The document filed yesterday in two bittorent copyright cases – Strike 3 Holdings LCC v John Doe (WAWD 17-cv-01731) and Venice PI LLC v David Meinert et al (WAWD 17-cv-01403) – eliminates any remaining doubt that the current massive bittorent litigation campaign (steered by the German “anti-piracy” company Guardaley) differs from the infamous Prenda Law scam. This document shows that in tens of thousands of lawsuits (and more are being filed as we speak) federal courts allowed ex-parte discovery of alleged copyright infringers’ identities relying on declarations full of misinterpretations and outright fraud.
To understand the significance of this document, let’s briefly revisit the history of its inception.
Federal Judge questions legitimacy of copyright trolling lawsuits
In two different cases, Nos. C17-990 TSZ and C17-1075, plaintiff [Venice PI, LLC] sued the same, now deceased, defendant, namely Wilbur Miller. Mr. Miller’s widow submitted a declaration indicating that, for about five years prior to his death at the age of 91, Mr. Miller suffered from dementia and was both mentally and physically incapable of operating a computer.
This discovery was disturbing enough to question the legitimacy of the copyright trolls’ detection methods, as well as plaintiff attorneys’ predatory litigation tactics. In each of the 12 Venice cases assigned to him, the judge issued an order to show cause, directing the troll to
[…] file an offer of proof [that] shall be supported by the declaration of an expert in the field, setting forth such expert’s qualifications, and shall address the following issues:
(i) whether and, if so, how an IP address can be either “spoofed” to or faked by a BitTorrent tracker, and what is the likelihood (quantified if possible) that each defendant’s IP address was a false positive;
(ii) whether and, if so, how plaintiff can prove that the material allegedly tracked to each defendant’s IP address was a “playable” and actionable segment of the copyrighted work at issue; and
(iii) what evidence, if any, can plaintiff currently present, beyond mere association with an IP address, that each defendant engaged in the alleged copyright infringement.
- ECF 29: Expert report by Benjamin Perino (Guardaley’s owner) (+Exhibit). Note that another Guardaley employee – Michael Patzer – made an identical claim that (paragraph 9 from an OHSD case declaration) he wrote the software that has the same functionality that Perino says he wrote (paragraph 15 of ECF 29)
- ECF 30: Declaration of Michael Wickstrom (Voltage Pictures)
The judge issues the second order
In addition, Judge Zilly discovered the allegations of one particularly egregious fraud perpetuated by the same German “investigators”: the network of troll attorneys across the US filed more than 500 declarations “signed” by a fictitious person Darren Griffin of a fake company Crystal Bay Corporation. Those declarations were successfully used to obtain court subpoenas to subsequently pressure defendants to settle out of court (“essentially an extortion scheme” according to CACD Judge Otis Wright).
Finally, the judge became aware of a troubling pattern: as I documented on this blog (here, here, here, and here), Lowe dismissed more than a dozen of defendants who retained attorney Christopher Lynch – after Mr. Lynch sent a letter threatening to fight back and conduct discovery, which would inevitably shed a light on plaintiffs’ and their attorneys’ contemptible conduct.
On 1/8/2018 Judge Zilly issued another, a much stronger-worded, order to show cause, which hinted that the declarant Daniel Arheidt “might be committing a crime by engaging in unlicensed surveillance of Washington citizens” and asked why “claims […] should not be dismissed with prejudice (and any funds [the plaintiff] has received in settlement should not be disgorged)”.
Cornered troll is hissing and showing teeth
On 2/5/2018 Lowe responded with another bunch of declarations:
- ECF 34: Declaration of Stephen Bunting, a forensic guy (+Exhibit)
- ECF 35: Declaration of Michael Wickstrom of Voltage Pictures, addressing the Guardaley shell game / Hollywood accounting (+Exhibit)
- ECF 36: Declaration of David Hricik, a law professor from the Mercer Law School, who addresses Zilly’s allegations of Lowe’s unethical conduct, and also opines on my blog – without reading a single post¹ (+Exhibit)
- ECF 37: Declaration of Daniel Arheidt, who, while working for Guardaley and living in Karlsruhe, never met his “colleague” Daniel Susac, who is also from Karlsruhe and is/was working for Guardaley
- ECF 38: Declaration of David Lowe, who tap-dances around the Griffin fraud issue, trying to create an impression that the fact that Griffin never existed is just a conspiracy theory (+Exhibit)
- ECF 39: Declaration of the Guardaley’s owner Ben Perino, who argues that his magic box is incapable of producing false positives
The overall response’s tone was more nervous than the last time. To maintain the air of legitimacy in front of a skeptical judge, Lowe made some misinterpretations (for example, he claimed that he has “no personal knowledge about Crystal Bay, and never worked with that entity”). In addition, Lowe’s response contained a threat directed at Mr. Lynch and myself:
Plaintiff is concerned that, insofar as the basis for the show case order may be found in websites and letters that are not part of the record in this case, and which are not under oath and cannot be squarely confronted in this response, that its Due Process rights may be violated. While Plaintiff believes it can fully satisfy the Court with the present submission, in the event the Court finds support in any of the materials cited in its Order (such as the letter of Christopher Lynch, or content on a website), Plaintiff requests the opportunity to conduct discovery into such assertions in order to defend itself. Specifically, Plaintiff and its counsel request the opportunity for third party discovery of the purveyors of the cited online sources, as well as Mr. Lynch, whose unsubstantiated letter containing accusations in the Collins case appear to form the basis for much of the Court’s criticisms. If any remedy is to be imposed that in any way relies on these sources, Plaintiff’s due process rights surely demand that it be given the opportunity to know and confront its accusers in this regard, and to thereby prove that none of them have any evidence (let alone reliable, credible, and admissible evidence) to support their assertions.
