A little more persistence, a little more effort, and what seemed hopeless failure may turn to glorious success.

Elbert Hubbard

 

Copyright trolling is not a harmless phenomenon; hence it is usually not a joking matter. However, an essential feature of the society’s immune system is people not being serious amid desperation. That’s why I simply can’t help sharing some hilarious moments that I discover while browsing mostly gravely boring dockets.

1

In one of recent single-defendant non-porn Lipscom’b cases initiated “on behalf” of a Prenda-like shell plaintiff of questionable legitimacy (Poplar Oaks v. John Doe, FLSD 15-cv-60281), the defendant decided to file a “protective motion to quash or vacate the Subpoena” on 4/1/2015:

 

As you see, not only this legally illiterate document had nearly zero chances of success, the defendant signed it with his actual name, totally defeating the purpose of such motion. Alas, it is not an exception: laypeople often don’t realize that absent proper protective order/motion to seal, everything they send to the court (including envelopes) will likely be publicly filed.

Keith Lipscomb, together with one of his minions (Jason Cooper), filed a serious 3-page memorandum in opposition. Not surprisingly, Judge William J. Zloch outright denied the defendant’s MTQ on 4/28:

 

2

The defendant didn’t like it, and on 5/11 he decided to try and convince the judge one more time using exactly the same text.

The troll was slightly annoyed:

Either Defendant’s Motion at CM/ECF 11 was filed in error or Defendant is attempting to get a second bite at the apple by re-filing the exact same Motion this Court previously denied. Defendant previously filed the exact same Motion on April 1, 2015. See CM/ECF 7. Plaintiff responded on April 24, 2015. See CM/ECF 8. On April 28, 2015, the Court denied Defendant’s Motion. See CM/ECF 10. Defendant’s re-filed identical Motion is improper and should be stricken.

On 5/27 the judge, however, rather than striking the second MTQ, simply denied it… using exactly the same language as in his previous order.

3

The defendant thought it was unfair that his thoroughly written motion was denied again and decided to give it another try on 6/15 (needless to say, the text didn’t change).

William Zloch
US Federal Judge
William J. Zloch

At this moment we must realize that Judge Zloch does possess a strong sense of humor, as in his 6/30 order denying the third MTQ, he again used exactly the same language.

4

“It must be a misunderstanding!” — thought the defendant, filing the very same text (the fourth MTQ) on 7/13.

“No,” said the judge, returning the ball with an elegant, reflexive racquet swing (7/15: the text is identical to his previous three orders).

 

Lipscomb, who is unquestionably spoiled by his victims’ predictable reactions (the majority either pay the ransom or ignore), apparently suffered from an acute cognitive dissonance, became depressed, and on 7/24 voluntarily dismissed the case without prejudice.

A mandatory cliché “which means that the plaintiff can re-file the case” is expected to accompany “without prejudice.” Well, the troll certainly can refile, but he never will, even to give everyone another chance to enjoy defendant’s outstanding persistence: Lipscomb is a man of many virtues, but sense of humor, alas, is not one of them.

5

In the meantime, the defendant already hinted that initiating a new case against him would be futile — by preemptively filing a fifth identical MTQ on 7/27, this time after this case was dismissed for good.

To sum up: it is wrong always, everywhere, and for anyone, to believe anything upon insufficient evidence.

William Kingdon Clifford

 

In myriads of Bittorent cases across the country, copyright trolls tout a couple of Bittorent transactions registered by an unlicensed German investigator Guardaley/IPP International/Excipio as a “smoking gun” kind of a proof, but Colorado Magistrate Michael E. Hegarty doesn’t think it is enough to establish liability.

Michael E. Hegarty
US Magistrate Judge
Michael E. Hegarty

A month ago Judge Hegarty recommended granting in part and denying in part plaintiff’s motion for summary judgment in Malibu Media v. Justin Winkler, COD 13-cv-03358, where the judge suggested that Malibu needed more evidence.

