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Judge Baylson wants to test copyright trolls’ evidence in a bellwether trial

This is a big event. Copyright trolling disease that affected dozens of federal district courts in the United States, clogged judges’ dockets and brought misery to hundreds of thousands families and unjustly enriched a handful of swindlers, may be healed once and forever as soon as in April. Pennsylvania may become a state that will send the healing waves across the country.We saw the first indication that PA judges were fed up with trolls wasting court resources when Chief Judge Curtis Joyner referred all the 31 Malibu Media cases to Judge Michael M. Baylson (in addition, 17 Patrick Collins cases were referred to the same judge).

On October 3, Judge Baylson decided to take an unprecedented step and ordered a bellwether trial, picking five Does who had previously filed motions. Bellwether trial is a process designed to fast track a test case that is representative of many similar ones. Here is how defines this concept:

By definition Bellwether is an indicator of future trends. Courts utilize a bellwether approach when large numbers of plaintiffs are proceeding on the same theory or claim and there is no other feasible way for the courts to handle the enormous caseload. This approach has been used in many cases including asbestos litigation. A group of plaintiffs are chosen to represent all the plaintiffs. The issues for trial should concern common claims or theories among all the plaintiffs. These representative cases go for trial and the results act as the bellwether for the other plaintiffs’ trials. The verdict from this grouping is extrapolated to the remaining plaintiffs’ cases. The actual results may be utilized for valuing groups of claims in settlements. The plaintiffs can also choose to continue with their own individual trial.

There is only one plaintiff in this case — Malibu Media, represented by a veteran PA troll Christopher Fiore, but this is obviously enough to conduct a valid experiment, because all the mass bittorent cases are essentially the same. Four defendants are represented by various attorneys and one is pro se at this time.

Baylson recognizes that it is unfair to pick defendants who fought rather than waited their ordeals out, but he promised that if defendants prevail, at least their financial burden would be remedied:

The Court also acknowledges that the five John Does who will be defendants in the Bellwether trial are, in a sense, being penalized for filing motions challenging the third-party subpoenas presently at issue, given that all proceedings against the remaining John Does will be stayed until further order of the Court. In the court’s view, however, under the present circumstances, this is the fairest and most efficient means of resolving these actions. These defendants have objected to Plaintiff’s strategy and two of them have filed declarations asserting that Plaintiff’s claims are false. A Bellwether trial is the best means of testing the viability of Plaintiff’s claims, as well as Plaintiff’s sincerity in pursuing them.

In the event Plaintiff’s allegations cannot be sustained, the five John Does will have adequate remedies to recover most, if not all, of these litigation expenses and/or damages from Plaintiff, such as a Rule 54 motion for costs, a lawsuit for abuse of civil process, a Rule 11 motion for sanctions, and a motion to recover excessive costs under 28 USC § 1927. More fundamentally, as mentioned above, because this is a copyright case, a successful defense will likely result in an award of attorney’s fees to any John Doe who prevails under 17 U.S.C. § 505.

As courts, attorneys and the Internet community chase copyright trolls, exposing multiple weaknesses in their meritless quest for easy money, trolls adapt: they drop tactics that were defeated and invent new ones. So far, mostly successful legal fight against trolls was centered primarily on procedural issues — joinder and jurisdiction. There are some instances where the merits are being tested, but these are individual cases that won’t have proper effect until a critical mass of decisions is made, and this process is painfully slow. The beauty of a bellwether trial design is both in its pace and in its binding power: finally, trolls’ evidence (or lack thereof) will be tested. You won’t be surprised to learn that I really doubt that trolls will present enough evidence to declare victory; that’s why I’m excited and full of expectations.

I won’t go into further details: read the order, where you will find and the history of this case, its aggressive schedule, and the explanation of the rationale behind the judge’s decision.

Note that judge discusses DieTrollDie’s declaration (“torpedo,” as DTD calls it). Obviously, it was a success, as the judge considered this declarations’ arguments seriously, while he could to simply brush it off on the grounds that it had been filed anonymously by a non-party. All the PA Does are immensely grateful to DTD, and so am I. If you think that a single person can’t make a difference, try to sleep in a room with a single mosquito in it and all the doors and windows closed. Remember about it and be proactive.

For intellectually curious: A history of the word Bellwether.


