Not so serious

Bloody paralegals!

On a hot and humid morning of August 6, 2015 Keith Lipscomb came to his Miami office and found a very unpleasant document on his desk:

The Plaintiff is directed to show cause by a written response filed within eleven (11) days why this case should not be dismissed pursuant to Local Rule 3.10 for lack of prosecution due to the non-filing of a Case Management Report within the time prescribed by Local Rule 3.05. FAILURE TO TIMELY RESPOND TO THIS ORDER WILL RESULT IN DISMISSAL WITHOUT FURTHER NOTICE.

DONE AND ORDERED in Chambers in Tampa, Florida, on August 6, 2015.

Elizabeth Kovachevich
United States District Judge

“What? Dismissal?” bellowed Lipscomb, “No way! We only started shaking down this defendant. We didn’t even call all his neighbors yet — to tell them about the “barely legal” porn illegally produced in Malibu that this guy likes to watch… But how did we manage to miss the deadline? Must be paralegals! Damn paralegals! Danny, Emilie, Jessica, bring me the paralegal!”

And they brought him the paralegal.

And Keith fired the paralegal:

Undersigned appreciates Your Honor’s desire to expeditiously move cases toward their final resolution and sincerely apologizes for Plaintiff’s failure to file a Case Management Report within the time prescribed by Local Rule 3.05. To explain, on May 14, 2015 Plaintiff filed a waiver of service. As such, pursuant to Local Rule 3.05, the Case Management Report was due on July 13, 2015. However, the deadline was not calendared, and Plaintiff inadvertently missed this deadline. The paralegal tasked with calendaring this deadline failed to do so. This paralegal has since been fired.

And Keith was so anxious, so anxious that he lost 10 pounds. And he totally forgot to file that bloody Case Management Report. A grimace of pain on Keith’s face when he read another Order to Show Cause on 9/28/2015 was authentic:

The Plaintiff is directed to show cause by a written response filed within eleven (11) days why this case should not be dismissed pursuant to Local Rule 3.10 for lack of prosecution due to the non-filing of a Case Management Report within the time prescribed by Local Rule 3.05. FAILURE TO TIMELY RESPOND TO THIS ORDER WILL RESULT IN DISMISSAL WITHOUT FURTHER NOTICE.

DONE AND ORDERED in Chambers in Tampa, Florida, on September 28, 2015.

Elizabeth Kovachevich
United States District Judge

“Not again! I can’t even… Damn paralegals! Danny, Emilie, Jessica, bring me the paralegal! There will be blood! Oh how I’m angry!”

“Umm, Keith, you fired them all, there is only one left, and if you let her go, who will sing your favorite We are not Prenda lullaby?” Jessica coughed.

“Maybe you should try and call young Yousef from Columbus (today is the Columbus Day, ha-ha!): he manages to exit such situations all the time. The Internet Hate Group calls him Yousef ‘Show Cause’ Faroniya,” suggested Danny passing Keith a glass of water.

“OK, let’s do it,” sighed Keith.


“This is Yousef Faroniya, Esquire. “

“Hey, Yousef, this is Keith Lipscomb. Glad you answered: that you don’t pickup the phone is bulls—. It’s told by people who don’t have a clue what the hell they’re talking about.

“I have a question,” continued Keith, “When a judge is angry and stuff and you want to back down a bit but still want to save face… you know what I mean.. what do you do in such predicament?”

“I drop on the floor, belly up. Make the innocent face, and pee. Just a little. That’s what puppies do. Who can harm puppies?”

And Keith dropped belly up.
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Guardaley | Lipscomb | X-Art

After prevailing-party fees were denied, Malibu Media defendant petitions the Supreme Court

Parasite organisms play an important role in the grand scheme of things — to expose their hosts’ weaknesses, thus prompting the nature to patch flaws, making hosts stronger and healthier as a result. In the legal sphere, parasite attorneys are constantly searching for loopholes in the law that can be abused to unfairly enrich few at the expense of many. Copyright troll is a kind of a parasite that explores two major historically wrong propositions of the copyright law:

This story is about the latter.