In my opinion, this recommendation is significant for defense attorneys and pro se defendants not only in Malibu cases, but in all the other Bittorent lawsuits, especially in numerous instances, where forensic examination of defendants’ hard drives yielded no traces of XArt’s smut. Because

Although Plaintiff appears to argue that it has demonstrated direct proof that Defendant copied its films, it is unclear whether the evidence demonstrates that the entirety of each film was copied onto Defendant’s computer. That is, Mr. Patzer (who designed, implemented, maintained and monitored the data collection system used to identify IP addresses that have allegedly committed infringement via the BitTorrent protocol) attests that

[…]

27. Only 1 PCAP per movie infringed is produced to the Plaintiff usually. 1 PCAP per movie is sufficient to prove without question that the infringement of each of the movies at issue occurred. Producing all PCAPs for each of the infringed movies would be superfluous and extremely time consuming.

Accordingly, the PCAPs at issue here contain “pieces” of the Plaintiff’s movies. Mr. Patzer does not explain why one PCAP is “sufficient to prove” Defendant copied the entire film and why producing all PCAPs would be superfluous.

In other words, to establish no genuine issue of material fact (the essence of summary judgment), Malibu needs more evidence. So, Judge Hegarty examined if there is an indirect proof of infringement:

Accordingly, the Court looks to whether Plaintiff can prove copying indirectly “by establishing that [Defendant] had access to the copyrighted work and that there are probative similarities between the copyrighted material and the allegedly copied material.”

In this particular case, the plaintiff’s expert Partick Paige examined the defendant’s hard drive and found traces of 28 of the 39 films listed in the complaint. The judge agreed that in respect to these 28 flicks, the proof of liability, albeit indirect, is strong enough, and if only those 28 were at issue, the motion for summary judgment would be certainly granted, and there would be no need to proceed to a jury trial.

However, with respect to the remaining 11 titles, there is no even indirect proof of infringement, so the judge felt he didn’t have the right to usurp a jury’s prerogative of decision.

Some attorneys already recognized the importance of this development: on 7/23/2015, Jonathan Phillips noticed this recommendation in an eventful ILND 13-cv-06312 case.

Guardaley and Keith Lipscomb (via their local Jason Kotzker), were shaking down Colorado residents rather seamlessly for years, in part because Judge Hegarty (who was de facto the only judge handling Bittorent lawsuits in Colorado) kept rubberstamping Malibu’s ex parte discovery motions and was generally pro-plaintiff. Thus, this kind of judge’s finding that Guardaley/IPP’s recorded transactions are simply not enough to proof infringement is especially noteworthy.

 

Neither plaintiff nor defendant objected, so on 7/14/2015, Judge Wiley Y. Daniel adopted the recommendation of the magistrate.

Thanks to Raul for the heads up.

Five months ago I wrote about a lawsuit against an infamous copyright troll Rightscorp, filed by two Georgia residents who were harassed with repeated robocalls and text messages to their cell phones without consent, which is a clear cut violation of the Telephone Consumer Protection Act (Melissa Brown and Ben Jenkins v. Righscorp, Inc. et al, GAMD 15-cv-00012). The Act provides a relief to victims: $500 penalty for each violation. Plaintiffs, represented by Sergei Lemberg, didn’t specify the exact number of alleged violations (presumably many), but asked a trebled penalty for each instance ($1,500).

On 5/8/2015 Rightscorp, represented by attorney Michael O. Crain, answered to the complaint, denying any wrongdoing¹. This is laughable as I can’t imagine a shortage of witnesses who can testify under oath about similar harassment.

What’s more laughable is the affirmative defenses Rightscorp threw at the wall. While the majority of its eleven defenses are questionable enough, the defenses 3-6 attack the law itself, claiming that TCPA is unconstitutional, namely it violates the First, Fifth, Fourteenth, and Eighth Amendments. Why is it so, Rightscorp doesn’t say.

Good luck with that.

 

(I bet if the Eighteenth Amendment wasn’t repealed, Rightscorp’s victims might reply in the same manner, claiming that defendant’s ridiculous claims were made under unconstitutional influence.)

