Copyright Troll's Tech 'Experts' Can Apparently Detect Infringement Before It Happens

from the welcome-to-pre-crime,-amateur-edition dept

When you sue Does en masses for copyright infringement with no more evidence than an IP address, you're going to run into problems. Those who aren't intimidated by baseless federal court filings fight back. The problem with every troll is they're completely unequipped to handle actual litigation.

Pumping out lawsuit after lawsuit stretches the resources of most copyright trolls. Often they look to outside consultants and experts with malleable morals to pitch in on the tech side of things. David A. Lowe, a Seattle-based copyright litigator hoping to help studios somehow turn box office losers like "Elf-Man" and "London Has Fallen" belatedly turn a profit, has apparently farmed out expert witness work to Guardaley. Guardaley, somewhat infamously, is also the secret sauce behind an awful lot of copyright trolling, including for notorious troll Malibu Media -- either under its own name or using one of its many shell companies.

This does not mean Guardaley offers competent work in exchange for a cut of the profits. But Guardaley's "experts" are willing to sign almost any statement put in front of them, as is evidenced by Fight Copyright Troll's latest post. According to the letter [PDF] sent by a troll victim's lawyer (J. Christopher Lynch of Lee & Hayes, PLLC), the experts employed by Criminal Productions (represented by Lowe) apparently can detect infringing activity that has yet to take place.

In investigating for Mr. Bethke, again we looked for overlap between alleged observations of Mr. Macek and Mr. Arheidt. And again, we found overlap in declarations filed in D CO with declarations filed in WD WA. For example, in the Criminal Productions WD WA Case No. 2:16- cv-1016, Mr. Arheidt’s declaration covers “observations” from June 25 through June 27. By contrast, in the Criminal Productions D CO Case No. 1:16-cv-1761, Mr. Macek’s declaration covers “observations” from June 25 through June 28. Both declarations cover the same “hash number” of the movie, i.e. the same soak. This overlap seems impossible if we stick with the fictions of the Complaint and Motion for Expedited Discovery that the declarant “observed” the defendant “infringing.”

We looked carefully and discovered another anomaly our Courts should question. Mr. Macek’s declaration from that D CO case 1:16-cv-01761 (ECF # 4-1) is dated June 14th (maybe June 16th) – but BEFORE the date of the accompanying “observations” that ran from June 25 through June 28.

How can a witness sign a declaration that he observed something BEFORE it happened? Criminal Productions submitted four such Declarations of Mr. Macek that were executed BEFORE the dates of the accompanying typed up list of observations that Mr. Macek swore that he made. Unless Daniel Macek is also Marty McFly, it is impossible to execute a declaration claiming to observe something that has yet to happen.

The letter contains pictures of four obviously copy-pasted signatures from Macek from four different lawsuits, all covering the same date range. But whoever was rubber-stamping Macek's signature didn't pay attention to the dates of the supposed infringement "observation."

Lynch's letter goes on to state he intends to move for discovery to give the court a better idea of how Lowe's cohorts in trolling actually operate: experts in letterhead only signing assertions they have no evidence for in multiple court jurisdictions. He's also willing to fully explore Criminal Productions' trolling history, which is littered with bogus subpoenas obtained with the assistance of false declarations and nonexistent witnesses.

Of course, this won't be happening. Having been caught in its own web of bullshit, Criminal Productions has voluntarily dismissed [PDF] a number of defendants from this suit (albeit without prejudice). Of course, the dismissal motion says nothing about its experts' ability to spot infringing activity before it even happens.

The Internet Service Provider was unable to provide subscriber identification information in response to the subpoena issued pursuant to the Court’s Order Granting Expedited Discovery or Plaintiff has otherwise been unable to identify or locate the responsible party via the subscriber identification provided by the Internet Service Provider. Accordingly, pursuant to Rule 41(a)(1)(A)(i), Plaintiff hereby dismisses its claims against the noted Doe Defendant(s) without prejudice.

That's three out of eight defendants dismissed. The other five just need to make the same assertions and Criminal Productions -- apparently taking its name very literally -- will drop the rest.


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  • icon
    Ninja (profile), 31 May 2017 @ 7:52am

    Who would have told, the guy invented time travel! Why he is still busy in the copyright trolling business and not winning some lottery retroactively is a mystery to be explored.

    reply to this | link to this | view in chronology ]

    • icon
      ThaumaTechnician (profile), 31 May 2017 @ 1:37pm

      Re:

      He would explain how it's done but the problem is that the patent application for the method was filled, er, next year. So until the Patent Office rubber-stamps the patent application, they're under an NDA.

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 31 May 2017 @ 9:24am

    Criminal Productions?

    So is Criminal Productions supposed to be taken seriously? Is it intended as a self descriptive name of who and what they are, like Shysters, Inc. ?

    It sounds like a name that Hollywood would come up with. Like, say, Hollywood Productions, but I suppose that name would some overlap in scope and meaning with Criminal Productions.

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 31 May 2017 @ 9:35am

    Business Opportunity For Lawyers?

    I hope we'll see affordable lawyers specializing defending against these trolls. Affordable because they need only put up a token, bare-minimum fight in these cases, enough to make the troll drop the case.

    reply to this | link to this | view in chronology ]

    • icon
      sophisticatedjanedoe (profile), 31 May 2017 @ 9:43am

      Re: Business Opportunity For Lawyers?

      That's an emerging trend in Illinois.

