Once Again, As Details Of Questionable Copyright Trolling Practices Come To Light, Troll Desperately Tries To Run Away

from the run-away,-run-away dept

A few weeks ago, we wrote about evidence coming to light suggesting that the massively discredited German firm Guardaley, and a variety of its shell companies, were actually key players behind a bunch of US copyright trolling cases (including at least some of Malibu Media's). Much of the initial evidence for that came out in a copyright trolling case brought by the copyright holders of the film "Elf-Man" in a case against someone named Ryan Lamberson. On Friday, Lamberson's lawyer sought to compel discovery in an effort to dig into what's really happening behind the scenes, and how involved Guardaley and its various shells really are in this case. And, almost immediately, the lawyers for Elf-Man decided to run away as fast as they could, filing a motion to dismiss with prejudice.

As FightCopyrightTrolls points out, what may be even more interesting is the declaration from Lamberson's lawyer, Chris Lynch, which includes an email he sent to Elf-Man's then-lawyer Maureen VanderMay. As you may recall, in our post about the connection to Guardaley, we also noted that VanderMay had suddenly told the court she could no longer represent the copyright holders of Elf-Man, saying it was "impossible for counsel to both continue with representation and comply with the governing rules of professional conduct." In Exhibit B in the declaration, Lynch lays out evidence that the Guardaley shell company APMC was actually the one who hired VanderMay, rather than the copyright holder, and also that APMC had seeded various films from Vision Films itself, with the goal of then copyright trolling any IP address that downloaded them (i.e., just like Prenda's scam of uploading the films themselves). This raises all sorts of legal (and ethical issues), including the basic fact that if the copyright holder or one of its agents is seeding the films itself, it's no longer an unauthorized distribution, and thus not infringing.

We see this same pattern time and time again with the various copyright trolling efforts. Righthaven, Prenda and other copyright trolls seem to regularly try to dismiss cases when they're called out on questionable behavior in an effort to hide any more of that behavior coming out. It usually doesn't work very well, as opposing lawyers often use the opportunity to press for legal fees, and to seek discovery anyway.





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  1.  
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    That One Guy (profile), Jun 16th, 2014 @ 3:29pm

    Predator turned prey

    I can only hope the opposing lawyers take the opportunity to go in for the kill, and the judge doesn't just let them off the hook by allowing them to just dismiss the case and look for easier prey elsewhere unscathed.

     

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  2.  
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    Anon E. Mous (profile), Jun 16th, 2014 @ 3:33pm

    Is anyone really surprised that Vandermay wants out of the ELF-MAN case? I doubt that many of us in the Internet hate group ( by the way SJD I didn’t get my ” I Hate Trolls ” T-shirt or my complimentary ” Proud Member Of Internet Troll Psychopath Group ” Bumper sticker , so if you could mail those out soon, that would be great ) are really surprised that Vandermay has filed to be allowed to gracefully exit the case.

    While I can’t say I blame Vandermay for wanting an exit, I do not see the Judge granting her an early exit nor letting her slink away. There are many problems in this case that have been caused by Plaintiff and their so called ” client ” and the monitoring firm who provided affidavits and other “evidence” in this case.

    In my opinion as with most of these troll cases the evidence and the monitoring firm is very thin to begin with, yet the trolls continue to file cases with it, and this case that Vandermay filed is no exception. Vandermay pushed on through this litigation insisting the defendant infringed their Plaintiffs content. This point was pushed by Vandermay for quite a while as the case went further.

    The fact that Vandermay has now had a “come to Jesus moment” and wants to absolve all her sins and come way clean is wishful thinking in my opinion. Vandermay could have exited long ago ( like when she first looked at the case before filing it with the court IMHO ) she chose to push it forward to see if the defendant would settle for fear that Plaintiff and counsel would take it to the end and in my opinion this is a gamble that Vandermay took and lost, so be it she has to deal with consequences of her action in this case, period.

    Lynch has done a lot of work in the case and it reflects very well for the defense. Lynch has Plaintiff and their counsel in a corner and I do not see them being able to get out of it that easy. In fact unless the Judge takes mercy on the Plaintiff counsel they are in for a rough ride as this progresses.

