Guardaley | Voltage

Copyright troll’s “expert” Daniel Macek declares that he “observed” infringements that didn’t take place yet

The bittorent copyright trolling scam is raising more and more brows by the day. Not only the abusive scheme itself gets more brazen, but also the lengths German-owned shakedown artists go to preserve their gravy train become more ridiculous. Colleagues of a Seattle copyright troll David A Lowe must be laughing at him behind his back as the troll continues cowardly dropping defendants each time he receives a credible threat of exposing the nationwide fraudulent scheme. These dismissals are not surprising, even rational: hundreds of other scared people continue paying unnecessarily, and those few dismissals are just a tiny drop in Guardaley’s overall pool of cases. Litigating against competent defense, on the other hand, could be disastrous.

I already reported that since the fall of 2016 this particular troll dismissed eleven victims because of the defense attorney Christopher Lynch’s letters to Lowe. This brief post is about Lynch’s twelfth letter, and the twelfth hasty dismissal (Criminal Productions, Inc. v. Bethke, WAWD 16-cv-01647).

While all the letters have a lot in common, each explores a unique topic. This time Lynch’s research revealed that the game of shuffling German “experts” went a bit too far and resulted in one of the declarants claiming that he observed alleged infringements… up to two weeks before they took place:

We looked carefully and discovered another anomaly our Courts should question. Mr. Macek’s declaration from that D CO case 1:16-cv-01761 (ECF # 4-1) is dated June 14th (maybe June 16th) – but BEFORE the date of the accompanying “observations” that ran from June 25 through June 28.

How can a witness sign a declaration that he observed something BEFORE it happened? Criminal Productions submitted four such Declarations of Mr. Macek that were executed BEOFRE the dates of the accompanying typed up list of observations that Mr. Macek swore that he made. Unless Daniel Macek is also Marty McFly, it is impossible to execute a declaration claiming to observe something that has yet to happen.

In addition,

it appears these metaphysical Macek declarations are not just temporally improper, they are also photocopies, including the signatures not separately executed. Here are copies of the signatures to examine:

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Prenda

Prenda’s John Steele has been disbarred

John Steele

It is rather a minor news because it was totally expected. Also, this development is pale in comparison to the criminal action against John Steele and Paul Hansmeier — the masterminds behind one of the most egregious abuses of the copyright law. Nonetheless, since this blog published more than 150 stories about Prenda (likely helping to accelerate the inevitable), to me it is a milestone worth marking.

According to Cook County Record,

On May 19, the Illinois Supreme Court announced its action against Steele, as well as six others who were disbarred by the court in attorney disciplinary orders handed down May 18. The court also suspended nine other attorneys and censured or reprimanded six more.

[…]

In announcing Steele’s disbarment, the Illinois Attorney Registration and Disciplinary Commission – the state body which oversees attorney discipline matters in Illinois – said Steele, who had been licensed in Illinois since 2007, was disbarred “on consent.”

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Guardaley | X-Art

Judge Alsup threatens to bar further Malibu Media cases in his district until the accuracy of the geolocation technology is fully vetted

 

US Federal Judge
William H. Alsup

When a copyright troll Malibu Media (X-Art) re-infested California in September 2015, Northern District’s Chief Judge Phyllis Hamilton ordered all Malibu’s cases, including any future ones, to be assigned to Honorable William Alsup – one of the most thorough and technically literate federal judges. I was pleased with this development, and my gut feeling didn’t betray me: for the last 18 months, Judge Alsup, while reluctantly permitting ex-parte discovery, has been giving X-Art and its lawyers a hard time, apparently clearly understanding Malibu’s get-quick-rich-at-expense-of-ruined-families scheme.

I covered this judge’s disdain for the shakedown scheme on more than one occasion on Twitter and in this blog:

In the follow-up to the last blog post listed above I analyzed the case dismissal pattern in the neighboring district (CASD), arguing that Malibu’s geolocation tech accuracy claims are statistically impossible. I opined that Malibu’s lawyers are playing games when judges ask uncomfortable questions.

It looks like my concerns were finally shared by Judge Alsup: today the judge issued a tersely worded order to show cause in Malibu Media v John Doe (CAND 16-cv-05975), maybe the harshest of all his copyright trolling-related orders to date:

Malibu Media now moves to continue the case management conference in this action, which is currently set for May 18 at 11:00 a.m. because it only received defendant’s identifying information on April 23, and has not yet had time to serve the summons and complaint, the deadline for which is May 28.

That request is DENIED. Instead, Malibu Media is hereby ordered to SHOW CAUSE at that hearing, why the Court should not bar further Malibu Media cases in this district until the accuracy of the geolocation technology is fully vetted. Malibu Media shall file a written statement, with all factual assertions supported by declarations sworn under the penalty of perjury by MAY 16 AT NOON.

To be clear, this order applies even if Malibu Media voluntarily dismisses this action.

