Prenda is a gift that keeps on giving.

Court Jester

No matter how this phrase is banal and overused, it will be repeated many more times, guaranteed. Because… Prenda is a gift that keeps on giving. At different times different clowns appeared in the farce; today it was Jacques Nazaire’s turn to take the stage. For those who don’t remember, Nazaire is a Georgia Craigslist lawyer who entertained us in the past by telling the court that Judge Wrights’ famous order is irrelevant in Georgia because California recognizes gay marriage, and because Anonymous attacked PayPal. He called the EFF “terrorists organization” and his “your momma” email to me prompted so many laughs…

In the aftermath of the November 20, 2014 hearing in the AF Holdings v Patel (GAND 12-cv-00262), motions and notices by both sides continued to pour into the swollen docket. For example,


But one particular Jacques Nazaire’s filing left my face burning from an involuntary facepalm:


First of all, there is no such thing as a post-dismissal sanctions hearing by a jury. This isn’t going anywhere, period. The case was dismissed. What “trial” for God’s sake? We really need the Twenty Eighth Amendment to the US Constitution, which addresses the problem with attorneys who embarrass themselves and the legal profession: those comedians should be banned from the courtroom.

But, if for the sake of argument we assume this childish act has a quantum of merit, I think that when Nazaire wrote

[…] listen to the factual [non-legal] issues of this case […],

he mixed up the “factual” and “legal” terms. The questions derived from the “factual issues” are pretty damning:

  • whether Prenda seeded its smut to entrap file-sharers;
  • whether Prenda forged the signature on the copyright assignment;
  • whether the “client” AF Holdings exists at all;
  • whether former Prenda’s paralegal, John Steele’s drinking buddy and a fugitive from justice Mark Lutz, is really a principal of a sham corporation AF Holdings;


The list can go on and on, and some of the “factual issues” have already become “facts” — Judge O’Kelley has adopted Judge Wrights’ findings in full.

When facts are not on your side, the only way to get away with scams is to juggle legal [non-factual] issues. That’s how all the copyright troll cockroaches (Keith Lipscomb, Michael Hierl et al) avoid justice today and continue plundering citizens with impunity — by exploring the cracks in the legal system while playing fast and lose with facts.

Here is our advice, Jacques: stop digging. Humbly accept the sanctions that Judge O’Kelley will most likely impose on you. All your temper tantrums will only worsen your situation. Don’t embarrass yourself any longer, fade into obscurity: even though you took orders from the con artists (who, I hope, will end up in jail soon), your shenanigans were relatively minor, and I bet that Prenda’s victims are willing to forget them if you stop disturbing the past over and over again.


¹ Note that Duffy continues deceiving the court by signing his missives as “Duffy Law Group” — an entity that was involuntarily dissolved a long time ago.

The AF Holdings v Patel (GAND 12-cv-00262) Show Cause Hearing, which was abruptly interrupted by a snowstorm on the 1/28/2014 afternoon, was finally continued and concluded almost ten months later, on 11/20/2014. I was not there — Kat was, and she wrote a detailed and vivid three-part story. It doesn’t make sense to retell it in my own words: firstly, as I said, I was not there; second, Kat is simply a terrific storyteller, so pour yourself a glass of wine and read:



While we are waiting for the written order, the minute sheet is worth mentioning: in part because

The Court verbally adopted as part of its Findings of Fact and Conclusions of Law, Judge Wright’s Order, Central District of California, paragraphs, 1, 2, 3, 4, 5, 6, 8, 9 & 11¹. (See Wright Order 2:12-cv-8333-CDW).


I’ll copy and paste the adopted paragraphs for your convenience:

1. Steele, Hansmeier, and Duffy (“Principals”) are attorneys with shattered law practices. Seeking easy money, they conspired to operate this enterprise and formed the AF Holdings and Ingenuity 13 entities (among other fungible entities) for the sole purpose of litigating copyright-infringement lawsuits. They created these entities to shield the Principals from potential liability and to give an appearance of legitimacy.

2. AF Holdings and Ingenuity 13 have no assets other than several copyrights to pornographic movies. There are no official owners or officers for these two offshore entities, but the Principals are the de facto owners and officers.

3. The Principals started their copyright-enforcement crusade in about 2010, through Prenda Law, which was also owned and controlled by the Principals. Their litigation strategy consisted of monitoring BitTorrent download activity of their copyrighted pornographic movies, recording IP addresses of the computers downloading the movies, filing suit in federal court to subpoena Internet Service Providers (“ISPs”) for the identity of the subscribers to these IP addresses, and sending cease-and-desist letters to the subscribers, offering to settle each copyright infringement claim for about $4,000.

4. This nationwide strategy was highly successful because of statutory copyright damages, the pornographic subject matter, and the high cost of litigation. Most defendants settled with the Principals, resulting in proceeds of millions of dollars due to the numerosity of defendants. These settlement funds resided in the Principals’ accounts and not in accounts belonging to AF Holdings or Ingenuity 13.

No taxes have been paid on this income.

5. For defendants that refused to settle, the Principals engaged in vexatious litigation designed to coerce settlement. These lawsuits were filed using boilerplate complaints based on a modicum of evidence, calculated to maximize settlement profits by minimizing costs and effort.

6. The Principals have shown little desire to proceed in these lawsuits when faced with a determined defendant. Instead of litigating, they dismiss the case. When pressed for discovery, the Principals offer only disinformation—even to the Court.

8. The Principals maintained full control over the entire copyright-litigation operation. The Principals dictated the strategy to employ in each case, ordered their hired lawyers and witnesses to provide disinformation about the cases and the nature of their operation, and possessed all financial interests in the outcome of each case.

9. The Principals stole the identity of Alan Cooper (of 2170 Highway 47 North, Isle, MN 56342). The Principals fraudulently signed the copyright assignment for “Popular Demand” using Alan Cooper’s signature without his authorization, holding him out to be an officer of AF Holdings. Alan Cooper is not an officer of AF Holdings and has no affiliation with Plaintiffs other than his employment as a groundskeeper for Steele. There is no other person named Alan Cooper related to AF Holdings or Ingenuity 13.