Attempt to delay the comeuppance failed

One month earlier, on 4/10/2015, Rightscorp tried to stay this case pending the outcome of the anticipated motion for certification in the TCPA class action filed in California by Morgan Pietz last November (Blaha et al v. Rightscorp, Inc., et al, CACD 14-cv-09032). Rightscorp speculated that these lawsuits overlap and the plaintiffs would be a part of the class. The plaintiff responded on 5/01/2015: “no, they wouldn’t”:

Resolution of the instant motion is relatively straightforward: Plaintiffs unequivocally opt out of any class certified in Blaha. No class has been certified in Blaha. Whether one will be certified is entirely speculative. If one is certified at some later date, Plaintiffs have a due process right to opt out of any class and pursue their own claims against Rightscorp. See Fed. R. Civ. P. 23(c)(2)(v) (Rule 23(b)(3) class members must be permitted opportunity to exclude themselves); […] Plaintiffs opt out, they do not consent to have their claims against Rightscorp be decided in a class action where they would likely recover less then as individual plaintiffs and they do not wish to cede control of their claims to individuals and attorneys with whom they have no relationship. Because Plaintiffs opt-opt out of any class resolution, there is no ground to stay the case here.

It is wide known that “litigation by delay” is inherent to copyright trolling, and Rightscorp is not spared:

Rightscorp wants a stay because it, apparently, is being repeatedly sued for serial violations of the Telephone Consumer Protection Act and wants to limit its exposure by delaying cases and forcing Plaintiffs here to join a class action of which they want no part. With all due respect to Rightscorp, that it is involved in litigation in another jurisdiction for engaging in similar unlawful behavior is not this Court’s or Plaintiffs’ concern nor is it grounds to stay this case.

Yesterday Judge Charles Ashley Royal agreed with the plaintiffs (a promise to opt out of the class was fatal to the delay attempt) and thoroughly denied Rightscorp’s motion:

Coverage

 


¹ I somewhat agree with the defendant pointing to vagueness: indeed, the complaint would be way stronger if it itemized the violations, or at least specified how many times Rightscorp robocalled to its victims.

Today I was tipped about an interim arbitration award of more than $600,000 against attorney Mark John Randazza of Las Vegas. This amount was awarded to his former employer, a gay pornography studio Corbin Fisher/Liberty Media, in a civil dispute surrounding Randazza’s August 2012 scandalous departure from this company, where he was employed as an in-house general counsel for three years¹.


Marc Randazza

The June 3, 2015 judgment was written by a former magistrate judge and currently an experienced and respected JAMS arbitrator Stephen E. Haberfeld. The arbitrator determined that Randazza had violated his fiduciary duties owed to the studio as its attorney and employee, committed numerous ethical violations, breached his employment contract, and caused it hundreds of thousands of dollars in damages over the course of his employment.

Those violations include an attempt to secure for himself a $75,000 bribe from an opposing party in a copyright infringement litigation (Liberty Media v. Oron), spoliation of evidence, representing potentially adversary clients (tube sites that infringe upon Liberty Media’s content) in violation of the employment contract, taking control of client funds in his trust account, and so on.

We criticized Randazza on more than one occasion. Together with German IP harvesters (Matthias Schroeder Padewet et al), Randazza committed dozens of shakedown lawsuits against alleged file sharers from June 2009 to August 2012. We covered some of these cases; tech media (Techdirt, TorrentFreak) also paid attention.

Randazza is regarded as a hero by many respected and honest people, primarily for his First Amendment work (for example, instrumenting the best anti-SLAPP law in the country). However, if you purport to do noble work, you don’t do it with your hands that dirty. Otherwise you let your allies down the big way by giving fatal ammunition to the foes.

Liberty Media’s press release.

Interim arbitration award:

 

On 6/15/2015 the studios filed a petition to confirm arbitration award in the Clark County Court in Las Vegas (search by party “Randazza” or case # A-15-719901-C). This court, like the majority of other local courts, doesn’t provide online access to documents. According to the case page, Randazza represents himself while the plaintiffs are represented by Wendy Krincek. The hearing on plantiffs’ and defendant’s motions is set to 7/23/2015.

Media coverage
  • XBiz (Rhett Pardon): Randazza Says He Will Challenge $600K Interim Arbitration Award

    “[P]art of his settlement offer was to pay us $20,000 per bar license he is able to keep from having suspended/disbarred,” [Corbin Fisher’s vice president of business development Brian] Dunlap, said. “In other words, he offered us a bounty on his bar licenses — we’d get more of the award if we did not cooperate with bar investigators or send follow-up complaints.