On Tuesday the most litigious copyright troll Keith Lipscomb gave an interview to the Chicago Lawyer magazine. Even though Lipscomb’s and truth are not good friends, this time he outshined his usual self: I never saw this volume of hogwash delivered in a single scoop. I don’t want to go over each and every misstatement now, maybe another day. To illustrate the subject of today’s post, I only want to direct your attention to one assertion:

“The whole focus of this is proving that the people we are alleging did the infringement actually did,” he said. “We let 35 percent of these people go right off the bat and don’t serve anybody because we’re not sure.”

And if they get it wrong, [Lipscomb] said, there are safeguards in the law: The copyright act allows wrongly named defendants to receive their attorney fees.

Well… While Mr. Lipscomb is theoretically correct, I would love to see a single Malibu Media case, in which an innocent was targeted, and, after incurring sizeable legal expenses, was compensated in any form¹. To the best of my knowledge, Mr. Lipscomb didn’t pay a dime to any prevailing defendant, while wrestling millions from alleged pirates, guilty or not.

The cases with “wrongly named defendants” either ended up in a walkaway settlement (INSD 12-cv-01117, MDD 13-cv-03438, VAED 14-cv-01544 — to name a few), or the courts declined to award prevailing-defendant fees.

In Malibu Media v. Roberto Roldan (FLMD 13-cv-03007), the troll knowingly targeted a student who didn’t live at the address where the alleged infringement took place. After it became obvious that Roberto was innocent beyond any doubt, Lipscomb managed to substitute the defendant, naming his father instead and leaving a wrongly accused young man with huge legal bills and damaged reputation.

In Malibu Media v. Shekoski (MIED 13-cv-12217), after it became clear that absolutely no proof of defendant’s guilt ever existed (even accessing protected areas of defendant’s hard drive — in a clear violation of judge’s order — didn’t help), the troll cut and run to avoid compensating the wronged party.


Yet the most egregious example was Malibu Media v. Pelizzo (FLSD 12-cv-22768). Not only was this case frivolous and unreasonable from the very beginning, but even after the dismissal Lipscomb threatened to ruin the innocent man financially — after the defendant’s attorney Francisco Ferreiro asked for a modest fee reimbursement:

Respectfully, you should counsel [your client] that when he loses, he will lose everything he owns and owe my clients hundreds of thousands of dollars. Mark these words, your client’s decision to reject a walk away will be the worst decision he will ever make.

This outrageous conduct, which in an ideal world should have caused an immediate disbarment, resulted in some fees: Magistrate Andrea Simonton recommended to slap Lipscomb on the wrist by sanctioning him for $6,815.50 Pursuant to 28 U.S.C. § 1927. Yet no prevailing-fees (17 U.S.C. § 505) were awarded because the judge found that

Plaintiff ’s motivation in filing and maintaining this suit was proper and the lawsuit was not frivolous or objectively unreasonable [up to a point].

Pelizzo appealed the decision, but lost: the Court of Appeals for the Eleventh Circuit affirmed the lower court ruling and declined to hear the case de novo.

So now Pelizzo and his attorney have upped the game. On 10/2/2015 Francisco Ferreiro filed a Petition for A Writ of Certiorari with the Supreme Court of the United States. This is the first SCOTUS petition in a Bittorent infringement case², and the heart of the argument is the fee shifting provision:

In Fogerty v. Fantasy, 510 U.S. 517 (1994), this Court agreed that judges could rely on several non-exhaustive factors to guide their equitable discretion in awarding prevailing party fees under the Copyright Act, 17 U.S.C. §505, including “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.”

The appellant, arguing the landmark Fogerty ruling was interpreted differently by different US circuits (and incorrectly by the Eleventh Circuit), wants the highest court to bring clarity.
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Guardaley | Lipscomb | X-Art

New York judge stayed subpoenas in all the Malibu Media NYED cases

This good news was broken by Ray Beckerman:

A motion to quash was made by one of the many John Doe defendants in the Eastern District of New York Malibu Media cases. The defendant was represented by Chejin Park, Esq., of Flushing. Due to the “serious questions as to whether good cause exists in these actions to permit … expedited pre-answer discovery”, the Court, by Magistrate Judge Steven I. Locke, before whom all of the Eastern District cases are consolidated, decided to stay all pre-answer discovery until his determination of the motion to quash.

