A month ago, a copyright troll from Washington David A. Lowe dismissed a defendant with prejudice promptly after the defense counsel Christopher Lynch threatened to expose a massive fraud upon the US federal courts. This story made rounds on the Internet (DieTrollDie, TorrentFreak, Techdirt).
What followed next was both astonishing and encouraging (I’ll explain why shortly): as of today, the same troll attorney dropped three more cases following the same pattern:
1 & 2
On 12/13/2016, Mr. Lynch sent two letters to Mr. Lowe asking to dismiss his clients Patricia Alexander, a 69-year old grandmother, and James Collins, a 76-year old US Navy veteran, from LHF Productions v. Does 1-18 (WAWD 16-cv-1017):
We remain concerned that these LHF cases continue to progress through the Western District of Washington when they have a direct tie to the prolific use (over 40 instances) of a fictitious declarant in the Western District of Washington. For example, we note Dkt. #16 filed by LHF in this WD WA matter cites the ED WA Elf-Man case as authority. That ED WA Elf-Man case is where your law firm represented to the Court (e.g. ECF No. 105 at p. 3) that the prolific fictitious declarant was a “former investigator” for “Crystal Bay Corporation” of “South Dakota.” That same Dkt. # 16 also cites to other WD WA cases your law firm has filed (e.g. 2:14-cv-1336) using a declarant, Daniel Macek, who claimed to work for the same “Crystal Bay Corporation” of “South Dakota” in its “technical department,” just as the fictitious declarant falsely stated “he” worked for. That same declarant, Mr. Macek, has testified for LHF in WD WA, stating he now works for a German company (although he claims to work for Crystal Bay Corporation in an LHF declaration filed in Ohio). In discovery, we assume Mr. Macek will have no documentary evidence of his “work” for “Crystal Bay Corporation” and will have to admit that he has no personal knowledge of any “Darren M. Griffin,” despite being aware of declarations filed under that name.
Please consider our offer to not Answer, nor pursue defense attorneys’ fees, if the case against Ms. Alexander is dismissed by Noon, Monday December 19, 2016. Otherwise, we will submit our Answer that afternoon and patiently work towards Ms. Alexander’s full exoneration and the ruling on our request for defense attorneys’ fees.
Three days later (and three days before the deadline), the troll dismissed the claims against both defendants.
On 12/19/2016, Mr. Lynch sent another letter to the troll, asking to dismiss his other client from Cell Film Holdings, LLC v. Does 1-10 (WAWD 16-cv-1180) and expressing similar concerns. Unsurprisingly, the defendant was hastily dismissed on 12/23, four days before the deadline.
In addition to the Griffin fraud, the latest Lynch’s letter to Lowe outlined many instances of the troll’s highly questionable behavior.
Particularly, it mentioned an Ohio case filed by the same plaintiff, where Lowe’s fellow troll attorney brazenly claimed that the plaintiff’s “expert” worked for a sham “Crystal Bay Corporation” as recently as this summer (Antonelli Law also wrote about this unusually sloppy case). This arrogance approaches (if not tops) Prenda’s.
Despite this clear pre-dating problem, CFH’s Ohio counsel, Timothy Shimko, filed an 18 page Ex Parte Application for Leave to Take Discovery Prior to Rule 26(f) Conference, ECF No. 6. CFH’s Application cites Mr. Macek’s pre-dated declaration forty-seven times (e.g. “This evidence is then saved by Crystal Bay. Macek Decl. ¶13.” ECF No. 6 at 10.) The June, 2016 dates and times of these Ohio “Macek at Crystal Bay” observations directly overlap the June, 2016 dates and times Mr. Arheidt says he “observed infringing” while working as a Maverickeye consultant in a CFH declaration filed by your law firm in WD WA Case No. 2:16-cv-1091. Given this overlap, both of these declarations – Mr. Macek’s and Mr. Arheidt’s — cannot be true.