11. Plaintiffs have demonstrated their willingness to deceive not just this Court, but other courts where they have appeared. Plaintiffs’ representations about their operations, relationships, and financial interests have varied from feigned ignorance to misstatements to outright lies. But this deception was calculated so that the Court would grant Plaintiffs’ early-discovery requests, thereby allowing Plaintiffs to identify defendants and exact settlement proceeds from them. With these granted requests, Plaintiffs borrow the authority of the Court to pressure settlement.

Brett Gibbs Paul Duffy Adam Urbanczyk John Steele Paul Hansmeier Mark Lutz Yo momma...


¹ The paragraphs 7 and 10 deal with Brett Gibbs’s conduct, and were not adopted by Judge O’Kelley simply because they are irrelevant for this case.

If was bound to happen earlier or later:

11/21/14 — Morgan Pietz of The Pietz Law Firm, together with Drew Pomerance of Roxborough, Pomerance, Nye & Adreani, have filed a Class Action Complaint (with Exhibits) against Rightscorp, Inc., and its management, on behalf of two people who have received alleged unlawful telephone calls, emails, and letters from Rightscorp’s “DMCA Agents.”

The complaint seeks class damages against Rightscorp for violations of the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, California’s Rosenthal Act, and Abuse of Process. The complaint alleges unlawful robo-calls, as well as other unfair debt collection practices, and that Rightscorp has abused the legal process by issuing DMCA Section 512(h) subpoenas that it knew were objectively baseless []

Rightscorp Class Action — Robo-Calls and DMCA Subpoenas

Answering my question about a potential of more plaintiffs joining the action, Mr. Pietz said: “We would still be very interested to talking to anyone who was being contacted by Rightscorp or who paid settlements, particularly anyone who was getting the pre-recorded robo-calls¹.”



Previous Rightscorp posts
Media coverage


¹ Speaking about robocalls, nothing is new under the sun. Especially in the copyright trolls’ world.

By Dbs

I showed up at the courthouse about 10 minutes before scheduled time. After running through security and running an item back out to the car, finally got to the courtroom with 2-3 minutes to spare. I met Dan Booth and Jason Sweet at the door there, looking for the same room. Dressed in sharp clean black suits they were cordial and friendly. They looked like, and acted like, a team. Before the case they were pretty guarded around me, not knowing who I was, why I was there, and having their focus on the task on hand. After the typical courtesy dance for who’s opening the door for whom, Dan grabbed the door and all three of us headed in side by side.

The door opened in the back of the courtroom, typical wooden bench style seating for a courtroom with a solid row on the back wall, 5-10 rows ahead of the door, and then the counselor’s area and Judge’s bench. JBL 10 inch speakers mounted on the wall — two at least, 60 inch TVs mounted at the front of the gallery and monitors galore at the counselor’s tables. (They had a pretty sweet tech setup up front for presentations as well… but I’m quickly heading off topic. Sorry folks, I’m a nerd, not a legally inclined individual, these are the things I notice.)

Promptly on entering we were notified by a court official that the hearing before us was still going on, they’re running late, and it’d be 15-20 minutes until the Lightspeed Media case was up. Booth and Sweet grabbed the front pew near where they planned to sit for their hearing. I grabbed the pew right behind them hoping to gleam anything off of them ahead of time — but alas, the sound system was a bit loud for me to overhear them then. At the time that I sat, Comcast’s attorney was already present in my row as well — Andrew Toennies. There was a bit of small talk between Booth, Sweet, and Toennies, a few jokes, but fairly quiet as the case ahead of us came out from chambers. Just a few small whispers between them after while the other case wrapped up.

Five minutes later enough folks filed out of the Judge’s chambers that I almost wondered if he had a TARDIS hidden back there. Judge David Herndon was one of the last out, with a small grin on his face he made a wisecrack to a few of the folks nearby (joke obviously unrelated to the case at hand). It was nice to see a bit of personality out of the Judge, whom I’ve usually seen to be a pretty stoic bunch. Overall I’d say that he was formal and very businesslike in his overall conduction, but he had a warmth/”jovial” air about him. I could tell he was someone you sure didn’t want to get on the wrong side of, capable of a stern dressing down if needed — but I also thought he easily could be someone that a child could be comfortable testifying in front of as well. A healthcare case, in a settlement phase, continued with some status related stuff for the next 5-10 min that I didn’t pay too much attention to. (But hey, I have the next hearing date/time, and that the judge thanked the parties for working so well together through this phase and that it was a refreshing change of pace.)

About 1:10, as the above hearing occurred, Duffy and Hansmeier entered the room. Paul Duffy had a navy suit on with light blue shirt, slight wrinkling in the trousers. His face looked very “worn” or tired… I didn’t get a great look but I wasn’t positive that he’d shaved that morning. Shorter, a little pudgy, had definitely seen better days (As we’d say here in the Midwest, “Rode hard and hung up wet.”). Paul Hansmeier had a decently sharp navy suit, white or light pink shirt I think and tie. Very cleanly shaved, he was taller with an athletic build. He almost reminded me of what T.J. Oshie (St. Louis Blues hockey player) would look like with a white collar haircut- I was surprised by how young he looked in person, striking me as anywhere from late twenties to mid-thirties. He maintained a very professional appearing and calm demeanor throughout the day. The two made a beeline for the back bench real near where the aisle to the tables was, sat, looked at their phones or ahead and didn’t talk- not to anyone else, or each other. Continue reading…

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment to the US Constitution


US Federal Judge
Thomas Rice

On 10/31/2014 Washington Eastern District Judge Thomas Rice decided not to sanction copyright trolls Maureen VanderMay, David Lowe and Carl Crowell in Elf-Man v. Lamberson (WAED 13-cv-00395), yet he granted the defendant’s attorney fees (the amount is yet to be determined). On the same day Judge Rice ruled on the motions for default judgments in two APMC-driven cases: Elf-Man, LLC v. Does 1-29 (WAED 13-cv-00115 — the case Lamberson was spawned from) and a very similar copyright shakedown case The Thompson Film, LLV v. Does 1-35 (WAED 13-cv-00126):


In these two cases the plaintiff requested $30,000 from each of the 11 defendants who failed to answer to the complaints. This would result in $330,000 — a 14x return on the $23,700 investment ($700 in filing fees plus $23,012.57 attorney fees as costs, as determined by the judge).

