comment to reflect this fact.

        My opinion that 18 is too young for pornography stays. I do have a daughter of this age, so I know what I’m talking about. Again, make your case, lay out your arguments. Threats lead nowhere (seriously, Colette, did you evaluate a PR disaster in a case you really wanted to legally pursue me?).

        And, by the way, Colette, make up your dictionary: “slander” refers to an oral false accusation (not the “oral” you are used to, but meaning “colloquial”). “Libel” is the right term for public both false and malicious accusations.

        • Dan says:

          Slander is oral, libel is written. They are otherwise the same–false defamatory statements made to a third party with at least negligence regarding their falsity (and in this case, actual malice would probably need to be shown, as Malibu Media is almost certainly a “public figure” in this context).

        • learnedhand says:

          SJD, what’s the difference between an adult female working in the adult industry & an adult female working 10 hour shifts at a more traditional job for very low pay?

        • SJD says:

          I think I pretty clearly articulated my position. Sorry, but I won’t discuss this issue anymore. It became a huge distraction: I have better things to do with my time.

        • Pay Day says:

          If Colette continues to advertise on your blog, you might want to bill X-Art.

      • Anonymous says:

        Shotgun litigation fired into the masses. Maybe only a third of the casualties are innocent, but you keep firing into the crowd like that, the body count is going to rack up. Don’t be surprised that mass action against the public results in mass public complaints about you.

        I was rather fond of your work, but I have plenty of other options for porn I enjoy that don’t involve funding your mass terror campaign. Yes, you’ve been wronged, I get it. Of course you have the right to protect your works… but you’ve opted to gut the public and sue anyone you have the tiniest inkling of evidence against, instead of plugging the leak at its source to begin with and cutting out all this collateral damage. What’s the acceptable profit increase for you for each innocent you hit in the process? How much are their lives worth?

        Especially as SJD has made it a point to correct false statements of fact when brought to her attention, I’d suggest educating yourself on the Streisand Effect, and consider whether your strategic lawsuit is really going to accomplish the censorship you hope to impose…and whether your case won’t get immediately destroyed by anti-SLAPP laws.

      • IPP German Spies says:

        Put a sock in it. You are not in the art or love business. You are a pornographer, no different from all the other smut dealers. Well, except for the fact that your models don’t look a day over 13 yrs old. Very obscene and disgusting stuff. Did it ever occur to you how mindless it is to not have a plot or sound? X-Art/Malibu Media is down right boring. Making rituals of animals on nature shows is much more entertaining and educational.

      • IPP German Spy says:

        Colette, Since it is all so loving and wonderful, why haven’t you and/or Brigham performed for your members? Just too shy? You & hubby are pornographers. You are selling smut. Paying young people to perform sex so you can photograph their genitals,to many,is the equivalent to prostitution. The vast majority of people on this planet don’t want your porn in their homes or accidentally viewed by their children browsing on the internet.

        • anodoe says:

          So instead of discussing legal options here we are contributing into the very same social stigma Mr.Lipscomb uses so successfully in his operations. Looks a little pathetic to me.

      • Anonymous says:

        “False accusations” is a little rich, coming from wealthy people claiming to be starving that can’t be bothered to sue the right people.

      • SJD says:

        So are you saying all your 18-19-20 models are happy? IMO you confuse happiness with eudaimonia. But I don’t blame you. It’s your parent’s fault, not yours.

  8. SJD says:

    Question to lawyers. Baylson says:

    Bryan White’s wiping clean of his computer in attempting to cover up the fact that he had downloaded the BitTorrent software, as well as five of Malibu’s movies, required a substantial penalty, and also to make a statement that would effectively deter others from acting as Bryan White had acted in this case.

    I was under an impression that any deterrence in civil cases is restricted by a liable person being deterred from wronging the prevailing plaintiff in the future, but the societal deterrence is a criminal law domain. So a judge cannot impose a punishment to deter others. Am I wrong?

  9. Has Malibu Media REALLY satisfied thier burden of proof ? says:

    Where exactly does it say “Malibu has satisfied its burden of proof with substantial evidence and deserves a large award.” We must’ve missed it…

    Furthermore where are the results of the objective independent third party computer science expert that tested IPP equipment and software? (i.e. the computer, server, data storage medium, modem, software that includes ALL of the applications used to harvest the IP addresses)? Or the test results of the “responsible lawyer’s equipment and the software that contains the deciphering method and this one in this case also secret (called “public”) key.”? Or how about the methodology and handling of the “forensic” evidence? Their evidence has still not been tested and the ONLY burden of proof Malibu Media LLC, Colette Leah Pelissier Field, Brigham Field, Micheal Keith Lipscomb and local counsel has met is still the FEAR these lawsuits have created in the entire American public.

    IANAL, but it seems to us that as soon as one does offer to handle, pro-bono, a truly innocent JDoe :a JDoe with the proof they did not DL the plaintiff’s material such as a compromised computer, unauthorized wi-fi access, recycled IP address, etc…, and take it to the discovery phase they will continue to “leave a trail of bread crumbs” to be followed.

    Remember this “When Life Gives You Lemons, Make Lemonade”. There is still a ton of information to be researched and if we as a community put our collective efforts together and ask the right questions we will be lead to the right place at the right time.

    • “IANAL, but it seems to us that as soon as one does offer to handle, pro-bono, a truly innocent JDoe :a JDoe with the proof they did not DL the plaintiff’s material such as a compromised computer, unauthorized wi-fi access, recycled IP address, etc…, and take it to the discovery phase they will continue to “leave a trail of bread crumbs” to be followed.”

      I have offered that in Pennsylvania, actually.

      Here in PA, a wrongly accused Doe can sue under the Dragonetti Act if a lawsuit terminates in their favor. The statute allows someone wrongly accused in a lawsuit to recoup attorney’s fees, as well as damages to their reputation. It even allows a wrongfully accused defendant to sue the lawyers who sued them.

      Someone wrongfully accused of stealing copyrighted porn would be a great Dragonetti plaintiff. What could be worse for your reputation, right?

