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Big news: Judge rules that the copyright troll’s complaint does not meet pleading standards

Yesterday Judge Robert S. Lasnik granted a motion to dismiss the case Elf-Man v. Does 1-152 (WAWD 13-cv-00507). This motion was filed on 10/30/2013 by Michael P. Matesky on behalf of three named defendants. The parties presented their oral arguments in front of the judge on 1/15/2014; even though I was not there, I can imagine the judge’s attitude towards the troll by merely looking at the order (embedded below).

Why did I say that it is a big news? The reason is that federal judges don’t often rule that a trolls’ pleading falls short of the threshold set by the Supreme Court of the Unites States in Bell Atlantic v. Twombly in 2007 and Ashcroft v. Iqbal in 2009. The only other order I’m aware of was issued in a CASD Prenda case a year ago: Judge Moskowitz dismissed the case for a similar reason.

I know lawyers immediately realize the significance of this event, but those who don’t know the history of pleading standards should read numerous legal articles, written in many languages — from Legalese to plain English.

In short, prior to those pivotal rulings, pleading standards were much more liberal: plaintiffs were only required to literally follow the Rule 8 of the Federal Rules of Civil Procedure, i.e. to only include “a short and plain statement of the claim showing that the pleader is entitled to relief.”

After the Twombly/Ashcroft rulings, the requirements were tightened:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”

According to Judge Lasnik, the main defect of the complaint is that the plaintiff conflates an ISP subscriber with an infringer, a common troll’s modus operandi that was thoroughly addressed in Massachusetts last year. Also, the plaintiff’s attorney Maureen VanderMay tried to argue negligence, which is laughable: the negligence liability tugboat sank a long time ago.

Pursuant to plaintiff’s allegations, a particular defendant may have directly and intentionally stolen plaintiff’s copyrighted material, or she may simply have “facilitated” unauthorized copying by purchasing an internet connection which an unidentified third party utilized to download “Elf-Man.” Plaintiff provides no factual allegations that make one scenario more likely than the other: both are merely possible given the alternative allegations of the complaint.

Plaintiff argues that such alternative pleading is permissible under Fed. R. Civ. P. 8(d)(2) and that “[i]f a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.” The critical defect in this case is not the alternative pleading of claims of direct, contributory, and indirect infringement. Rather, the problem arises from the alternative pleading of the facts that are supposed to support those claims. The effect of the two “or” conjunctions means that plaintiff has actually alleged no more than that the named defendants purchased internet access and failed to ensure that others did not use that access to download copyrighted material. For the reasons set forth below, these facts do not support any of the alternative claims asserted. Rule 8(d)(2) does not, therefore, save plaintiff’s complaint.

If the above quote sounds a bit cryptic, here is Mike Matesky’s explanation:

Judge Lasnik had issued a veiled warning last August (before the plaintiff had named specific defendants) that he questioned whether there was a Rule 11 basis to allege that a subscriber engaged in the infringement, simply because they are named as the subscriber.

To get around the risk of Rule 11 sanctions, the plaintiff’s attorneys filed an amended complaint carefully structured to avoid unequivocally alleging that the defendant actually shared the movie. Rather, they alleged that the defendant shared the movie (thereby committing direct and contributory infringement) and/or they signed up for an account and failed to prevent direct infringement from occurring (thereby committing an unspecified “indirect infringement” that plaintiff argued was a new form of liability that should be recognized).

That equivocal pleading left them particularly vulnerable to a motion to dismiss.

However, the order could potentially apply to standard bittorent complaints if they don’t allege facts making it reasonable to infer that the subscriber/defendant was personally involved in the sharing of the movie.

This is yet another nail (and a pretty sharp one) in the coffin of copyright trolling.

Granting the motion to dismiss, the judge ordered the plaintiff to amend its complaint to present plausible facts, yet he is doubtful that VanderMay / Elf-Man will be able to come up with any:

Given the procedural posture of this case, it is doubtful that plaintiff has facts to support the allegations of personal involvement and/or intent on which its claims rely. Nevertheless, it may have additional information regarding individual defendants that would provide the necessary heft to its factual allegations and should be given an opportunity to remedy the deficiencies identified by the Court. Plaintiff shall, therefore, have fourteen days from the date of this Order to file a Second Amended Complaint that pleads factual content that allows the Court to draw the reasonable inference that the named defendants are liable for the misconduct alleged. Failure to file a timely and adequate pleading will result in the entry of judgment against plaintiff and in favor of defendants.