Malibu Media, via a local Jacqueline M. James, filed 88 cases in NYED (all of them in 2015). Subpoenas to ISPs are stayed in those cases where the troll hadn’t already received Does’ names.

(While the order below lists only 20 cases, this order is accompanied by similar orders.)
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Guardaley | Lipscomb | X-Art

Malibu Media attorney Jason Kotzker moves to stay FTC civil case pending the resolution of criminal proceedings against him

Jason Aaron Kotzker

A bit more than a month ago I wrote about a civil case against a Malibu Media attorney Jason Aaron Kotzker (NVD 15-cv-01512). Plaintiff, the Federal Trade Commission, alleged that two entities, which were largely controlled by Kotzker (Sequoia One LLC and Gen X Marketing Group LLC), had been collecting consumer data from payday loan applicants and subsequently selling this data to con artists. The FTC alleged that Kotzker and his co-conspirators (all of whom were conditionally settled since) scammed about seven million dollars from already broke citizens.

At that time I questioned why it was a civil case given the gravity of the allegations. I also speculated that a criminal prosecution would follow.

It turned out that my questions were not unreasonable. Today I learned from Mr. Kotzker himself that a criminal investigation against him is underway: Mr. Kotzker first learned about it in early December, 2014, when he received a Grand Jury subpoena addressed to Sequoia One, LLC.

Kotzker tells this story in a motion to stay civil action pending resolution of criminal proceedings filed on 10/2/2015:

In light of this ongoing federal criminal investigation, Kotzker should not be forced to choose between defending himself in this civil action brought by one federal government agency (the FTC) and preserving his Fifth Amendment rights in the ongoing federal criminal investigation being conducted by other federal government agencies (U.S. Postal Inspection Service, the U.S. Department of Justice, and the U.S. Attorney’s Office for the District of Nevada). To protect his Fifth Amendment rights, a stay of this civil proceeding is required during the pendency of ongoing parallel federal criminal investigation.

From this motion we learn that after the subpoena mentioned above, the following events took place:

  • On January 7, 2015, a Postal Inspector interviewed Kotzker at his residence in Highlands Ranch, Colorado for two hours, asking questions related to the civil action allegations.
  • On January 22, Kotzker was questioned for 5 ½ hours by an Assistant US Attorney, DOJ attorneys and a Postal Inspector.
  • On January 30, DOJ extended a plea offer to Kotzker, which would require Kotzker to plead guilty to a federal felony. I assume that the offer was not accepted.

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Guardaley | Lipscomb | X-Art

Verizon is fed up with Lipscomb’s increasing arrogance

On Thursday I wrote a post titled “Is Verizon fed up with Lipscomb’s increasing arrogance?” Today’s caption may look like a copy-and-paste error, but it is not: as you can see, the question mark is not there any longer.

Less than a week after intervening in a SDNY case to oppose an overreach, burdensome subpoena, Verizon attorneys chimed in a Florida case (Malibu Media v William Sharp, FLMD 14-cv-02138) with a harsh Motion for Protective Order and Motion to Quash subpoena.

The language of this motion doesn’t leave any doubt that Keith Lipscomb’s untethered greed did indeed wake up the bear, and the bear is irritated. The document itself is largely the same as the one filed in New York, with the addition of more elaborate Section III — this section addresses Lipscomb’s previous opposition and discusses the Cable Act in more detail — particularly how Lipscomb’s shakedown factory misleads the court by misinterpreting the Act:

Plaintiff’s contrary interpretation of the Cable Act — as recited in its opposition filed October 1, 2015 (Dkt. 53) — is wrong. Plaintiff relies erroneously on subsection (c)(2)(B), which places restrictions on governmental entities that seek information from ISPs. (See 47 U.S.C. § 551(c)(2)(B), referring to subsection (h), which addresses law enforcement subpoenas.) The separate prohibition against disclosing the “viewing or other use by the subscriber of a cable service or other service” or the “the nature of any transaction made by the subscriber over the cable system” is contained in section 551, subsection (c)(2)(C), which applies to all subpoenas: This subsection says nothing about government-entity subpoenas and applies squarely here. […]

Footnote 3 is quite noteworthy:

It also defies common sense that civil litigants like Malibu Media would be permitted a broader range of discovery about Verizon’s subscribers than law enforcement. Nothing in the Cable Act suggests the Legislature intended that absurd result.

