What happened since Fantalis filed his excellent First Amended Answer and Counterclaims? I’ll try to briefly cover the main events. If my emotional comments seem overboard, refer to the court filings, and I hope your skepticism will vanish
- On 8/8 Kotzker filed a motion to dismiss Fantalis’s amended counterclaim. This motion contained many assertions that were not supported by case law. Raul called it “a panicked troll bitch response.”
- On 8/13 Marc Randazza crashed the party with one of his amicus curiae briefs prepared on behalf of the First Amendment Lawyers Association (FALA). This brief’s single topic was the claim that pornography belongs to the company of “useful arts,” and deserves copyright protection. My opinion on this issue was precisely expressed by a blog commenter:
Randazza and the other copyright trolls brought this on themselves by abusing the court system with their predatory litigation practices. While I am definitely not one for censorship or limiting the ability of people to create works, even adult ones, I cannot help but be amused that the court system that the trolls and their adult film clients abused so egregiously of late could now potentially destroy them all if pornography is ruled to be uncopyrightable. That’s what they get for being greedy short sighted douchebags.
- On 8/22 Fantalis opposed Randazza’s motion to file the amicus curiae brief, painting FALA as not a disinterested party, but essentially an adult business astroturf. The conclusion was that the brief’s biased opinion is neither welcome nor appropriate. Judge later allowed this brief to be filed.
- On 8/24 Kotzker filed a motion for protective order (that was later granted), which included some outrageous statements:
Plaintiff has good cause for a protective order because if this information is provided to the public, Plaintiff, its employees and affiliates will be subject to annoyance, embarrassment, oppression, or undue burden and expense pursuant to Fed. R. Civ. P. 26(c). Plaintiff is aware of anti-copyright blogs and websites that follow cases by Plaintiff and disseminate defense strategies and other information. Often these blogs and websites encourage individuals to harass Plaintiff, its employees and affiliates in order to discourage Plaintiff from filing suits against individuals that have infringed its copyrights. Several of Plaintiff’s counsel have received death threats and other harassing letters and emails. Plaintiff has a legitimate fear that if the information of its employees and affiliates is provided and disseminated to the public, Plaintiff, its employees and affiliates will be susceptible to similar threats and experience annoyance, embarrassment and harassment.
Dietrolldie made a post debunking these cowardly lies. I only want to add one thought: as we learned about the impending bellwether trial in Pennsylvania, our blogs’ community became rather excited (just read the recent comments) about the prospect of a fair trial that could take place as early as in April 2013. That alone tells volumes more than trolls’ unsubstantiated accusations: would you expect such an excitement from a community of near criminals, as Mr. Kotzker and other pornotrolls try to portray us?
- On 8/29 Fantalis filed his Second Amended Answer and Counterclaim. Although this document was later stricken, I highly recommend reading it: it is more refined than the previous one and has many new damning exhibits, including a Berlin Court’s injunction that finds Guardley’s IP harvesting methods erroneous. We were aware of this document for a long time, but it was not translated from German. Now we have an English version, and I advise movants to refer to it in any opposition to trolls’ claims regarding the accuracy of their forensic “experts,” especially in Malibu Media cases: Lipscomb’s outfit employs IPP International, which is merely a Guardaley’s facade.
- On 8/31 the pot called the kettle back and filed a motion for Rule 11 sanctions. The content of this motion is a pure definition of irony: Kotzker claims that Fantalis’s counterclaims are frivolous. However, the motion does not present any facts that would support this claim, which makes this motion frivolous itself. I’m not sure that Kotzker understands this irony: by this time it became clear that our little troll is scared. His subsequent actions suggest that the fear of discovery overcomes the fear of being disciplined. Kotzker tries everything to stall the process, which is not a surprise: trolls excelled in taking off but did not care to learn how to land: in other words, despite filing hundreds of cases across the country, they did not even think about preparing to litigate.
- On 9/5 Fantalis replied to plaintiff’s motion for protective order, thoroughly debunking all the phony claims that Kotzker had made on 8/24. I want to thank Jeff for defending our community from baseless attacks:
The “anti-copyright” blogs, to which Plaintiff refers, are by no means against copyright as a matter of law. What they are dedicated to is to the education and support of John Does who have been sued or otherwise approached by a company like Plaintiff. They are anti-mass-for-profit-infringement-litigation blogs.
- 9/22 Kotzker’s reply to response to motion for leave to amend is worth reading too.
So what about this post’s title? The answer is in 9/21 response to trolls’ motion for Rule 11 sanctions. While the document itself is a no less important and must-read than Fantalis’s previous filings, the most incriminatory piece is the exhibit, having seen which even very skeptical person will shake his head in disbelief. Four people — three attorneys and a 66 y.o. defendant — each filed a sworn affidavit that tells essentially the same story: how they approached plaintiff, voluntarily offering their hardware for forensic examination to prove innocence, and (surprise?) the troll said “no.” Or, translated to plain English, “We don’t care if you did it or not, we just want your money”:
So here we are. While this battle rages on, the trolls acquire new headaches every day. So far these headaches are:
- A class action lawsuit against five pornographers, including Malibu Media;
- Yesterday 33 Malibu cases in the Central District of California were reduced to a single Doe each;
- Fast-track bellwether lawsuit in Pennsylvania;
- Another defendant in Colorado fights back;
- A defendant in Maryland (with a help of attorney Eric Menhart) comes up with a different set of counterclaims, explicitly accusing trolls of running a honeypot.
I’m sure I have missed a few. Moreover, it is clear that this list is destined to grow, as it is clear that trolls’ house of cards is shaking and will soon fall apart.
Do not feed the trolls. Do not settle. In order to win, you must fight back.
- On 10/5 Plaintiff filed his further support for Rule 11 sanctions. He called this blog “anti-copyright” once again on page 21 (the irony continues: no fact supporting this claim can be presented) and whined that Fantalis should be stopped because… others can use his excellent reasoning in defending themselves! Unbelievable. Yet I’m grateful to the trolls for drawing the judges’ attention to this humble blog one more time. I hope that Judge Hegarty follows the links in the filings and will click on the footnote 12.
Needless to say, the subject of this post was not addressed at all: seemingly it is not a big deal do extort obviously innocent people.
- On 10/11 Fantalis, tired of plaintiff’s games, filed a motion to compel to produce requested documents. Must read.
- On 10/12 Fantalis filed an objection to an earlier magistrate judge’s Report and Recommendation that advised to entry a default judgement against another defendant on this case, Bruce Dunn. As a commenter below noted, “it has much more to do with how a judgment against Bruce Dunn would prejudice his own case rather that out of charity. Fantalis is absolutely correct, that judgment against Dunn would be paradoxical if (read: when) Fantalis prevails at trial.”
- On 10/18 Judge Hegarty granted Fantalis’ motion for time extension to file second amended answer and counterclaim, motion for leave to file second amended answer and counterclaim, denied Kotzker’s motion for Rule 11 sanctions, and denied as moot Fantalis’ second amended answer and counterclaim.
- Malibu Media v. Fantalis et al: update. Second Amended Answer; discovery sabotage; hearing on the Motion to Compel. All further updates will be posted there.