    “In his attorneys own words, they said they expect suspension/disbarment in [Florida], so we could expect $80,000 if none of the other four bars took action. We refused this offer because it was insulting, it was unethical — an attorney cannot offer such a bounty on their license — and because we know most all bars use reciprocal discipline — if one suspends/disbars, the others usually do as well.” ²

Update

7/23/2015

For some unexplained reason (a typo in the docket text?) the hearing in the Clark County Court in Las Vegas initially scheduled for today took place on 7/9/2015 at 9:00 am, so this update is a bit overdue. Attorneys attended: for the plaintiff — Wendy Krincek and Ethan D. Thomas; for the defendant — Michael K. Wall (a partner in a law firm where current Nevada Lieutenant Governor Mark Hutchinson is also a partner).

Apparently, Judge Jim Crockett doesn’t want this case to linger, he set a tight motion schedule despite defense’s objections, according to the hearing minutes:

Court reviewed the Contract between Mr. Randazza and Plaintiff and can see an agreement to Binding Arbitration. In fact, this is one of the things the parties agreed to. Ms. Krincek concurred. Mr. Wall objected for the record. Court stated this dispute is subject to Binding Arbitration and inquired of counsel if an Arbitration has taken place. Ms. Krincek stated not to her knowledge. Mr. Wall informed the Court that there was an Arbitration. Ms. Krincek stated she is here for attorney’s fees and costs, and believes the Arbitrator was going to award something for spoliation of evidence. Court stated there was back and forth discussions whether Mr. Randazza has performed some or many of the obligations that the Arbitrator ordered him to do. Court stated that would be impossible for this Court to determine from it has seen in the documents. Court queried counsel whether there has been compliance and what remains to be resolved in this case.

Court queried Mr. Wall if Mr. Randazza or he give the Court insight on what his expected challenges or objections to the Arbitration decision are. Mr. Wall stated he recently received this from this client. There is factual evidence that it will show there will be challenges to the determination themselves and understands the difficulty of the situation. He feels there have been legal Arbitration in California and may have jurisdictional challenges. They have statutory time to look into those challenges and requested time to file an Opposition as the Statute allows. Court queried counsel if California counsel is not willing to cooperate with Mr. Wall. Mr. Wall stated he is cooperating and will provide documents and act as co-counsel to the deft.

COURT ORDERED, Mr. Wall to file his brief as to why Binding Arbitration is flawed legally or jurisdictionally within 30 days of today’s date by 8/10/15. Mr. Wall objected and argued that he has 90 days pursuant to Supreme Court and the District Court does not have authority to change the 90 days. Further, his client is out of the country until after 8/10/15, requesting at a bare minimum exactly what the Statute guarantees them pursuant to Nevada Supreme Court and that is until 9/1/15 to file the document requested by the Court. Ms. Krincek objected and requested Defendant’s opposing brief to the Motion to Confirm Arbitration Award be filed in 30 days. Further argument by Mr. Wall in opposition to this Court changing the time period in which to file an opposing brief.

The Court disagrees with Mr. Wall and ORDERED, defendant’s opposition to be filed in 30 days by 8/10/15. FURTHER ORDERED, Plaintiff will have two weeks to file a Reply brief by 8/24/15, and the motion is CONTINUED to 9/3/15. Mr. Wall stated he will file his opposition, but will be filing his motion to set aside or correct the award by 9/1/15. Upon inquiry by Mr. Wall, COURT ORDERED, if Mr. Wall if going to file a Motion to Set Aside or Vacate the Award it is to be filed by 8/10/15. 9/3/15 @ 9:00 A.M. PLTF’S MOTION TO CONFIRM ARBITRATION AWARD…DEFENDANT’S MOTION TO SET ASIDE OR VACATE ARBITRATION AWARD.

 


¹ The arbitration was triggered by the employment agreement (reportedly drafted by Randazza): it had a provision that in a case of a dispute parties must submit themselves to arbitration by JAMS. It was Randazza who demanded arbitration after his August 2012 resignation — that’s why he was listed as the claimant. It took unusually long — 2.5 years, and an unusually meticulous arbitrator was drawn.

² These two paragraphs were promptly deleted and not a part of the original XBiz article anymore.