      But no one has taken me up on the offer. Once I start asking tough questions like:

      - Did you do it?
      - Did someone in your household do it?
      - What would your Google search history reveal? What would your family members’ search histories reveal?
      - Do you have bittorrent on your computer? Does anyone in your house?
      - Do you have pirated material on your computer? Does anyone in your house? What have you pirated?
      - Do you understand that the plaintiff will ask you all these same questions in discovery, and subpoena third parties to confirm your answers?
      - Do you understand that you can’t lie under oath in a deposition, and we have to give them copies of your hard drives?

      Then the story usually changes.

      Send me an innocent Doe in PA. I will make a boatload of money, and I could use a nice vacation. I will front the costs, as well as the time. If we win, I will even make a donation to the EFF and SJD.

      • SJD says:

        Alas, looks like all the innocent Does somehow concentrate in Colorado and Illinois… Patience, Jordan, Patience.

      • Good Ship Lollipop says:

        If Lipscomb sues me, I’ll call you. I find your questions easy.

        No
        No
        Don’t know. My Wi-Fi was open. So I really don’t know.
        No and no
        No, no and nothing
        Yes
        Yes

      • I’ll take what you might refer to as a guilty doe. I don’t see why the fact that the doe actually downloaded the file, as the plaintiff alleges, is dispositive of the case. Aside from the obvious issues of proving the copyrights valid, properly assigned to the party bringing the action, etc. there are still other issues.

        For example. There’s a presumption of willfulness in all copyright cases. If the defendant can raise a non-frivolous argument of “innocent infringement”, then the burden shifts and the plaintiff will have to put on a case for willfulness. How can they do that? All they have is an admission as to the act of copying. They have no idea whether the DOE knew what they were downloading or whether it was copyrighted. In fact, X-ART uploads its videos to various sites for promotional purposes (I assume). The Doe may have a reasonable belief that X-ART was freely distributing certain titles (which might make up part of the suit) and based on that information assumed that the other titles were freely distributable. It will come down to a question of reasonableness before the judge. I’ll take the frightened Doe vs. the Pornographers in front of the jury any day.

        Further,

        17 USC 504 — “In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of
        statutory damages to a sum of not less than $200. ”

        Hmm… not too hard an argument to make before the jury and we get down to $200/infringement. Given those circumstances, I doubt the judge will levy attorneys fees (it’s at her discretion). Also, careful use of a Rule 68 offer for settlement can help further, here.

        At least that’s just one theory that comes to mind.

        (not legal advice or a solicitation to provide legal services).

        • “In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of
          statutory damages to a sum of not less than $200. ”

          Hmm… not too hard an argument to make before the jury and we get down to $200/infringement. Given those circumstances, I doubt the judge will levy attorneys fees (it’s at her discretion). Also, careful use of a Rule 68 offer for settlement can help further, here.”

          The innocent infringer is a tough defense. The deposition questions are going to ask:

          “Did you know plaintiff had a website?”
          “Have you ever accessed it?”
          “Did you know you that could purchase these movies off their website?”
          “If you knew you could purchase it, why did you download it off bittorrent?”
          “I subpoenaed Google and found that you searched for X-Art on several occasions. Are you sure you ever accessed their website?”

          etc.

          If the movie is called something generic like “sex with a hot girl”, there is a decent argument. On the other hand if it’s called “X-Art – Sex With Tiffany” that is a tough pitch. Most likely, someone was actively was seeking “X-Art” movies if the name is in the title.

          Google search histories will become very relevant, too, if you raise the non-willful argument.

          “The Doe may have a reasonable belief that X-ART was freely distributing certain titles (which might make up part of the suit) and based on that information assumed that the other titles were freely distributable.”

          I disagree. Many popular music videos are available on YouTube. But everyone knows that if you want to own the video, you have to buy it off iTunes.

          Personally, I think it would be a tough sell to try and convince a jury that “I thought these people make movies for the good of society, and that everyone can download them because they’re on YouPorn!”

          The argument will be – “You downloaded 15 of their movies over the course of a year and didn’t once think to check the website out? Because you saw it on YouPorn?”

          Tough sell. You might be able to get away with that if we’re talking about one movie, but not multiple movies.

          “I’ll take the frightened Doe vs. the Pornographers in front of the jury any day.”

          The problem is the Congressional intent in the 1999 amendments:

          http://thomas.loc.gov/cgi-bin/cpquery/?&dbname=cp106&sid=cp10602KMw&refer=&r_n=hr216.106&item=&sel=TOC_2422&

          You’re essentially asking a federal judge to ignore a Congressional mandate because of the nature of the content. I think that would be an appealable issue.

          You do have an excellent point on Rule 68 offers. They are a very underutilized tool, especially in torrent cases.

  10. Like I said, this is just one theory I have on minimizing the extent of damages for the defendant. Whether it can be applied will depend on the exact nature of each individual’s case.

    While it would certainly be easier to use this defense where there is a single act of infringement, I agree that while not impossible it would be harder to show “innocent” infringement if someone downloads a large number of films, it still might preclude a finding of willfulness is any of those films is being freely distributed by the Plaintiff.

    I think that there’s a strong case to be made for the Plaintiff’s own free distribution of their videos negating or significantly mitigating damages. First, Youtube is distinguishable from YouPorn in that YouTube specifically prohibits downloading/copying of their content in their terms of service and by disabling that feature in software. YouPorn, however, allows users to download content and provides numerous disclaimers that they are offering “free” pornography. Under the first sale doctrine, a publisher gives up a variety of rights when they “sell” a work. Here, the plaintiff may have “sold” that work (for free) via YouPorn, thereby exhausting their rights against a licensed purchaser of the work (the downloader). The videos (I assume) do not include any restriction on the further use or distribution of the work, but even if they did it was reasonably foreseeable that by uploading their work to a “free” site for licensed, free distribution that includes the right of download, the Plaintiff’s works would end up in downstream distribution.

    Thus, there are arguments to be made that plaintiff negligently induced infringement for any works that they sued on that were first posted on YouPorn. Further, it’s highly likely that they’re estopped from asserting any claim for damages because they cannot be injured. While “statutory damages” are an alternative to “actual damages”, where there is no damage, there is no recovery (there’s SCT precedent on that, I’m too lazy to look it up). Since Plaintiff gave away the work for free, the fact that defendant got it “downstream” from the original source cannot damage plaintiff any more than if they downloaded it from YouPorn for free.