Such judgment means attorney fees. I have little doubt that an inevitable defendants’ motion for fees won’t be granted.


Elf-Man/VanderMay’s cases are interesting for other reasons too. Make sure to read a recent DieTrollDie’s post.

Thanks to other lawyers who represented defendants on this case: John Whitaker, Benjamin Justus and others.

Media coverage

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41 responses to ‘Big news: Judge rules that the copyright troll’s complaint does not meet pleading standards

  1. Finally a Judge smacks one down for the deficiencies we note all the time on sites like this. Too bad its so rare for a Judge to do this.

    Whats the bet they dismiss without prejudice and file this one in another court and get it through. even if they have it dismissed with prejudice i would doubt a troll would do it anyway without the IPs that stood up to them. We know they dont want a fight on their hands

  2. The only way to dismiss a case is with the permission of the judge. Lasnick just dismissed the case with prejudice (sort of; VanderMay can revive the case by amending the complaint to include sufficient facts to either prove the case or subject her to Rule 11 sanctions), he’s not going to dismiss it without prejudice now.

    I know some lawyers who would re-file in another district anyway, but that’s the sort of thing that brings out the photon torpedoes when a federal judge finds out.

  3. Wonderful order. Straight forward and even allows Plaintiff a chance to amend the complaint and show what evidence they have. I hear crickets comming from Plaintiff’s camp. If they file anything, I will be surprised. Here are a couple links to previous cases of interest.

    DTD 🙂

    Click to access 12cv1519_012913.pdf

  4. Had more time to read the actual ruling

    Was nice to see an AF Holdings LLC case mentioned as to why its a huge no go without more evidence beyond an IP.

    Maybe just maybe trolls will stop trying to use that negligence claim now. its been firmly slapped down enough times

  5. Reblogged this on TorrentLawyer™ – Exposing Copyright Trolls and Their Lawsuits and commented:
    This is big… BIG news. Having a judge rule that the boilerplate copyright infringement complaint is insufficient forces the “copyright troll” attorneys to write more specific allegations… something they would like to avoid AT ALL COSTS. This is one judge in one federal court, but now there is case law in Washington that the other judges must follow as “law.” Other federal courts in other states will refer to this case for support, but they will not be bound by it. Looking for more rulings like this one in other federal courts. Go justice!

  6. Unfortunately, this decision is clearly wrong as a matter of law and I doubt other courts will follow it. Even if only half of the persons who own IP accounts are the infringers, that is more than sufficient to permit a lawyer to reasonably commence suit against the owners of IP accounts. We have a full discovery system–which allows lawyers to use the pre-trial discovery process to investigate their claims. This dismissal is premature and flies in the face of decades of jurisprudence which allows lawyers to use the discovery process to investigate their claims. I expect this to be reversed if appealed.

    The judge is certainly right on the induced infringement issue. Induced infringement requires intent. No one should be liable merely because they were negligent in preventing others to access the internet through their liable router—that theory is bogus.

    But it is legally sufficient for pleading purposes if an IP address is associated with an individual subscribe. It would be revolutionary—and very harmful to the public interest, if this were not enough to allow a law suit to start.

    For example, in personal injury cases, lawyers are permitted to sue every defendant who could have been responsible for the injury and then use discovery (document production and depositions) to identify the real bad guy. It would be absurd to dismiss a personal injury case like this on the pleadings before discovery. The situation is no different in the copyright world. This judge took a legally erroneous short-cut that won’t fly when reviewed on appeal. I doubt if very many district courts will follow this decision—it is not binding precedent and it is out of step with fundamentals concerning how our civil system works.

    • Oh no, Maurice, not again… You stuck in 2008. SCOTUS made two critical decisions since.

      This decision won’t be appealed: Prenda’s Chutzpah is a scarcity, thanks goodness. Wishful thinking. Appeal means increased scrutiny, and increased scrutiny is exactly what trolls want to avoid in order to keep their licenses. We are talking about “material witness” unlicensed IPP that is illegally paid on contingency, we are talking about dirty laundry of copyright assignments-reassignments, we are talking about alleged honeypot. I can continue indefinitely.

