CEG-TEK is now your friendly “photo” copyright troll.

I try my hardest to separate out the “photo” copyright trolls from the “bittorrent” copyright trolls when writing articles on this blog, as they are a separate category of trolls with their own rules.

In sum, “photo” copyright trolls search the web for images that are used on websites, often by bloggers, without permission or license from the owner of that photograph. Essentially, a blogger writes (for example) about the topic of “red pepper” vegetables. To make their blog entry more visually appealing, they search Google Images for “red pepper,” copy the first image they see, and they paste it on the top of their blog.

Most bloggers stay away from pictures that have a watermark on it, or from images which have a copyright logo marked on it. The problem is that 99% of the pictures out there have no copyright marking, and are not sold anywhere. Unsuspecting bloggers use these photos or random pictures on their blogs, and unbenownst to them, the owner (or a third party who purchases the rights to the photo with the intention of suing bloggers) begins asserting their copyright interests in the photo. Many accused bloggers who I have spoken to have expressed that they didn’t think they needed a license for a photo for non-commercial activities, and now they are facing threats of a lawsuit for using an image on their website.

Where the waters get muddied is that now Copyright Enforcement Group (a.k.a., “CEG-TEK”, “CEG TEK”, and more recently, “CEG”) is sending out the same DMCA letters that they ordinarily send to my bittorrent clients, but now they are in the “photo trolling” business. Their letters assert that a particular website used a copyrighted photo without a license, and the copyright holder is now asserting his rights for the “theft” that happened to his intellectual property rights. Thus, they are asking for $500 per photo, which in my opinion is obscene considering all their other letters ask for $200 per video shared via bittorrent.

On a personal note, hitting website users with a threat of a lawsuit over an image pulled from a Google image search is simply obscene. I would certainly understand such a letter if the image had a watermark pointing the user to a website where they can purchase rights to the photo without the watermark, or if there was a copyright mark on the image. Yet these photos have none of these, and they are literally trolling old websites and blogs looking for photos which were copied from other websites.

What makes this so obscene is that the photo copyright owners are asserting the same copyright infringement claims as do the copyright holders for the bittorrent cases we deal with daily. Along with the same copyright claims come the same shock of having the law provide statutory damages of $150,000 to the copyright holder who can prove the infringement. $150,000 for a movie download in my mind is obscene and is a disproportionate punishment for the “crime” of downloading a copyrighted title. Even moreso for a photo, and even moreso for an unmarked and unwatermarked photo freely available on a Google image search.

Now here are the details as they are unfolding. So far, it appears as if the “photo” copyright troll entity asserting the copyrights is a company called “AKM Images / GSI Media.” The letter CEG-TEK is sending out provides a screenshot image of the blog containing the photo (and in a number of cases, the blog is no longer in existence and is only shown in the internet archives on the “Way Back Machine” on http://archive.org). It appears as if even CEG-TEK was unsure if they wanted to go into this area, because many of the screenshots are from last year (2012). And, the so-called DMCA letters are not sent by ISPs, but appear forwarded by the website admins who host the various blogs.

6/13 UPDATE: There is some talk about the copyrighted images being posted on the website owner’s website or blog by a third party RSS aggregator. In sum, the accused blogger or website owner in many cases didn’t even post the images themselves, yet they are still asked by CEG to pay $500 to avoid a lawsuit.

Filed under: AKM Images / GSI Media, and Copyright Enforcement Group), CEG (a.k.a. CEG-TEK, CEG TEK, Copyright Enforcement Group (CEG-TEK), Copyright Trolls, Federal Criminal Law, Ira Siegel, Ira Siegel, P2P, Peer-to-peer, Photo Image Copyright Troll Attorneys Tagged: AKM Images, CEG, CEG-TEK, Copyright Enforcement Group, GSI Media, Ira Siegel



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My Response to the yet-to-be-written guilty verdict in the Malibu Media, LLC Bellwether Trial (PAED).

Image courtesy of @artur84 / FreeDigitalPhotos.net

Much of the bittorrent world is saddened by the leaked news reports of the recent “Bellwether” case in the Eastern District of Pennsylvania (Malibu Media v. John Does, Case No. 5:12-cv-02088) where at least one defendant is reported to be facing close to $112,500 in damages plus attorney fees for the peer-to-peer downloads he is said to have taken part in. The plaintiff attorneys, along with Keith Lipscomb and others who have a vested interest in seeing bittorrent cases against internet users succeed are drinking champagne and celebrating their victory.