This request to conduct a fishing expedition is nothing more than an attempt to intimidate critics. Prenda tried this tactic in 2013, and you all know how it ended.
While I decided ignore this threat, Mr. Lynch didn’t take it lightly and authored a response – the declaration that addressed Lowe’s false statements and bogus accusations in devastating detail.
To date, this is the most meticulous collection of discrepancies, misstatements and outright lies in copyright trolls’ declarations. Mr. Lynch began collecting and organizing the evidence of troll’s wrongdoing since he got involved in a (successful) defense of a copyright troll victim (Elf-Man v Lamberson, WAED 13-cv-00395) and has never stopped doing this work.
It would be unproductive to summarize this already condensed document. Neither do I need to explain its significance to those who read both Judge Zilly’s orders to show cause. The only comment I wish to make is that I hope that one day this declaration becomes an exhibit to an indictment.
Read it, share it, and – if you a defense attorney – file it in your cases.
- Leonard French: Fake Experts?! Defense Atty uncovers False Declarations in File Sharing Cases (video)
It took 2.5 months for Lowe & Co to come up with “rebuttal” (that’s how Lowe labels the dances around well-substantiated allegations):
- ECF 46: Plaintiff’s response to Lynch declaration
- ECF 47: Declaration of Benjamin Perino
- ECF 48: Declaration of Patrick Achache
- ECF 49: Supplemental declaration of David A. Lowe
The funniest of them is the Achache’s declaration, in which the Guardlaey founder claims that Darren Griffin is a real person after admitting that he couldn’t be located. That’s how Lowe described it in his response (emphasis is mine):
While it remains irrelevant to any of these proceedings, simply to put this issue to rest, Plaintiff has undertaken significant private efforts and investigation to locate Darren M. Griffin, or otherwise confirm that he is a “real person” who (1) worked briefly for Crystal Bay Corporation in the 2012-2013 to verify data licensed from Excipio; and (2) verified infringement detection data and submitted a number of declarations in various jurisdictions confirming the data. Despite considerable expense, Mr. Griffin has not been located. However, the declaration of Patrick Achache, submitted herewith, confirms that Darren M. Griffin is a real person and performed the work attributed to him as noted above. (Achache Dec. ¶ 4) Barring evidence to the contrary—as opposed to any mere speculation by Mr. Lynch or others—this should once and for all put that issue to rest, and any further speculative assertions by Mr. Lynch and his ilk should not be countenanced by the courts.
So, Achache said Griffin is real – I guess that the case is closed and shame on all of us for thinking otherwise. On the other hand, if this is the case, then why can’t I help recalling the tap dances Prenda folks performed when confronted with the Alan Cooper fraud? For example, that’s what Paul Hansmeier said during a deposition five years ago:
And so to address that issue AF Holdings — well, spoke to Mr. Steele — Mark Lutz spoke to Mr. Steele and said, Well, I understand that there’s an issue with this Alan Cooper and asked Mr. Steele point-blank, Is the signature a forgery. Mr. Steele said the signature is not forgery. And he asked him, Is the — is this signature authentic. Mr. Steele says, yes, the signature is authentic. Based on Mr. Steele’s representation, we have no reason to believe from what Mr. Steele said, at least, that the signature is a forgery or there’s some sort fraud going on with respect to the signature.
¹ It looks like Mr. Hricik was so offended by the blog’s title that he didn’t read any posts. According to the log, the only page he visited was About (besides the main page): he scrolled down, found my semi-serious Public Domain Notice, cut the phrase “copying is not theft” out of context and declared that it is “worrisome” (FN1 of Hricik Declaration).