This request was not granted: while the judge couldn’t simply deny default judgments as the defendants were properly served, he awarded just the allowed minimum to the trolls: $750 per defendant (plus $2,250 in attorney fees).

Similar to the Lamberson ruling, these two orders are both bad news and good news. I’m utterly disappointed by the judge’s unwillingness to address the stink of abuse these lawsuits exude: in the first order (embedded below) trolls’ dances around the truth were taken for granted, and Lamberson’s attorney’s well-pled accusations were brushed off. Even the fact that Ms. VanderMay defrauded the court by filing a forged declaration of Darren Griffin was not mentioned at all.

At the same time, these orders addressed the issue I’ve been bringing up for three years — that insanely high statutory damages run afoul of the Eighth Amendment to the US Constitution. I’m sure I was not first to point to the obvious: for example, Stephan Kinsella argued against excessive fines in copyright. Yet to the best of my knowledge, this is the first time a federal judge brings this topic in a mass Bittorent case¹.

This Court finds an award of $30,000 for each defendant would be an excessive punishment considering the seriousness of each Defendant’s conduct and the sum of money at issue. Although Plaintiff contends the minimal revenue lost from each Defendant’s single transaction does not account for the extent of damages, this Court is unpersuaded that the remote damages — “downstream revenue” and destroyed plans for a sequel due, in part, to piracy — justify an award of $30,000 per defendant, even in light of the statute’s goal of deterrence. Instead, this Court finds Plaintiff has not made a showing justifying damages in excess of the statutory minimum. Accordingly, the Court, within its “wide latitude” of discretion, grants Plaintiff the minimum statutory award of $750 against D. & B. Barnett, jointly and severally and $750 against each remaining defaulted Defendant in the case.

In the footnote, Judge Rice further explains:

In Austin v. United States, the Supreme Court held that the Excessive Fines Clause of the Eighth Amendment applies in civil, not just criminal, proceedings. Austin v. United States, 509 U.S. 602 (1993). As the Court explained, the purpose of the Eighth Amendment is to limit the government’s power to punish, and “civil sanctions that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” Id. at 607-09 (applying the amendment to civil forfeiture proceedings). Undoubtedly, the statutory damages imposed for violation of copyright infringement are intended to serve a deterrent purpose, see e.g., Nintendo of Am., Inc. v. Dragon Pac. Intern, 40 F.3d 1007, 1011 (9th Cir. 1994) (recognizing the punitive and deterrent effect of the Copyright Act’s statutory damages), and thus can properly be characterized as punishment.²

Proportionality of punishment is the cornerstone of any civilized society. I can’t imagine anyone to disagree with this statement. I want to look into the eyes of an individual that claims that sharing a $20 movie warrants a fine that may result in abandoning college education or losing a house.

And yet the travesty continues.

I’m saddened and tired of observing a huge moral blind spot this country developed regarding the insanity (and unconstitutionality!) of civil fines in copyright cases. The astronomical numbers currently serve the sole purpose of threatening alleged infringers in order to wrestle them into paying a ransom. The law, created in pre-digital age to combat large-scale commercial infringement, was perverted by greedy crooks with opaque eyes. Unless the statutory damages are not abolished or at very least drastically reduced for non-commercial infringement, the international troll Mafia will continue destroying people’s lives.



¹ In Sony v. Tenenbaum, Judge Nancy Gertner in 2010 cut a jury’s damage award against the defendant from $675,000 to $67,500, saying it was “unconstitutionally excessive” and “wholly out-of-proportion,” but this decision was later reversed by the First Circuit, and the Supreme Court declined to hear an appeal.

² Furthermore, the judge compares Kafkaesque civil fines with the criminal copyright infringement liability, and this comparison (again, to the best of my knowledge) is unprecedented in a Bittorent case ruling:

As a comparator, if one of the named Defendants was found criminally liable under 17 U.S.C. § 506 for the same act of infringement, i.e., infringement in an amount less than $2,000, the U.S. Sentencing Guidelines recommend a fine between $1,000 and $10,000. USSG §§ 2B5.3, 5E1.2. Further, if that Defendant were to plead guilty with contrition, the fine would be reduced to a range between $500 and $5,000. Id § 5E1.2

Media coverage
I was astonished to find out that a teen pornography purveyor and the most litigious copyright troll in the US history Malibu Media filed 25 lawsuits in NYSD on 11/7/2014 and 11/10/2014 for the first time in more than two years.

Jacqueline M. James
Porn troll Jacquline M. James

The local troll is a solo practitioner from White Plains Jacquline M. James. I didn’t find any reputational hiccups in her career, which suggests that she was simply lazy to do a diligent research before stepping into this pile of manure. I’m willing to give her a benefit of doubt: let us see if she is willing to correct her mistake.

This move is bold and astonishing because historically New York has not been exactly friendly to trolls. Lipscomb and Co tried to shake down this state’s citizens in the past — only to be admonished by judges here and there.

The most important event was Magistrate Brown’s Order, Report and Recommendation that essentially ended mass extortion lawsuits in this state in 2012. Granted, Lipscomb ceased filing mass Doe suits long time ago, but the extortionate nature of his today’s “business” remains unchanged.

Other copyright trolls (Mike Meier, Marc Randazza) didn’t find much love in New York either. Judge Harold Baer called trolls “copyright locusts [that] have descended on the federal courts.” And Judge Victor Marrero even suggested that pornography may not be entitled to copyright protection.

So, it will be interesting to observe New York judges’ reaction to the return of the infamous porn troll.