It is both my professional belief and my personal conviction that copyright trolling lawsuits are wrong, and while there is nothing illegal in suing a defendant for copyright infringement, doing so in my opinion is unlawful and morally corrupt. These lawsuits are nothing more than a STAGE SHOW to permit a behind the scenes SHAKEDOWN of accused interent users, whether or not they actually participated in the accused infringement. For G-d’s sake, the “guilty” so-called “criminal” defendant merely clicked on a link, and downloaded a title that was openly shared with thousands of other downloaders. To hit that defendant with a shock lawsuit where they face $150,000 statutory damages for a video that could have been purchased for a few bucks is a disproportionate punishment for the “crime” of downloading copyrighted films. Rather, instead of suing downloaders and letting the piracy continue, why not just end the piracy problem by issuing a DMCA take down notice to the bittorrent tracker? The alternative of sitting in bittorrent swarms and employing tracking software to track the IP addresses of who is downloading to me just seems like an abusive step to what would otherwise be a simple problem of making the torrent files go away so that unsuspecting downloaders couldn’t click on the links.

It is my conviction that copyright infringement lawsuits are wrong because it is simply immoral to shake down EVERY John Doe Defendant (yes, each one) with the threat of having to defend a lawsuit in federal court unless they cough up tens of thousands of dollars for downloads that the John Doe Defendant often did not even take part in. I have personally seen copyright trolls such as Malibu Media, LLC take large sums of money from defendants who did not do the download, but who were pressured into settling simply to avoid being named in a lawsuit. It is no secret that defending a case is sometimes significantly more expensive than settling a case.

Yet even with the pending resolution of this lawsuit, accused defendants across the U.S. in their own lawsuits should understand that this ruling will not be binding on other federal courts in other federal districts. Each federal court makes their own rules as to what constitutes copyright infringement, and what evidence is required to prove a defendant guilty when the so-called infringement happens via a bittorrent download. This is our job as attorneys — to know which districts have rules in favor of bittorrent users, and to know which districts have ruled in favor of the copyright holders. No doubt, the Eastern District of Pennsylvania will now become a favored spot to sue internet users accross the U.S. for copyright infringement.

Lastly, on a personal note, this case does not change the way a lawyer handles copyright infringement cases. At least in our Cashman Law Firm, PLLC, there is no silver-bullet approach — some defendants choose to settle, and many do not. Considerations as always involve 1) whether the download actually happened and the circumstances surrounding the accused activities, 2) the accused defendant’s willingness to fight and defend a copyright infringement lawsuit, 3) the accused defendant’s aversion to risk of having their name become public knowledge in a court proceeding, and 4) the accused defendant’s financial ability to take each of the various pathways we suggest.

In sum, not all guilty defendants settle, and not all non-guilty defendants fight. It is simply a calculation and a risk assessment that is based on the client’s desires, the federal district in which the lawsuit is filed (taking into consideration past bittorrent cases filed in that jurisdiction), the judge who assigned to the case (taking into consideration his past rulings), and the plaintiff attorney (or more frequently, the local counsel’s) proclivity towards naming, serving, and taking defendants to trial balanced with their willingness to negotiate an amicable settlement should we decide to go that route.

Bittorrent cases [in their current form] have now been around for three (3) years, and now we have a verdict where a case has been taken to trial — by Malibu Media, LLC surprisingly enough considering their shenanigans of suing defendants not based on what titles they actually downloaded, but based on a siterip torrent file containing many titles and asking for settlements based on the number of titles in the siterip. Equally surprising is that it is Malibu Media who routinely introduces inadmissible and prejudicial evidence of non-Malibu Media titles as “character evidence” stating that because they did that, they must have done this.

When we started, there were no cases taken to trial, and now there is one. Before our involvement in the various bittorrent cases, all we had to go on were the old Napster and Grokster cases, combined with the various lawsuits filed by the RIAA / MPAA and miscellaneous copyright infringement files dealing with the internet. Up until now we have been developing case law surrounding peer-to-peer downloads as each case matures. Now we are starting to get some clarity as to the law surrounding bittorrent use.

