Archive for the ‘Dunlap Grubb Weaver’ Category

Dan Booth and Jason Sweet are shy about their victory in Shirokov v. Dunlap, Grubb & Weaver et al (MAD 10-cv-12043), and it is understandable since this victory is bittersweet.

It was a long and eventful lawsuit — it was filed in November 2010 (3.5 years ago) and amassed 139 documents in the docket. This litigation was conceived as a class action against the “father” of US copyright trolls, a DC lawfirm Dunlap, Grubb & Weaver PLLC, as well as against US Copyright Group, Thomas Dunlap, Nicholas Kurtz, Guardaley Limited, and a currently bankrupt film studio Achte/Neunte Boll Kino Beteiligungs Gmbh & Co KG — the producer of “Far Cry.”

Unfortunately, class action certification was denied a year ago, so the lawsuit continued as an individual plaintiff case all the way to the judgment: on 3/27/2014 Judge George O’Toole ordered the only remaining defendant DGW to pay $3,179.52, plus attorneys’ fees in the amount of $31,795, as well as $4,935.43 costs ($39,909.95 total).

So, the victory is bitter because the initial goal — class action lawsuit that could change the copyright trolling landscape in the USA — was not achieved. Moneywise, the fees awarded are modest given the amount of work — the plaintiff was asking for $362,767. As explained by the judge, since the case lost its class action status, class action-range fees were not appropriate despite the actual effort.

Yet the result is still sweet: victory is victory. The fee amount is not that low, and I believe the outcome will serve as deterrence to copyright law abusers.

Kudos to Jason and Dan for pioneering a good fight!

 

To the best of my knowledge, the only other class action lawsuit filed against copyright trolls was Barker v. Patrick Collins Inc. et al (KYWD 12-cv-00372). That lawsuit was dismissed because the plaintiff failed to convince the court that she had personal jurisdiction over the defendants.

I’m sure that since the situation is different now (mostly because of Prenda’s downfall and since Lipscomb’s luck is also about to be exhausted), we will inevitably witness more class action lawsuits in the near future: I know that some lawfirms already think that the time is right and are actively looking for plaintiffs — copyright troll victims.

Media coverage

Kenneth Ford

ArsTechnica has recently published Nate’s Anderson’s article about Kenneth Ford, one of the most “famous” West Virginia copyright trolls: “How a troubled West Virginia lawyer foisted a Teen Anal Nightmare on the nation.” In my (and most readers’) opinion, this kind of high-quality investigative journalism is the hallmark of Ars’ publications.

I personally think that this article is a must-read for anyone who follows current mass filesharing lawsuits that abuse the law and insult common sense, and for those who care about justice in general.

The article brought a crooked character of Ken Ford to the light. His license was suspended six times since 2006, and numerous complaints were filed against him. Though this particular information was new to me, I was not surprised. Quick cash schemes that disregard ethics have always been attracting all kinds of con artists: IO Group’s lawyers are currently being investigated for security fraud, a Texas attorney has been recently sanctioned for deliberately sending subpoenas to ISPs without court’s approval. Even those who are formally “clean,” have been constantly lying to courts: they often request postponements to serve defendants, complaining about ISPs’ non-cooperativeness, but in reality wanting to buy more time in order to extort as much money as possible. In addition they invent non-existing requirements in ISPs’ Terms of Service, conceal important information, and mislead judges… The list can go on and on.

One of the most hypocritical excuses trolls use is that they “just do whatever is good for their clients,” claiming that they merely do their jobs and earn their bread. Bullshit: I know many lawyers and most of them would never resort to unethical schemes like speculative invoicing, no matter how lucrative these schemes are. There is no need to trump on dignity to earn a living.

I’d like to quote one of the best comments to this article in full.

Mogbert wrote:

This is the kind of thing that scares me. The only way to prove your innocence is by proving a negative. For you to claim you didn’t do it, they want to examine every IP enabled device you’ve owned. If you can’t provide one, then it is proof you are guilty. If you had to restore any of your systems, then you are guilty. If any HDD you’ve owned goes bad anytime between when they claim they saw your IP address and when you go to court, you are guilty.

For a one or two computer house, maybe that wouldn’t be a problem. What if you are a tech head. What if you have thirteen computers, only five of which are actively up and being used? You have over twenty-five HDD not in any given computer, ten of which are external, and three you can’t remember where you’ve put them. You know you have about seven flash drives, but you only know where two of them are, the others are lost, under the bed, or somewhere in the yard after a trip through your pet’s digestive system.