When a porn copyright shakedown factory Malibu Media / X-Art resumed its operations in New York after a two-year hiatus, it raised many brows because this state has proven to be very hostile to copyright trolls in the past: to my understanding, in 2012 New York Southern and Eastern districts amassed the largest number of court rulings scolding trolls one way or another.

Astonishingly, this time the troll lawyers (Lipscomb, Eisenberg and Baker, via a local Jacqueline M. James) managed to stay afloat and fleece New York citizens for almost a year, with very few setbacks. To date, Malibu Media filed 253 cases (NYSD: 200, NYED: 53).

Alvin K. Hellerstein
US Federal Judge
Alvin K. Hellerstein

This may change after today’s Order and Opinion issued by a district judge Alvin K. Hellerstein in Malibu Media v. John Doe (NYSD 15-cv-04369). Malibu’s motion for ex parte early discovery was denied, thus the case was effectively dismissed.

This order was built upon findings and opinions by other judges, and it is both significant and unique because of the number of citations from troll-busting New York, Wisconsin and Ohio rulings.

Citing a wide known “Copyright Trolling, An Empirical Study” by a Chicago law professor Matthew Sag, the judge started with describing the trolls’ modus operandi:

Recent empirical studies show that the field of copyright litigation is increasingly being overtaken by “copyright trolls,” roughly defined as plaintiffs who are “more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third parties to sell a product or service.”

Quoting last month’s OSC by an OHSD Judge Timothy Black, Judge Hellerstein effectively called Malibu “copyright troll,” despite Lipscomb’s comical effort to deny the obvious.

And after stating that

In 2012, judges in the Southern District and across the country began awakening to the danger of copyright trolls, especially in the context of pornography,

Judge Hellerstein continued with the most damning quotes from orders by judges Marrero, McMahon, Baer, Brown, Fox, Black, Oetken, Conley, Randa and others. Again, I never saw an order based on such a thorough research. (We covered the majority of the cases cited in this order — follow the links in the previous sentence.)

In denying Malibu’s motion for ex parte discovery, the judge analyzed the factors allowing this type of exceptional relief, and in the judge’s opinion, none of these factors were favorable to Malibu: a nice reminder that the phrases “ex parte discovery” and “rubber stamp” are spelled differently.

Citing Judges Marrero and Oetken, Judge Hellerstein time and again reiterated the simple fact that an IP address is not equal to a person, thus concluding that Malibu didn’t show a prima facie claim:

[t]he fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarily mean that the owner of that IP address was the infringer. Indeed, the true infringer could just as easily be a third party who had access to the internet connection, such as a son or daughter, houseguest, neighbor, or customer of a business offering internet connection.

Moreover,

And even if Plaintiff could definitively trace the BitTorrent activity in question to the IP-registrant, Malibu conspicuously fails to present any evidence that John Doe either uploaded, downloaded, or even possessed a complete copyrighted video file.

Finally, Plaintiffs assertion that there is no alternative means of obtaining the desired information is inadequate. The only support for it comes from the declaration of Patrick Paige who, as Magistrate Judge Fox found in a different case, lacks personal knowledge of the methodology used by ISPs to match the IP address with its registrant. […] The Paige declaration that Judge Fox found deficient nearly three months ago is identical to the Paige declaration submitted in support of this motion. It fares no better this time.

The judge didn’t forget about the most egregious troll’s conduct, specifically:

When courts have attempted to place restrictions on the subpoena to prevent Malibu from abusing the process to extort defendants, Malibu has flagrantly disregarded them. For example, after one court issued “two orders unambiguously ordering [Malibu] to file [the identified IP-registrant’s name] under seal,” Malibu filed it publicly anyway. […].

And in the Eastern District of New York, Magistrate Judge Gary Brown took additional precautions to protect John Doe’s identity by explicitly instructing that “the subpoenaed information be sent directly to the Court, ex parte and under seal.” Patrick Collins, Inc. v. Doe 1 […]. Malibu instead served subpoenas that requested the identifying information be sent directly to Plaintiffs counsel.

The conclusion was devastating to the plaintiff (emphasis is mine):

In light of Malibu’s history of abuse of court process and its failure to show “good cause,” I decline to give it the benefit of an exception to the normal rules of discovery. Plaintiff’s motion for leave to serve a subpoena on Time Warner Cable is denied. The case will proceed in normal fashion.