Filed under: "Named" Defendant, Chris Fiore, Copyright Trolls, Federal Criminal Law, Jason Kotzker, Jon Hoppe, Judge Baylson (PA), Keith Lipscomb, Leemore Kushner, Malibu Media LLC, Mary Katherine Schulz, P2P, Patrick Cerillo, Paul Nicoletti, Peer-to-peer, Pennsylvania (PA), Torrent Tagged: 11-cv-60571, bellwether trial, bittorrent, Chris Fiore, copyright, copyright troll, Judge Michael Moore, Keith Lipscomb, Lipscomb, Malibu Media, Patrick Collins



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Prenda is essentially done

Reblogged from Fight Copyright Trolls:

We have been waiting for this moment for a long time. Congratulations to everyone involved, especially Morgan and Nick.

Media coverage

• TechDirt: Judge Wright Tells Team Prenda To Pay $80k, Refers Their Activity To State Bars, Feds & IRS by Mike Masnick


• Wired: Judge Asks IRS, Feds to Investigate Copyright-Trolling Attorneys by David Kravetz.

Read more… 116 more words

Sometimes there are no words other than silence to best express the thoughts I have about Judge Wright's order essentially referring John Steele and the Prenda Law Inc. gang to the IRS' Criminal Investigation Division (CID) for all the settlements on which no taxes were paid. There is one police agency that a criminal organization does not want to be contacted by, and that is the CID. The $81K in sanctions essentially funds the lead attorneys who spent time on this case. And, the referral to the bar associations means that the principals at Prenda Law Inc. may no longer have their law licenses shortly. In sum, there is not much for me to comment here, except to be silent, because the judge's order itself says all it needs to. Copyright trolling may seem profitable for the attorneys filing the lawsuits, but no money can compensate for the loss of freedom that one experiences when what was once a multi-million dollar law practice lands the principles in prison for tax evasion. This should be a lesson to all other copyright trolls out there. Judge yourselves accordingly.

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“UNDER THE RADAR” – 122 MALIBU MEDIA, LLC FILED CASES

Malibu Media, LLC has been one of the worst offenders in these copyright trolling cases. Instead of waiting for a full download to be complete, it has been reported to me that IMMEDIATELY UPON CLICKING ON THE BITTORRENT LINK (or in other words, as soon as an internet user “joins” the bittorrent swarm, EVEN IF NOT A BYTE OF DATA HAS BEEN DOWNLOADED), ***WHAM!*** Downloaders are tagged and are sued for copyright infringement.

To make matters worse, Malbu Media, LLC is known to sue based on what is called a “Siterip” (essentially meaning that someone ripped a large set of videos from their http://www.x-art.com paid website, and posted a huge number of them into one bittorrent file). We won’t ask 1) if they’ve known about the Siterips, why they have not filed DMCA takedown notices for those Siterips, and 2) whether they were involved in the “leaking” of the various siterips (in my opinion, it is too convenient to have “Siterip #1… Siterip #2… Sitrip #12…”). In sum, clicking on the wrong torrent file link with Malibu Media, LLC as your plaintiff production company can get you sued for 25+ titles, or “hits” as they like to call them.

Now what makes these cases particularly offensive is that unlike the traditional copyright trolls who will only ask for $3,400 and settle for whatever they can get, Malibu Media, LLC believes that they will get at least a $10,000 settlement from each defendant. You see this by looking at the case names below that there appears to be only ONE defendant in each case. The reason for this is that their attorneys will tell the defendant that he’s the only one in the case, and that they’ll amend the complaint, “name” him as a defendant, and serve him with process if he doesn’t settle.

While I am against the concept of suing downloaders for the piracy of a film, I want to note that filing ONE LAWSUIT FOR ONE DEFENDANT is the proper way to do these lawsuits. In sum, a defendant has the simple question of 1) can I fight this (the answer is likely yes considering the “snapshot” methods in which they track the IP addresses relating to the downloads), and 2) how would “I” like to proceed based on the evidence against me? X-art films have a very specific style and theme to them, and they attract a very specific genre. On top of this, the Keith Lipscomb IP enforcement company representing Malibu Media, LLC as their client does research on most defendants. For these reasons, it is often a simple question of EVIDENCE in determining whether to move forward with what is usually a very good defense, or whether to use that evidence in your favor while attempting to negotiate a deeply discounted settlement.

Up front, the local counsel you will read about below — Mary Schultz, Paul Nicoletti, Jon Hoppe, Leemore Kushner, Jason Kotzker, and Patrick Cerillo — are merely paid to file and fight these cases. They are merely cogs in Lipscomb’s IP enforcement machine, and in my opinion, there is no reason for anyone to be talking to them since they likely do not have authority to do anything but argue the cases and move them forward.