TorrentFreak; Finally: BitTorrent Piracy Evidence to be Tested in Court by Ernesto.
Digital Trends: Copyright troll tactic faces fateful legal battle in Pennsylvania by Andrew Couts
PC World: Pivotal piracy case could put copyright trolls out of business by Sarah Jacobsson Purewal.
ArsTechnica: Judge tells copyright troll to put up or shut up on porn lawsuits by Timothy Lee.
TechDirt: Judge Calls Copyright Troll’s Bluff by Mike Masnick.
WebWereld: Pornopiraten vechten terug tegen copyrighthouders by Henk-Jan Buist.
Tietoviikko: Tuomari kyllästyi tekijänoikeustrolliin: “nostakaa syytteet tai pitäkää turpanne kiinni” by Olli Vänskä.
Techgear: “Η διεύθυνση IP δεν είναι επαρκές αποδεικτικό στοιχείο.” Για πρώτη φορά το BitTorrent εξετάζεται σε δικαστήριο! by Elpidis Chris.
BBC News: US judge orders piracy trial to test IP evidence.

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83 responses to ‘Judge Baylson wants to test copyright trolls’ evidence in a bellwether trial

  1. It’s ON!

    You know Butterball never intended for any case to go to trial, and Fiore sure as hell was never intended as the instrument for that purpose if the need arose.

    It’ll be fun watching these guys figure out how to actually take a case to trial. I know there are a couple of the Does from the bellweather trial on the Pennsylvania forum sweating how they are going to afford a lawyer to go through with this, but they should take comfort in the fact that the Trolls just soiled themselves trying to figure that out for themselves.

    You think Brigham Field has signed off on footing the legal bills for a trial? You think Lipscomb wants to spend all the hours on a trial? Boylson is FORCING these scumbags to go to trial so this is Armageddon for them, the worst case scenario for Trolls. This is going to cost them a lot more than printer paper, toner, envelopes and stamps.

    PA Does, you need to get referrals from SJD or the EFF and find lawyers that will take this on contingency with the expectation of an attorneys fee and perhaps additional civil fraud case award. Expect the Trolls to start begging you to settle, they know this is going to be terrible for them, but you guys stand to gain a lot for yourselves and everyone who has been affected by Trolls.

    • I suggest referrals from SJD, DTD, Mr. Cashman, etc. People proven to be up for the fight.
      The EFF list is filled with lawyers who only settle these cases, do not want to litigate them beyond getting their fee for a “better” settlement.

    • I’m going to be a pessimist (hey, even we have a right to our opinion) and say this will never go to trial. It will require a Fantalis type defendant that sues for counter-claims and sees it through to the end. I predict MM will settle just like Randazza did in the one Liberty Media case and have each side pay their own fees.

      What really needs to happen is a high profile or financially able Doe to be accused. Someone who can risk losing $30+K on something like this. What would be awesome is if one of the Does in this case (or their attorney) has a Fantalis type mentality since the plaintiff can’t dink around like Kotzer is doing with Fantalis.

      • But the upside here is really good, if the troll doesn’t run they have to unveil their system and its flaws. If they run the Judge made it clear the Does can countersue for their costs in this case. All of the dirty laundry has to get dragged out into court.

        The Judge has told them to put up or shut up, and after all of their claims to run means they do not have faith in their evidence. This is going to hurt Trolls everywhere no matter what the trolls do.

        • That’s assuming all five Does don’t settle just to be rid of this. Then the suit goes nowhere and the process begins again. I’m hoping that’s what doesn’t happen. However, as I said I’m a pessimist.

        • 4 of them have lawyers so far, I think it would be a huge feather in the cap and help make a career to actually shut this crap down.

  2. This is beyond great news for Does because Judge Baylson has also sped up the usual trial process (what some call a “rocket docket”) which denies Fiore room to play games with discovery. SJD and myself know at Least one Doe defender who must be excited about this development. Staying tuned!

    • Ohai Raul, I’m a bit behind on these cases. Which generation of Troll claims are these?
      I look forward to discovery about the connection between the troll as the IP gathering firm, as well as detailed information about their techniques and how they can at best ID a connection not a computer, other device, or the person controlling it.

      • Hard to say as the trolls used to file a batch of lawsuits, work them, dismiss and then repeat. This year the filings in some Districts like EDPA has benn incessant. The filings that began in the end of 2011 were the third wave of lawsuits but those there has not been a noticeable break in the fillings.

        • I was curious as to what generation of claims.
          – Doe is the evil doer.
          – Doe is the only one who can tell us who did it.
          – Doe owes us money for being negligent.
          or the combination there of.

          Knowing what claims were made in each of the filings makes it easier to break down the problems.