    I would be of the thought that Vandermay could be in line for a bar complaint with her actions in the case. The failure to communicate with Lynch in response to letter and email sent concerning the matters the Defense want to have discovery on and the dates of service, I believe would be actionable in a bar complaint for non compliance with rules governing conduct of a lawyer via state bar and ABA rules of conduct.

    Vandermay also has a duty as an officer of the court to notify defendant counsel and the Judge of and ethical issues she encounters in her duties during the case with regards to her client, and any evidence put forth in the case in regards to affidavits, declarations, evidence, witnesses and to notify the court swiftly.

    The Judge I believe is going to see the fact that Vandermay pushed for discovery of defendant Lamberson computer while stone walling and not abiding by the discovery/deposition schedule that was scheduled with the court by both the plaintiff and defense counsels and then cancelling those schedule dates by saying that those who were to be disposed at the discovery hearing “could not make it ” is not going to sit well with Judge considering that all parties were aware of the fact that discovery was to take place at that time and date.

    The fact that those discovery dates were cancelled by a lawyer for plaintiff who had not been associated with the case is going to have the Judge look at Vandermay and ELF-MAN and wanting to know why this occurred so late in the case when the time and dated were known well in advance and why they are now delaying the defendant counsel the opportunity to depose them so far into the case and how this new lawyer for Plaintiff came to be involved ( btw… does anyone know if Plaintiff’s new counsel David Lowe has asked the court to be entered and allowed to be on the record as plaintiffs new counsel and if Judge allowed it ?

    In reading Lynch’s submissions to the court, Lynch brings up the fact that attorney Carl Crowell contacted him to let him know that Vandermay would be asking the court to allow her to get out of the case. Lynch in the conversation about the case tells Crowell about the questions he is looking for answers that Vandermay was to provide but has not done as of yet. Crowell in the conversation tells Lynch he will try and provide them and they end their conversation.

    Lynch mentions in his filing with the court that Crowell had not provided the answers to Lynch and they have not spoken since. That to me raises the red flag in my opinion that Crowell may have looked at what has transpired and the actions so far in the case and decided to not insert himself into the case as their could be some serious repercussions that could apply for the plaintiff and said counsel for the plaintiff.

    The fact that David Lowe has now come about and has asked the court to let ELF-Man dismiss the case and to do so the Plaintiff is not liable for any costs by the courts is a very telling tale. I do not see the Judge hearing the case allowing Lowe’s motion of dismissal to be granted. There would have to be hell of a reason for the Judge to allow ELF-MAN to dismiss this case, and from what I have read in the Plaintiffs motion there is NOTHING compelling to allow that to occur this far into the case.

    While I do agree with assertion that Lamberson could walk away with a tidy some of cash here, I believe we are not at that point as of yet. Lynch and Lamberson has the hammer in their end of the court. The Judge that is hearing this case is not going to be impressed with the games that the Plaintiff and Plaintiff counsel has been playing in his/her courtroom and the tactics that have been played by plaintiff’s counsel.

    If the Judge dismisses the case it would honestly be a travesty of epic proportions in law and of the rules of court and to the defendant who has been dragged in the mud when this all started. While the Plaintiff has rights, so does the defendant and to allow the case to be dismissed would trample all over the rights of the defendant to a fair and just conclusion to the action brought against him at no will of his own and in a case that should have never been files in the first place with a dubious copyright and entities that had no standing in my opinion to file this action in the first place.

    The fact that this case was initiated by the Plaintiff and Vandermay means they chose to do so knowingly. ELF-MAN had a duty to make sure the representations and evidence supplied by the monitoring firm and that their work’s copyright was valid and fit the definitions required by law to used to litigate the case. .Vandermay in my opinion has a duty as a Lawyer and as an officer of the court to verify before bringing this case forward and filing it to make sure that she verifies all of Plaintiffs documents, evidence, affidavits, certificates, works, copyrights, methods of investigation, entities are in good standing and chain of evidence,as well as thrid party submissions and actions are within the boundaries to fit the requirements to file a case such as this and that are lawful.

    I see a failure of many of the aforementioned items Listed above in this litigation in my opinion. The only way the Judge allows a dismissal in this case is if the Plaintiff writes one hell of a big cheque to Lamberson for dragging him into this mess of case in the first place, that’s the only way I see this situation resolving itself.

