Guardaley | X-Art
Copyright trolls are back in Virginia. Jon Hoppe has a reading comprehension problem
We still remember copyright troll M. Keith Lipscomb’s previous crusade to Virginia: it did not end very well. Lipscomb’s local, Wayne O’Bryan, was scolded by Judge Gibney, who smelled the air of extortion in mass bittorent lawsuits. After more than two and a half years, the transcript of O’Bryan dance around the truth in front of the judge is still a fascinating read¹. O’Bryan narrowly escaped sanctions, and Lipscomb left Virginia’s turf since then, letting his colleagues from Prenda rein there for a while. Today Lipscomb and his German supervisors are back to plunder the citizens of this state.
In June 2014, 19 new Malibu Media lawsuits suddenly popped up in the VAED: all of them have been filed by a previously unknown attorney William E. Tabot (a sample complaint is embedded below). Maybe as a result of my polite greeting (cc’d to My Doctor Cameroon, an organization Mr. Tabot represents as a counsel), maybe because Tabot’s involvement was planned as minimal at the very beginning, on 6/21/2014 Lipscomb’s local Jon Hoppe (Maryland/DC) applied for pro hac vice admission in all the 19 cases.
But here is a small problem. Thanks to Virginia attorney Robert Powers for the tip: according to Virginia’s pro hac vice admission rules,
(5)Discretion and Limitation on Number of Matters. The grant or denial of a motion pursuant to this rule by the tribunal is discretionary. The tribunal shall deny the motion if the out-of-state lawyer has been previously admitted pro hac vice before any tribunal or tribunals in Virginia in twelve (12) cases within the last twelve (12) months preceding the date of the current application. In the enforcement of this limitation, the tribunal may consider whether the pending case is a related or consolidated matter for which the out-of-state lawyer has previously applied to appear pro hac vice. Before ruling on a pro hac vice motion, the court shall verify with the Supreme Court of Virginia the number of cases during the preceding twelve (12) months in which the out-of-state lawyer was admitted in Virginia pro hac vice.
…which puts a big fat question mark next to Hoppe’s “Esq” suffix. Apparently, an attorney in his 50s is too experienced to read the rules of admission before applying. Or to remember the basic math to notice that 19 > 12.
So far judges have been rubberstamping requests for ex-parte discovery, and at least six admission motions have been granted. It will be interesting to watch judges’ reaction when/if they notice the bigger picture.
Given that copyright trolling is as harmful to the society as tyranny (both make a mockery of justice), will Virginia live up to its motto?
In 17 out of 19 Malibu Media cases filed in Virginia on 6/11/2014, Jonathan Hoppe’s pro hac vice application was granted, which is a clear violation of the Virginia State Bar Rule 1A:4(5), allowing an out-of-state attorney to appear in no more than 12 cases simultaneously. I’m sure that the first Doe who files an answer/motion to dismiss will convey this evident violation to the judges.
¹That time Lipscomb “represented” not only Malibu Media, but also their colleagues — other hardcore pornographers, including K-Beech, which is owned by a former Mafioso Kevin Beechum (who organized bombings and “smashings” of adult bookstores back in 1990s).
13 responses to ‘Copyright trolls are back in Virginia. Jon Hoppe has a reading comprehension problem’
Nice catch by Robert Powers. Most federal judges are sticklers for their Local Rules so this may get fun fast.
This just goes to show you how desperate the trolls (And German Background Men) are to get cases filed anywhere they can. They couldn’t find a new jusrisdiction with a slimmy attorney willing to disgrace themself with this type of Plaintiff/case. So back to VA they go. Troll Lipscomb knows how bad the VA court questioned Troll Wayne O’Bryan. I will find the audio recording of the hearing, as it is sooooooo clear that the judge didn’t think the Plaintiff was being honest or truthfull. Have fun troll Boy.
Looks like IPP (aka Guardaley) is back to doing the investigative work for Malibu Media. Who made the declaration Tobias Fieser?