  3. Thanks SJD. So much to read and digest. Loved this little bit:

    “Although the Court cannot prevent the parties from settling these claims, the Court
    assumes that Plaintiff will welcome this opportunity to prove its claims promptly pursuant to the
    Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the copyright laws, which
    may, if Plaintiff is successful, lead to an injunction enjoining the practices about which Plaintiff
    complains. If Plaintiff decides instead to continue to “pick off” individual John Does, for
    confidential settlements, the Court may draw an inference that Plaintiff is not serious about
    proving its claims, or is unable to do so.”

    The last line is so telling.

    DTD 🙂

    • You beat me to it! I also liked:

      “Although the Court declines to grant the John Does’motions to sever at this time, the Court seconds the perceptive observations made by JudgeColleen McMahon in a similar BitTorrent case: “I am second to none in my dismay at the theft of copyrighted material that occurs every day on the internet. However, there is a right way and a wrong way to litigate, and so far this way strikes me as the wrong way.” Digital Sins, Inc. v.John Does 1-245, No. 11-cv-8170(CM), 2012 WL 1744838, at *8 (S.D.N.Y. May 15, 2012)’

  4. This is great news, but the 5 Does will need help. I have no idea how this could happen or who could lead it. I would be willing to offer some financial assistance if someone could put together some sort of fund. While I do not live in PA, I agree that this will impact the cases across the nation.

    • I second that, I would be glad to contribute if I know that the does would actively litigate and all monies go the there cause.

  5. This is a wonderful development in this corner of reality. I will certainly follow this case as I do my own case. I look forward to seeing what “evidence” is presented and how the court dissects and interprets it. This should be fun. 🙂

  6. The big question is how much discovery Judge Bayelson is going to allow. Will he compel the defendants to clone their hard drives and provide copies to the plaintiff for a forensic inspection?

    • And will the trolls actually pony up the cash to have a reputable firm examine the drives?

      I will be more entertained to see them trying to avoid having their “experts” tracking software and methods put to the test.
      I wonder if they can demand and introduce the contract and show the direct financial incentive those experts have.
      It would also help answer the question if the tracking firm is the source of the files online.

      I expect the trolls will have a laundry list of demands figured out, up until they figure out their “evidence” and methods can be demanded too.

      On the upside for the Does and their lawyers there is a really large pool of expertise and research available to them.

    • I’d be more worried about these trolls having an image of my drive for other reasons. For instance I keep tax returns on my machine. Would I want these jokers to be able to see my SSN and bank account info that is in those docs? Also, I keep an encrypted file of passwords on the machine since I have too many to remember. Would the judge force decryption if the trolls say “we need to see what is in that file to make sure it isn’t any passwords to malicious sites!” You can’t delete them because that would be spoilation of evidence. If I was a Doe I don’t know how I’d handle these things. There is a reason for them to look at my machine but I have a dozen other reasons why I don’t want them looking at my machine (and no it has nothing to do with illegally downloaded files).

      • The scope of the digging on the hard drive would be limited by the court.
        A professional forensic team is bonded and background checked, they would most likely copy the drive and then run a basic check looking for the hash of the file.
        They would also be checking for deleted files that might be the “film” in question.
        It will cost several thousand dollars and if the Does are actually innocents they will turn up dry.
        The image would not be handed to the Troll to do with as they pleased.

        The claim is Doe downloaded the file.
        So the scope would be looking for that file or the torrent file.
        If the Doe has claimed to never have used BT, looking for registry keys, software, torrents would be fair game. But using BT, torrents, et al are not a crime.

        However to have a court allow discovery of a Doe’s computer, they would need much more than the popular – we saw an IP address they have to be guilty.

        They can possibly establish that the Doe was assigned an IP address when the alleged infringement happened. IP gathering tech is flawed as has been demonstrated more than once by a University in a study. If the firm is one of the German outfits, one could enter into evidence one of the larger German IP gathering firms having evidence thrown out of court for having known issues that were never disclosed to the court and the subsequent lawsuit by the partner lawfirm who were also kept in the dark about the error rate.

        Trolls also sometimes request MAC addresses, not understanding that MAC addresses can be faked, changed, altered. The MAC address they have might just be for the modem, which still does not prove who or what was connected at the time of the alleged infringement. A router with wi-fi added into the mix adds more possible ways it could have been another person not the Doe.

        If it was the Does connection, the Doe might have no knowledge of who was using the network at the same time. They are not responsible for another actions that they might not even be aware of.

