Guardaley | Voltage

Week of 7/6/2014: news and updates from the Bittorent litigation front

Many things happened recently on the Bittorent litigation front. While the majority of the events don’t warrant dedicated articles, these events are all important.

Updates to previous posts
Copyright troll Malibu Media targets a business, but fails to timely serve it
M. Keith Lipscomb

Alas, in this case, where Malibu targeted a business and played games with service, a motion to cut and run without prejudice was granted by Judge Michael Mason on 6/30/2014 — contrary to the defendant’s earlier request for dismissal with prejudice, which would allow to recover attorney fees. Paul Nicoletti’s 6/27/2014 response to the defendant’s motion is an epitome of the cynical exploitation of the judicial system’s blemishes by the troll. Unless the system is modified to lower the bar of accountability for legal yet disgusting practice of cutting-and-running, while leaving innocents with huge legal bills, the abuse will continue to flourish.

If this middle-finger-behind-the-back thuggery doesn’t make your blood boil (or at least prompt an acute desire to take a shower), I can only envy the thickness of your skin (emphasis is mine):

[…] a voluntary dismissal with prejudice in this case would be grossly unfair. Plaintiff never served the Defendant, which is a small closely held business. The infringer is an employee or owner of Defendant. If the case was dismissed with prejudice, it would arguably make Defendant the prevailing party and trigger a motion for attorneys’ fees. Awarding fees to Defendant would be unfair because it is likely than an owner or employee of Defendant committed the infringement. Further, such award would deter these types of suits and reasonable investigations, which would be contrary to the express purpose of the Copyright Act. And, Defendant has not prevailed on any issue in this litigation, no discovery has been taken, and the underlying copyright litigation is not being decided on the merits. Finally, Plaintiff intentionally did not expose itself to a motion for fees as evidenced by Plaintiff’s decision not to serve Defendant. Instead, Plaintiff tried to identify the culpable employee within the Rule 4(m) deadline. It could not do so but Plaintiff’s investigation continues.

Elf-Man v. Lamberson: defendant agrees to let plaintiff go… for $100,000

Without waiting for Elf-Man’s reply brief due next Friday, Judge Thomas Rice ruled on the dismissal on 7/10/2014. The judge expressly declined to award the costs and fees as a condition of dismissal, citing authority that a sanction cannot be a condition of a dismissal. The good sign is that the judge explicitly invited defense to file a motion for fees and costs before August 24, so I expect it won’t be denied, yet can’t predict what the exact amount Judge Rice will find reasonable. Also note that Lamberson’s counterclaims are dismissed without prejudice.

[7/15/204 Update] DieTrollDie’s analysis.

Copyright trolls are back in Virginia. Jon Hoppe has a reading comprehension problem

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.

Mark your calendars: Malibu Media is set to defend its questionable conduct on July 30

As predicted, Lipscomb applied for pro hac vice admission in Maryland — in all the three cases where Morgan Pietz’ bunker buster motion will be heard on 7/30/2014 — an expected trollmageddon before the panel of three judges.

Déjà vu all over again: Pure Bill of Discovery is still being abused in Florida

The zombie of Florida’s antiquated Pure Bill of Discovery is back in its grave (for good?): attorney Cynthia Conlin brought good news on 7/10/2014: the only known Pure Bill Of Discovery case (Canal Films v. Bright House Networks) aimed at unmasking purported file-sharers without due process was voluntarily dismissed after she filed a motion to vacate judgment, and the ISPs moved and applied further pressure.


In other news
  • Malibu Media, the most active Guardaley’s Erpressungdivision, filed 60 new cases over the last week:

     

  • An interesting bit of information: seemingly, Charter Communications is fed up with trolls. According to some motions for extension of time to shake down defendants filed in Michigan by Paul Nicoletti on Friday,

    […] Charter has objected to Plaintiff’s subpoena. Plaintiff is in the process of preparing a Motion to Compel Charter’s responses which will be filed in the district in which Charter is located, the Eastern District of Missouri.

  • In a closely-watched case Malibu Media v. John Doe (ILND 13-cv-03648), where the defendants’ 2257 affirmative defense survived the motion to strike (hence opened the avenue of discovery that was so far off-limits), Malibu and its lawyers show signs of fear, trying to restrict expectedly devastating discovery results to this case only and to ban Morgan Pietz from sharing the obtained evidence with other Does he represents in numerous Malibu cases.
  • A new cynical statement was made by Nicoletti in Malibu Media v. Jesse Raleigh (MIWD 13-cv-00360):

    Defendant should bear the cost of producing forensically sound images of his hard drives because the hard drives are accessible and the imaging process does not impose an undue burden or expense.

    As Raul nicely noted,

Thanks to Raul and Calvin Li for mundane yet critical job of finding and recapping the most interesting documents.

Update

7/14/2014

Update to updates? What am I doing??? Just thought you would enjoy the following document:

 

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Discussion

7 responses to ‘Week of 7/6/2014: news and updates from the Bittorent litigation front

  1. Frequent lurker, just thought I’d post this here. The ABA now “advise against suing file-sharers as that would be ineffective or even counterproductive.” as detailed in this Torrent Freak article – http://torrentfreak.com/suing-file-sharers-doesnt-work-lawyers-warn-140713/ that summarizes the ABA’s new white paper – http://www.americanbar.org/content/dam/aba/administrative/intellectual_property_law/advocacy/ABASectionWhitePaperACallForActionCompositetosize.authcheckdam.pdf

    Looks like these Copyright Trolls are even at odds with the ABA itself, that gave me a good laugh, hope you guys enjoy it also.

    • well, not effective when legitimately curb piracy by actually bringing cases to trial, but (as the article says) lucrative for trolls

      • Sure, my main reason for posting it is that there is no credibility left in the “fighting piracy” argument, and this is one more useful tool in refuting the charade that Malibu Media, Voltage, etc are trying to put forward. Even the ABA, which refuses to discipline Prenda’s attorneys (as SJD pointed out in the comments), is against it now.

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