MARCH 2013 – 19 NEW CASES

Illinois Central District Court

Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01096)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01099)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01100)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01101)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01102)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-02058)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-02059)

Wisconsin Eastern District Court

Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00226)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00236)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00238)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00239)

Indiana Northern District Court

Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media LLC v. Joe Doe (Case No. 2:13-cv-00085)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00162)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00163)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00164)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00165)

District Of Columbia District Court

Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00268)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00269)

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00270)

FEBRUARY 2013 – 103 NEW CASES

New Jersey District Court

Patrick J. Cerillo – Attorney at Law

Malibu Media LLC v. John Doe (Case No. 2:13-cv-01179)

Malibu Media, LLC v. John Doe subscriber assigned IP address 68.32.191.163 (Case No. 2:13-cv-01176)

Malibu Media, LLC v. John Doe subscriber assigned IP address 69.142.2.132 (Case No. 2:13-cv-01178)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01180)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00214)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-01159)

Malibu Media, LLC v. John Doe subscriber assigned IP address 108.35.11.132 (Case No. 2:13-cv-01104)

Malibu Media, LLC v. John Doe subscriber assigned IP address 173.70.130.138 ( 2:13-cv-01106)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01105)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00971)

Malibu Media, LLC v. John Doe subscriber assigned IP address 173.54.255.28 (Case No. 2:13-cv-00972)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00973)

Wisconsin Eastern District Court

Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00217)

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00213)

California Southern District Court

Leemore L Kushner of Kushner Law Group

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00433)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00434)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00435)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00436)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00437)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00438)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00440)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00442)

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00443)

Florida Middle District Court

M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00467)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00468)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00469)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00470)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00471)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00472)

Florida Southern District Court

M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL

Malibu Media, LLC v. John Doe (Case No. 9:13-cv-80178)

Colorado District Court

Jason Aaron Kotzker of Kotzker Law Group

Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)

Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)

Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)

Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)

Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)

Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)

Malibu Media, LLC v. John Doe subscriber assigned IP address 63.225.246.31 (Case No. 1:13-cv-00423)

Malibu Media, LLC v. John Doe subscriber assigned IP address 71.212.197.251 (Case No. 1:13-cv-00425)

Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)

Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)

Maryland District Court

Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00352)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00353)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00354)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00356)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00357)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00358)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00359)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00363)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00366)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00350)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00351)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00355)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00360)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00361)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00362)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00364)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00365)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00506)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00507)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00508)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00509)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00510)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00511)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00517)

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00518)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00512)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00513)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00514)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00515)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00516)

Illinois Central District Court

Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01072)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01073)

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-02043)

Illinois Northern District Court

Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00863)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00878)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00880)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00883)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00884)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00885)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00888)

Malibu Media, LLC v. Dr John Doe (Case No. 1:13-cv-00891)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00913)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00915)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00934)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00935)

Michigan Western District Court

Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00158)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00162)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00163)

Indiana Southern District Court

Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00201)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00203)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00204)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00206)

Indiana Northern District Court

Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00055)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00071)

Malibu Media LLC v. John Doe (Case No. 3:13-cv-00072)

Colorado District Court

Jason A. Kotzker of Kotzker Law Group
Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.234.104 (Case No. 1:13-cv-00307)

Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.250.8 (Case No. 1:13-cv-00308)

Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.161.234 (Case No. 1:13-cv-00309)

Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.34.85 (Case No. 1:13-cv-00310)

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00311)

Malibu Media, LLC v. John Doe subscriber assigned IP address 67.176.40.151 (Case No. 1:13-cv-00316)

Malibu Media, LLC v. John Doe subscriber assigned IP address 75.71.30.155 (Case No. 1:13-cv-00317)

Malibu Media, LLC v. John Doe subscriber assigned IP address 98.245.154.142(Case No. 1:13-cv-00318)

P.S. – Did you notice that there was no mention of Chris Fiore in this long list of cases? Perhaps he still has his hands full with the bellwether case.

Filed under: California (CA), Chris Fiore, Colorado (CO), District of Columbia (DC), Federal Criminal Law, Florida (FL), Illinois (IL), Indiana (IN), Jason Kotzker, Jon Hoppe, Keith Lipscomb, Leemore Kushner, Malibu Media LLC, Mary Katherine Schulz, Maryland (MD), Michigan (MI), New Jersey (NJ), P2P, Patrick Cerillo, Paul Nicoletti, Peer-to-peer, Torrent, Wisconsin (WI) Tagged: and Patrick Cerillo, individual lawsuits, Jason Kotzker, Jon Hoppe, Keith Lipscomb, Leemore Kushner, Malibu Media, Malibu Media LLC, Mary Schultz, Paul Nicoletti



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New unbelievably brazen fraud: Internet Copyright Law Enforcement Agency

Reblogged from Fight Copyright Trolls:

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• 

2/22/2013 Update: this fraud is seemingly grounded shortly after it took off (scroll to the bottom of the post).