        There are many problems the Trolls will have to overcome before they get to being able to demand an inspection of the machine. They might be willing to pay for the testing but if all 5 pass the test… they are pretty much done for. Anything other than a 5 for 5 sweep of all of them having the file will prove what we’ve all said all along.. the tech is flawed and can’t identify an infringer.

    • Another big question in this trial will be showing how the IP address(s) they have are reliably authenticated to not just belong to that person but also were actually part of the stream at the time. This is something that has never actually been tested evidentially in court though it did come close in the iiNet trial in Australia though Dtecnet claimed ‘corporate secrets’ *eyeroll* and the process was discussed in camera.

      If the defendants are required to submit their HDD’s for analysis to an unbiased third party, then shouldn’t (not ofey with the US evidence regimes in these sorts of trials). before that is even contemplated, the original evidence on how the IP’s came to be found be fully tested first.

      I’d of loved to be a fly on the wall when the plaintiffs received this order 😉

      • And there are questions about license’s for “investigators” and who certifies them as experts.
        Corporate secrets will not fly, the tech will have to be put out there to be evaluated by impartial experts. The upside is this could damage 6 strikes as its being run by Dtecnet after the acquisition by that other firm.
        So much fun to be had as stuff comes out…
        ohai G… 🙂

        • Of course the IPP evidence can be impeached because they have a financial interest in the litigation but as the instigator of the litigation (true party in interest) I wonder if its testimony/evidence can be barred by motion prior to trial. This is beyond delicious as I contemplate how CEG can weasel out of this order without destroying their business model; don’t see how.

  7. The judge in this case seems to be proceeding appropriately here. Neutral and open to views from both parties but a student of logic who can sift through all the emotional baggage of the john does and the nonsensical b.s. of the plaintiff and counsel. I love this line. “[T]he Court seconds the perceptive observations made by Judge Colleen McMahon in a similar BitTorrent case: “I am second to none in my dismay at the theft of copyrighted material that occurs every day on the internet. However, there is a right way and a wrong way to litigate, and so far this way strikes me as the wrong way.” ” In other words–even though the plaintiff has brought a suit that seems to have merit, Judge Baylson supports McMahon’s view that the plaintiff has been proceeding in “the wrong way.”

  8. I have done this in the past and have a couple of Charities set up and cannot take another one. But if anyone is interested in helping with the defense of these Does here is the article I used as a start point:

    Once a bank account has been set-up,

    You can sign up for:

    And keep all donations public.

    I am pretty sure a couple of Doe defenders who visit this site regularly can advise on set up of 501C or an alternative.

    This is our time to fight back! And lets hit them hard!

  9. It’s amusing that the trolls apparently addressed the Judge’s observation

    “Plaintiff has initiated hundreds of lawsuits in various district courts throughout the country, but has not yet proceeded to trial in any case”

    with the response

    “Plaintiff’s counsel did indicate, however, that pretrial discovery was actively being pursued in one case in Colorado.”

    They just forgot to mention it was Fantalis who pursued discovery and the Plaintiff is trying every possible way to prevent it.

  10. Not that I want to spread pessimistic views, but the information in one or the comments to yesterday’s Ars’ article is interesting:

    Baylson already kicked EFF & FSC out of court without even allowing them to present any evidence in the case Free Speech Coalition v. Holder. On appeal, the 3rd Circuit overturned Baylson, ruling that he had to at least give them a chance to present their evidence.

    Baylson is in no way a friend of the EFF. Baylson is a career prosecutor and a Republican appointee. Ars leaves the impression that Baylson will give EFF, etc. a fair trial, but past history clearly shows that a fair trial is very, very unlikely to happen in Baylson’s courtroom. The defendants had better set aside a huge amount of money to pay for appeals, because they are certainly going to need every penny.

    • Just regarding Baylson’s actions in these cases, I don’t get the impression he is friendly with trolls. If he were, he would leave them to their business. The mere fact that he’s taking an. Interest in this and forcing trial means he wants these cases tried on the merits through the process of justice. That’s what we as a community of people being prosecuted by shady, borderline legal litigation tactics have wanted all along.

      So in the end whether or not Baylson is friendly with the EFF, I do not get the feeling he is friendly with trolls, which is the important part. I get the impression the Ars commenter you quoted has not been following these PA cases as you and I and others on this forum have if he feels the trial will not be fair for does. I mean… Did he even read the memorandum? It’s the most fair and even handed court document I’ve read to date.