    With regard to related works that were not published on YouPorn, it’s not inconceivable to make the innocent infringer argument. That can be heard by the jury and if they believe the story, then as long as you’ve gotten the right jury instruction on innocent vs. non-willful vs. willful infringment, I’ll bet a defendant that holds up under deposition comes away with no more than $750/count and the judge declines attorneys fees and quite possible $200/count.

    More importantly… during that customary “preliminary” attorney to attorney discussion on possible settlement, a well-founded argument along these lines may get a quick settlement of a few hundred, rather than a few thousands dollars. Even if the Doe pays their attorney a few thousand dollars, they’re still way ahead of the deal that I understand people are getting from Malibu now. I’m sure they’d rather pay you than Lipscomb, anyway.

    Also, if the business model turns to “multi hundred” dollar settlements, these types of litigants may seek more lucrative uses of their time.

    I’m not sure what you’re referring to in the legislative intent of the statute (not sure which aspect you mean) but I think this can all be argued on existing caselaw and within the four corners of the existing s.504. If Plaintiffs want to dig into the CongRec, let them annoy the Judge.

    Also, here’s an article on Rule 68 that is helpful…

    http://www.bryancave.com/files/News/9a0e5bb3-5104-46b6-9389-86e235258cf5/Presentation/NewsAttachment/da846f08-6a59-4751-af99-891a400a41d1/rule68.pdf

    • Zeno – not sure if you know this, but all those issues were raised in the Bellwether:

      http://dietrolldie.files.wordpress.com/2012/11/rr_mol_mtd_02088pa.pdf

      And they were rejected:

      http://phillylawblog.files.wordpress.com/2013/06/opinion-denying-mtd.pdf

      The court wouldn’t stay discovery as to the Does, either.

      The arguments might fly in another case or another proceeding, but that is how it shook down in this case.

      • Hi Jordan,

        These issues were mentioned in the Motion to Dismiss, but they were not “raised” before the court in the context that I’m suggesting. The issues I theorize raising would not be appropriate in a motion to dismiss. Remember, in a MTD the judge is essentially ruling on the pleadings — you can’t raise disputed questions of fact (such as X-Art’s alleged uploading to YouPorn) for consideration. Also, damages is a question of fact, not something that the Judge can rule on as a matter of law based on a pleading that contains a proper allegation of damages (i.e., at the MTD stage of trial).

        The issue could have been raised in a Motion for Summary Judgement. I doubt that Motion would have resulted in dismissal due to the plaintiff denying that the facts introduced by affidavit are “undisputed” — but they must take a position on the record as to which facts they deny and how. You can learn a lot about their position of their not careful in their opposition.

        In the Bellwether, there was no “trial” on the issue of damages — just the plaintiff putting on an uncontested witness after all the plaintiff admitted liability. Had they stipulated to the act of “copying”, a great deal of discovery becomes irrelevant at that point. I doubt a defendant would need to produce or be forced to testify to their search histories once the copying is established. What basis would the evidence be admissible for? Willfulness is based in the legal concept of “scienter”, or what was the defendant thinking at the time of the tortious act that they’re accused of. All a search history or search of a hard drive showing other pieces of porn would be relevant to is propensity, which is forbidden under FRE 404. You could also argue for exclusion under 403.

        Getting back to my point, there was no evidence of innocent infringement or mitigation offered during the damages hearing, so it’s not possible to know how a court or jury would view this defense. More importantly, it is highly fact dependent (and another good reason why Baylson’s finding on joinder is so helpful.)

        Finally, this is all just meant as “food for thought”. There are many defenses that can be raised in a case like this. My point is more that a stipulation to the fact of the act of copying is not a fatal starting point for these cases. Just based on what I’ve read on the various forums, I get the impression that the vast majority of people that are accused did, in fact, download the alleged infringing material. But so what? I think there are defenses to be mounted that could result in a large percentage of these “Does” only being liable for innocent infringement and only their own attorneys fees.

        In addition, to combat a “troll”, you have to think like a troll and litigate in the most effective way to combat their business model. Their business model is to take a legitimate cause of action and present their product “the settlement” to the accused in a manner where they maximize settlement dollars per unit time and expense. The use of pressure tactics and the stigma of pornography are intended to make litigation, rather than settlement, unpalatable to the accused.

        Defendant’s counsel should, therefore, use every procedural tool at their disposal to raise as many non-frivolous defenses as possible and to use every fact they can find regarding Plaintiff’s conduct to prosecute a vigorous litigation with the prospect of a sympathetic jury (that just may not like Plaintiff Pornographer) and may negate damages in their entirety or settle on a very small amount. In other words… the use of pressure tactics and the stigma of being a pornographer to make litigation, rather than settlement on YOUR terms, unpalatable to the plaintiff.

        Back to work…

        • Ah, but therein lies the problem…

          If the Doe is liable, and the plaintiff is willing to be reasonable about settlement, why fight it? Why spend the client’s money and subject them to the litigation process.

          When I represent a client, my goal isn’t to end copyright trolling or to make a statement. It’s to do whatever is best for my individual client – period.

          I think the interesting thing is there are three interests in these cases: you have the plaintiff, who wants to maximize their recovery with as little effort and costs as possible. (which is true of ANY plaintiff). Second, you have the client, who wants to spend as little money as possible and not be harmed. Third, you also have a litigation model that is perceived by some as unjust and unfair.

          But fixing the perceived injustice isn’t necessarily what is best for a lawyer’s individual client. For a client who is liable, the best course of action may very well be to settle – the unfairness of it all be damned.

          I’ve said this many times – I represent clients, not causes. It would be a moral and ethical outrage to represent a client simply to further an agenda. If someone is interested in changing the system, the solution is to start a blog or to lobby congress.

          In most cases, a settlement at the outset is the cheapest and safest exit. It just is. That is why people have an issue with the litigation model.