Over the last couple of days, I started receiving disturbing reports about a new copyright extortion outfit, “Internet Copyright Law Enforcement Agency.” The con artists behind this “company” have been mass-sending demand letters threatening that those who won’t pay $495 by a certain date, …

Read more… 1,782 more words

I am horrified by reading Sophisticated Jane Doe (SJD)'s story about the Copyright Law Enforcement Agency. Quite frankly, I was already of the opinion that some of the copyright trolls needed to be disbarred and some needed some jail time for the fraudulent activities they appear to have taken part in, and this was when they were filing CIVIL COPYRIGHT INFRINGEMENT lawsuits in federal court. Reading this story, I am offended by the activities of this group, and no doubt the FBI and other law enforcement agencies will take note of their actions. In my opinion, this kind of activity raises to the levels of Ransomware and other flat-out illegal activities, and I have no doubt they will be shut down by law enforcement agencies just as fast as I am typing this comment. For these reasons, I am not writing my own separate article on this topic, but I am merely re-posting SJD's article below.

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New Law in California District Courts as to what constitutes “Copyright Infringement.”

Many things just happened in the Central District of California which no doubt will affect many (if not all of the Ingenuity 13 LLC cases, along with all of the Guava cases, and the AF Holdings LLC) cases. In short, California is no longer a troll-friendly place to sue defendants for copyright infringement.

Looking at Judge Otis Wright’s order yesterday in the Ingenuity 13 LLC v. John Doe (Case No. 2:12-cv-08333) case in the U.S. District Court for the Central District of California, we learn many new things about “the law of bittorrent use.” I’ll go over these in separate headers.

RULE 1. IN ORDER TO SUE A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE DEFENDANT DOWNLOADED THE ENTIRE COPYRIGHTED VIDEO.

I’ve always dumbed copyright infringement down into two elements: 1) “Access” to the copyrighted file, and 2) “SUBSTANTIAL SIMILARITY” to the copyrighted work.

Here according to the judge, a plaintiff catching a downloader in the act of downloading a file is no evidence that the file was actually downloaded. According to yesterday’s ruling, even a downloader downloading a viewable portion (e.g., a few second snippet of a copyrighted video) is still not guilty of copyright infringement until the amount of the file downloaded rises to a “substantial similarity” to the original copyrighted work. In traditional copyright law, this means an exact or substantially-exact replica.

Us lawyers have been bouncing around what we think a judge might rule, and so we have been playing with the possibility of maybe having a viewable portion of the file downloaded, but NO. Substantial similarity applies in copyright law to downloads as well (at least now in California federal courts), and according to this ruling, it needs to be proving that the entire copyrighted video (not a fragment, a snippet, or a snapshot) was downloaded. This would absolve roughly 99% of accused downloaders across the U.S. who started to download a file, decided not to complete the download, and who got sued anyway.

RULE 2. A “SNAPSHOT OBSERVATION” OF AN IP ADDRESS ENGAGED IN DOWNLOADING AT THAT MOMENT IS INSUFFICIENT PROOF OF COPYRIGHT INFRINGEMENT

Here, all the evidence a copyright troll plaintiff has on a suspected defendant is that at a particular date and time (a “timestamp”), that particular IP address was engaged in the downloading of a particular copyrighted file.

Here, a “snapshot” of an IP address correlated with evidence from the subscriber’s internet service provider (“ISP”) that it was the subscriber who was loaned that IP address during that date and time the alleged activity took place is insufficient proof that the download actually took place. The defendant could have just entered the swarm and could be in queue to download his first byte of data. The defendant could be 10% done with the download and could have merely an unviewable fragment of the copyrighted video — hardly enough to rise to the level of “SUBSTANTIAL SIMILARITY” that is required in order to find a defendant guilty of copyright infringement. And, yet at the same time, that same snapshot could prove that the defendant is 99% complete in downloading the file.

The analogy the judge gives is taking a “snapshot” of a child reaching for a candy bar. In order to find someone guilty of copyright infringement, a plaintiff needs to prove that it is “more likely than not” that activity rising to the level of copyright infringement occurred. A snapshot places the defendant at the “scene of the crime.” It does not convict him for the criminal act itself, and usually this is all the evidence a plaintiff copyright troll can put together.

