Another day, another defendant is fighting back

I would like to bring a new addition to my page “Counter actions against trolls” to your attention. You remember a recently widely covered event, when a pro se defendant Jeff Fantalis fought back in a powerful way, while answering to Malibu Media’s complaint. Likewise, the defendant in Discount Video Center, Inc v. Does 1-29, (Massachusetts District, 12-cv-10805) has also combined his answer to complaint with a set of counterclaims against a few parties: a porn purveyor Discount Video Center, a “forensic” expert Jon Nicolini, and a Mafioso-like troll clan Copyright Enforcement Group.

Although it has been almost three weeks since this document was filed, I somehow overlooked it. DieTrollDie covered this case in detail:

Even Marc Randazza crashed the party with his amicus curiae brief defending the copyrightability of pornography¹. Yet no one has pointed out to the following beautiful Answer and Counterclaims prepared by attorney Samuel Perkins (and his colleagues from his firm Brody, Hardoon, Perkins & Kesten) on behalf of Doe 22:

The best part is beyond this document: it is in the knowledge that this offensive is just a beginning. Samuel Perkins, Jason Sweet, and other “troll slayers” are very serious in their intention to end the copyright trolling plague (at least in Massachusetts), and are looking for brave Does, who are willing to serve as plaintiffs in impending lawsuits against Copyright Enforcement Group, its clients and attorneys. You can secure your place in history and improve your Karma if you come forward, and (do I really need to say this?) you will have our infinite support.


¹ I don’t want to look like a tinfoil hat connoisseur, but… did anyone else notice that there are only two trolling cases where defendants fight back by means of counterclaims, and these are exactly the two cases where Marc Randazza intervened with his briefs? There are more than two cases where the copyrightablity of pornography was questioned, but others were ignored so far… Coincidence?

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18 responses to ‘Another day, another defendant is fighting back

  1. As an old veteran of this fight I can only add that these guys are serious and will prevail. Pissed at trolls? Wanna fight back at the trolls expense? Call these guys, especially if a MA Doe, you might see some $.

  2. I’m not nearly as familiar with the cases out of the cases originating in the mid Atlantic jurisdictions as I am with those in the Midwest for obvious reasons, but I do have a steel trap memory (no John Steele pun was intended…EVER) and recall Nicolini being the subject of…oh, thank you, Google.
    DTD’s page entitled “Grounds For Sanctions – Inaccurate And/Or False Statement from Jon Nicolini, CEG, 4:11-CV-00583, Digital Sin Inc., v. Does 1-208” dated 1/4/2012. Working for Hashmi oh boy.

    Nevertheless, it appears it’s same shit, different day with Mr. Nicolini but this time he’s counter-fucked…err, there’s a counter-claim, apologies for my profanity…I’m Irish. This time Mr. Nicolini’s own statements entered under penalty of perjury are being used against him. My personal favorites are pars 11 and 12.

    “Mr. Nicolini purposely avoids discussion of the number of computers that may have
    access to each defendant subscriber’s account because he would then have to
    acknowledge that he, CEG and Discount Video have no good faith basis for suing
    subscribers, and that they would need to know far more than the subscribers’ names
    and addresses in order to identify the downloaders. For example, Mr. Nicolini would
    have to acknowledge that he has no idea:

    a. Whether dozens or scores or hundreds of computers access the internet
    through each defendant subscriber’s account using a local network, as is the
    case with Starbucks, the United States District Court, law firms and, very
    likely, his own company.”

    There’s b and c, I just started laughing my ass off when I piece together “Mr. Nicolini would have to acknowledge that he has no idea:” and “very likely, his own company” since it basically states that Nicolini doesn’t even know how the internet even works. What entitles these jackoffs to call themselves experts? Nothing apparently.

    Marvin Cable is, in my humble opinion, a fucking tool. “Here I’m just gonna list myself on the EFF subpoena defense page all while I’m working for CEG.” CEG is a racket. It’s time for one of these experts to go down and Nicolini seems WAY more incompetent than Hansmeier, which is BAD. Malicious prosecution, appears as there’s a very good case. Abuse of process, oh yeah. Will this Doe win? With this claim and four lawyers, I would be shocked as hell if he (or she) didn’t win the counter-claim.

  3. I like the filing except for 1 portion…
    The first #9 implies that BitTorrent’s main use is just infringement, and this is misleading.
    BitTorrent is just a tool, like you can use a wrench to fix a car or club someone to death.

    *IX and other free operating systems offer their packages via BT to keep costs down, the Internet Archive just put a huge amount of data online via BT.

    I dislike the black vs white its good its evil arguments, its technology it is neutral.

    • I was offended by this comment as well. BT was the only way to get Ubuntu distributions in the early days. There is certainly nothing illegal about obtaining GNU software!

      Further, if I wanted to share my family vacation videos via BT what is wrong with that?

      Technology is just a tool and it would appear that rather than embrace new technologies they simply cannot adapt their business model to embrace it. The whole argument that the porn industry is losing all this money is hard to swallow when you look at the lavish houses and lifestyle that those at the top maintain. Further, let’s address the issue that the porn industry has long been run by organized crime. It would be lovely to see the FBI to start looking into that as well. When the trolls crawl out from under the bridge they have to realize that they are going to have to reveal more than they would like. Sorry to tell them but we all know the playground bully one day meets his match.