Below is one of the cookie cutter complaints written either in the Miami Troll Central or Karlsruhe.


Dear trolls, today is the Veterans Day. In case you have a quantum of soul not eaten by the greed cancer yet, it’s time to reflect on your conduct. Our fathers didn’t die so you would make dirty money on selling US citizens to the German Mafia over obscene material.

US Federal Judge
Thomas Rice

A very eventful case Elf-Man v. Lamberson (WAED 13-cv-00395) is coming to its conclusion (See the extensive coverage of this case by DieTrollDie). Because of the defense counsel’s titanic investigative effort (which resulted in overwhelming evidence of ongoing brazen fraud upon the US courts by a German extortion concern Guardaley), plaintiff’s counsel Maureen VanderMay resigned citing “ethical concerns,” and finally the trolls attempted to cut and run — dismissed the entire case with prejudice — to avoid potentially devastating scrutiny.

When Judge Thomas Rice approved the dismissal, he hinted that the defense might request attorney fees.

In July Lamberson filed three post-dismissal motions: for attorney fees and costs (asking around $200,000) and two motions for sanctions: pursuant to 28 U.S.C. § 1927 and Fed. R. Civ. P. 11.

Those motions prompted a flurry of opposition, including the declarations by Lipscomb’s discredited expert Patrick Paige and two German nationals (purportedly real people): unlicensed, uneducated “investigators” Michael Patzer and Daniel Macek. The only person whose declaration was missing was Guardley’s own “Alan Cooper” — an invented “expert” Darren Griffin of a non-existing Crystal Bay Corporation: this time the Germans seemingly didn’t dare to forge a signature as they did on numerous occasions in 2013.

We expected a lot from the judge’s ruling on these motions: as time passed, we hoped that he had been preparing an Otis Wright-like smackdown, but alas, I had rather mixed feelings reading the October 31 order.


I start with bad news: both motions for sanctions were denied, mostly on procedural grounds: applicability of certain sanctions to certain documents (“section 1927 sanctions are unavailable for complaints”), timing and clarity of defendant’s accusations in frivolousness, etc. The judge’s analysis of requested sanctions starts on p. 11 and, while it clearly communicates his hesitancy to sanction the plaintiff’s attorneys, it nonetheless reads like an instruction to future defendants, namely what they should do in order to keep ethically handicapped attorneys accountable.

Darren Griffin

The judge absolutely ignores the accusations of champerty, forgery, fraud… He apparently doesn’t want to deal with this dirt. Maybe he is right in his own way: it is up to DOJ to investigate the racketeering enterprise, yet we know that a concerned judge has a tremendous power of nudging such investigation, which otherwise is prone to death by prioritization. Alas, not this judge, not this time.

Attorney’s Fees

This part is good news. While the amount of fees is yet to be determined (the judge found that “other than to recite the total hours expended, counsel has not provided a sufficiently detailed justification for the hours claimed,” giving defense counsel Chris Lynch a chance to submit an itemized claim), we know that the copyright law is seriously skewed towards the rights holder, and to win a fee award is anything but easy even if a defendant prevails and even in the post-Fogerty world. This unfairness is one of the pillars of the widespread abuse of judicial system by copyright trolls.

Here, Judge Rice analyses the following factors:

In determining whether fees should be awarded, courts may consider a nonexclusive list of factors, including degree of success obtained, frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case), the need in particular circumstances to advance considerations of compensation and deterrence, and whether the chilling effect of attorney fees may be too great or impose an inequitable burden on an impecunious party. […]

…and he finds that the fees must be awarded to the defendant:

First, Plaintiff dismissed all its claims against Mr. Lamberson; thus, Defendant is the prevailing party. Moreover, Defendant’s success was unqualified, as the dismissal against him was with prejudice.

Second, from this record, the Court has no basis from which to determine that Plaintiff’s claims were frivolous. The case was dismissed short of trial, so all the evidence is not before the Court.

(Well, this is the reason why trolls flourish: they fight with tooth and nail to avoid trials, so their “evidence” won’t be cross-examined in front of a jury.)

Third, Defendant contends the case against him was baseless, but the Court notes that Plaintiff has obtained stipulated relief against others on virtually the same allegations as Plaintiff asserted against Defendant.

(No, judge. “Stipulated relief” by no means proves defendant’s guilt or that the case is not baseless: the predatory lawsuits like this are calculated to extract settlement amounts slightly less than the cost of mounting a viable defense, hence even innocents settle.)

Fourth, whether Plaintiff’s claims were therefore unreasonable is likewise not determinable from this record. Plaintiff requested damages of $30,000—the full amount of statutory damages available under the Copyright Act for Lamberson’s alleged infringement. In the end, Plaintiff received nothing from Mr. Lamberson, and now nothing more can be said.

As a final point, I can’t agree more with the following:

Finally, awarding fees to Defendant will not have a chilling effect on Plaintiff’s other copyright claims. Plaintiff can pursue its valid and well-founded copyright claims with vigor, seeking both damages and fees where warranted. But Plaintiff cannot exact a pound of flesh simply by making defendants caught in its wide net expend attorney fees to defend themselves, perhaps unjustifiably. This factor weighs in favor of an award of attorney fees.

I feel that the previous paragraph will be widely quoted and I hope this somewhat toothless order will however make troll’s racket harder and costlier. And of course I hope that Lynch and Lamberson will win substantially more than a symbolic sum.




On 11/21/2014 Chris Lynch filed his Supplemental declaration in Support of defendant’s motion for Attorneys’ fees (doc. 100) asking for $215K.

If you haven’t been following this case (and the German-driven copyright trolling judicial plague in general), you may want to read the entire declaration as it contains a condensed yet illustrative and comprehensive history of the ordeal.