    • One problem with your theory is in your first paragraph – “We have a full discovery system–which allows lawyers to use the pre-trial discovery process to investigate their claims.” There is/was no investigation! All they did was use the early discovery to obtain ISP subscriber information and then name those individuals with no further investigation. Also, take a look at the FAC, it has two people with the same last name (Becky Peloquin, Steven Peloquin, Jerry Graff, & Vandy Graff) – I would assume they are husband and wife. I will bet you only one of these couples had the ISP account in their name. Why add both names??? I would venture to guess that the ISP account was in the name of the wife and they determined who the husband was. It is not a premature dismissal, it is just the courts getting fed up with BS cases and NO history of actually litigating these cases. It stinks and finally the courts are picking up on this. The Troll/Plaintiff here became greedy and tried to use the name & scare tactic – stupid, stupid, stupid. By leaving the complaint with a Doe/IP addresses, Plaintiff could have avoided this. But then they could not exert the pressure needed to get some of the Does to settle. The judge basically told the Troll that to name a defendant, there had better be more investigation/evidence than the ISP subscriber records. You say “It would be absurd to dismiss a personal injury case like this on the pleadings before discovery. The situation is no different in the copyright world.” But it IS different in the Copyright Troll world – there is a clear history that supports this court’s action. The Trolls brought this on themselves and it was only AFTER the courts allowed them to do this over and over again.

      Your second paragraph is also very poorly written – “No one should be liable merely because they were negligent in preventing others to access the internet through their liable router—that theory is bogus.”

      People are NOT negligent by running a WiFi Internet connection open – intentional or unintentional. Period – end of story. You actually wrote “liable router???” LOL!

      BTW – Maurice, why did you post at FCT as Anonymous???

      DTD 🙂

      • I just posted this same comment to houstonlawy3r’s entry on
        (I apologize for misuse of hyperlinks and such — the last thing I want to do is deny credit where it is due!)

        “We received a notice from Comcast yesterday containing the subpeona from Malibu Media’s people. We have been mulling over the best way to handle this, and we are speaking with a lawyer later today. Here are our thoughts in summary:

        1. Our lawyer does not specialize in IP law, and there is no way he is familiar with Judge Lasnik’s federal motion. How much comfort should I take in this brand-spanking-new ruling as of Jan 18?

        2. What is the likely difference in punishment if the said x-art “megapack” was downloaded, as opposed to just one or two videos? (There are 54 counts of infringement)

        3. Would it be pertinent to look into removing our router’s password, or going to the lengths of getting rid of the culprit PCs?

        a. Is it too late to look into a VPN?

        4. How helpful is it if it turns out that some of the videos were not registered to Malibu, or only recently registered? @Gavin C. ‘s comment on Mar. 19 (the full weight of this is evading me; pardon my ignorance)

        5. In the lawsuit, it mentions that: “Defendant’s IP address as set forth on Exhibit A was used to illegally distribute each of the copyrighted movies set forth on Exhibit B.” Is this referring to the instantaneous “seeding” function that occurs once the download is complete? There was certainly no selling of bootleg copies on a street corner occuring, if that’s what they’re implying.

        I have done a lot of research on the matter in the past 24 hrs, and any sense of guidance on what to do next or comfort would be unimaginably appreciated. I have lots of respect for the sheer raw intellect of this forum; as such I am seeking the people’s counsel. Thank you!!!

        In reading your post though DTD, I am left wondering again. The wifi connection was encrypted, and there were 54 counts. Should this case’s defendant still be jumping for joy at the Honorable Fed Judge Lasnik’s findings? Please help 😦

        • Response to 1.
          It is a good order, but in a majority of the MM single-Does cases, the defendant is NOT named. For this case, the Troll made the mistake of naming the ISP subscriber as the defendant – ONLY because they paid the bill. They likely did this to scare the ISP subscribers to pay the settlement. If MM names you with no other “investigation,” then it has a greater tie-in. Most of the courts will allow a Plaintiff to get ISP subscriber information for a single Doe/public IP address, as this is the only avenue to possibly identify the actual infringer. Once they have the ISP subscriber information, they need to try and find out if the subscriber or another person was the culprit. This is done by contacting the ISP subscriber and telling them to pay the settlement. If the ISP subscriber tells them to “pound sand,” Plaintiff has to decide if they want to move forward with discovery. Usually this will mean depositions of the ISP subscriber and possibly other residents (family & others who used the network). Some questions they will ask – Is BT on any systems?, Did you download Plaintiff’s movies?, Do you download other media (legal/illegal) like music or TV shows?, Doe you watch Porn?, Who else uses the Internet connection?, Is the Internet connection secure?, etc, etc.