Also notable is the language of the declarations purportedly used by different “experts” “working for“ “different” ”corporations” (I apologize for overusing quotation marks, but I don’t know how else I can stress the extent of the deception):
We have carefully reviewed the identical Crystal Bay Corporation declarations to the identical Maverickeye declarations. We see the bulk of the “Darren M. Griffin” of Crystal Bay Corporation declarations were filed in 2013. Then in 2014 came the Daniel Macek of Crystal Bay Corporation declarations. Then in 2015 came the Daniel Macek of Maverickeye declarations. In mid-2016 the Daniel Arheidt of Maverickeye declarations start (with very similar handwriting to “Daniel Susac” and “Darren M. Griffin.”)
All of these declarations are essentially identical, regardless of the witness and regardless of the company the witness claims to work for. For example, the Macek declaration filed in Elf-Man, ED WA Case No. 2:13-cv-395, ECF No. 88, has the same typographical error (“The forensic technology used by Crystal Bay is propriety (sic) software…”) as the Arheidt declaration filed in this case Dkt. #6 (The forensic technology used by MEU is propriety (sic) software…”) Not exactly “propriety.”
The letter embedded below outlines additional misrepresentations to the tribunal that the so-called “officers of the court” are getting away with. The greed-driven conduct of these attorneys erodes people’s faith in the judicial system and “casts doubt on the integrity of our profession,” as the Minnesota U.S. Attorney noted in the press release on the indictment of copyright trolls John Steele and Paul Hansmeier, who employed a drastically similar strategy of plundering US citizens.
As I mentioned above, the troll’s behavior is both astonishing and encouraging. Here is why.
On the one hand, it is astonishing because those who steer the litigation campaign knew that these hasty retreats wouldn’t fly under our radar and would be widely publicized. These dismissals undeniably hurt already shaky credibility of trolls’ threats. Why? Because the bittorent extortion racket is based entirely on fear. When the victims realize that those bottom feeders soil their underwear at the first sight of a resolved fighter, the horror movie quickly turns into farce. It is significant that when the trolls faced this dilemma, they preferred a retreat to perils of discovery, which could trigger a criminal investigation.
On the other hand, the troll’s decision to cut and run when confronted is encouraging because it not only gives hope to thousands of Does, but also provides a concrete roadmap on confronting the bully.
Each innocent person we speak with leaves us dismayed that your client’s foreign representatives continue to pursue these cases in the manner they have selected. As a respected intellectual property firm like yours, my firm understands the need to protect and enforce legitimate rights. But the methods employed in these cases sacrifices investigatory precision and entangles too many innocent people.
The bottom line is that your client’s foreign representatives have made some mistakes. Their system is not foolproof and it needlessly ensnares innocent people, disrupting their lives for no good reason. Their bigger mistake is the use of a string of sworn declarations filed in our revered federal courts that lack the legitimacy the law requires.
Lowe dropped yet another two Chris Lynch’s clients. In the first case, Mr. Lynch didn’t even send one of his “jaunty” letters to the troll. Just the fact that the defendant retained Lee and Hayes was enough to prompt a quick dismissal. In the second case, the letter was sent, and it is a worthwhile read. In addition to perfected threats to expose a massive fraud in the Guardaley-driven Bittorent litigation campaign, Mr. Lynch mentions a recent significant 9th Circuit’s ruling in Perfect 10 v. Giganews:
[…] Judge Nelson writes a clear and thoughtful opinion directly addressing the same three copyright theories your clients continue to plead in these Bittorrent cases. The Ninth Circuit found that the accused defendants (i) had no liability for direct infringement, (ii) had no liability for contributory infringement (via material contribution or inducement), and (iii) had no liability for vicarious infringement – even though the defendants were operating commercial enterprises through which bits of the plaintiff’s copyrighted works passed.
Our favorite part is the Ninth Circuit affirming the defense attorneys’ fee award of $5,213,117.06 and the non-taxable costs of $424,235.47. This is a solid recognition by our governing circuit that misguided copyright bullies are taking a significant risk pursuing unwinnable copyright claims (even if “clever” arguments can be made in an attempt to articulate liability.) Judge Nelson quotes the Supreme Court in affirming the fee award: “It is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. To that end, defendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them” (at p.32).
So, Chris Lynch secured seven dismissals for his clients so far.