Update 2


On 12/5/2014 Plaintiff (David Lowe) filed his opposition to the defendant’s fee request. Interestingly, he, redefining the meaning of the “out of touch” phrase, made a counter-offer of… 5K (see his email in the Exhibit A):


Defendant (Chris Lynch) responded on 12/12/2014:


Note that the Exhibit D is a printout of the article about very interesting developments in Australia, where our German trolls currently test the water. Of interest is that yet another Guardaley shell — Maverick UG — is listed as an “investigator” (while the “expert” is a painfully familiar Daniel Macek). The judge, despite the troll’s vocal objections, ordered the plaintiff (Dallas Buyers Club LLC, which is a member of the same shakedown gang as Elf-Man LLC) to fly the witness (Macek) to Australia for cross-examination. It will be interesting to watch Guardaley trying to weasel out of this situation.


Lowe filed a motion to strike the Supplemental Declaration of J. Christopher Lynch in Support of Defendant’s Motion for Attorneys’ Fees (104 – linked above). Reminds me how Prenda hysterically denied the Alan Cooper fraud two years ago:

Inter alia, Lynch has no evidence or basis for fraud allegations whatsoever. There is no evidence that Griffin is a “fake person” or Crystal Bay Corporation is a “fake company.” There is only Lynch’s wild speculation, and Plaintiff has no obligation to respond to such wild and purely inflammatory allegations, let alone prove a negative. Lynch has no basis, let alone an ability, to make criminal allegations in this civil proceeding. The entirety of Lynch’s baseless arguments should be stricken.

Seriously, Lowe? Just point us to Mr. Griffin, a “real person,” and let him speak for himself. That simple — everyone will be happy. But you obviously can’t.


In a recent letter to shareholders, the CEO of an anti-piracy outfit Rightscorp, Christopher Sabec, said (emphasis is mine):

Rightscorp’s game-changing solution to the problem of multi-billion dollar digital theft provides monetary remedies to the holders of violated copyrights. […] At Rightscorp, our unique proprietary patent-pending technology crawls the internet, identifies repeat infringers of copyrighted material, alerts the ISPs who then forward a letter warning infringers that they could be liable for $150,000 in damages and provides a link to a reasonable $20 settlement offer per infringement. If the infringer accepts the settlement, our automated system sends half of the payment to the copyright holder. Repeat infringers have seen their service terminated by their ISPs for non-payment of Rightscorp notices. Our technology is unique — while other technologies identify illegal downloaders, our technology is the only one in the market that detects, tracks, and documents repeat infringers.

Christopher Sabec
Christopher Sabec
(PayArtists / Rightscorp)

Bragging about the “unique,” “game-changing” technology caught my attention: shaking down peer-to-peer filesharers (and innocents who were caught in the wide net of poorly developed “proprietary technologies”) is not new. So it sounded implausible that Rightscorp’s approach was indeed that novel.

I recently wrote about a ridiculous way of boosting one’s significance by buying fake Twitter followers. Rightscorp’s Twitter account, with or without its owners’ blessing, is apparently one of such accounts as it has hundreds of faux followers. While hardly significant by themselves, facts like this result in a reasonable suspicion, which in turn drives the curiosity, and hence the willingness to travel down the rabbit hole.

Sam Glines
Sam Glines
(Nexicon / Norse)

Let’s go back to 2008. Once upon a time there was a fine company called Nexicon. TorrentFreak reported:

Some people might remember Nexicon from the Getamnesty site we mentioned in the past, or perhaps as the Youtube copyright cops. The company has a history as a cigarette retailer but went on to hunt pirates after they were sued for selling smokes to minors and failing to report their sales to the tax office.

After its transformation into a pirate tracking outfit Nexicon launched its Getamnesty program which offers copyright holders a chance to turn piracy into profit. They cleverly circumvent privacy protection laws by using ISPs to forward settlement requests for various copyright holders to alleged infringers. One of their most successful partner programs is the Payartists website which is a misleading name to say the least.

The money collected through Payartists is not going to any artists at all. The only artist they collect ‘settlements’ for on the site is Frank Zappa, and he passed away in 1993. All the settlement money collected now goes to The Zappa Family Trust which is headed by Zappa’s widow.

Techdirt’s and Wired’s articles about this company describe its questionable practices too.

Interesting fact: Nexicon spread the information that

Nexicon believes it has a valuable product on its hands and announced today that it has filed a patent application for Get Amnesty. The application, which has not yet been published on the USPTO’s website, aims to patent Nexicon’s MARC platform that analyzes “over 19 billion file transactions each day” with “specialized artificial intelligence” to validate the contents.

It seems to be a lie: no such application exists (and I assure you, Rightscorp’s principals are aware of it).

Tommy Stiansen
Tommy Stiansen
(Nexicon / Norse)

After making a big initial buzz, the company disappeared from the business arena in 2011: its registration was revoked, its stock was delisted, and its domain name is now for sale by what appears to be Korean cyber-squatters. In addition, an ex-employee sued Nexicon’s principals for breach of contract.

Two of Nexicon’s key people, CEO Sam Glines and CTO Tommi Stiansen recently founded a “darknet attack intelligence” company Norse Corporation. Their long and intimate involvement with Nexicon is totally missing from their LinkedIn profiles, interviews, and Norse executives’ bios page. Obviously, both don’t like to be associated with their past fiasco.

Now, back to 2008.


What does it have to do with Rightscorp? The connection is more than direct. Both Roghtscorp’s key players, Robert Steele and Christopher Sabec, together with a musician and a Malibu businessman Tommy Funderburk, ran a “proto-Rightscorp” named PayArtists (already mentioned in the TorrentFreak’s article quoted above). In October 2008 they partnered with Nexicon to “provide GetAmnesty anti-piracy solution to the music industry”:

Nexicon, an emerging provider of next generation digital media protection and digital media business intelligence solutions, announced the formation of a partnership with PayArtists to provide anti-piracy services for the music catalog of the musician Frank Zappa. PayArtists will leverage Nexicon’s MARC technology platform and GetAmnesty product to help music artists, record labels and other copyright owners enforce their copyrights with music fans who have illegally downloaded protected music.