    I do see the trolls not in this case but in other active case applying some pressure to people on Plaintiffs side to negotiate with Lynch to get Lamberson to take an agreement to dismiss with a confidential settlement involving cash to walk away. This case and its results if taken all the way by Lamberson and Lynch could have some scary repercussions for the folks on Plaintiffs side and Vandemay but for the troll lawsuit game as well. If this litigation goes to the end by the defendant and counsel the trolls would not come out unscathed in a Judges ruling at the end.

    This could have a very serious rebound effect on other troll cases like this that are being heard or have been filed in various courts. The last thing the trolls would want is another Judge Wright like ruling that could further hurt the game of cash settlement troll lawsuit generation and remuneration.

    The trolls are in trouble on many front and the Prenda case and others like this one are going to deal a serious blow to them and be brought up in more and more cases. Judge Wrights ruling is still effecting Prenda long after it came down.. This case as well as a few other could have some detrimental rulings as well that could shake the troll litigation to its core

     

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  3.  
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    Anonymous Coward, Jun 16th, 2014 @ 3:42pm

    Re:

    Whoa

     

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  4.  
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    That Anonymous Coward (profile), Jun 16th, 2014 @ 3:59pm

     

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  5.  
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    That Anonymous Coward (profile), Jun 16th, 2014 @ 4:11pm

    I do hope we get to break open the pinata of shells and get to the gooey german center.
    One wonders if another operation might be REALLY concerned right now about the contents being spilled.

    Jesus might forgive you but the courts, Judges, targets, and so many more who you made miserable won't. I wonder who else they've seeded files for in the past... anyone know the statue of limitations on Fraud Upon a Court?

     

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  6.  
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    Anon E. Mous (profile), Jun 16th, 2014 @ 4:13pm

    Re:

    Vandermay better go buy a lottery ticket because she was very lucky IMHO to be allowed out especially with the claims made in Lynch's declaration to the court.

    And as for Lowe, why on earth he would want to sub-in as counsel of record is beyond me. It will be interesting to see where the Judge goes with Lynch's affidavit and the questions raised in it.

     

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  7.  
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    That Anonymous Coward (profile), Jun 16th, 2014 @ 4:16pm

    Re: Re:

    If someone offers you $$$$ to slap your name on a 'simple' dismissal filing, you'd be a fool not to take it...
    Of course if you failed the class on Due Diligence, you then end up with your ass on the line.

     

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  8.  
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    Anonymous, Jun 16th, 2014 @ 4:18pm

    Wouldn't it have been cool if they'd gotten Jenna Elfman to star in it?

     

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  9.  
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    Anonymous Coward, Jun 16th, 2014 @ 4:34pm

    Re:

    tl;dr

     

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  10.  
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    Anonymous Coward, Jun 16th, 2014 @ 4:42pm

    Life really is like a box of chocolates.

     

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  11.  
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    sophisticatedjanedoe (profile), Jun 16th, 2014 @ 4:44pm

    Since the majority of readers didn't scroll down Chris Lynch's declaration that far, I thought I'd post his email to VanderMay (Exhibit B). I think that all the points are pretty damning.

    [...]please consider this information:

    1. Mr. Lamberson didn’t copy the work.


    2. Your client has no admissible evidence that Mr. Lamberson copied anything. For example, we think the response to RFP#12 is a hoot: Apparently, Mr. Lamberson copied thousands of works from 11/25/12 to 12/23/12 — apparently, he volitionally sought and copied numerous works in German, and Dutch, and Mandarin, and French, and Korean, and Russian, and Spanish, and Italian, and Greek, and Japanese. Mr. Lamberson is an interesting person, but is not multilingual. We told you about Mr. Lamberson’s computer in discovery, so it should come as no surprise that it lacks the storage capacity to handle even one day of the copying alleged in response to RFP#12 at an alleged rate of over 100 Gb per day. Another amusing example, the geolocation of the PCAP data you gave us indicates the request by the “investigator” for the packet from the IP address associated with Mr. Lamberson shows that the investigator’s request came from an office building in Amsterdam, and the list of works allegedly infringed includes “Netherlands Top 40.” Mr. Lamberson loves music, but does not listen to the Netherlands Top 40 — but may be the APMC person in Amsterdam does.