RULE 3. BEFORE SUING A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST DO A “REASONABLE INVESTIGATION” TO DETERMINE THAT IT WAS THE NAMED DEFENDANT WHO DID THE DOWNLOAD, AND NOT SOMEONE ELSE WITH ACCESS TO HIS INTERNET CONNECTION.

We have known for a while that the Prenda Law Inc. model of naming defendants is 1) find out who lives in the household, 2) name the prepubescent male member of the family as the defendant. I am very happy to see a judge object to this tactic.

Similarly, EVERY LAWSUIT ACROSS THE U.S. where the copyright troll (plaintiff) has named the ISP subscriber as the defendant with no further investigation suffers from this same flaw. We have been saying for months that being an ISP subscriber (and coincidentally the one implicated as the defendant in these cases) does not mean that you were the one who did the download (nor were you responsible for all activities that took place on your internet connection).

The judge described steps a plaintiff could take to rule out the possibility that it was not someone other than the defendant who did the download. For example, they could drive up to the house and see if there is wireless access (to eliminate the defense that it was a neighbor); they could track multiple instances of downloading and correlate it with times and dates the defendant was home; etc. etc. etc.

There is so much more on this topic that I could discuss that in my opinion could kill every copyright troll lawsuit out there. In sum, merely citing that the IP address of the alleged infringer was engaged in an unlawful act does not mean that the ISP subscriber was the one who was engaged in that act. Failing to make that extra step of “putting the ISP subscriber at the keyboard at the time of the download” (or offering evidence to prove that it was the ISP subscriber who did the download and not anyone else) would be fatal to any lawsuit.

IN SUM, this was a great decision, and I look forward to it being adopted by federal courts across the country. But, before everyone starts calling and assuming that this is “the law,” I want to point out that in 99% of the states across the U.S., what exactly constitutes copyright infringement is still largely undefined.

As of yesterday, this order is now considered “the law” or more accurately “case law” which is binding in the California federal courts. However, as to the federal courts of other states, this ruling is merely “persuasive” (which effectively means “suggestive”). A judge of any other state can read this ruling and agree, or disagree. Obviously my hope is that judges in other states will read this opinion and adopt the rulings in their own states, but it is not “the law” until 1) Congress adopts a statute making this the law, or 2) judges in each state rule in accordance with this opinion, making “case law” one state at a time.

For more on this topic, Sophisticated Jane Doe wrote a great write-up on this case in her “Judge Otis Wright is fed up with Brett Gibbs’ and Prenda’s frauds, hints at incarceration” article. Anyone associated with the AF Holdings, LLC cases (or any of the others filed by Prenda Law Inc. [or their new "Anti-Piracy Law Group" entity]) should take notice of this ruling, and should file in your own case what is known as a “JUDICIAL NOTICE” informing your own judge of this order.

Lastly, no doubt Brett Gibbs might be in some serious legal trouble, and he might even face jail time for his actions in these cases for fraud upon the court. But, I hope the court recognizes that Brett Gibbs (as destructive as he has been to thousands of families over the past 2+ years) is merely local counsel to the larger “Prenda Law Inc.” entity who is run by players such as John Steele and his partners in his former Steele|Hansmeier PLLC firm.

Filed under: "Named" Defendant, AF Holdings LLC, Anti-Piracy Law Group, Brett Gibbs, California (CA), Copyright Trolls, Federal Criminal Law, Guava LLC, Ingenuity 13 LLC, IP Address /= Defendant, John Steele, Judge Otis Wright II (CA), P2P, Paul Duffy, Peer-to-peer, Prenda Law Inc., Sanctions, Steele Hansmeier PLLC, Torrent Tagged: AF Holdings, Anti-Piracy Law Group, Antipiracy Law Group, Brett Gibbs, copyright infringement, definition, Ingenuity 13, Prenda Law Inc.



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Ethics question regarding using a domain name other than my law practice name.

I had a few questions regarding my http://www.patentprophet.com web site regarding the New York ethics rules as to whether you can use a name other than your law firm name as your domain name, and whether you are able to advertise using the domain name in addition to your law firm name. The reason I was asking was because the name "Patent Prophet" is a trade name of sorts, and I was reading the ethics rules which discussed the prohibitions of using trade names, and thus I was wondering whether the prohibition applied also to domain names. I found the answer below (which I believe is current), and I am pasting it here so that any of you who also have this question can easily find the answer.