          If everyone in the residence denies the activity, the Troll could move for a forensic exam of the systems in the residence. Again, this is costly and the Troll doesn’t know if the offending system is in the residence. If the forensics comes back with no evidence, then the Troll isn’t doing so well. If the deposition and/or the forensics come back with evidence, Plaintiff may then name the person they think is the actual offender. Example: Deposition comes back with no direct evidence (everyone denies it), but the forensic exam discloses evidence (remove/deleted BT client) from a computer used by the adult son of the Doe. Plaintiff moves to name the adult son as the defendant.

          Response to 2.
          The possible judgment depends on the number of copyright registered movies there are. The Act allows for a Min-Max award of $750 – $150K PER registration/work. That is of course ONLY after a court makes a judgment. Also remember that costs/attorney fees will be added to this. MM will want a settlement, as this is cheaper and easier to do. The problem is with 54 movies, most people cannot afford to pay the minimum amount – 54 X $750 = $40,500. Hell, even if half the movies only have a registration, it is still $20K!!!

          Response to 3.
          Changing or destroying evidence can get you in serious trouble. I would advise against it.

          Response to 4.

          It means that the unregistered ones cannot be used to calculate statutory damages – $750 – $150K range per title/work.

          Response to 5.
          Yes, that BT starts to share piece as soon as you download a piece – you don’t’ have to have all the pieces to start sharing.

          I think the Doe you speak of should talk to an attorney who is knowledgeable with these cases. The order has some value – more if MM does no investigation into finding the actual infringer. The WiFi Internet connection may have be encrypted, but with what protocol (WEP,WPA, WPA2)?, Was the password known/shared?, have there been problems with the router?, Was WPS enabled? Etc. Each case is different/specific.

          DTD 🙂

        • Ok. Thank you DTD. Now another round of questions:
          1. In my case (let’s not kid around, I’m the Doe), we are not named as of yet. It IS a subscriber/adult son situation, and I am obviously worried for my father’s reputation. Do trolls often go through the hassle of a discovery and/or forensics phase, especially in my case with 54 infringements? I’m getting the feeling we should prepare to pay the settlement.

          2. On that note, how likely is it that they will settle for the minimum, or less?

          3. Re. #5 Original: So the fact that one piece was downloaded is enough for the troll to claim I am “distributing”? Seems more than a bit trumped up, but I just want to be on the same page.

          4. What is the likely time horizon my family and I can expect to put this behind us? We just got the notice, and have until Feb. 25 to quash, as previously mentioned.

          5. Explain your final point(s):

          a. “The order has some value – more if MM does no investigation into finding the actual infringer.” For example, if the troll obtains the ISP subscriber’s identity but then ceases fact-finding and is solely interested in settlement? Please clarify if you would 

          b. It is WEP protocol, and the password –though not blatantly simply – is indeed know/shared with welcome visitors. Who knows what said visitors can do with the password once they leave?

          i.The router is roughly 4 years old.

          c. What is WPS?

          Thank you for your continued patience! I’ll be sure to keep everyone here posted on the progression.


          PS. How can I reply to your comment, DTD? Am I doing this right? XD : /

          • Response to 1.
            It depends on a variety of things, many of which are at the determination of the Troll. I believe Malibu Media has gone ahead with a small amount of depositions/forensics, but I don’t have any numbers. Malibu Media (and the other Trolls) don’t really care for discovery too much, as it is a two-way street. The defense is afforded its discovery against Plaintiff if it chooses. I will assume they will try to do a financial determination once they get the ISP information – how much does the ISP subscriber make. That will give then an idea on how much the ISP subscriber can afford, as well as assets – homes, etc.

            Response to 2.
            IMO they would be stupid not to accept minimum or less. Even at $750 a movie, most people are not going to have $40K handy to pay these idiots.

            Response to 3.
            Yes – on a very basic/simplistic view. The problem is to challenge this, you will have to likely hire an attorney or be lucky enough to get a judge who is knowledgeable and see through the Troll BS. As soon as BT downloads a part of a file, it begins to share – default setting. Even if you had somehow prevented the sharing of data, the only way this fact would come out is in a trial. The Troll isn’t going to let it go that far.