So they are back to using their contingency paid experts again. Do you think Lipscomb revealed this to the Judge?
Not sure if anyone noticed, Troll Cerillo in New Jersey filed 27 new cases for Malibu Media aka Lipscomb Media
The fact that MalibuMedia has chosen to file cases once again after the last time their representative got quizzed by the Judge ( and IMHO O’Bryan got lucky ) on the litigation that was started in VA did not go un-noticed by the courts and if you read the transcript of the hearing, the Judge knew exactly what was going on in his court and in my opinion that was a “warning shot across the bow” basically saying your playing with danger here.
While I am surprised that Mr.Tabot would decide to be local counsel in this litigation for a known Porn torrent lawsuit Plaintiff considering his work with a Charity organisation in another country in the medical services field, one would hope the stigma of aligning with a copyright holder who makes Porn films for their site X-Art doesn’t put a shadow on Mr Tabot’s charitable nature and works.
Malibu / Lipscomb might be of the opinion that since hey last filed in the state that a fair amount of time has passed since to re-start filing cases again in VA. I do wonder why O’Bryan is absent from acting as counsel, since he was used as local counsel at one time. One could draw there own conclusions of course but it would be interesting to know why Mr.Tabot was chosen.
It appear the monitoring company of choice IPP is present in the VA Malibu Media cases, I would gather that Lipscomb / Malibu feel that an outstanding monitoring firm such as IPP with it’s infallible software and undeniable methods used at tracking piracy and achieving said results that are unquestionable and achieved by highly trained technicians is going to put the defendants in these cases in a very tough position to deny their alleged infringement of a highly smut -er- porn company like X-Art.
I do have a serious concern that Tobias Fieser whose work in achieving outstanding results of X-Art copyright infringement of the finest smut that $9.99 can buy will survive the carnage in such a violate industry as Bit Torrent copyright enforcement which has so much competition from other companies in that very same genre ( and all located in Germany ) is able to acquire another position in this field and keep aspiring to move up thru the echelons and further his career to different areas like Technical Director, Software Developer, Director, Managing Partner or even Consultant. Keep aspiring Tobias we know you will get there soon.
I see in the filing that is included in the story that Lipscomb / Malibu have put a reference to the Doe defendant on notation #25 that:
” IPP’s software logged the Defendant’s IP address being used to distribute third party files through Bit-Torrent. This evidence indicates that Defendant engaged in Bit-Torrent transactions with 904 files between 12/25/2012 and 05/15/2014. Collectively this evidence is referred as “Additional Evidence” ”
There was a time “Additional Evidence” was included in another Lipscomb / Malibu Media / Local Troll case and it got them a sanction of $ 200 per case. I would be of the opinion that could happen again in this case as “Additional Evidence” in a litigation case like this usually doesn’t sit well with the Judge hearing it as they usually like to rely on the facts of the case at hand and dealing with the copyright Infringement of the Plaintiff’s work.
So if the “Additional Evidence of 904 files” has no relation to to the alleged infringement of the Plaintiffs copyrighted work that is involved in this litigation then I would be of the opinion that it is entirely possible the Judge could find this as a sanction able violation of the procedural rules of court in regards to this litigation ( my opinion of course )
And once again in the filing that Lipscomb / Malibu have put a reference to the Doe defendant on notation #28 that:
” Many of the titles to the third party works may also be relevant to proving that the Defendant is the infringer because they correlate to the Defendant’s hobbies, profession or interests ”
Now in my opinion is this is speculation at best, and what the Judge will think of this point that is reference to the 904 files ought to be obvious I would assume, but we will have to see if this also fails to meet the rules of the court and is sanction able ( my opinion of course )
Now how the Judge will see Lipscomb / Malibu’s “‘Additional Evidence” and theory of the 904 files alluding to the Defendant’s ” hobbies, profession or interests” should give a sense of what path the court will take when looking at the Litigation that Malibu has filed in VA. If the past has shown us anything in VA it is that the Judge had the notion that the litigation was being more of a ruse to achieve settlements..