Bloomberg wrote on 10/9/2008:

PayArtists was formed by a group of three individuals that include Tommy Funderburk, an internationally recognized songwriter and recording artist, a prominent music industry lawyer, and an accomplished merchant banker. As exclusive rights holders to Nexicon’s applicable technologies to address anti-piracy worldwide in the music industry, PayArtists will monetize internet piracy of illegal music downloads, on behalf of copyright owners. Music fans who have illegally downloaded music from a PayArtists’ client will receive an infringement notice via email directing them to a unique artist-branded PayArtists site. Users then have the option to settle with PayArtists, on behalf of the copyright owner, to avoid potential litigation.

Tommy Funderburk
(PayArtists / Muzit)

So, it looks like our PayArtists trio didn’t have their own snooping and payment processing technology and simply acted as brokers for Nexicon’s infringement monetization solution.

How did this million-dollar idea work out? It looks like the word “success” is hardly applicable here, as

  • The company, registered on 12/30/2009 (C3267755), was suspended by the California Franchise Tax Board and silently disappeared (company’s last tweet is dated 6/30/11).
  • now redirects to Muzit — a new Funderburk’s company that claims that it uses Bittorent snooping to “automatically send friendly marketing emails” to alleged infringers. If it is true, I totally back this business model, a model of engaging alleged pirates instead of shaking them down.
  • Both Steele and Sabec don’t mention this endeavor; their LinkedIn profiles don’t list PayArtist at all.
  • Tommy Funderburk has more than one LinkedIn profile. The first one, that does mention PayArtists, is most likely abandoned. It states that

    In 2010 Tommy founded PayArtists in response to the music industry’s failed policy of suing fans around the world for downloading music and other copyrighted material. […] PayArtists provides artists and other copyright owners a truly fan friendly business model and proprietary technology to connect with and market to the global P2P community.

    The second one is all about the abovementioned Muzit. Compare the bio to the first one:

    In 2010, Tommy founded Muzit Inc. in response to the music industry’s failed policy of suing fans around the world for downloading music and other copyrighted material. Muzit’s proprietary fan engagement platform employs patent pending technology and a truly fan friendly business model which forensically identifies individual, unauthorized downloaders of copyrighted content in real time and then automatically sends friendly marketing emails to those who use the over fifty networks like BitTorrent to acquire their music for free.

    Again, I praise Mr. Funderburk’s new approach if it is indeed about engaging the fans, not shaking them down. I only want to show how strongly he is trying to distance himself from one of his the past occupations, PayArtists — an extortion outfit.

Patent US20130097089
Robert Steele
Robert Steele
(PayArtists / Rightscorp)

When Rightscorp bullshits shows its potential to prospective investors, it doesn’t mention the past PayArtists fiasco. Instead, it brandishes its “patent-pending technology.” Indeed, on 4/2/2012 Robert Steele filed a patent application for “System to identify multiple copyright infringements.” I repeat the quote from Sabec I began this article with:

Our technology is unique — while other technologies identify illegal downloaders, our technology is the only one in the market that detects, tracks, and documents repeat infringers.

It seems that because it is clear that the process itself is not new, Sabec is trying to claim that detecting repeat infringers is the crux of the invention. Let’s find out how revolutionary it is. The patent application refers to “repeat infringer” as follows:

A repeat infringer may be detected by monitoring a predetermined threshold associated with the number of entries populating each generated data structure. For example, the method may provide that once a predetermined number (such as, for example, 5, 10, 20, or any positive number greater than 1) of data structure entries are identified that have substantially the same IP address and substantially the same port number […]

Robert Steele

To me, it doesn’t sound like a “game-changing,” ingenious discovery, but rather like a quote from a kindergarten math study book, but I’m not a patent attorney. After reading EFF’s “Stupid patent of the month,” I realize that anything is possible.

Other than that, all the other Rightscorp’s claims, such as

[…] our unique proprietary patent-pending technology crawls the internet, identifies repeat infringers of copyrighted material, alerts the ISPs who then forward a letter warning infringers that they could be liable for $150,000 in damages and provides a link to a reasonable $20 settlement offer per infringement.

have been (unsuccessfully) tried by Nexicon.

Again, I’m a dummy when it comes to patents and cannot vouch for the claim that Nexicon’s GetAmnesty infringement monetization solution can be considered a prior art (although to me it certainly is the case), I hope that specialists will have a look and clarify. Maybe R. Steele’s patent application is totally legit, I don’t know.

Nonetheless, it is clear that Rightscorp’s principals attempt to white out their past connection with an unsuccessful corporation (whose own principals attempt to white out their involvement in it), assumingly to attract new investors’ money for the business model that was tried in the past and failed.

A couple of months ago I wrote about an interesting development in Michigan (Malibu Media v. Gerald Shekoski, MIED 13-cv-12217). When it came to discovery, the defendant’s attorneys, Derek W. Wilczynski and Lincoln G. Herweyer, were reasonably distrustful to the prospect of porn trolls rampaging through the defendant’s hard drive, accessing sensitive information and other files that have nothing to do with the plaintiff’s pornography.

Defendant would have to essentially trust [Malibu]. Yet, pornographers with an industry-sized litigation practice of coercing settlements from blameless individuals do not instill the confidence necessary to such trust.

Mr. Wilczynski wanted to engage a local independent expert to avoid a fishing expedition that would result in blackmail based on findings of possible unrelated wrongdoings.

As we will shortly see, the defense’s fears were all but unfounded.


While Judge Victoria Roberts didn’t agree to an independent expertise, she was apparently wary of the defense’s concerns and wrote a compromise order. Although she ordered that the hard drive examination would still be performed by Malibu’s own expert Patrick Paige, she set very strict safeguards:

If the examination does not reveal evidence of the copyright infringement alleged in the complaint, and if there is no evidence that infringing files have been deleted, Malibu Media will dismiss its claims against the Defendant. Malibu Media must report the results of the forensic examination immediately to counsel for the Defendant.