        • anodoe says:

          “When I represent a client, my goal isn’t to end copyright trolling or to make a statement. It’s to do whatever is best for my individual client – period. ”

          Mr.Rushie,

          Obviously some people here have a problem with that. They fight for a cause and they don’t seem to care much of what happens to a particular Doe, hence a lot of unrealistic advice. You look like a traitor to them because your opinion on settlement as a good solution for a liable Doe contradicts their “don’t feed trolls” policy.Thank you for being a voice of reason here. Your input might save a lot of money for Does who just got a subpoena notice from ISP and are desperately searching for a best way out.

        • Jordan,

          You have to represent clients to the best of your abilities and should guide them to the outcome that’s best for them. That said, I simply suggest that it’s the attorneys ethical duty to explore whether there are mitigating factors that should be investigated and possibly be discussed with opposing counsel before any settlement discussion. I think it’s the job of the attorney to find and exploit the best arguments that they can for their client, based on an investigation of the facts of each case. A counselor should find numerous issues to raise with opposing counsel during settlement that will “cloud” their view of litigation. A clever counselor will be able to portray the facts in a way that suggest, at least, that there’s a reasonable possibility that their client can prevail on damages. That being the case, the business-oriented plaintiff will pickup and move along to their next target rather rapidly. They don’t want a case going against them to set precedent on damages or waste a lot of time on a case where there’s a chance they won’t collect fees.

          Since each case will have different facts and the amount of work (legal fees) necessary to defend the claim will vary, it may come down to a balance of fees versus the demand from the plaintiff. For a few hundred dollar demand it might make sense to settle. I would think that a well crafted line of defense, though, will result in a faster settlement for less money for the client. If the demand is 10, but it cost the client 3 to settle for 2, the client is still better off.

          However, without a solid defense theory behind the client, why wouldn’t Lipscomb stick to his original demand amount and just press on with trial until it becomes apparent to the Doe that they’re going to end up paying for their own attorney and still end up paying Lipscomb at the end? Unless opposing counsel knows that you have the will and the ammunition to put up a defense, they have no reason to back down from whatever demand they want to make.

          Just my 2 cents and I’ll leave it at that. I’m not criticizing anyone’s handling of any specific case, just offering my insight after reading up on all the similar litigation that’s going on around the country.

        • I appreciate your insight, and I am enjoying the discussion.

          “That being the case, the business-oriented plaintiff will pickup and move along to their next target rather rapidly.”

          Ehhhh….

          Counterpoint – you file a bunch of motions, and then your client is caught with their pants down. The plaintiff says “I would have settled with your client at the outset for $7500, but now we had to spend a bunch of time and money litigating this, so I won’t take less than $15k. Oh, by the way, kindly produce his hard drive and answer these interrogatories. Also, enclosed is a subpoena we are serving on Google for his search history. If you don’t take the $15k by the end of the week, our number becomes $20k. And at the end of next week it becomes $30k.”

          And let’s be realistic. If the client has hired you, chances are they have money and assets worth protecting because no real lawyer will enter their appearance for under $10k or $15k in a federal court. Chances are the plaintiff knows that, too. They’ve figured out whether your client owns real estate and has assets.

          So you’re defending a person with something to lose financially, in addition to reputational damage.

          At this point, as a lawyer, you’ve really done more harm than good to your client. You’ve turned a $7500 problem into a $20k problem, plus your own fees, because, um…. wait, why didn’t we just settle? I mean, you did download the movies.

          And your client will probably be asking the same question. That’s not good.

          Litigating a case with a guilty Doe, in my opinion, is an extremely risky proposition. It will often end up with you hurting them more than helping them.

      • whaa? says:

        Jordan,

        -”And let’s be realistic. If the client has hired you, chances are they have money and assets worth protecting because no real lawyer will enter their appearance for under $10k or $15k in a federal court.”

        I have to respectfully disagree with you about that. I know from personal experience that a real lawyer can and will defend a doe in a federal copyright case for less than 5k. So I’m thinking if there is one out there, there’s got to be more.

        • Judge Wright said in his order that $5k isn’t enough for a bare bones defense.

          Let’s do some math…

          A forensically cloned hard drive costs about $1500. A deposition transcript costs about $700. So right there, for just your deposition and reproducing the hard drive, you’ve got $2200 in costs alone. Throw in the deposition of the torrent tracker and the plaintiff and you’ve got about $3600 in costs. Now, throw in an expert to opine that the hard drive wasn’t wiped and you’re in at least another $5k. ($8600). Oh, and you might want to depose the plaintiff’s expert, which is another $700. Then there might be more transcripts if the plaintiff wants to depose your neighbors, roommates, wife, whatever.

          I’m low balling the costs here, too. I’ve had some deposition transcripts cost as much as $1300. The costs of depositions and experts alone are extremely expensive. So are trial presentations, trial boards, etc.

          In terms of a fee, the lawyer will have to research and investigate the specifics of your case, draft your motion to dismiss, draft your discovery, respond to their discovery, prepare you for your deposition, take their depositions, file appropriate pre-trial motions, draft jury instructions, and eventually try the case. They will also have to respond to any motion that the plaintiff files. There are also all the conferences that the court might decide to schedule.

          That is at least 100 hours. If not more. The time the lawyer spends working on your case is time he or she is spending not working on other cases, presumably ones where he or she has paying clients. No lawyer is going to spend hundreds of hours litigating your case the right way for a sum of $5k.

          If you want to litigate one of these cases the right way, with a lawyer who is going to put the time into it, it’s going to cost you money. A lot more than $5k.

          Now, if you want some guy to wear a suit and play lawyer, maybe they’ll do it for $5k. But chances are that barebones representation will hurt you more than it helps you. And is that guy really looking to defend you the right way, or are they just desperate for $5k? Are they going to put the time into your case for that small a fee, or are they going to be too busy with their other cases?

          Keep in mind there is a lot at stake here, especially considering that the debt is probably not dischargeable in bankruptcy. With the potential for a huge judgement that you can never get rid of, do you think it’s a good idea to hire the cheapest lawyer on the block…?

        • Clownius says:

          With those numbers in mind. How expensive fighting a case would be.

          Would you recommend and innocent party settle. Knowing that proving your innocence will likely cost you more than paying up?

          It sounds like to me the troll cant loose unless they run into another Judge Wright. The troll could take you through spending all that cash on depositions etc and then just drop the case.

          You would be a lot worse off….