      • The porn studios are losing some money, but it is not a direct line to file sharing. The largest problem is they are stuck in the “Golden Age of Porn” mentality, where the VCR allowed them the largest audience they had ever had. They could charge a premium and it was paid by people who wanted porn and refused to head to the theaters or bookstores where they could watch these things. They refuse to accept that they are no longer selling chunky plastic tapes, and have not adapted to a business model to leverage more sales at a lower price than few sales at a high price.

        They hate tube sites claiming they are only popular from stealing their content! Except that isn’t actually true. Most people have cameras in their phones that are better than many of the cameras used to film porn. Real people are more interesting than scripts. They got thousands of competitors in their market overnight. People putting out good quality porn for free or a low price, and they are making money by listening to fans.

        They do not leverage filesharing as advertising, instead opting to treat fans as thieves and ruining their name and feeding the cycle of their decline. You can see this in many of these filings, movies from years ago suddenly getting copyrights and trying to get paid because someone saw it, rather than try and offer that customer something more and make money.

        The trolls will tell you I am a pirate, and lots of other fun things… the thing they never address is that I am right in my assessment of a failing business model. The troll want more studios freaking out rather than adapting to the changing market, some of them get to keep 80% of the settlement number. The studios won’t listen because I refuse to tell them they are right, instead I want to tell them the truth. Somehow they are missing the point that their name is taking a hit in the market, and every one of the suits moving forward adds more black marks against them and eventually people will avoid them to avoid any possible chance of getting sued.

        The lavish houses and lifestyles are just for studio heads or the “mega” stars who aren’t just rich from a few movies they branched out and embraced technology and their fans.

        The porn industry is repeating what the RIAA did in the 1980s, they seem to think they can succeed where the RIAA finally figured out they were doing more harm than good. They still claim huge losses because CD sales are down, but try to hide they are making more money from digital sales than ever before. That when consumers have easy access and a reasonable price point they will buy what they want, not just throw $20 at them for a disc with 1 maybe 2 hits and 12 filler tracks.

  4. Great article. The answer and counterclaims by Perkins is very professional, direct, and powerful. I love the fact Nicolini going to have to face the music. The Troll’s technical monitoring set-up is key to getting subpoenas granted, as well as generating fear used to extort settlements. Destroying this ability kills the operation. Once Nicolini falls, Hansmeier (Prenda) will be the next target.

    I also liked section #36 – “The defendant is informed, and believes, that the plaintiff has already received a full award of statutory damages under 17 U.S.C. § 504(c)(1) and is not entitled to any further recovery.”

    I assume this is based on a previous Troll case using the same movie hash file (‘swarm’) as this one. If a judgment was already awarded for this swarm, then things could get interesting. 😉 How many other troll cases are out there based of the same swarm, just split up by the Trolls to avoid jurisdiction issues.

    Here is what 17 U.S.C. § 504(c)(1) says

    (c) Statutory Damages. — (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

    DTD 🙂

    • Nicolini, Hansmeier, tomato, toe-maa-toe…it just doesn’t have the same effect. Destroy the assholes’ credibility, they have none, but judges don’t seem to know that. Doesn’t Hansmeier have a little conflict of interest with his act of “I collect a portion of the settlements from the people who I accuse of downloading porn and I’m also the ‘expert witness’ who accuses those people of downloading porn.” He makes the allegation, attorney uses it in court, judge grants early discovery, settlement money flows in like champagne in a rap video, and “expert” collects part of settlement money…what an incentive to make shit up.

  5. This is turning out to be a very interesting and active case. Can anyone RECAP the rest of the documents? I’m especially interested in reading Cable’s motions in opposition to quash and his motion to preserve evidence.

    Also when I read these answers to the complaint, I like to have the complaint open next to it for reference. Does anyone have the original complaint?

  6. TAC…. you have hit it on the spot. I mentioned in a previous post about technology and the advancements. While the porn companies have adapted with the internet, they haven’t fully grasped the concept of it and the sales between the internet and DVD’s. The internet is full of, well, everything. If someone can find a movie, or music on the net and be able to download it for free in a matter of minutes, rather than ordering off a website and wait a week or two, or even spend their gas to drive to the nearest store and spend their money, they are gonna do it. How many people have bought a movie, cd, porn movie, just to end up wasting their money because it sucked. I have! Numerous others have too. And it’s been proven that people will go out and buy the product if they end up liking it. Maybe not everybody, but some do.

    The tube sites, they aren’t stealing. It’s more like exposure. They have streaming videos for people to watch. If you watch a scene, and you are wondering what movie it’s from and you like it, you are gonna want to find that movie. It can definitely lead to a sale if it cannot be found for download.

    The industry has attacked file sharing for the decline of revenue. And the trolls are running with this at 100%. In reality, though, file sharing may have helped decline revenue, it’s not the main culprit. The prices of their products, websites, and quality of the product has helped decline the revenue. But they are trying to lead you to believe otherwise. Not everyone is into watching someone stick their foot into someone else mouth, squirt milk from their ass, or even watch someone get choked. That stuff will turn people away.

    Anyway, this is a good article. Very happy to see that the fight with this one is attacking the ‘forensic’ expert. Also, with Perkins and his firm jumping on the front lines to put a stop to the assault. These trolls want to invade people’s lives and homes, and now they need to prepare for an invasion of their offices that they didn’t see coming. As the war against the trolls wages on and gets bigger, more and more allies are joining the fight and the good guys numbers are growing rapidly and the bad guys numbers are dwindling. Soon enough, they will be surrounded and surrender, or die fighting.

    Down with all Trolls

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