The order was issued on 7/21/2014, and it seems that the drive examination was performed shortly after that. Apparently, neither XArt’s smut nor evidence of spoliation was found. Nonetheless, in violation of a clear language of the order, plaintiff’s lawyers not only didn’t dismiss the case, but were concealing the results from the defense for more than a month:

On September 11, 2014, Plaintiff’s counsel, by omission, made Defendant’s counsel aware that the forensic examination of Defendant’s hard drive had not revealed evidence of the copyright infringement alleged in the complaint, and had not revealed any evidence that the infringing files had been deleted. However, instead of directly confessing the same, Plaintiff’s counsel stated that Plaintiff’s expert had found evidence of unrelated possible copyright infringement of a completely different than that at issue in this case.

Here is the defendant’s motion (for permission to file motion to dismiss and/or to dismiss with liability for attorneys’ fees):


As we read through, we can see that our trolls started a nauseous blackmail campaign despite the absence of any evidence that XArt’s smut was ever located on the defendant’s hard drive. Here is Nicoletti’s email threatening the defendant with sanctions, offering a walk-away with unacceptable terms:


Porn troll Paul Nicoletti

What did the trolls try to leverage? Apparently the fact that the defendant’s daughter used to share music using popular free peer-to-peer software LimeWire, which took place… 5 years ago, when she was a minor. In addition, Nicoletti/Lipscomb claim that the defendant lied when answering an interrogatory about his knowledge of this fact.

First of all, Mr. Nicoletti, let me educate you, an ostensive IP attorney: the statute of limitation for copyright infringement is three years.

Secondly, as for the false statements (of not knowing that a file-sharing software was installed), the threats are beyond douchy as they suggest that the defendant should have actively policed his daughter’s computer usage.

Thirdly, the fact of buying a new computer as an evidence of wrongdoing is not even a stretch, it’s a fiction.

And finally, I challenge you to find a then-teen who either didn’t use LimeWire or didn’t know someone who did: not only it was extremely popular, it was perceived legal by the majority of its users before it was shut down by the music industry in 2010. We don’t have to dig too deep to find a good example of an innocent infringement of this sort: plaintiff’s co-owner Colette Field publicly acknowledged pirating music using a similar peer-to-peer system Napster in the past.

You know when I was 19 years old I used to download from Napster and I didn’t even know it was wrong. And then I saw some lady getting sued for $30k and I realized what I was doing was illegal and I stopped. I joined itunes, I pay for my music, I pay for Sirius. Why should people not pay for what we spend most of our time and money making. I want to get out the message that I learned about Napster, can you understand that? Thank you for reading. ~ Colette from X-Art

So, why not to blackmail your own plaintiff, Mr. Lipscomb? Obviously, she is quite capable of paying — despite her laments about evil pirates destroying her business, XArt reportedly declared more than five million dollar revenue on its 2013 tax return.

Where are you, Mr. Lutz Paige?

Basically, Lipscomb/Nicoletti/Paige violated every paragraph of the 7/21 court order.

The judge was not happy, and after a short telephone conference on 9/16/2014, she gave our trolls one more chance (or a rope?) to do what the previous order unambiguously said:

Patrick Paige must supplement his affidavit by September 23, 2014. The affidavit must answer the questions: (1) Did Mr. Paige find evidence of copyright infringement as alleged in the Complaint? (2) Did Mr. Paige find evidence of deletion of infringing files?

On 9/23 however, Malibu filed a motion for extension of time for one day, claiming that

2. Because of a clerical calendaring error, Plaintiff did not notice the deadline until after business hours, which made it impossible to secure the supplement from Patrick Paige.

3. As such, Plaintiff requests one (1) additional day for Patrick Paige to supplement his affidavit.

Well, no matter how phony this excuse sounded, the judge granted a one-day extension, as asked: no more, no less. Since then — silence. At the time of the writing, i.e. four days after the extended deadline, no affidavit can be found on the docket. I bet that the crafty young lawyers at the 2 South Biscayne Drive are still restlessly brainstorming a graceful exit from this Prenda-like situation.

I can’t help drawing a parallel with the games Prenda played in the Minnesota and California courts when the purported boss of bogus corporations Mark Lutz was ordered but failed to appear in judges’ courtrooms.


This is not the first time when Lipscomb & Co threatens an obviously innocent person. One of the most egregious examples is Malibu Media v. Pelizzo, a case that is currently on appeal.

Given the Kafkaesque disconnect between actual and statutory damages in the Copyright Law and the general hostility of the judicial process to an individual, it is quite disgusting when trolls twist defendants’ hands even based on more or less plausible proof of wrongdoing. It is way more troublesome when porn trolls behave as Mafia and attempt to extort money from people who haven’t wronged the plaintiff in any way.



Today we finally heard from the court. Judge Roberts issued an order granting defense’s request to file a motion to dismiss and for fees (reminder: the judge put a moratorium on motions, and the motion featured above was technically a request to leave to file a motion to dismiss). She also set the reply-response schedule:

1. Plaintiff’s Motion to Dismiss must be filed by: 10/16/14
2. Defendant’s Response Brief must be filed by: 11/10/14
3. Plaintiff’s Reply Brief must be filed by: 11/20/14

The absence of Paige’s supplement on the docket is puzzling: I guess this issue was discussed during the 10/2 phone conference and the trolls seemingly got away with breaking the judge’s order. This time.



Would you hire an attorney who is afraid to pick up the phone when an opposing counsel is calling? Me neither.

Last week I was happy to find out that Jason Sweet for the first time appeared on behalf of a defendant in one of the myriad shakedown cases filed by Guardaley / Keith Lipscomb “on behalf” of a hardcore pornography purveyor X-Art/Malibu Media.

There was a good motion to quash subpoena filed in Malibu Media v. John Doe (OHSD 14-cv-00493) on 8/22/2014. The crux of the argument is, in my opinion, bulletproof: if the Doe is represented and his/her attorney is willing to accept service and otherwise be a buffer between the plaintiff and the defendant, there is no need for Lipscomb to prematurely know the defendant’s identity. Hence, the subpoena is moot.

The most interesting part of this motion, however, is Exhibit A — the email exchange between Jason Sweet and Malibu’s Yousef Faroniya.