      I was tipped that after I publicized Chicago Volunteer Legal services, many low-income people (primary trolls' targets) contacted this organization. In addition to direct impact (competent representation), this way more attorneys become aware of (and appalled by) the scam, some well-sourced law firms among them. I'm cautiously optimistic.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 May 2017 @ 11:26am

        Re: Re: Business Opportunity For Lawyers?

        It would be a good way to get some of the new copyright lawyers trained in larger firms. While the company may lose a bit of money on wages, it is looking good on a cv and it is better than not having any work assigned.

        reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 31 May 2017 @ 9:40am

    Context is everything.

    Even if he could somehow detect infringement beforehand, how could he possibly know that the infringement was not done with Fair Use in mind?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 9:48am

    Copyright enforcement's best and brightest.

    That sound you hear is My_Name_Here furiously using his VPN to search for another IP address to spam his praises for Guardaley and how Leigh's just keeping him down.

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 31 May 2017 @ 9:53am

    I hear

    Steele is going to be looking for a cellmate soon and Lowe is just submitting his CV for the spot.

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 31 May 2017 @ 12:12pm

      Re: I hear

      Hackers who keep getting caught, show up later as security experts. They use it to prove to the court that they've "reformed." A celebrity bounty hunter is an ex-con. "It takes a con to catch a con", and other BS.

      I expect that Steele and Hansmeier will eventually reappear as expert consultants who will (for a fee) protect you from copyright trolls.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 9:58am

    Possibly their experts are fellow graduates of the school to which loes attended.

    reply to this | link to this | view in chronology ]

  • icon
    SteveMB (profile), 31 May 2017 @ 10:12am

    "...I can see the future in the magic orb...."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 10:26am

    Is there anything the defense lawyer can do to ask the judge to take note of the trolls' shenanigans, even with the dismissal?

    reply to this | link to this | view in chronology ]

    • icon
      sophisticatedjanedoe (profile), 31 May 2017 @ 10:58am

      Re:

      It's an uphill battle: usually judges adhere to the "out of sight - out of mind" philosophy and are reluctant to look into voluntarily dismissed cases.

      However, a defendant can prevent a voluntary dismissal by counterclaiming when answering the complaint. The trolls vehemently fight against this tactic, but they are losing. Last year Judge Alsup explicitly denied Malibu Media's attempt to dismiss such counterclaim:

      Malibu Media’s motion seems more like a gimmick designed to allow it an easy exit if discovery reveals its claims are meritless. Section 505 of Title 17 of the United States Code provides that a “prevailing party” may be awarded attorney’s fees in a copyright infringement action; however, when a copyright plaintiff voluntarily dismisses a claim without prejudice, the defendant is not a prevailing party. […] Absent defendant’s counterclaim, if events reveal that this case is meritless, Malibu Media could voluntarily dismiss its affirmative claims without prejudice under Rule 41(a)(2), seeking to avoid an award of attorney’s fees. If, however, defendant’s counterclaim remains alive, he will be able to press his counterclaim.

      I witness more and more attorneys now successfully use this tactic. Just yesterday, Malibu settled with (paid to) a counterclaiming defendant in New York.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 May 2017 @ 11:39am

        Re: Re:

        Could something like the likeness of the signatures, the dating problems and the fact that it was officially presented persuant to a case constitute grounds for criminal investigations around mr. Macek or is the potential crime too minor?

        reply to this | link to this | view in chronology ]

  • identicon
    Angus, 31 May 2017 @ 10:41am

    Why are judges not fighting back

    If I were a judge this would really tick me off. I wonder if perjury or contempt of court cover these actions.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 May 2017 @ 6:10pm

      Re: Why are judges not fighting back

      Because of little inconvenient things like "good faith claims" and "dismissal without prejudice", sadly.

      reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 31 May 2017 @ 10:51am

    This is one of the reasons that the court system is vulnerable to abuse: the plaintiff has asymmetrical power.

    It costs the plaintiff very little to prepare and file a cut-and-paste complaint. The defendant immediately needs to spend far more time and money to investigate and respond. When perjury such as this is discovered, the plaintiff gets to cut and run with no penalty, even when they have cost innocent defendants thousands in legal expenses.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 31 May 2017 @ 12:47pm

      Re:

      Well, why would perjury before court call for a reprimand when perjury before the senate is fine for various government officials?

      Perjury is only a problem when committed by the unwashed masses.

      reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 1 Jun 2017 @ 12:33am

    "David A. Lowe, a Seattle-based copyright litigator hoping to help studios somehow turn box office losers like "Elf-Man" and "London Has Fallen" belatedly turn a profit"

    I'm a movie obsessive. I live and breathe movies and spend an embarrassing amount of money every year not only buying DVDs and merchandise, but going to film festivals, supporting projects on Kickstarter, etc.

    I literally just had to go to IMDB to check and see if "Elf-Man" was a real movie.

    I think we've found your clients' main problem, Mr. Lowe. The other problem would appear to be that the movie was a gimmicky mess where nobody who watched it liked it in the slightest.

    With London Has Fallen, the movie apparently grossed $205,754,447 on a $60 million budget. This presents a different set of problems - I've obviously heard of it (though I'll wait for it to be on Netflix, which is how I saw Olympus Had Fallen - it's not in my region yet so you're not getting my money yet). But, might I suggest that if you're able to gross nearly 3.5 times your production costs and the movie is still considered a "box office loser", the problem may not simply be piracy.

    Rather than feel sorry for Mr. Lowe and his clients losing money on bad films and bad accounting, I will instead lament the downfall of the great Jeffrey Combs, who somehow got conned into starring in Elf-Man. May his fortunes improve far more quickly than the less deserving litigators.

    reply to this | link to this | view in chronology ]


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