I really hope that other New York Judges will adopt this extremely well-researched opinion and oust the abuser from their state, this time for good:

 

Coverage
Timothy Black
US Federal Judge
Timothy Black

An Ohio Judge Timothy Black clearly understands the shakedown nature of the Malibu Media/XArt pornotrolling cases, and he is irritated. Judge Black admonished the troll on more than one occasion in the past, and I find it astonishing that Malibu’s local, telephonophob Yousef Faroniya, and his puppeteers in Miami continue playing games with this judge.

Today Judge Black issued orders to show cause in two Malibu Media v. Doe cases assigned to him (OHSD 14-cv-00707 and 14-cv-00718). This is the third OSC in each case. The first one was about Malibu not serving the defendants timely. The second OSC dealt with Malibu’s delay to apply for entry of default. And the third one was issued today — to show cause why these two cases shouldn’t be dismissed for failure to timely move for default judgement — despite explicit orders to file such motions within 21 days.

Judge’s patience is surprising, borderline frustrating, but as we read past the first three pages, it becomes clear that his patience is so thin that the next violation, no matter how small, will be disastrous for Faroniya and Lipscomb. What started as a narrow, case-related stuff, developed into a holistic, damning description of the troll’s modus operandi:

The Court does not view Malibu Media’s conduct in this action in isolation. Rather, the Court views it as part of an unmistakable pattern that has emerged in other actions before this Court and in context of observations made by multiple other federal judges in cases involving Malibu Media.

This Court has observed the conduct of Malibu Media and its counsel of record in over 60 cases filed in this District in the past twelve months. This is not the first case in which Malibu Media has filed a summons return well after the date of service. Counsel appears to have made a misrepresentation in seeking an extension of time to complete service in two cases. The Court also issued an order to show cause after counsel publicly filed a defendant’s name in direct violation of two orders unambiguously ordering counsel to file that information under seal.

Judge Black outlines every questionable conduct he is aware of (and makes a note that it may be just a tip of the iceberg):

The Court is not blind to the reality that these allegations likely substantially underrepresent the amount of misconduct that goes unreported by defendants who simply pay Malibu Media’s settlement demand rather than face the prospect of expensive and extensive litigation regarding their purported interest in pornography.

The judge unapologetically calls Malibu Media ”copyright troll” amid Lipscomb’s comical protestations and his reliance on Judge Baylson’s “not a troll” indulgence issued during the shameful Bellwether Settlement Conference:

The Court is aware that Malibu Media, through separate local counsel, has filed thousands of similar cases in federal courts across the country. A copyright troll has been defined as “an owner of a valid copyright who brings an infringement action not to be made whole, but rather as a primary or supplemental revenue stream.” […] Under this definition, Malibu Media certainly qualifies. However, Malibu Media generally responds to this allegation by pointing to comments of the trial judge in the so-called bellwether trial as unassailable proof that its intentions and tactics differ from other entities that bring copyright infringement actions related to pornographic movies. […] The greater weight of experience suggests otherwise.

Judge Black calls out at length Malibu’s abusive tactics of filing inadmissible, scandalous “third party infringement evidence” — the infamous “Exhibit C,” for which Malibu and its local Mary K. Schulz were sanctioned twice in Wisconsin.

It is heartwarming to see that this judge can recognize when Lipscomb adapts his tactics ostensibly to comply with orders, but in reality — to smuggle the old sleaze under the guise of novel approaches:

Malibu Media is a sophisticated litigant, so it should not be allowed to avoid sanctions simply by adapting its tactics after being questioned by multiple federal judges.”

As an example of such “adaptation,” the judge presents his own experience of striking certain paragraphs from a complaint, having found those paragraphs to be “Exhibit C” in disguise:

Instead of attaching Exhibit C, Malibu Media adapted its practice and now made an explicit reference to a document with “additional evidence” that the defendant had distributed a large number of third-party files through BitTorrent. Malibu Media disingenuously offered to produce this document to the Court with the seemingly off-handed remark that “many of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.” Id. Citing the two Wisconsin district court cases that imposed sanctions for attaching Exhibit C, the Court struck the offending paragraphs from the complaint and ordered Malibu Media to file a conforming amended complaint forthwith. Two months later, Malibu Media voluntarily dismissed the action without filing an amended complaint.