        • I would never ever recommend that an innocent person settle just to avoid the costs of litigation.

          That said, lawyers have to eat, too. If you showed up to work and your boss said “I’m not going to pay you”, you would probably say “well, then I’m not going to work, because I have bills to pay.” So when you get a free or cheap lawyer, you get what you get. They can only devote so much time to your case without having to do other things that keep the lights on, in addition to all the costs associated with litigation.

          If you wanted to push the case to a federal trial, in my opinion it would cost you at least $50k to do it right. That is lowballing it, too. Federal litigation is expensive.

          Now, if you have a good defense lawyer who doesn’t act like a jerk, they might just be able to convince the plaintiff to drop the case, assuming you have a rock solid defense. That would be significantly cheaper than forcing it to a trial.

        • Anonymous says:

          Mr. Rushie,

          I was of the opinion you weren’t going after downloaders any more. I was also of the opinion that Randazza was a copyright troll. Although it seems he’s been quiet lately (at least in federal court) with respect to copyright suits against individuals. I don’t have a very high opinion of Randazza. I’m curious on what types of cases you are co-counsel with him if you’re not going after individual downloaders. Just curious what types of IP suits he’s working on these days.

          Also, quite frankly, I’m torn about your responses. You’re quite honest about the whole process which is informative. However, reading your comments scares innocent and guilty Does alike. If someone was involved in a law suit and was innocent, your insight would make them settle just as quick as if they were guilty. That’s the problem I have. Based on your comments there is no incentive to fight. I always assumed a great lawyer would encourage an innocent to put up the good fight and would champion for it. All I take away is the system is broken and the people that win are the ones with the most money.

      • whaa? says:

        Jordan, did you not say that you would represent an innocent doe Pro bono? Which is pretty much my point – if you have a good enough defense a lot of attorneys will still take your case since they can file for attorney’s fees in a copyright case.

        @Clownius – I would suggest to all does: call around and get more than one opinion, most attorneys that represent defendants in these types of cases will give you a free consultation on the phone to explain your best options. All of the attorneys on the on the EFF subpoena defense list are a great start: https://www.eff.org/issues/file-sharing/subpoena-defense

        Don’t rely on the internet for legal advice, everyone’s situation is different and it may be the case that a really good defense attorney that handles these types of cases, on a daily bases will take your case for much less than Jordan is suggesting. Just an FYI. No offense towards Jordan’s fees and/or his opinions.

        P.S. please notice that Jordan Rushie is not on the eff subpoena defense list.

        • You do know that to get on the EFF subpoena defense list, all you have to do is ask nicely, right? Anyone who asks can be on it, regardless of their experience in federal court or IP litigation. Quite frankly, many of the people on the EFF subpoena defense list don’t know the first thing about litigating an intellectual property case in federal court.

          I think that list does more harm than good – you end up with bottom feeder attorneys just trying to bilk anyone they can for a small amount of money. Hell, my client found his former attorney through the EFF subpoena defense list – the same lawyer who got him into trouble in the first place by selling a form motion to quash / sever.

          And I said I would represent an innocent Doe (that means no one in the house did it, and they have to make it past my smell test first) on a contingent fee. Because if there absolutely no basis for suing a Doe here in Pennsylvania, I could then countersue under the Dragonetti Act and make a bunch of money.

        • “so unfortunately what you did in that case may end up not meaning a whole lot to the future litigation of bittorrent cases.”

          I am only concerned about the result we got for our individual client. That’s it.

          Again – I represent clients, not causes.

      • whaa? says:

        Jordan, so your bellweather client called an attorney on the eff subpoena defense list and that attorney instructed him to download a form off of the internet and file it in court signed John Doe?

        Please get more than one opinion, either way the eff subpoena defense list is a great resource. https://www.eff.org/issues/file-sharing/subpoena-defense
        and again I’m going to have to politely disagree with you Jordan about you views of the people on the eff list. They have been instrumental in fighting these copyright cases that have been detrimental to our legal system and the does involved.

        • “Jordan, so your bellweather client called an attorney on the eff subpoena defense list and that attorney instructed him to download a form off of the internet and file it in court signed John Doe?”

          Pretty much. Stupid, right?

          Look, I like the EFF and what it does. I’m good friends with some of the guys on the PA subpoena defense list (Leonard French, Charlie Thomas, Aman Sharma and Steve O’Donnell). I would highly recommend all four of those guys. Hell, Morgan Pietz in California might be the best Doe defense lawyer in the country right now.

          But I’ve also dealt with some people on the subpoena defense list who are awful. (not naming names). I emailed the EFF about it, and their response was:

          “Please note that we do not screen or evaluate the attorneys on the Subpoena Defense Resources list. Each person contacting a lawyer from the list should make their own independent evaluation of whether the referred attorney is the right one for the particular case. In most states you can check with the State Bar website for the current status and record of lawyers in that state, but you should make your own judgment about which attorney is right for you.”

          Some, (certainly not all) of the people on the list see these cases as easy money.

          There is no criteria to get on it. You just ask.

          If I felt like being on the subpoena defense list, I would just send an email to the EFF.

          Being on it just means you want more torrent defense clients. Nothing more, nothing less. As a result, you get some very good lawyers, and some very bad ones, too.

        • juancarlosdeburbon says:

          I have first-hand experience calling people on the EFF list for representation in a case like this. I found a lawyer that would draft four motions for me that I could file pro se. However, the case in FL stated that pro se defendants must submit their real name and address. The attorney I hired was from my own state, not FL, so they could not represent me if things went badly. Although this was told to me after I asked the rig questions, it wasn’t the best legal representation for me. I in turn found another attorney in FL who files or less and can represent me. That attorney is not on the EFF list, or wasn’t at the time.

          The EFF also declined to help my beyond referring me to their lawyers page. YMMV, but I found better legal help outside of the EFF in this one specific case.

        • “Jordan, It seems to me you’re giving a sort of legal advice that amounts to – even if you are innocent you should settle, simply because it would be cheaper than 50k and less painful.”

          That isn’t what I’m saying. But the reality is that litigation in federal court is expensive. It just is. And lawyers don’t work for free, because otherwise they starve.