    3. You don’t know what was captured by the one second upload — it might be the disclaimed portions of the work.

    4. Vision Films appears to own the exclusive distribution rights — the right implicated by the investigator uploading the one bit. But the time to amend to add parties is passed.

    5. Vision Films appears to be seeding its own work. Each (unknown, unpopular) work on Schedule A was uploaded by the same person (HeroMaster) prior to its public release. We will undertake discovery as to This HeroMaster once we see how Vision Films intends to comply with our first subpoena.

    6. APMC is not “retaining” CBC under a paperless/termless relationship. The explanation makes no sense as our 4/16 letter demonstrates.

    7. APMC may not have US licensed counsel preparing its pleadings.

    8. APMC is selling testimony on a contingency that you say is “withdrawn” but without any explanation of what the relationship is or was.

    9. We think the judge will force your client to present its witnesses in Spokane for deposition, and we cannot imagine the judge requiring us to pay these witnesses anything. Even if we ne ver depose them, we cannot imagine how Messrs Patzer and/or Macek could ever offer any admissible evidence to our court when they do come to Spokane in the summer of 2015 for the jury trial.

    10. Does your client(s) understand the risk of Fogerty v. Fantasy? We must admit we werea little worried at first when considering a money judgment against Elf Man LLC that might not get paid, but now we see APMC behind the scenes. For example, we see APMC/ New Alchemy has over 25 posted job listings in Cebu for technicians and administrative staff and the like, so it must have some resources to meet the in evitable defense attorneys fees and sanctions judgments it will face in this case.

    11. Does your client(s) really want to undertake discovery on all of these entirely relevant points? I am certain you can sense our tenacity and that we have no reason to back down. Or we complete discovery, go to trial and win the fees. Why would your client choose the latter?

    12. We could go on. If for some reason this “information” is not enough h to help you formulate a settlement recommendation — just let us know and we can provide more.


     

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  12.  
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    sophisticatedjanedoe (profile), Jun 16th, 2014 @ 4:47pm

    Re:

    Are you on Twitter? ;)

     

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  13.  
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    That One Guy (profile), Jun 16th, 2014 @ 4:55pm

    Re:

    Eesh, no wonder they're trying to get as far away from the case as possible, that email makes it abundantly clear that the defense isn't buying any of the usual rot, and is more than willing to drag the truth(and the prosecution), kicking and screaming in the light.

     

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  14.  
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    art guerrilla (profile), Jun 16th, 2014 @ 6:24pm

    Re:

    "gooey german center" ? ? ?

    its sausages all the way down ! ! !

     

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  15.  
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    Anon E. Mous (profile), Jun 16th, 2014 @ 8:19pm

    Re:

    I stated earlier on that ELF-MAN was in a serious corner in the case and they are. I do not see them coming out unscathed.

    The fact that Patzer & Macek names pop up again just proves that APMC is another one of the fronts for Guardaley and that is still the same crowd that is involved in this bit torrent lawsuit litigation scheme.

    It is becoming more and more obvious that the gang from Guardaley seem to be using their old methods that they got busted on in the German case, and still live on today.

    It will be interesting to see where else Patzer & Macek come up. I think the gang at Guardaley is starting to see their scheme unravel, the more they try and hide it the more they seem to expose it.

     

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  16.  
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    G Thompson (profile), Jun 16th, 2014 @ 10:13pm

    Re: Re:

    mmmmmmmm gooey german turtle sausages :)

     

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  17.  
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    G Thompson (profile), Jun 16th, 2014 @ 10:21pm

    Re:

    Oh dear the plaintiffs got a "guess what idiots" email!

    Makes sense now.. though Ms VanderMay's bringing up of professional conduct (ethical obligations) that she herself is concerned about has further implications and I don't see that statement helping her career in any way down the road in other cases after the amount of time that has lapsed since she has taken this case.

    Due diligence is a necessity, but cannot be after the fact! That is instead called incompetence, stupidity, and some other legally problematic terms for attorney's to be stuck with!

     

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  18.  
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    sophisticatedjanedoe (profile), Jun 17th, 2014 @ 6:17am

    VanderMay has "bulk copyright" folder on her computer.

     

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  19.  
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    Woadan (profile), Jun 17th, 2014 @ 2:24pm

    Art Vandelay?

    Guardelay? Vandermay? Wait, is this a scheme involving At Vandelay?

     

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