Does anyone know if the other filings in VA have a similar notation like #25 and #28 do on this particular one? I am curious as to whether these notations in this filing are only contained to this one or if there are similar ones like this in the other filings ? If so please let everyone here know. It would be beneficial to know if this is a pattern in all 19 or even a number of them make reference to ” Additional Evidence”.
I also have looked at this date they have listed of the alleged pattern of when they allege the Defendant’s IP address was noted participating in Bit-Torrent activity and the dates noted are 12/25/2012 and 05/15/2014
I find these dates to be very, very peculiar. Could the year on the 12/25/2012 date be a typo, perhaps.
Let’s do a little Hypothetical here with these 19 cases being filed recently Virginia and the past ones filed in Virginia by local counsel back then. One of the cases that were filed way back by I believe it was O’Bryan ( feel free to correct me if I am wrong ) was filed on : 07/21/2011 and I believe it was the case that Judge Grady quizzed O’Bryan on
If you look at the last date that the case was terminated was 2012-02-21 and the last filing in the case has the same date of: 02/21/2012 . IPP was the monitoring company in that case where O’Bryan was local counsel for Lipscomb. IPP was using the software ” International IP Tracker v.1.21 ”
Now let’s look at the date of when Malibu who is the plaintiff and the date that IPP states that Defendant IP Address was “monitored” to be involved in distributing the 904 Bit-Torrent files They have the date period of : 12/25/2012 to 05/15/2014 The K-Beech case that Lipscomb and IPP were involved in with local counsel O’Bryan was terminated on 02/21/2012. This monitoring of the IP Address that Malibu / IPP states it “connected to over a period of time” would be close to over 14 months!
I find these results rather strange. So in the time the K’-Beech case was terminated which was 02/21/2012 and the date of 12/25/2012 when the IP Address distribution of the 904 files was first connected to by the IPP Software International IP Tracker version 1.2.1 was used and now in recent cases where Feiser declarations are involved, Feiser states that he obtained the results with International IP Tracker version 1.5
In my opinion I am very skeptical of these results over such a long time span which it would seem were achieved with different versions of IPP Software. How would IPP be able to ascertain these results mid stream without interruption of their Monitoring of the said IP Address? One would have to believe they couldn’t just employ a new version of IPP Tracker International without testing it first. How many versions of IPP International were there between 07/21/2011 and 12/25/2012 ?
In the 07/21/2011 case IPP was using International IP Tracker v.1.21 and in the most recent IPP cases we see as of 03/28/14 that International IP Tracker v.1.5 was used to monitor infringement
So how was IPP able to monitor results from this Defendant’s IP Address over a 14 month period from 12/25/2012 to 05/15/2014 to observe the sharing of 904 files with a Bit-Torrent client that were a third party’s ( not Malibu Media’s ) using different versions of IPP software that they use and associating files to this IP address that they have not been monitoring for in the first place since their client was Malibu Media / X-Art?
Allow me to share my opinion on how this has occurred. I would gather this is stored in IPP/Guardaley/Excipio database. (If you any of you read that Excipio handbook, There was a paragraph were it was said that once the ISP subscriber information is gathered from the ISP after getting the court to order the ISP’s to turn over that data that it is entered into the Excipio database. I am of the opinion what we are seeing with the 904 files mentioned in this case is historical data of the IP Address. Not something monitored over a period of 14 months.