          If you find an attorney willing to do it on the cheap, great. In my opinion, that is a recipe for disaster. But my goal isn’t to be the cheapest lawyer in the neighborhood, though – it is to litigate cases the right way, and to get the best possible results for my clients.

          If you want a cheap lawyer to half-ass a case, great. That’s not what I do, though. Never will be.

          “Some friendly advice though really- maybe you should politely ask to get on the EFF subpoena defense list, as you said that’s all you need to do, just so you can gain some more experience.”

          I don’t want to be on the EFF subpoena defense list, because I don’t want more bittorrent defense clients. (And it’s funny you say I need more experience, because I am one of three attorneys to have defended a torrent case from complaint through to trial. I also prosecuted a mass torrent case last year with Randazza.)

          Torrent litigation is fun, and I enjoy having this discussion with all you people immensely. But this is more like a hobby for me, similar to legal blogging.

          Most torrent defense clients don’t have the money to hire a lawyer and defend a case the right way in federal court. I have more than enough work completely unrelated to bittorrent defense to want to deal with “I only have $3k, but I want you to take this to trial in federal court. I would also like you to put hundreds of hours into it, and do it the right way, but I can’t really afford that.”

          No thanks. I would rather not do the work and not get paid, than do the work and not get paid.

          See how that works?

          Settling mass amounts of these cases isn’t what I do, either. There are lawyers who specialize in settling torrent defense cases like Steve O’Donnell. If you called me and said “I really just need to get this thing settled for the best price possible”, I would refer you to Steve. When I settle torrent cases, it’s usually in exceptional circumstances where a guilty Doe has health problems, is flat broke, etc. I do that as a public service.

          And I don’t just know Marc Randazza, I am Of Counsel at his law firm. We are co-counsel in many IP cases together.

      • whaa? says:

        Hmm…well perhaps there were not as many complaints made about that attorney you mention thats on the list. Because Adam Urbanczyk was taken off the list once there was evidence found of his misdeeds that involved Prenda et al.

        • whaa? says:

          Jordan, It seems to me you’re giving a sort of legal advice that amounts to – even if you are innocent you should settle, simply because it would be cheaper than 50k and less painful. I call BS, everyone’s situation is different and you cannot give two examples of something that may happen and hope that you have helped someone, especially when you don’t know that person’s whole story.

          Really if someone has received anything saying they are (or) might be involved in a copyright case or computer hacking case, they should contact a couple of copyright / IP defense attorneys in their own state. Get more than one opinion and be truthful so you can get the best idea of what is to come and how to respond in a way that’s in your best interest.

          - You also said in an earlier response to a post on DTD that:

          “Bittorrent defense makes up about 1% of my practice. Currently it makes up 0%.”

          Some friendly advice though really- maybe you should politely ask to get on the EFF subpoena defense list, as you said that’s all you need to do, just so you can gain some more experience. Please do not reply with the I know Marc Randazza response either, just because you know another attorney doesn’t really mean anything. (IMHO)

          Jordan Rushie is not listed on this site or DTD as someone who helps fight copyright cases either.

      • whaa? says:

        Jordan, I wouldn’t call the malibu media bellwether a “real” trial anyhow and in my opinion the Judge just didn’t get it, so unfortunately what you did in that case may end up not meaning a whole lot to the future litigation of bittorrent cases. Except for the Joinder issue & porn being copyrightable, though imo porn being copyrightable was obvious already.

        So you’ve prosecuted 1 bittorrent case, how did that work out for you?

        Of Counsel, doesn’t that just mean you do Randazza’s bitch work in Philly?
        Case in point- Brett Gibbs was “Of Counsel” to Prenda law.

        & thanks for participating in these spirited debates :)

      • re: @ anonymous -

        “Mr. Rushie,

        I was of the opinion you weren’t going after downloaders any more. I was also of the opinion that Randazza was a copyright troll. Although it seems he’s been quiet lately (at least in federal court) with respect to copyright suits against individuals. I don’t have a very high opinion of Randazza. I’m curious on what types of cases you are co-counsel with him if you’re not going after individual downloaders. Just curious what types of IP suits he’s working on these days.

        Also, quite frankly, I’m torn about your responses. You’re quite honest about the whole process which is informative. However, reading your comments scares innocent and guilty Does alike. If someone was involved in a law suit and was innocent, your insight would make them settle just as quick as if they were guilty. That’s the problem I have. Based on your comments there is no incentive to fight. I always assumed a great lawyer would encourage an innocent to put up the good fight and would champion for it. All I take away is the system is broken and the people that win are the ones with the most money.”

        Right now we are not working on anything that has to do with bittorrent litigation. Some sample cases include a nominative fair use trademark case and a CFAA case, neither of which have to do with piracy. We are also working on a collections case that isn’t IP related. Randazza isn’t a copyright troll – he would take just about any case he files to trial. Marc is like that. If Marc files something, he will try it – trust me. I think it is the Sicilian in him. Marco is out to bust heads and leave a trail of dead behind him.

        My goal isn’t to scare anyone. Really, it’s not.

        But I’ve defended many innocent people in federal lawsuits. Commonly, I defend innocent doctors and healthcare practitioners accused of insurance fraud and RICO. It costs them a bunch of money. It just does. I wish it didn’t, but it does. I have this conversation with my clients commonly, particularly when it comes to federal court litigation. “I know you are innocent, but it is going to cost you to prove it. Sorry. It just is.”

        In an ideal world, I would tell you that the justice system is totally fair, and innocent people don’t have to spend any money defending themselves. Hell, if that were the case I would just find a bunch of cases where innocent people were accused of stuff, defend them, and then enjoy a great payday.

        That’s not the truth, though. Under the “American Rule”, everyone pays their own legal fees:

        http://en.wikipedia.org/wiki/American_rule_(attorney's_fees)

        The law favors plaintiffs who are well financed. It costs people money to defend lawsuits in court. It costs them more money to defend them the right way. Google any case involving Scientology.

        I do not think innocent people should settle, though. However, in my experience, the people who call me are not innocent. In every case I have handled, it’s been someone who is guilty, or at least someone in their house who is guilty.