That’s not all. Verizon essentially accuses Lipscomb and the pornographers of wasting scarce Verizon’s resources, which are needed to investigate real crimes. This kind of entitlement is yet another instance of harm that parasitic copyright trolls inflict upon the society. Indeed, it’s like summoning a fire engine to water one’s lawn when real fires are destroying homes nearby:

Finally, there are practical implications of Plaintiff’s sought-after discovery. With more than one thousand cases filed by Malibu Media this year alone, permitting depositions of Verizon would create an entire industry devoted to discovery of ISPs — and take away from resources needed to respond to law enforcement personnel and others who require Verizon’s attention to emergency criminal investigations, and other pressing business. The discovery sought by Plaintiff is not appropriate under the circumstances.

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Guardaley | Lipscomb | X-Art

Is Verizon fed up with Lipscomb’s increasing arrogance?

Pissing off ISPs is not a wise thing to do for any copyright troll. Prenda Law’s principals learned it the hard way after their idiotic attempts to sue Comcast and AT&T in Ligstpeed v Smith. It didn’t finish well: the trolls ended up paying hundreds of thousands to the providers.

Prenda’s spiritual heir, Keith Lipscomb, seemingly didn’t learn the lesson. While he didn’t sue any provider (yet?), his more and more burdensome demands started to irritate the bear. In a closely watched case Malibu Media v. John Doe (NYSD 14-cv-10155), Lipscomb, after failing to find any traces of XArt’s smut on the defendant’s computer and after not succeeding in blackmailing the defendant during a deposition, invoked Plan B. Such a plan is usually two-fold. The main part is moving for sanctions claiming massive spoliation of evidence¹. The other part is trying to learn everything the defendant’s ISP knows about its subscriber in a hope to find anything incriminating.

The second part was materialized on 9/9/2015 as a motion for entry of an order authorizing plaintiff to serve a third party subpoena on Verizon and authorizing Verizon to release certain subscriber information about defendant. Judge Forrest granted this motion on 9/11 — with a caveat: while she signed Malibu’s proposed order, she added a handwritten note that Verizon might choose to object per 47 U.S.C.A §551 — Protection of subscriber privacy.

And Verizon, by its biglaw attorneys Morrison & Foerster, did object.
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Guardaley | Lipscomb | X-Art

Yet another New York judge is not happy about Malibu Media’s predatory conduct

Judge Katherine Forrest is the most recent addition to those of her colleagues who scolded copyright trolls one way or another. The list is impressive: judges McMahon, Hellerstein, Marrero, Baer, Brown, Fox… The only way for a troll lawyer to still hustle in this state is to secure his or her reputation six feet under.

I wrote about this case ten days ago (Malibu Media v. John Doe, NYSD 14-cv-10155). To recap, a defense attorney filed a motion for protective order telling a disturbing story, in which essentially an attempted blackmail was incorrectly referred to as “deposition”:

While Doe is cognizant of Malibu’s ostensible desire to conduct thorough discovery, it has become apparent that, in the absence of any evidence of infringement on Doe’s part, Malibu is conducting a fishing expedition and campaign of harassment by threatening to depose non- party witnesses on irrelevant topics and to continue to depose Doe on same. In so doing, Malibu is attempting to prevent ultimate resolution in this matter by creating the false sense that evidence of infringement or wrongdoing exists.

Of course this provoked Keith Lipscomb into producing fountains of saliva. Ostensibly written by a local troll Jacqueline M. James, but obviously drafted by the Troll Master himself (the usage of certain typical words and phrases leaves little doubt), the reply in opposition was frantic.
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