Now is it possible they monitored this one IP Address thru different software versions of International IP Tracker? Sure. The question is did it happen? My opinion would be no. Let’s say where going to monitor the worst of the worst copyright infringement bad asses out there. Ok so you would want to go after the person who would be your initial seeder ( since they started it by uploading the work and seeding it on a torrent file until at least one person had all the competed pieces to form a working copy of said movie )
Now if this person was let’s say a person with great respect within the torrent community and always was uploading and seeding new movies till a downloader had all the files to complete a movie and then share it as well, it would make sense to go after that person that was the principal and continually monitor their IP Address or addresses they used to gather evidence of infringement
Let’s say were a pirate, unless you have some awesome ISP It would be doubtful that an IP address is going to be connected 24 hours a day 7 days a week for 14 months with that same IP Address seeding torrents.chewing up bandwidth like no tomorrow especially on a residential internet account which most ISP have a bandwidth policy on usage even if your paying big money for lots of speed and lots of GB to use. Is it possible, sure anything is, but it’s doubtful.
Let’s say IPP/Guardaley/Excipo has a ton of titles to keep an eye out for on Bit Torrent sites. They don’t really look for the initial seeder, they are looking for the downloader’s/sharer’s.. Would they or could they monitor each address that downloads a work that they are monitoring ( such as the address connected in this case ) for months and months on end?
They could, but I would be of the opinion they do not do this. In my opinion they monitor the address and log it, once they get the ISP subscriber information they log that with the IP address for future use and once they get ISP subscriber information that information is cross referenced to see what work was infringed, when it took place, for what client and what other instances may have taken place from this address for any other clients whose works they may be monitoring for.
.To monitor addresses for over 1 year plus would not be beneficial or operational or expenditure prudent in my opinion.
Then you have the different version of software in play. Now as well know software has bugs and most software is usually tested to make sure the results of said software are achieved correctly and their are no nuances that will occur with bugs to achieve the desired results. Fair enough. to monitor consistently an IP address while in process monitoring is taking place is possible but has the possibility of error associated with it.
The other issue I see here is that Malibu/ IPP is stating is that this same IP address was monitored distributing 904 files over a period of 14 months. Most ISP providers only have so many IP address’s assigned to them. There is occasions where a ISP subscriber may have a static address, but this is hardly the norm for residential service customers. You see a lot of buisness’s with static IP Addresses but that usually is a service they pay the ISP for to gain that said Static IP Address for their website/Use.
Could a residential subscriber have a static IP Address. sure. Can They pay for one and get one. They may be able to do this but that is at the ISP’s discretion and more than not they don’t allow it to due to only having so many assigned to them which is why they like to rotate them
With the ISP’s rotating IP address of their subscriber the chance that the same person would have the same IP address on a residential account for 14+ months is pretty iffy in my opinion. I would think it would have rotated by then.
Malibu claims in this filing on notation #23 that:
” IPP International UG connected over a course of time, with the Defendant’s IP address for each hash value as listed on Exhibit A. The most recent TCP/IP connection between IPP and the Defendant’s IP Address for each file hash value included on Exhibit A is included on the column hit date UTC. UTC referrers to Universal Time which is Utilized for Air Traffic Control as well as computer forensic purposes ”
Thanks Keith for the lesson on UTC, I feel all warm and fuzzy knowing this. ( ok, there had to be a little sarcasm come into this now ) While Malibu is brining us this warm and fuzzy moment on air traffic control and computer forensics what we dont see mentioned is that these is the possibility that this IP Address had been rotated by the ISP “over a course of time” that IPP was monitoring it.
Now does Malibu / Lipscomb mention or even deal with the plausible explanation that someone could have spoofed this address for let’s say anywhere in a period of 14 months or even longer. There is also a failure to deal with the possibility that if this defendant has a wireless router it could have been hacked to allow someone to surf the net and download torrent files without the ISP subscribers knowledge.
There is also the possibility that this defendants computer could be part of a botnet and the resources of this residential ISP subscriber could be used for whatever the bot master chooses. There is a lot of sophisticated Trojans, Malware and Exploits that are not detectable to Antivirus software on machines of a home user and even large commercial business operation have been unaware they were infected with any of the above exploits because they can be in the very root of a computer/server. This is not uncommon
I wont bother to mention the fact that “over a course of time” it can take as much as several minutes , to hours, to days and longer to gather all the files needed to download a torrent file and have an actual file that will be a playable movie. If you are missing parts of the file you do not have a complete file to make a playable movie.
