Well there has been some developments in the Third Degree Films, Inc. v. Does 1-152, 1:11-cv-01833-BA (District of Columbia), since my last posting.    Previous posting  The main change is all the Does except for Bailey Zwarycz have been released by the Troll. 

• Original Complaint – Complaint_01833 (DC)

Dismissed After Settling

On 15 Mar 12, Plaintiff (Troll Mike Meiers) dismissed five does with prejudice after they reached settlements.  Doe_Settle_01833(DC)

Start of Discovery

On 15 Mar 12, the court ordered that discovery should begin immediately and will end by 22 Aug 12.  Any Dispositive Motions (i.e. Motion to Dismiss or Motion for Summary Judgement, etc.) will be made by 17 Sep 12 – Oppositions to Dispositive Motions will be made by 17 Oct 12 – Replies shall be made by  31 Oct 12.  Schedule_Order_01833(DC)

Telephonic Discovery

On 28 Mar 12, the Troll filed a motion to have Plaintiff’s deposition taken telephonically.  This was in response to a 19 Mar 12, request from Bailey Zwarycz to depose Plaintiff in accordance with Rule 30(b)(6).  Plaintiff provided a memorandum supporting its motion for a telephonic deposition, as well as a copy of the deposition request from Bailey Zwarycz.  On 28 Mar 12, the court approved Plaintiff’s motion for a telephonic deposition.  Motion_Plaintiff_DepoOrder_01833(DC)  Motion_Plaintiff_DepoEX1_01833(DC)  Motion_Plaintiff_DepoEX2_01833(DC)  Motion_Plaintiff_Depo_01833(DC)

Troll Dismisses All But Bailey Zwarycz

On 23 Mar 12, Plaintiff dismissed all the remaining Doe defendants except Bailey Zwarycz without prejudice.  Remain_Does_Dismiss_01833(DC)  I said this would likely occur prior to the 6 Apr 12, deadline to serve all the remaining Doe defendants.

Troll Motion for Order on Discovery

On 2 Apr 12, Plaintiff filed a Motion  for Order on Discovery.  TDF_Motion_Disc_01833(DC)

Upon further investigation, Plaintiff found that Zwarycz’s two known IP addresses have been used for multiple and ongoing copyright infringements. Attached is a partial print-out of the copyright infringements that were discovered using Zwarycz’s known IP addresses. It is highly likely that additional IP addresses are associated with Zwarycz as her Comcast IP address is dynamic and changes periodically.

Plaintiff requested the court issue an order to COMCAST to produce all relevant records on Bailey Zwarycz, to include other IP addresses she may have been assigned.  TDF_Motion_DiscProOrder_01833(DC)

Troll Wants More COMCAST Information

Plaintiff seeks the following information from COMCAST dealing with Bailey Zwarycz – TDF_Motion_DiscEX1_01833(DC):

• - Subscriber’s address.
  - Length of service including start date.
• - Subscriber’s instrument number or other subscriber number or identity, including a temporarily assigned network address.
• - Means and source of payment for such service (including any credit card or bank account number).
• - Any other IP addresses associated with Bailey Zwarycz.
• - Any MAC address on record.
• - Records of DMCA Notices that were sent to Zwarycz.
• - Records of any kind of warning letters/emails/other communications about copyright infringement sent to Zwarycz.
• - Records about notice letter sent to Zwarycz about the present lawsuit (including date sent, how the letter was sent (such as mail or UPS), and any information showing when Zwarycz received the letter.
• - What type of device was installed by Comcast at the residence including the device
  model number, serial number and manufacturer?
• - Did the device installed by Comcast include Wireless (WiFi) Capabilities? If so, was
  security (network name & password) enabled by default or enabled by Comcast upon installation?
• - What Date/Time was the device installed by Comcast?
• - A copy of any/all signed agreements including device installation agreements signed by or given to Zwarycz.

More Movies Bailey Zwarycz’s Public IP Address is Associated to

Attached to this motion is 16 pages of IP addresses and names of porn movies that Plaintiff believes Bailey Zwarycz’s public IP address downloaded/shared.  The dates range from March to November 2011. 

The movies listed are owned by the following companies:

• Third Degree
• RLD Sensations
• Elegant Angels
• Exquisite Multimedia
• Pleasure Productions
• Diabolic
• Digital Sin
• Black Ice
• GQ Associates DBA Smash Pictures
• Wicked Pictures

Where Did They Get This Information

The Troll motion does not state where exactly they obtains the records that Bailey Zwarycz’s public IP address downloaded/shared the additional movies, so the validity of the claim is hard to refute.  On 3 Apr 12, I entered both of Bailey Zwarycz’s public IP addresses into http://www.youhavedownloaded.com/ and received no listing of downloaded/shared movies from their database.  Of course this is as inconclusive as the list the Troll has.  At least I have listed where and when I conducted by search and the results.  You figure the court would need such information from the Troll to make a ruling.

What Are They Trying to Show?

Based on the information the Troll wants from COMCAST, it appears they will try to show that Bailey Zwarycz is responsible because:

• She downloaded/shared the movies in question.  This isn’t likely to work as they don’t have any direct evidence to support this claim.
• She knew or should have known that her Internet connection was being used to illegally download/share copyright protected content.  This is basically the negligence claim we have seen before.  They will most likely try to paint this picture by showing any DMCA take-down notices or excessive bandwidth usage notices given to her from COMCAST.  They will also try to exploit any possible violations of the COMCAST subscriber agreement, showing she should have taken certain steps to secure the WiFi connection.  The problem Plaintiff is going to have with this course of actions is unless they immediately sent out their own DMCA take-down notices (for the movie in this case) to her and the previously attached Does, they haven’t abided by the same standard they are trying to hold Bailey Zwarycz to.  

In reality, I think they are going to throw everything and anything possible in an attempt to get Bailey Zwarycz to accept a settlement offer from Plaintiff.  The quicker they can stop this, the sooner they can get back to threatening other Doe defendants with a Federal law suit and make more money.  It is going to take some time, but I hope she sticks with it and makes all of the Trolls think twice about their actions and what it could cost them.

DietrollDie