In short, the answer I found was that YES, you can use a name other than your law firm name as long as the name is not misleading or doesn't hold you out as being an expert in something you are not an expert in, and as long as you do not use the domain name in lieu of your law firm name when referring to your law practice.

In my case, I registered http://www.patentprophet.com to provide non-legal services to inventors. I believe that the service I am setting up can be very valuable to companies with regard to streamlining their research and development efforts, and the company and trade name will be Patent Prophet. However, my law practice, Cashman IP Law will provide services for Patent Prophet, and is currently featured on the Patent Prophet web site for contingency fee patent litigation services. Once I have completed the preparations to launch Patent Prophet as a non-legal business entity of its own, I plan to either move the Cashman IP law pages off the domain and possibly purchase its own domain, or simply move the pages to another location on the Patent Prophet web site.

Pasted below is the ethics opinion I am referring to:

Source: http://www.abcny.org/Publications/reports/show_html.php?rid=123

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 2003-01

LAWYERS’ AND LAW FIRMS’ SELECTION AND ADVERTISING OF INTERNET DOMAIN NAMES

TOPIC: Lawyers’ and law firms’ selection and advertising of internet domain names.

DIGEST: A lawyer or law firm may use a domain name that does not include or embody the firm’s name or that of any individual lawyer, under certain conditions: the web site bearing the domain name must clearly and conspicuously identify the actual law firm name; the domain name must not be false, deceptive or misleading; the name must not imply any special expertise or competence, or suggest a particular result; and, it must not be used in advertising as a substitute identifier of the firm.
CODE: DR 2-102(B); DR 2-101

QUESTIONS: In choosing a domain name, is a lawyer obligated to follow the rules applicable to the selection of law firm names, thus requiring the domain name to comprise some variation of the law firm’s name? If a domain name may under certain circumstances not include the law firm name, may the law firm ethically advertise its services by reference to its domain name rather than its firm name?

OPINION: The Committee has received an inquiry regarding the selection of Internet domain names for lawyers and law firms, and the corresponding use of such domain names in advertising the services offered by such lawyers and firms. This inquiry raises two questions of general significance to the bar: First, in choosing a domain name, is a lawyer obligated to follow the rules applicable to the selection of law firm names, thus requiring the domain name to comprise some variation of the law firm’s name? Second, if a domain name may under certain circumstances not include the law firm name, may the law firm ethically advertise its services by reference to its domain name rather than its firm name?

The Committee addresses these areas in the following factual context: A law firm primarily engages in the representation of personal injury plaintiffs. The law firm’s name consists of the names of three of its partners and complies with the requirements of DR 2-102(B) relating to law firm names. However, in considering its advertising and marketing activities, the firm believes that it can achieve better results if it is able to establish a web site using as its domain name a generic name or phrase that contains the word ‘attorney’ or ‘lawyer.’ (Examples of such an identifier might include phrases such as ‘Dial-a-lawyer’ or ‘New York Lawyer’). The firm has, accordingly, set up a web site that does not include its lawyers’ names as part of the domain name, but instead includes the generic name or phrase followed by ‘.com.’ The firm also wishes to advertise on television and radio using the domain name as its primary identifier and to include client testimonials alluding to the domain name rather than the name of the firm or any of its lawyers.

1. Law Firm or Attorney Domain Names
New York forbids a law firm or legal clinic from practicing under a trade name or other name that does not convey the identity of one or more of the lawyers practicing. DR 2-102(B) states in pertinent part:

‘A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one of more of the lawyers in the firm ...’ 1

Similarly, EC 2-11 states that "The name under which a lawyer practices may be a factor in the [lawyer] selection process. The use of a trade name or an assumed name could mislead non-lawyers concerning the identity, responsibility, and status of those practicing thereunder.’

Numerous opinions from New York have prohibited a law firm from identifying itself by a trade name because of the likelihood of confusion as to the identity and composition of the firm. See N.Y. City 95-8 (prohibiting trade name based on firm’s location; ‘the Code on its face prohibits all forms of trade names, and opinions construing the Code have applied that prohibition to locational trade names as well as other types of trade names.’); N.Y. City 82-44 (improper to engage in a law practice under the name "The 777 Lawyers Group"); N.Y. State Bar Op. 709 (operating proposed law practice under trade name ‘The Trademark Store’ is impermissible); In re Shephard, 459 N.Y.S.2d 632, 633 (3rd Dep’t1983) (finding ‘The Peoples Law Firm’ was a prohibited trade name); In re Shapiro, 455 N.Y.S. 2d 604, 605 (1st Dep’t 1982) (finding ‘Peoples Legal Clinic, Inc.’ was a prohibited trade name).