IPP is stating they saw the defendant’s IP address “over a course of time” achieve bits of each hash value from defendants IP address which is great I suppose, but does that mean the defendant has all pieces of the file to have a playable movie? If one file is corrupted or not downloaded , then you do not have a playable full copy of said movie.
In notation #22 it is stated:by Malibu that:
IPP International UG downloaded from defendant one of more bits of each file hash value listed on Exhibit A. IPP International UG further Downloaded a full copy of each hash file from the the Bit Torrent Distribution Network and confirmed thru independent calculation that the file hash matched what is listed in Exhibit A. IPP International UG then verified that the digital media file correlating to each hash listed on Exhibit A contained a copy of a movie which is identical ( or alternatively similar, strikingly similar, or substantially similar ) to the movie associated with that file hash on Exhibit A. . At no time did IPP International UG upload Plaintiff’s copyrighted content to any other Bit-Torrent user
Ok lets examine what is stated in Notation # 23. ( I’ll work thru the different facts that they state )
1st ) – IPP International UG downloaded from defendant one of more bits of each file hash value listed on Exhibit A.
Um ” one of more bits does not make a complete file needed for a movie to work. You need to have all the pieces or it is not complete. I would have thought experts such as IPP trained professionals would have known this fact.
2) – IPP International UG further Downloaded a full copy of each hash file from the the Bit Torrent Distribution Network and confirmed thru independent calculation that the file hash matched what is listed in Exhibit A.
While that is great that the guys at IPP have figured out how to download a torrent file. The above line in the filing states IPP downloaded a full copy of each hash file from the Bit Torrent Distribution Network.
So What? ( That is taken from the Prenda Lightspeed appeal ) That would indicate that there was a version of the torrent upload was a complete file for said movie, but I dont see any indication where the Defendant had all the necessary pieces to make a complete movie. The full part of each has would be needed to have a complete torrent file that would contain a full movie, if a bit of hash is incomplete your chances of having a working movie are slim in my opinion.
Independent calculation? So whoever is in charge of monitoring the IP Addresses for infringement of plaintiff’s work is not able to ascertain if that IP address has a complete torrent file with all the required hash value that would make a complete work? And the information is sent to a Third Party? And how is it that the Third Party’s work and how they arrived at the Independent Calculation and methods to achieve the result verification is accurate. Is there someone else who verifies the method of achievement? How many people or entities are disseminating IPP’s results after the IP address is logged?
So I do not see any declaration from how this Independent Calculation was arrived at filed in the litigation, who devised it nor an explanation of how the Independent Calculation factors in to each IP address and whether the IP Address that downloaded “one of more bits” has all the pieces to have a working copy of plaintiffs movie since they are getting this information second hand. ( I gather this is where we are going to hear Paige’s name come in.) ( BTW who verifies Paige’s results…Anyone…Anyone? ) ( Anyone, Anyone is from the movie Ferris Buehllers Day Off…Don’t worry Keith, it’s an old flick we have on VHS…I know your disappointed you can’t haul me in for infringement litigation …bummer! )
3) – IPP International UG then verified that the digital media file correlating to each hash listed on Exhibit A contained a copy of a movie which is identical ( or alternatively similar, strikingly similar, or substantially similar ) to the movie associated with that file hash on Exhibit A.
Wow. ” a copy of a movie which is identical or alternatively similar, strikingly similar, or substantially similar” . I really don’t think I need to add much to this. When you launch litigation alleging copyright infringement of a movie title with said copyright filed for that movie title by said company, shouldn’t you be more a little more than “alternatively similar, strikingly similar, or substantially similar” that it is your Plaintiffs work?