            Response to 4.
            Hard to say. We have had some people fighting Malibu Media and it has gone on for at least a year. If you pay, it can end fairly quickly – that is what the Troll will point out.

            Response to 5.
            If they do no other “investigation” into whom the infringer is (only use the ISP subscriber record), then this order is relevant. If they do some other investigation (such as a deposition and/or forensics), before the naming/serving then it is significantly impacted.

            WEP is a joke even more than CEG-TEK. Having any router logs showing unknown systems on the network would be good. A shared password is an issue. If it goes to a deposition, they would likely want to know who used the Internet connect and at what times. They will also compare the time from that Plaintiff’s movies were being shared. If the movies were being shared over 4 months, it is unlikely that a guest that used the network twice during the time period could have done it.

            DTD 🙂

        • 1. Since said Troll wants to avoid the two-way street of discovery, is it at this stage where we would employ arguments against their German IP snooping company, Lipscomb’s law firm, whether or not they had a hand in seeding the movies in question, whether they did a reasonable job in attempting to protect their copyright, etc? (VERY Important Sidenote: for all practical purposes, this CANNOT be allowed to reach a financial determination, for reasons I’m sure you can guess. Anonymity is priority to maintain, if it can be. Any employable strategies on that note?)

          2. Stupid or not, is it likely that say $10,000-$20,000 will make them go away? Or will they likely enforce the minimum $40K or threaten proceeding with discovery?

          3. I’ll have to look into router logs. I recognize that it may not be a viable strategy, but every bullet counts.

          4. I understand the “naming” part of your explanation quite clearly; when our name replaces John Doe IP. But what about “serving”? Meaning, when it becomes a formal suit? Or when a settlement is put on the table? There is no settlement dollar figure as of yet, but it IS a formal lawsuit, for what that is worth.

          Once we come through this, I owe you an expensive bottle of something alcoholic 🙂


    • I’m not sure why you say this is clearly wrong as a matter of law. Judge after judge has ruled than an IP address only is not sufficient. The original show cause order by Judge Wright was to have Gibbs explain why he should not be sanctioned for moving forward with only that information. This Judge has given the troll a time to strengthen their claim and amend the complaint if they can. INAL but it seems like a decision that clearly goes along with other rulings, but is just accelerating the process.

    • How’s it going, Sorry Morry? Sue any dead grandmothers lately? Your usual anger once again is proof you don’t care for the law as long as it might slow down your efforts to shake down a quick buck from the scared.

    • It affects every troll case, but Malibu — to a lesser measure, as they claim they investigate putative defendants thoughtfully, and therefore their complaints are not frivolous. Nonetheless, Malibu cited Iqbal in the past, can’t do it anymore. Also, Malibu targeted provably innocent people, and it will sure be back to haunt them. This ruling is not a silver bullet that kills copyright trolls, but weakens their position significantly, even Malibu’s.

      I hope in the coming weeks we will see to what extent this order will be cited by defense attorneys.

  7. Am I the only one who finds it funny that in the footer of the Motion To Dismiss is a copyright indicator.

    © 2013 Matesky Law

  8. They might want to drop the El and just make it “F” Man v John Does because that it probably what the plaintiff attorney is feeling about now.

  9. The difference may be that CA and WA Justices have a much better understanding of the technology. Some of the Justices are in their 80s and probably are snowed over by technology, never heard of bit-torrent, IP addresses, WIFI, etc. In very similar compliant by Malibu Media in Eastern District of PA, one Judge ruled in late 2012 that thieves should not expect any privacy and allowed the pre-discovery of multiple Does (subpoena to ISP to furnish account holder info).

    The Malibu Media Bellwether case showed that each Doe has their own defenses unrated to other Does making joiner ridiculous. Even the Plaintiff’s attorney did not use joiner once he obtained ISP subscriber info. Many of the motions to sever the Doe defendants also pointed out that the Court was not getting paid the $450 per Doe that they deserved and was therefore subsidizing Malibu Media’s filing fees. The Court was losing hundreds of thousands of dollars in filing fees given the hundreds of Does being sued in just this one Court.

    Anyone facing a lawsuit from Malibu Media, should consider that they really have no interest in going to trial, as discovery and defeat could end their business model of easy early settlements.

    • Since most of us don’t read Norwegian,
      “Identification does not follow from IP Address” | Datamachine
      [..] In the judgment, but (with?) “temmelig” particular analysis of what the knowledge means, is found here.[…]


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