The reason behind the judge’s irritation is a recent dismissal of more than half of the cases from the “fourth wave in a monsoon of two-hundred thirty-five actions that Malibu Media has filed in this district in the past eighteen months”: 37 out of 57 cases were dropped without any explanation, which likely killed any remaining benefit of doubt:

Malibu Media’s voluntary dismissal without prejudice of groups of its cases is not a new pattern. A sizable portion of the cases from previous waves were terminated in the same way. The practice has just become more frequent, and it follows skepticism by the undersigned judge and others around the country about the accuracy of the Maxmind database. See Malibu Media, LLC v. Doe, No. 16-01006, 2016 WL 3383830, at *3 (N.D. Cal. June 20, 2016) (collecting cases); cf. Kashmir Hill, How an Internet Mapping Glitch Turned a Random Kansas Farm into a Digital Hell, Fusion (Apr. 10, 2016, 10:00 A.M.), (reporting a glitch in Maxmind’s database that mapped more than six hundred million IP addresses to a single farm in Kansas).

Will the troll continue irritating this judge or will Malibu cut and run by dismissing all the CAND cases – like Prenda did in the end of 2012, when Judge Wright called out the fraud? I bet on the latter, but only time will give us a final answer.
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Guardaley | Voltage

Copyright troll dismissed mass bittorent case after defendant moved to learn who his co-defendants are

Half a year ago I wrote:

Copyright troll lawyers are a highly motivated and somewhat resourceful bunch, yet their ranks are small compared to the sheer number of citizens those attorneys have been shaking down for years. While most defendants pay the ransom, many chose to fight back, and with every new pushback fresh defense attorneys bring new ideas, and some of those ideas are statistically destined to success.

A new, successful defense strategy was demonstrated yesterday by a Chicago attorney Susan Malter, who represented one of the Does in LHF Productions v John Does 1-26 (ILND 16-cv-09324). After the defense filed a motion to dismiss and 26(b) motion for leave to take discovery prior to rule 26(f) conference, the plaintiff voluntarily dismissed the entire case¹. On the same day.

Michael Hierl

This Guardaley-driven lawsuit targeted alleged downloaders of one of the worst movies of 2016 – London Has Fallen. It was filed on 9/28/2016 by one of the most prolific copyright trolls – Michael Hierl of Hughes Socol Piers Resnick & Dym, Ltd. This medium-sized law firm is responsible for hundreds and hundreds of frivolous bittorent lawsuits, many of which relied on forged declarations of a fictitious “expert” Darren Griffin. According to Ms. Malter, these lawsuits disproportionally targeted low income victims.

One of such victims contacted Chicago Volunteer Legal Services – an organization, whose stated mission is to “coordinate, support and promote the voluntary pro bono legal representation of the Chicago area’s poor and working poor,” and this non-profit subsequently contacted Ms. Malter, who first filed a motion to proceed anonymously (granted on 4/24), and then the motion to dismiss/discovery:
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Guardaley

Copyright troll David Lowe dropped eleventh defendant after defense attorney threatened to expose fraud

The following supposed to be an update to my previous coverage of a curious development in the Western District of Washington: a bittorent copyright troll David A. Lowe (Guardaley) became a laughing stock over the last couple of months by predictably dismissing his victims – one after another – as soon as the next said victim retained attorney Christopher Lynch, and Mr. Lynch sent a demand letter threatening to expose the troll’s fraudulent conduct.

When I reported this pattern for the first time, there were only four dismissed defendants. Today the count is eleven.

I diligently posted an update every time the troll dismissed a new defendant, which made the original story too lengthy. So, I decided to spawn a new post. Also, updates usually enjoy much less exposure than new blog posts, and undoubtedly this development deserves more attention (particularly from the FBI and DOJ).

The eleventh dismissal
David A. LoweDavid A. Lowe

Today the defendant in LHF Productions v Does 1-8 (WAWD 16-cv-01648) was dismissed because of attorney Lynch’s eleventh letter sent on 3/28/2017.

In this Letter, Mr. Lynch questioned whether Guardaley-driven trolls (including Mr. Lowe) routinely fail to disclose real parties of interest – such as an infamous Guardaley’s shell Anti-Piracy Management Company. In particular, Mr. Lynch points to a recent filing in Louisiana, in which a local troll attorney Pierre V Miller II (Patrick Miller LLC) filed a time sheet with highly inflated fees for his purported work, which was billed not to the nominal plaintiff (Dallas Buyers Club LLC, which BTW was alleged to be a bogus entity that has nothing to do with actual filmmakers/rights holders), but to the German puppeteers (emphasis is mine):

This past week we became aware of ECF No. 34-1 in ED LA in Case No. 3:16-cv-112 where the plaintiff’s attorney moving for default judgment did not provide a summary of his law firm’s time sheets like your law firm submits. On March 21, 2017, that plaintiff’s firm submitted its actual bills. These bills are to “Anti-Piracy Management Company” c/o Carl Crowell.