I am sure the Judge would like to have more to go on than “alternatively similar, strikingly similar, or substantially similar” when he rules on the evidence and motions in this case and the facts at hand. Most Judges don’t really take ” shoulda, woulda. coulda ” as evidence in my opinion.
4) – At no time did IPP International UG upload Plaintiff’s copyrighted content to any other Bit-Torrent user.
Hmmm….. Now that s very open ended statement in my opinion and could be taken in a variety of context’s by people. I could see where some people might read more into it than that. Let’s examine the ways how this could get misconstrued by folks, Hypothetically of course!
– Well Hypothetically one could say ” At no time did entity A upload company XYZ’s copyrighted work to any other Bit-Torrent user, but entity B could have”.
-. In the same token you could also read into it Hypothetically that ” At no time did entity A upload company XYZ’s copyrighted work to any other Bit-Torrent user, it may have been uploaded to a Bit-Torrent site or tracker though.
– Hypothetically one could say ” At no time did entity A upload company XYZ’s copyrighted work to any other Bit-Torrent user, but my neighbor, dog or Psychopathic internet Hate Group member that may or may not be stalking me could have uploaded it to a Bit-Torrent, site, tracker or offered it to other users”
– Hypothetically one could say ” At no time did entity A upload company XYZ’s copyrighted work to any other Bit-Torrent user, but company XYZ could have or their affiliate could have”.
-Hypothetically one could say ” At no time did entity A or B upload company XYZ’s copyrighted work to any other Bit-Torrent user, but a person I knew who happened to be at this place over heard a guy in the washroom talking about it to someone else, found out that girl he liked in High School that I was dating wouldn’t date him and he waited some 30 years to extract revenge on me by uploading company XYZ copyright work to a torrent site and sharing it with every pirate out in the free world and all to extract revenge against me for something that happened with a girl he liked in High School, who’d thunk it right”.
So You can see where people could totally take that statement out of context, lucky for you Keith we here at the Internet Hate Group do not take things out of context. In fact in our meber regulation it states that in order to take anything out of context we must be first of all psychiatric controlling medications and not have shown up to any appointments with any of the T.V. or Radio Psychologists mentioned below:
Major Sidney Freedman
Lucy ( Charlie Brown’s sister )
Dr Frasier Crane
Dr. Hannibal Lector ( we have him on 24 hour call )
Dr Robert Hartley
Dr Marvin Monroe
Dr Leo Marvin
Dr Niles Crane
Major Sidney Freedman
Dr Lilith Stern
Dr Jennifer Melfi
Dr. Peter Silberman
Dr Ben Sobel
Dr. Otto Scratchansniff
All righty so feel free to consult anyone off that list Keith if you need to know who is looking after the little Psychopaths that for the Internet Hate Group. and btw, we dont hate people far from it , call us sometime will go bowling!
They only want the ISP subscriber’s name and address to demand settlement money. Of course they don’t have enough evidence, otherwise they would go to trial for the $150,000 per infringement. This comes down to a game of chicken of who will choke before trial and how bloody each party can make each other in legal fees even prior to discovery.
It seems the vast majority of judges are happy to rubber stamp early discovery of ISP subscriber info and leave it up to those innocent to litigate or settle, Out of court settlement being the least costly and the judge has plenty of free time to rubber stamp more frivolous (my opinion) complaints.
I actually forgot something I was going to comment on ( I know, I know… your going really after I just read all that YOU left something out? )
In the filing that is included in the story that Lipscomb / Malibu have put a reference to the Doe defendant on notation #25 that states::
” IPP’s software logged the Defendant’s IP address being used to distribute third party files through Bit-Torrent. This evidence indicates that Defendant engaged in Bit-Torrent transactions with 904 files between 12/25/2012 and 05/15/2014. Collectively this evidence is referred as “Additional Evidence”
The in notation #26 in Malibu’s filing it states:
” Plaintiff has this additional evidence on a document and can produce it ”
And then in notation #27 Malibu states:
” The Additional Evidence demonstrates that Defendant is a persistent Bit-Torrent user ”
How would IPP have obtained the ” Additional Evidence ” to be able to reach this inclusion from 12/25/2012 to 05/15/2014 which is over a 14 month period when their International IP Tracker software had gone thru version changes? No where in Lipscomb’s filing do I see where any mention of other infringments of Malibu Media / X-Art copyrighted works are noted as being infringed on by the Defendant.