  11. Who am I says:

    This Tuesday Google announced it cut its retention of IP logs to 9 months.

    http://www.pcmag.com/article2/0,2817,2330005,00.asp

    • Who am I says:

      Sorry my prior comment is old news from 2010. At that time Google went to 9 months, Bing went to 6 months, and Yahoo to 90 days.

      I don’t know if this is current retentions policy or not?

  12. Cassius says:

    Hey. One definition of “trolling” relates to fishing, where the fisherman throws a lot of baited lines off the boat and catches the fish who bite. This definition applies to “copyright trolling” when the plaintiff uses discovery to obtain defendant names to send out a lot of threatening demand letters, and to see who bites.

  13. Qtip says:

    This is to Jordan Rushie Specifically,
    What if the ‘accused’ has assets but a third party writes in a sworn affadavit that they did the infringing, and they have zero, nada, zilch in the name of assets? I’m talking stereotypical teenage kid/adult who did it, would the subscriber just submit that into evidence and their assets are protected and now the plaintiff will take a lower settlement due to a kid doing it who has no assets and will get them negative press for suing a broke kid.
    Did the people in the bellwether have assets? I mean you say JD 16 walked away slightly scathed, but If he owns a house he now has a lien of 200k+ on it if MM knows what they are doing at the county recorders office.
    Also One LAST question, did Malibu Media offer to settle with your clients even with the mounting evidence during discovery?

    • Regarding the liability of a dependent child, it depends. Parents usually cannot be held liable for what the kid did, except in certain narrow circumstances. However, in most cases that I have seen, the parent decides to just make the settlement payment. The plaintiff could get a judgment against the child and then execute on it later in life.

      I don’t mean to sound flip, but it depends on how much the parents care about the kid’s financial well being. Some parents would say “Not our problem, pursue our kid, we don’t care.” Others don’t want a big judgment entered against their kid, especially one that will damage their reputation.

      Will that affect how much the plaintiff will settle for? Possibly.

      There might be statutes in your state that govern a parent’s potential liability regarding a kid. I would talk to a lawyer in your state about that stuff.

      I can’t get into certain specifics about the bellwether. I did not represent John Doe 16, and I don’t know much about his situation, or what the settlement consisted of. I do not believe he walked away from the case “relatively unscathed.” Far from it.

      Doe 1, Doe 6, and Doe 13 (my client) walked away with their reputations in tact, and without giant judgments against them. Under the circumstances, that is relatively unscathed.

      I approached Malibu about settling the case early in the litigation. We came to an agreement while the motion to dismiss was pending (November 2012), before discovery had started. We were able to work out something that was reasonable and fair, taking into account my client’s exposure and assets. Two days, later the motion to dismiss was denied in its entirety. My client was never deposed (nor were his neighbors or family) because we were able to resolve all the issues without the need for discovery.

      I wouldn’t have filed a motion to dismiss if the case were not bellwethered. The only reason my client was bellwethered is because his former counsel fled a motion to quash / sever. I came in after. If I were counsel from the get-go, we would have simply discussed settlement right at the outset, and the matter would have been resolved quickly and quietly. Filing the motion to quash / sever caused my client to be bellwethered, and then severed. (exactly what was asked for). This was a case that never should have been fought, but perhaps some lawyers believe everything they read on the internet… (“just file a motion and they’ll get scared and run away! Pay me $500 and I’ll give you one!”) Fighting it at the outset actually hurt my client, and put him in a terrible position.

      Which I think goes to show you, if a Doe is liable, they will end doing a lot better for themselves by coming clean and trying to resolve the matter. While the legal blogosphere (who Judge Baylson chided in his opinion) wants to see you fight every case, often that turns a relatively small problem into a much larger one. For no good reason.

      That is what happened in my case.

      • Qtip says:

        Reason I ask for this issue is because recently a case came up from Maryland against a parent WHO WAS SANCTIONED FOR RELEASING HIS NAME IN A MOTION TO QUASH DRAFTED BY AN ATTORNEY! R.S (8:12-cv-00347-DKC) and he countersued, blowing probably 20k on lawyer fees when they had 19 additional infringements (initially they sued for 1, typical CEG tek suit) and he was dismissed literally days ago and they named and served his son P.S on June 15. If anyone can recap the docs
        (8:13-cv-01703-DKC) It looks bad for this guy. Some people fight for the cause and they pay ultimately if guilty, and the thing I am trying to find out is if they are suing his dad with him for negligence which would definitely be in the complaint if so.

        that’s why feeding the “trolls” is acceptable in reality because when they are right they are not trolls anymore.

        • Here, I pulled the Complaint off PACER. Don’t say I never did anything nice for anyone:

          http://www.scribd.com/doc/149368669/Metro-Media-v-Steinruck

          No negligence claim.

        • General note about parent liability in MD — by statute, the parent is liable for the torts of their child up to a maximum recovery of $10,000. There is no cause of action against the parent for negligence, since the parent had no duty to secure his home network to the benefit of and for the protection of plaintiff, and because the statute specifically preempts all claims in both strict liability and negligence.

          Don’t be lured into the argument that the parent violated a duty to keep their children from downloading the infringing material — that duty is to the child and not to the plaintiff in these cases. This issue came up often in the napster/limewire/etc. music sharing cases.

          The parent should be named in these suits (particularly in D.MD, which must follow the law of the state in which it sits for non-federal questions of law) because anyone under 18 (under Maryland law) must be represented by a guardian ad litem or joined with their legal guardian in any civil action.

  14. SJD says:

    Clever Elsie
    by Brothers Grimm

    There was once a man who had a daughter who was called Clever Elsie. And when she had grown up her father said: ’We will get her married.’ ’Yes,’ said the mother, ’if only someone would come who would have her.’ At length a man came from a distance and wooed her, who was called Hans; but he stipulated that Clever Elsie should be really smart. ’Oh,’ said the father, ’she has plenty of good sense’; and the mother said: ’Oh, she can see the wind coming up the street, and hear the flies coughing.’ ’Well,’ said Hans, ’if she is not really smart, I won’t have her.’ When they were sitting at dinner and had eaten, the mother said: ’Elsie, go into the cellar and fetch some beer.’ Then Clever Elsie took the pitcher from the wall, went into the cellar, and tapped the lid briskly as she went, so that the time might not appear long. When she was below she fetched herself a chair, and set it before the barrel so that she had no need to stoop, and did not hurt her back or do herself any unexpected injury. Then she placed the can before her, and turned the tap, and while the beer was running she would not let her eyes be idle, but looked up at the wall, and after much peering here and there, saw a pick-axe exactly above her, which the masons had accidentally left there.