In one of the cases Judge Black also threatens Rule 11 sanctions for apparent false statements about the service (this is not the first Malibu service-related lie):

The affidavit of process server Kevin Allen states that he personally served Defendant at Defendant’s home on January 26, 2015. This directly contradicts counsel’s representation in the February 10, 2015 motion that “despite the process server’s efforts, the Defendant has not been served.”

The harsh language of these orders suggests that if young Faroniya and/or his Miami curators manage to annoy this judge just a bit more, the force of his hammer descending on the troll’s head will be as large as his enormous patience.

 

 

Thanks to Raul for recapping the documents (OSC 14-cv-00707 Doc 17; OCS 14-cv-00718 Doc 15).

Remember the case where defendant’s identity was revealed in violation of the court order? On the same day Judge Black addressed three pending issues there, and while he ruled essentially in favor of the plaintiff, the tone was basically the same as in the orders discussed above (“further games won’t be tolerated”). Scroll down to the 5/27/2015 update.

Coverage
  • TechDirt: Ohio Judge Fed Up With Malibu Media: Appears To Give Copyright Troll One Last Chance
  • Reuters (paywalled): Judge says ‘copyright troll’ shoe fits porn producer Malibu Media

    Keith Lipscomb, Malibu Media’s general counsel and founder of the Miami firm Lipscomb Eisenberg & Baker, said in an interview that there have been many other judges who have “rejected the accusations” that Malibu Media used abusive tactics.

    Didn’t John Steele say something similar a couple of years ago?

    In the one case that has gone to trial so far, in which three defendants admitted liability, U.S. District Judge Michael Baylson in Pennsylvania said in 2013 that the company was not a troll. “Rather,” Baylson said, “Malibu is an actual producer of adult films.”

    This is astonishing: Judge Black specifically referred to “so-called bellwether trial” (Black’s words) as “is of little relevance to the present inquiry,” and Lipscomb continues to stubbornly pound that table. Facepalm.

Update

6/9/2015

Well, well… One day after the deadline (of course!) the troll responded to Judge Black’s scolding Orders to Show Cause.

If you have neither law nor facts on your side, and pounding the table would inevitably prompt judge’s wrath, run with your tail between the legs.

Embarrassing, to put it charitably…

 

Last month I wrote about a default judgement in a Malibu Media case: an Illinois judge expressed a concern that all these lawsuits are designed to be a secondary revenue stream for rightsholders rather than a legitimate recovery of lost sales. As a result, he awarded the minimum amount allowed by law, $750 per work, $9,000 in total (plus attorney’s fees).

Regarding the “per work” part of the law, I noted that

[…] Lipscomb found a bonanza in the fact that for the purpose of the statutory award the law doesn’t differentiate between a multi-million full-budget movie and a cheap, plotless porno flick illegally filmed at the pornographers’ home in a course of hours. Thus, the judge couldn’t award less even if he wanted. This loophole guarantees that the shakedown business stays profitable no matter what.

Sheri Polster Chappell
US Federal Judge
Sheri Polster Chappell

It seems that I was too pessimistic: today Judge Sheri Chappell awarded a $6,000 default judgement (plus $1,657.00 in fees and costs) for 47 “works” in Malibu Media v. Danford (FLMD 14-cv-00511). She reasonably ignored the overblown claim of multiple infringements, thus patching a loophole Keith Lipscomb has been abusing for years. In addition, the judge questioned the “lost revenue” hype copyright trolls are so accustomed to pulling out of thin air (emphasis is mine):

Malibu Media asserts in this instant case, the infringement was committed willfully. Specifically, Malibu Media seeks $1,500 per work in statutory damages. Since Malibu Media alleged Danford infringed 47 works, Malibu Media seeks a total of $70,500 in statutory damages. Malibu Media argues this amount is reasonable because Danford aided other participants through the BitTorrent system to infringe its copyright and caused the lost sales of its content which likely exceed lost sales of $70,500 or more.

The Court, however, finds a statutory award of damages of $70,500 would provide Malibu Media a windfall and therefore is not warranted here. Clever Cover s, Inc., 554 F. Supp. 2d at 1313 (“statutory damages are not intended to provide a plaintiff with a windfall recovery.”) […]. Here, Malibu Media failed to provide any evidence of its own lost sales, profits, or licensing fees as a result of the infringement to assist the Court in determining the appropriate amount of statutory damages to award.