Which would bring us to the ” Third Party ” titles that Lipscomb / Malibu make mention of in notation #28
In notation #28 Lipscomb / Malibu state:
” Many of the titles to the third party works may also be relevant to proving that the Defendant is the infringer because they correlate to the Defendant’s hobbies, profession or interests ”
Now IPP would be looking for those who are downloading or sharing IPP clients copyrighted movies to which they would have had provided to them the titles of said movie(s), date of production, date copyright was filed for, date copyright was granted etc etc etc. That we all understand.
Here is the issue I see – IPP is watching for any bit torrent downloads/uploads/sharing of it’s various clients movie titles from a list given from each client and provided to them for enforcement purposes and to record and log the infringement information that their software would detect of it’s clients copyrighted works being infringed upon, okay that would make sense.
The real question with this is why IPP would detect third party works to which IPP has no obligation to look for, no parameters to look for said infringement ( the owner of said movie, the movie title, production date, granted copyright and parts/ full copy to compare it to and remember this would be a non IPP client’s movie title.
Yet IPP has a record of 904 files of “Third Party” works that the alleged Defendant IP address distributed ? Why?? Why would IPP burden themselves with recording 14 months from 12/25/2012 to 05/15/2014 of Defendant distributing files of ” Third Party’s ” when IPP has no obligation to look for infringement for works for a non client and who also doesn’t pay them to record infringement like Malibu would, since they have some type of an agreement to that effect ( or so we are led to believe )
How does IPP and Malibu know that the “Third Party” works are infringed? How does IPP and Malibu’s assertion that the defendant has ” Third Party” works on the “Additional Evidence ” list that they say they can provide isn’t a titled work that could have a title of “Bitches In Heat” that may be some smut peddlar’s movie title is exactly that without verifying it?
How do they know that “Bitches In Heat” isn’t some Dog Breeder associations informative title on breeding your female dog with an appropriate Male dog to enable a good litter of puppies? How do they know even what is titled as say ” bongo goes to college” even contains the actual movie and not 8 episodes of Smokey The Bear t.v spots on Fire Safety?
We all know the answer and that is they don’t unless they have a work to compare it to. And since Lipscomb / Malibu say that this a third party work, they wouldn’t have anything to compare. Now where is all this going you ask, well lets go down that path.
in my opinion either IPP’s infallible software hoover’s up everything like a crack addicted on a major binge or they scan every instance of Bit Torrent files being shared on the planet and record every one say at like a site like the Pirate Bay for instance, and record information for every torrent that exists there and filter out the results they want? Could it be, sure anything possible. Is it likely well, I would be of the opinion it isnt.
That would be a major use of resources and time and then you have to sort through all of it to find what you are looking for which would be your clients movie and what IP’s downloaded or shared it and when and makes sure all the necessary pieces were there to get a complete working movie.
Now we still have the issue of why IPP would record “Third Party” titles being shared by an IP address and why IPP would record said IP address distributing any of the said 904 files. which they do not monitor for a client to record infringement.
In my opinion Guardaley/ IPP/ Excipio and what ever other named entities are German friends use as “the monitoring Enforcement” company do not have different seperate systems monitoring for each entity and it’s client roster. I am of the opinion that it is all one system used to monitor for all the different entities hence why you see “Third Party” mentioned.
Could it be that ” Third Party” could be say Open Office which is free being shared via Bit Torrent, sure it could. Could it be someone sending a movie they took when they were on vacation to a relative in another city, state or country via bit torrent sure it could.
