These so-called “copyright trolling” efforts have been a common occurrence in the United States since the turn of the last decade.
Increasingly, however, courts are growing weary of these cases. Many districts have turned into no-go zones for copyright trolls and the people behind Prenda law were arrested and are being prosecuted in a criminal case.
In the Western District of Washington, the tide also appears to have turned. After Venice PI, a copyright holder of the film “Once Upon a Time in Venice”, sued a man who later passed away, concerns were raised over the validity of the evidence.
Venice PI responded to the concerns with a declaration explaining its data gathering technique and assuring the Court that false positives are out of the question.
That testimony didn’t help much though, as a recently filed minute order shows this week. The order applies to a dozen cases and prohibits the company from reaching out to any defendants until further notice, as there are several alarming issues that have to be resolved first.
One of the problems is that Venice PI declared that it’s owned by a company named Lost Dog Productions, which in turn is owned by Voltage Productions. Interestingly, these companies don’t appear in the usual records.
“A search of the California Secretary of State’s online database, however, reveals no registered entity with the name ‘Lost Dog’ or ‘Lost Dog Productions’,” the Court notes.
“Moreover, although ‘Voltage Pictures, LLC’ is registered with the California Secretary of State, and has the same address as Venice PI, LLC, the parent company named in plaintiff’s corporate disclosure form, ‘Voltage Productions, LLC,’ cannot be found in the California Secretary of State’s online database and does not appear to exist.”
In other words, the company that filed the lawsuit, as well as its parent company, are extremely questionable.
While the above is a reason for concern, it’s just the tip of the iceberg. The Court not only points out administrative errors, but it also has serious doubts about the evidence collection process. This was carried out by the German company MaverickEye, which used the tracking technology of another German company, GuardaLey.
GuardaLey CEO Benjamin Perino, who claims that he coded the tracking software, wrote a declaration explaining that the infringement detection system at issue “cannot yield a false positive.” However, the Court doubts this statement and Perino’s qualifications in general.
“Perino has been proffered as an expert, but his qualifications consist of a technical high school education and work experience unrelated to the peer-to-peer file-sharing technology known as BitTorrent,” the Court writes.
“Perino does not have the qualifications necessary to be considered an expert in the field in question, and his opinion that the surveillance program is incapable of error is both contrary to common sense and inconsistent with plaintiff’s counsel’s conduct in other matters in this district. Plaintiff has not submitted an adequate offer of proof”
It seems like the Court would prefer to see an assessment from a qualified independent expert instead of the person who wrote the software. For now, this means that the IP-address evidence, in these cases, is not good enough. That’s quite a blow for the copyright holder.
If that wasn’t enough the Court also highlights another issue that’s possibly even more problematic. When Venice PI requested the subpoenas to identify alleged pirates, they relied on declarations from Daniel Arheidt, a consultant for MaverickEye.
These declarations fail to mention, however, that MaverickEye has the proper paperwork to collect IP addresses.
“Nowhere in Arheidt’s declarations does he indicate that either he or MaverickEye is licensed in Washington to conduct private investigation work,” the order reads.
This is important, as doing private investigator work without a license is a gross misdemeanor in Washington. The copyright holder was aware of this requirement because it was brought up in related cases in the past.
“Plaintiff’s counsel has apparently been aware since October 2016, when he received a letter concerning LHF Productions, Inc. v. Collins, C16-1017 RSM, that Arheidt might be committing a crime by engaging in unlicensed surveillance of Washington citizens, but he did not disclose this fact to the Court.”
The order is very bad news for Venice PI. The company had hoped to score a few dozen easy settlements but the tables have now been turned. The Court instead asks the company to explain the deficiencies and provide additional details. In the meantime, the copyright holder is urged not to spend or transfer any of the settlement money that has been collected thus far.
The latter indicates that Venice PI might have to hand defendants their money back, which would be pretty unique.
The order suggests that the Judge is very suspicious of these trolling activities. In a footnote there’s a link to a Fight Copyright Trolls article which revealed that the same counsel dismissed several cases, allegedly to avoid having IP-address evidence scrutinized.
Even more bizarrely, in another footnote the Court also doubts if MaverickEye’s aforementioned consultant, Daniel Arheidt, actually exists.
“The Court has recently become aware that Arheidt is the latest in a series of German declarants (Darren M. Griffin, Daniel Macek, Daniel Susac, Tobias Fieser, Michael Patzer) who might be aliases or even fictitious.
“Plaintiff will not be permitted to rely on Arheidt’s declarations or underlying data without explaining to the Court’s satisfaction Arheidt’s relationship to the above-listed declarants and producing proof beyond a reasonable doubt of Arheidt’s existence,” the court adds.
These are serious allegations, to say the least.
If a copyright holder uses non-existent companies and questionable testimony from unqualified experts after obtaining evidence illegally to get a subpoena backed by a fictitious person….something’s not quite right.
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A copy of the minute order, which affects a series of cases, is available here (pdf).
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