      • I agree, it seems that even if he dislikes EFF, he distastes trolls orders of magnitude more. Just wanted to cool off some unsubstantiated expectations that EFF will chime in and save the day.

        • Yes I understand. Im not sure exactly what they could do anyway. Ultimately this will be tried on the merits. They could submit an amicus brief, but it seems through the various hearings including the last one and the one we have an audio recording for, Baylson has educated himself on the issues at hand. Honestly the most helpful thing the EFF could do at this point IMO is to set up a defense fund and raise awareness.

        • AC, I agree. If this goes to trial it will cost a lot. You can bet the Plaintiff will have the support of at least a number of other adult film companies because this could destroy their new business model. The RIAA and MPAA may even lend support as the outcome could affect any of their lawsuits in the future (if they decide to resume going after individuals).

          I looked at setting up an account based on someone’s link here, but the info didn’t look like it would apply for a legal defense fund. It was more geared towards charities. I’m sorry to say it was too confusing for me. I’d love to know how they set up a fund for George Zimmerman (FL shooting) or GeoHot (Sony sued for circumventing PS3 security). These guys may need help to see this thing through.

  11. in case no one saw the tweet, not surprisingly malibu wants more time for these trials.

    RT @leonardjfrench: FYI, Malibu motioned for additional time for service in Bellwether trials today

    i am sure the request will hit pacer soon, just funny how they file hundreds of cases and yet they need more time to proceed.

    • In case people missed SJD’s Twitter feed yesterday, Doe Defender Charles Thomas’ blog details the development pointed out by SAAM without adding any comment so allow me 🙂

      On 10-15, at the 11th hour, just before the deadline was set to expire for Troll Fiore to effect service on the Does; they file their Second Motion for an Extension of Time to Effect Service. The motion requests an additional 30 days insofar as Fiore does not have the personal info for Doe 6 because:

      “On October 3, 2012, this Court entered an order granting in part and denying in
      part John Doe 6’s motion [Dkt. 24]. Plaintiff has forwarded this order to the ISP to obtain John
      Doe 6’s identity and is waiting on the response”.

      Is your Bullshit Alarm clanging?

      Charles Thomas files his Brief in Opposition to this motion on 10-16 and makes many excellant points as to why the motion should be denied and I’ll just point to a few of my favorites:

      “This delay is outrageous, and clearly leaves the impression that the Plaintiff is less than
      enthusiastic about actually trying these cases. Indeed, taking these cases to trial is not
      consistent with the so-called “copyright troll” business model — raise the spectre of statutory
      damages to obtain quick settlements”


      “…this maneuver has an secondary effect on the Defendants and the Court
      which very clearly evidences the Plaintiff’s blatant attempt to undermine this Court’s clear
      directive to advance this case a timely trial”


      “In essence, the longer the Plaintiff can avoid laying its cards upon the table, the more
      profitable its shadow business. Already, the Court’s decision to schedule a bellwether trial is
      rippling through the media and presumably the Plaintiff is aware of the intense scrutiny that
      this trial will generate”


      “In Paragraph 4, Plaintiff states that it has forwarded the Court’s October 3 Order to Comcast, but does not indicate when it did so — this is a very telling omission.3 Clearly, if Comcast received the Order on October 3 or 4 and failed to reply timely, Plaintiff would surely note all the relevant dates of communication and be well within its rights to lay the blame squarely on Comcast’s shoulders. That is has not spelled out the dates in question suggests that the cause of the delay was simply that Plaintiff failed to act”

      Based on these points Thomas arrives at the logical conclusion that Fiore/Lipscomb are trying to scuttle the lawsuits before they get to bellwether trial:

      “All of the above amply demonstrates that Plaintiff is doing its level best to remain in the
      shadows, almost goading the Court to dismiss its Complaint on procedural grounds — and
      thus to avoid a precedential ruling that could dismantle what Judge Wright of the Central
      District of California calls “essentially an extortion scheme.”

      Thomas followed his hunch that Fiore never contacted Comcast and the lie is revealed in an Addendum also filed on 10-16:

      “John Doe 6 has now learned through a conversation with Comcast’s Legal
      Response Center that Plaintiff never informed Comcast of the Court’s ruling”


      “This directly contradicts Plaintiff’s assertion in the Second Motion that it has
      forwarded the Order to the ISP to obtain John Doe 6’s identity. This even more strongly
      suggests that Plaintiff is actively attempting to evade judicial oversight of its highly
      profitable settlement machine”

      In closing Thomas notes that such “shenanigans” should be sanctioned as he had suggested in his Brief

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