The threshold issue presented here is whether a law firm otherwise compliant with the rules of DR 2-102(B) can establish a domain name that does not include the names of one or more lawyers, but instead uses a ‘trade name’ or other terminology. There are no reported New York ethics opinions on this subject.

Two states, Arizona and Ohio, have issued opinions stating that domain names are not subject to the same regulation or scrutiny as a firm name and are permissible unless they are false or misleading. See Ohio 99-4; Arizona 97-04. In the Ohio opinion, the ethics panel concluded that domain names were governed by the general rules for lawyer advertising and, while it was preferable to use the firm name as a domain name, it is ‘not improper for an attorney to use letters, words or numbers provided that the domain name is not a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement.’ Nor can the domain name be permitted to ‘imply special competence or experience.’ The Arizona State Bar opinion agreed that domain names were subject to the general advertising rules against false or misleading communications, and concluded that: (1) a law firm’s use of ‘countybar.com’ was misleading because it falsely implied an affiliation with the county bar association; and (2) the designation ‘arizonalawyer.org’ was misleading because the top level domain name ‘.org’ falsely indicated that the firm was a non-profit organization.

The Committee notes that many New York lawyers and law firms have established domain names that closely track the firm name. We also note the risk that permitting domain names that do not include any reference to the name under which the firm practices might in some cases cause some initial confusion among visitors to a web site.

However, the Committee believes that the mere designation of a domain name does not mean that the firm or lawyer is ‘practicing’ law under that name; accordingly, DR 2-102(B)’s strictures on law firm names should not apply and, instead, the selection of a domain name is more appropriately governed by the ethical rules and considerations affecting legal advertising and publicity. See DR 2-101. In so concluding, we specifically do not address the First Amendment and other legal issues that may affect attorney advertising, solicitation of business and professional designations because these issues are beyond the scope of this Committee’s jurisdiction.

As a matter of legal ethics, we conclude that a lawyer or firm may employ a domain name that does not include the names of lawyers under the following conditions:

(1) The web site clearly and conspicuously includes the actual name of the law firm and the law firm in no way attempts to engage in the practice of law using the domain name. At a minimum, the web site must clearly present information including the law firm’s name, office address and the telephone number of the attorney or law firm (DR 2-101(K));

(2) The domain name complies with DR 2-101(A), which forbids ‘any public communication or communication to a prospective client containing statements or claims that are false, deceptive or misleading.’

(3) The domain name does not imply any special expertise or competence, or suggest a particular result. In this regard, we note the abundance of existing law firm domain names accessible on the Internet that would appear to violate this requirement, e.g., ‘bigverdict.com’ and ‘bigjudgment.com.’ In addition, although New York’s Code includes no specific prohibition on puffery or statements that cannot be objectively verified, we believe names that seek to promote the lawyer’s skill or talent may be considered misleading, e.g., ‘bestlawyer.com,’ ‘greatattorney.com,’ and ‘personalinjuryexpert.com.’

2. Use of Domain Names in Advertising
Having concluded that it is permissible under certain circumstances for a law firm or lawyer to employ a domain name that does not embody the name of the firm or its lawyers, we believe this domain name may be publicized in advertising so long as the domain name is used to identify a web site rather than as a substitute identifier for the firm. Thus, assuming the law firm was authorized to use the ‘NewYorklawyer.com’ domain name, it would be permissible to refer to that domain name for the purpose of directing readers or listeners to the firm’s web site, but it would not be permissible to refer to the services offered by ‘NewYork lawyer’ or otherwise to replace the law firm’s name with its domain name in describing itself, its services or its personnel.

Similarly, a lawyer or law firm may use bonafide, non-misleading client testimonials in advertising provided the clients do not use the domain name as a sobriquet or substitute for the firm’s name. It would presumably be ethical for the client to identify the domain name as a means to learn more about the firm.

Conclusion
As set forth above, we conclude that it is ethical under certain circumstances for a lawyer or law firm to employ a domain name that does not include or embody the firm’s name or that of any individual lawyer. However, we caution that domain names may not be used as a substitute identifier for the law firm and must comply with the strictures of DR 2-101 as applied to legal advertisements generally.
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