The leitmotif of this exchange is the defense’s repeated attempts to establish a dialog and Faroniya’s irrational fear of the telephone. This eyebrow-raising behavior made Sweet believe that it was not actually Faroniya who was on the other side of the conversation:

Atty. Sweet, counsel for the Defendant, first reached out to Malibu Media’s counsel on July 31, 2014 to inquire about a possible settlement. From the outset, Malibu Media’s counsel refused to speak via the phone, requiring communication via email—which left Defendant’s counsel dubious as to who he was conversing with.

Looking at the style of the writing, I rather think that it was indeed Faroniya, but I can’t vouch for that. I think that it was Faroniya because: first, I have not seen this style in the writings by his bosses from the Miami Troll Central; secondly, a snarky attempt to lecture an attorney who was instrumental in Prenda’s demise is a hallmark of a young arrogant prick such as Yousef.

Just look at this:

The language in this Complaint has been attacked by dozens of defendants and Malibu Media has never lost a motion to dismiss. The case law on this is extensive. If you feel that you have an angle that could result in dismissal prior to ISP discovery on all the Malibu Media cases, then nothing I can say will dissuade you from eventually doing so. It is my strong belief that you will fail in this pursuit, and the costs incurred by Malibu in defeating your motions will eventually be borne by your clients.

Compare this overconfidence to the arrogance of infamous John Steele: here is one of his comments on this blog at the time his racket was going smoothly:

When Freetards file their silly MTQ. and they keep getting rejected, its [sic] because your [sic] telling the judge, “Judge I know you looked at this case, and issued an order. But let me tell you (in a completely conclusory, non-legal argument) why you are a fool that made a mistake. Here is a news flash, the judges know from day one all about our cases, and have spoken amongst themselves about these cases in judicial conferences. They know when they sign a discovery order what it means.

I’m sure that sooner or later we will laugh at Libscomb’s young crafty attorneys’ hubris as we laugh at Steele’s today.

Copyright troll Yousef Faroniya
is looking at the phone with fear

Later in the email chain we see threats of sanctions (of course! — threats is the language of extortion) over Sweet’s alleged interference with subpoena — a controversy that would be easily resolved if Faroniya overcame his phobia and picked up the damn phone.

And finally,

[…] once Defendant’s counsel began asking pointed questions, Plaintiff’s counsel ceased any meaningful communications.

Note that during the course of correspondence, the plaintiff kept attempting to learn the defendant’s identity: as I understand, to figure out if the Doe is capable of paying the ransom.


It is hard not to admire Booth Sweet’s style:

The settlement demand:

As you can see in Plaintiff’s Complaint, your client infringed a total of 30 separate works. Plaintiff is willing to settle for $22,500 (750*30). My client believes this is a fair offer given the $2250 per work decisional authority in the Malibu Media Bellwether case.

…was met with a counter-offer:

My client is willing to pay $449.95 — the cost of filing the Complaint and a one month subscription to Plaintiffʼs website.

While chuckling over this hilarity, I want to note that Jason Sweet is too generous: X-Art subscription with unlimited downloads is only $19.95 per month now, and if a subscriber gets bored with repetitive scenarios (or, more precisely, the lack thereof) and cancels the subscription, he is offered a promotional rate of $9.99, or 1.8 cents per flick if the subscriber has enough bandwidth and desire to download them all, a long shot from $750 the trolls demand, much less than $150,000 they threaten with (0.0024% and 0.00001% respectively). This is the travesty of the freedom to choose statutory damages even when they parsecs apart from the real ones.



The appearance of Booth Sweet understandably alarmed the trolls. On 9/12/2014 Lipscomb filed a long and winding opposition to the motion to quash discussed above. The entire opposition is rather a laughable attempt to legitimize Malibu’s abuse of the court system.

Of course, the trolls employed an appeal to emotion — a tearful story of poor pornographers who can afford neither Bugatti nor a castle in Nice and doomed to languish in a 16-million Malibu mansion and hide their Ferrari from the neighbors in shame — all because of evil, evil pirates. In addition, Lipscomb never fails to brandish the bellwether trial myth.

Jason Sweet’s 9/26/2014 reply was, as expected, sharp and fun to read. It starts with the debunking of the said myth:

As an initial matter, Malibu Media often touts the aforementioned “bellwether trial” to distinguish itself from other copyright trolls. Invariably though, they overstate the significance of what has been described as little more than a show trial, and avoid mentioning the facts that led to it.

…and proceeds to thoroughly expose Lipscomb’s poor argument why he needs the defendant’s identity when the defense counsel is ready to accept service. More than once Lipscomb affirmatively stated that the express purpose of the subpoena is to serve the defendant. While the troll was lying, his words nonetheless ricocheted.

Malibu Media has not been honest with the Court. It pushed for expedited discovery on the grounds it was necessary to complete service, but when presented with an alternative method — namely, serving the Defendant’s attorney — it refuses to effectuate service.

Instead, we learn that Malibu Media seeks the information not to serve the Defendant, but rather so it may conduct an unfettered assessment of the strength of its case and ostensibly, the assets of the Defendant before proceeding any further. Neither instance falls within the intended purpose of expedited discovery or the Copyright Act.


Update 2

The trolls are seriously scared by the prospect of creating a precedent that courts would allow serving an anonymous defendant through his/her attorney. So on 10/3/2014 Lipscomb & Co filed a motion for leave to file a sur-reply claiming that Jason Sweet raises new arguments in his reply. It is both sad and funny that paragraph 6(A) is exactly the argument that Prenda’s racket was largely based on, namely that defendant has no standing to question the subpoena:

[…] Further, Defendant does not have standing to raise this argument because he is not facing any inconvenience, burden, or expense. Indeed, the ISP is the one responding to the subpoena and they have not objected to compliance. […] (“The Sixth Circuit has observed that ‘[o]rdinarily, a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action unless the party claims some personal right or privilege with regard to the documents sought.”)

Sounds familiar?