Is there a possibility that Hypothetically it is one of our German friends other entities client titles they provide enforcement on and this is why we see the ” Third Party” line being touted so as not to give away that one system monitors for all the entities but no one is supposed to know this, sure it could, or it maybe not. We can only share are opinion. ( Keith feel free to jump in and state it for the record ) ( or even better have Tobias Feiser fill us in if he can squeeze it in to his busy schedule )
Now could thrid party be innocent and is in the affidavits for dramatic effect, sure it could. Does it mean that is true, well we will have to wait and see. Maybe this Defendant’s counsel will enquire about it and we can see what Keith and IPP say about this.
Just my opinion of course…
Funny, I’m writing a bit that covers this topic. My belief is the trolls uses the “Third-Party” titles/Files being shared via BT (AKA “Exhibit C”) as an addition way to link the infringing activity of Malibu Media/X-Art. They will use these titles/files to “correlate to the Defendant’s hobbies, profession or interests.” Example: They search Facebook and see the Defendant has made comments about being a really big fan of Dr. Who; AND the “other” files contains a large collection of the Dr. Who TV series. On its own it may seem very weak, but added up with addition evidence and you can easily reach the 51%+ proponderance of evidence level. The file titles can also be search for during the forensic exam. The Troll doesn’t have to show that the files were being infringed upon (they could even be non-copyrighted works), just that a system in the residence had the exact same titles/files as they recorded from the BT client/Defendant’s IP address. As far as what they suck up on BT, I would guess it is everything from the IP addresses that are found to be sharing client’s content. So once the IP addresses in noted, the system automatically records all the other files the BT client is actively sharing.
Third party exhibit is another scare tactic. The plaintiff has no legal standing to litigate these. They are afraid to even go into discovery of their operation for what they claim their clients’ work was infringed. And even on their own stuff , they claim to have only recorded one or two bits of the work from the defendant.
Of course it is a smoke screen and a bunch of malarkey. And at the end of the day, one could download 904 files, yet have never downloaded a single Malibu Media lame video clip. So it proves nothing at all.
Malibu Media lawyers are so full of “it”. Full of magical wizardry of being able to discern things out of nothing. It is amazing any judge allows the total nonsense with no real factual prove of any infringement.
While I agree there is merit to what you alluded to with regards to the “Third Party” files being mentioned for dramatic effect ( my opinion ) I would suffice to include this 14 month period of observation that was logged and mention in Lipscomb / Malibu’s filing for the same in my opinion.
I also agree that the “correlation” of activities that Malibu / Lipscomb is reaching for with the mention of it, is another avenue for them to paint the Defendant as a constant bit torrent downloader and that’s really more to paint the Defendant as a habitual offender which seems rather weak in my estimation
I am of the opinion though that there is more to this Third Party business than what Lipscomb / Malibu have stated in the affidavits used in this case. If Lipscomb / Malibu do provide this so called ” Additional Evidence ” and the list of infringing works they recorded and they correspond to this defendant. I would love to see what titles etc that Malibu claims is in the “Third Party” list.
I would be wanting to compare the file names and see if they are attributed to our German friends or any entities they are also associated with.
My gut feeling is that third party exhibit will never be litigated. As we learned in Elf Man v Lamberson, it was all made up. When Malibu Media claimed I had infringed their boring video clips, that they couldn’t even pay me to watch, my router and computer were unplugged and I was 400 miles away, hospitalized. So there was human error or their software generates false positives.
I would place my bet on them never finding 3rd party exhibit files on any body’s computer.
3rd party exhibit help discern profession, hobbies, interests. Oh for goodness sake, what profession makes one more likely an infringer of teen porn? This all comes off as a very poorly written Sherlock Holmes Mystery story not a legal claim based on facts and real provable evidence.
There is the illusion, they will litigate, overwise no one would settlement. However it is just an illusion.
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