So let me get this straight. You tell me that your infallible system saw an IP address that someone else has said was assigned to my device which was made entirely for the purpose of sharing that IP address with multiple devices, and which uses standard security that I hope hasn’t already been cracked. Then you tell me that either I pay you several thousand dollars or pay a lawyer who will try and prove this negative (civil case, doesn’t need to be shadow of a doubt) at a risk of over a hundred thousand dollars, plus legal fees. But IF I win, there MIGHT be a chance that the judge will ask you to pay my legal fees, and if he does I MIGHT eventually get them from you, if you answer your phone, or I may need to get the lawyer to force it from you again. And at the end of this, I’ve only won the right to not be accused of that one infringement. You can always try again with another movie?

How much longer are we going to allow this to happen? Either some major reform goes on to protect people from this scam, or someone will step up and balance the reward side of this equation with some risk. Either they are going to threaten the wrong guy (which will likely end with an assault/murder charge), or some hacker group out there (MAFIAA, I’m looking at you) will find a way to spoof IP addresses of every major politician, mover and shaker, to every porn torrent in order to show that, NO, an IP address does not constitute automatic guilt.

Too often, these people go up to court and present their IP address as if it is the DNA evidence that seals the case. “You can’t PROVE that you aren’t guilty, but we have proof! WE have an IP address that leads directly to you!” Yeah, however there is no checking. You got that IP address from a company that gets paid to provide you IP addresses. How do we know they weren’t just made up? Some IP addresses went to people that had already died. One went to a printer. If the company fed you a bad IP address, would the system kick it out, or just identify another person down the street? Does that IP address indicate a person, a house, or a 100 yard radius around a WEP protected router? Do I need to prove that someone was parked down the street from my house on the day in question, with a beer can antenna, gabbing some pr0n on his lunch break? How exactly can someone prove they are innocent? Is it like TV where the only way to prove I’m innocent is to find the real culprit and trick him into confessing while an extraordinarily patient police officer waits behind a curtain?

When asked that question in court, the best they could come up with was “There isn’t any way to prove the person is really guilty, the evidence doesn’t exist. However, we have found all the evidence that is possible to get, and so it has to be enough even if it doesn’t prove anything.” This logic is flawed, but was allowed to fly in court. Cases where enough evidence to find someone guilty doesn’t exist should be thrown out, not seen as an proof the person is guilty. That is like saying “Your honor, the accused is a cunningly clever criminal. All of the evidence points away from him. JUST like you would expect from someone so cunningly clever. Therefore, it PROVES that he MUST be guilty! If he wasn’t, then WHY would the evidence point away from him!”

OK sorry for wall of text. I just needed to let that out. I’m done.

“There is no need to apologize,” – many repliers to this comment agreed. I have the same opinion: there is no need to apologize for the same kind of emotions that overwhelm everyone who has taken an effort to learn about this cynical abuse of judicial system. Only uninformed folks or inch-thick skinned cynics would remain indifferent. More and more people become informed and hence outraged.

Copyright trolling phenomenon has attracted some big media attention. Good news, one of my goals is publicity – exactly what trolls want to avoid.

Also I was pleasantly surprised that someone fights back in the court, not merely defending as I was doing, but attacking:

BitTorrent user Dmitriy Shirokov filed a lawsuit last year making the case that the firm has made a business out of threatening people. The suit alleged that USCG exploited copyright law — and that its goal was to frighten people into paying up a small settlement of $1,500 to $2,500 rather than face litigation.

The case is currently pending in U.S. District Court in Washington.

Booth Sweet attorney Dan Booth, who filed that suit, said that USCG hasn’t responded to the claims, and has moved to have the case dismissed. It also asked the court to sanction Booth Sweet, a Massachusetts-based law firm, for taking the case.

6/11/11 Followup

TorrentFreak comments on the same CNN article and lists some statistics:

  • The first case was filed January 8 2010 on behalf of Worldwide Film Entertainment and targeted 749 alleged downloaders of The Gray Man. This case was dismissed a few months later.
  • 203 cases have been filed in total, most of them dealing with adult content.
  • 164 cases are still active.
  • 182,078 “Does” were targeted initially, and 133,701 are still at risk (133,242 BitTorrent and 459 ed2k).
  • Anti-piracy lawyer John Steele is most active and has filed more than 60 cases.
  • Dunlap, Grubb and Weaver (The U.S. Copyright Group) has sued most defendants, more than 90,000.
  • The largest case is that of The Hurt Locker, with 24,583 defendants.
  • The largest settlement paid to a copyright holder is $250,000.