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.

Filed Under: copyright, copyright trolling, daniel macek, david lowe, declaration, elf-man, infringement, london has fallen
Companies: guardaley


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  1. 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.


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