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Copyright trolls

New Matthew Sag’s paper is an essential milestone in the fight against copyright extortion

Yesterday Matthew Sag, a Law Professor at Loyola University Chicago School of Law and the Associate Director of the Institute for Consumer Antitrust Studies published his second copyright troll-related paper “Defense Against the Dark Arts of Copyright Trolling.” This paper was co-authored with Jake Haskell – a recent graduate of Loyola University Law School. The first prof. Sag’s work on this topic, “Copyright Trolling, An Empirical Study,” published by the Iowa Law Review in 2015, was mostly a statistical analysis of mass bittorent litigation in the US. Nonetheless, that paper was widely quoted by the defense bar and even judges.

The new work goes far beyond the indifferent observer’s position: strongly (by academic standards) condemning the copyright trolling phenomenon, prof. Sag analyses the cogs of the bittorent litigation machinery, enumerates the majority the Achilles’s Heels of the trolling business model, and gives some solid practical recommendations to defense attorneys. While seasoned Doe defenders won’t likely find a lot of new information, there is a myriad of otherwise competent IP lawyers who never wandered into the bittorent litigation corner of the legal landscape, and one of the paper’s main goals is to empower such attorneys with knowledge, so that they would help their clients efficiently and cheaply (thus, driving down the profitability of the legal shakedown):

[…] defendants may seek legal advice from attorneys who do not know enough about copyright litigation to realize how weak the plaintiff’s case is and who rightly conclude on a cost-benefit analysis that it would be cheaper to settle than to properly investigate the strength of the claim.

[…] our objective in this Article is to make it easier for lawyers without substantial experience in copyright law or a deep understanding of the Internet to be able to defend their clients against copyright trolls. In our view, lawyers should not charge large fees to settle weak allegations but instead should either charge low fees for quick settlements for actual infringers or reasonable fees to defend their non-infringing clients. […]

The other major goal is to provide a clear bigger picture to the US federal judges and magistrates. Because copyright trolling business model is largely based on sleazy attorneys taking advantage of unrepresented laypeople, many judges never had a chance to hear competent counterarguments and hence have been making their decisions based solely on trolls’ misinterpretations.

However, lawyers are not the only ones with a social and ethical responsibility to take the problem of copyright trolling seriously. District court judges have an inherent authority to control their own proceedings and significant discretion to supervise discovery and in areas such as attorney’s fees and statutory damages. We hope that judges will take steps to discourage the abusive use of civil litigation and find ways to manage John Doe copyright litigation in the interests of justice and consistent with the goals of copyright.

When we, anonymous bloggers, ring alarms – no matter how well evidenced – the impact on judiciary is limited. It doesn’t require an explanation why judges will listen to a law professor much more attentively. Therefore, I expect this paper to have a greater impact on the current legal situation than my six-year layperson’s advocacy.

Related

  • Matthew Sag: Prenda is gone, but copyright trolling continues

    It is satisfying to see justice finally catch up with Steele and Hansmeier, but anyone who thinks that this is the end of copyright trolling has not been paying attention. In fact, other than a brief hiccup in early 2016, the filing of lawsuits designed to extract settlements from alleged online pirates has only increased since Prenda went out of business.

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Guardaley

Seattle judge splits minimum statutory award among defaulted defendants, drastically reduces fees awarded to copyright troll

Chief Judge Ricardo S. Martinez

WAWD Chief Judge Ricardo Martinez knows what’s going on in his district with a flurry of copyright infringement Bittorent lawsuits steered by foreign criminals and unscrupulous US attorneys. Well, maybe the judge does not know the exact details of the racket, but he obviously smells rampant abuse.

Today Judge Martinez ruled on the motions for default judgment against 28 defendants in five cases, awarding minimum statutory damages ($750) per case, $550 in attorney’s fees per defendant, and various per-defendant costs (in the $90-150 range):

The copyright troll attorney (David “He said Griffin!” Lowe) asked for $2,500 in damages along with $2,605.50 in attorney’s fees – per defendant. He didn’t get what he wanted by a large margin.

Statutory damages

Judge Martinez wasn’t impressed by an overboard demand:

LHF argues that a statutory damage award of $2,500 per defendant should be awarded. The Court is not persuaded. Statutory damages are not intended to serve as a windfall to plaintiffs, and enhanced statutory damages are not warranted where plaintiffs do not even try to demonstrate actual damages. Additionally, the Court notes that LHF has not shown that any of the Defendants is responsible for the “seed” file that provided LHF’s copyrighted work on the BitTorrent network, and LHF has not presented evidence that Defendants profited from the infringement.

So, the judge awarded the very minimum ($750), which becomes increasingly common these days. However, there is something new that I never saw in the past (emphasis is mine):

[…] Because the named Defendants in this action were alleged to have conspired with one another to infringe the same digital copy of LHF’s motion picture, the Court will award the sum of $750 for Defendants’ infringement of the same digital copy of London Has Fallen. Each of the Defendants is jointly and severally liable for this amount.

You read it correctly: the judge ruled that each case’s minimum statutory award should be split among the defaulting defendants, which effectively yields $94-$250 per person.

Indeed, if the troll lumps together multiple Does to pay a single filing fee, and he justifies this conduct by claiming that the defendants were a part of a single transaction, he should accept the consequences: the award will also be “a single transaction.”
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