    Then Clever Elsie began to weep and said: ’If I get Hans, and we have a child, and he grows big, and we send him into the cellar here to draw beer, then the pick-axe will fall on his head and kill him.’ Then she sat and wept and screamed with all the strength of her body, over the misfortune which lay before her. Those upstairs waited for the drink, but Clever Elsie still did not come. Then the woman said to the servant: ’Just go down into the cellar and see where Elsie is.’ The maid went and found her sitting in front of the barrel, screaming loudly. ’Elsie why do you weep?’ asked the maid. ’Ah,’ she answered, ’have I not reason to weep? If I get Hans, and we have a child, and he grows big, and has to draw beer here, the pick-axe will perhaps fall on his head, and kill him.’ Then said the maid: ’What a clever Elsie we have!’ and sat down beside her and began loudly to weep over the misfortune. After a while, as the maid did not come back, and those upstairs were thirsty for the beer, the man said to the boy: ’Just go down into the cellar and see where Elsie and the girl are.’ The boy went down, and there sat Clever Elsie and the girl both weeping together. Then he asked: ’Why are you weeping?’ ’Ah,’ said Elsie, ’have I not reason to weep? If I get Hans, and we have a child, and he grows big, and has to draw beer here, the pick-axe will fall on his head and kill him.’ Then said the boy: ’What a clever Elsie we have!’ and sat down by her, and likewise began to howl loudly. Upstairs they waited for the boy, but as he still did not return, the man said to the woman: ’Just go down into the cellar and see where Elsie is!’ The woman went down, and found all three in the midst of their lamentations, and inquired what was the cause; then Elsie told her also that her future child was to be killed by the pick-axe, when it grew big and had to draw beer, and the pick-axe fell down. Then said the mother likewise: ’What a clever Elsie we have!’ and sat down and wept with them. The man upstairs waited a short time, but as his wife did not come back and his thirst grew ever greater, he said: ’I must go into the cellar myself and see where Elsie is.’ But when he got into the cellar, and they were all sitting together crying, and he heard the reason, and that Elsie’s child was the cause, and the Elsie might perhaps bring one into the world some day, and that he might be killed by the pick-axe, if he should happen to be sitting beneath it, drawing beer just at the very time when it fell down, he cried: ’Oh, what a clever Elsie!’ and sat down, and likewise wept with them. The bridegroom stayed upstairs alone for along time; then as no one would come back he thought: ’They must be waiting for me below: I too must go there and see what they are about.’ When he got down, the five of them were sitting screaming and lamenting quite piteously, each out- doing the other. ’What misfortune has happened then?’ asked he. ’Ah, dear Hans,’ said Elsie, ’if we marry each other and have a child, and he is big, and we perhaps send him here to draw something to drink, then the pick-axe which has been left up there might dash his brains out if it were to fall down, so have we not reason to weep?’ ’Come,’ said Hans, ’more understanding than that is not needed for my household, as you are such a clever Elsie, I will have you,’ and seized her hand, took her upstairs with him, and married her.

    After Hans had had her some time, he said: ’Wife, I am going out to work and earn some money for us; go into the field and cut the corn that we may have some bread.’ ’Yes, dear Hans, I will do that.’ After Hans had gone away, she cooked herself some good broth and took it into the field with her. When she came to the field she said to herself: ’What shall I do; shall I cut first, or shall I eat first? Oh, I will eat first.’ Then she drank her cup of broth and when she was fully satisfied, she once more said: ’What shall I do? Shall I cut first, or shall I sleep first? I will sleep first.’ Then she lay down among the corn and fell asleep. Hans had been at home for a long time, but Elsie did not come; then said he: ’What a clever Elsie I have; she is so industrious that she does not even come home to eat.’ But when evening came and she still stayed away, Hans went out to see what she had cut, but nothing was cut, and she was lying among the corn asleep. Then Hans hastened home and brought a fowler’s net with little bells and hung it round about her, and she still went on sleeping. Then he ran home, shut the house-door, and sat down in his chair and worked. At length, when it was quite dark, Clever Elsie awoke and when she got up there was a jingling all round about her, and the bells rang at each step which she took. Then she was alarmed, and became uncertain whether she really was Clever Elsie or not, and said: ’Is it I, or is it not I?’ But she knew not what answer to make to this, and stood for a time in doubt; at length she thought: ’I will go home and ask if it be I, or if it be not I, they will be sure to know.’ She ran to the door of her own house, but it was shut; then she knocked at the window and cried: ’Hans, is Elsie within?’ ’Yes,’ answered Hans, ’she is within.’ Hereupon she was terrified, and said: ’Ah, heavens! Then it is not I,’ and went to another door; but when the people heard the jingling of the bells they would not open it, and she could get in nowhere. Then she ran out of the village, and no one has seen her since.

  15. John Doe says:

    German judge says porn is not copyrightable: http://derstandard.at/1371171159107/Deutsches-Gericht-Pornos-nicht-urheberrechtlich-schuetzbar

    (If you don’t speak German, try in Google Translate)

    I suspect this is related to a copyright trolling operation, but unfortunately there doesn’t seem to be a case number or anything.

  16. […] Judge Baylson issues Report on Bellwether Trial […]

  17. […] wouldn’t call the Bellwether trial “miscarriage of justice,” because Judge Baylson’s hands were tied by the law (and […]

  18. […] more or less maintain the smokescreen of legitimacy. He even succeeded in duping Judge Baylson into declaring that Lipscomb is not a copyright troll, which would be laughable if not for thousands of lives […]

  19. […] So, yesterday we heard from the judges: a hearing on the pending motions was set for July 30, 2014 (Malibu Media v. John Doe Subscribers: MDD 14-cv-0223, 14-cv-0257 and 14-cv-0263). Although it is formally just a motion hearing, I expect it to be much more significant than some trials. Yes, I mean the Bellwether farce. […]

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