Similarly situated courts addressing statutory damages where a defendant has downloaded copyrighted materials through a BitTorrent system have assessed damages of approximately $6,000 based on an inference of willfulness.

The judge refers to three non-porn cases where there was an award of $6,000 per a single movie, and concludes:

Nothing about this case materially distinguishes it from cases in which damages in the range of $6,000 have been awarded. In light of the facts and circumstances in this case as well as other similarity situated cases within this district, the Court finds a statutory award of $6,000 is appropriate.

I hope that this is the beginning of a pattern that will bring more or less reasonable numbers into the game, thus rendering the shakedown business model less profitable.

It is worth repeating that while in this particular case the default judgement was far less than a typical settlement demand in a Malibu Media case, relying on a favorable default is not a good idea. We saw default judgments that exceeded $100K.

 

Coverage
Updates

5/27/2015

Surprise, surprise… Lipscomb moves for reconsideration. “Your Honor, please, please don’t destroy our gravy train; I was so clever to discover that four dozens of plotless, cheap, criminally produced home clips depicting teenagers having unprotected sex should be treated separately for statutory purposes. Each of this shitty clips is equal to a blockbuster.” You think I’m exaggerating? Lipscomb indeed said this (emphasis is original):

The cases cited indeed assessed damages at $6,000.00, but each such case involved only one copyrighted work.

[…]

Since Countryman Nevada, TCYK, Thompson, and Bait Production each involved only one copyrightable work, the $6,000.00 award granted in those cases was within the permissible per work range of $750.00 and $150,000.00.

[…]

Your Honor overlooked, however, that Defendant infringed not merely one (1), but forty seven (47), of Plaintiff’s works. Adopting the $6,000.00 per work analysis utilized in Countryman Nevada, TCYK, Thompson, and Bait Production, the proper award here would be $282,000.00.

This default judgment is an existential threat to shakedown artists, so I expected this missive to be filed sooner rather than latter.

6/3/2015

The judge says “oops” and sides with Lipscomb

This order could put an end to Lipscomb’s extortion racket, but at the same time it looked too good to be true. Some attorneys I talked to were skeptical that this order would stay. Alas, they were correct: yesterday the judge reconsidered her order and increased the award to $35,250 (statutory minimum per title) from the original $6,000.

Despite the odds, I hoped that Judge Chappell would stick to her order, arguing that the copyrights-in-suit can be interpreted as “compilation” for the statutory purposes according the language of the 17 U.S. Code § 504 (c)(1):

Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

I think that the ease of the change of judge’s opinion was partially due to the fact that it was a default judgment, i. e. Lipscomb’s motion for reconsideration was uncontested. In other words, Lipscomb came for the defendant — and there was no one left to speak for the defendant.

The racket continues.

Thyself shalt see the act:
For, as thou urgest justice, be assur’d
Thou shalt have justice more than thou desir’st.

Shakespeare. The Merchant of Venice.

 

Almost exactly two years ago Prenda Law, its principals John Steele, Paul Hansmeier, Paul Duffy, Brett Gibbs¹, and two bogus plaintiffs (AF Holdings and Ingenuity 13) were epically smacked down by Judge Wright on 5/6/2013 (Ingenuity 13 v. John Doe, CACD 12-cv-08333).

This ruling was appealed shortly after². The stakes are high: Prenda and its owners were compelled to post a whopping $237,583.66 bond. If they lose, some money ($81,319.72 original judgment, subsequent fines, and possibly the costs associated with the appeal) will be released to the defendant.

Briefs:

 

It took almost exactly two years for the Court of Appeals for the Ninth Circuit to schedule the oral arguments, and here we are: 5/4/2015, 9:00 am Courtroom 2, Richard H. Chambers US Court of Appeals, Pasadena. The panel was announced a week before: Circuit Judges Harry Pregerson, Richard Tallman, and Jacqueline Nguyen.

I’m sure many would be happy to travel to Pasadena for this epic hearing. Those who can’t are not too unfortunate though because there is a live video feed from the courtroom. And it was archived for posterity (fast forward to 59:40):

 

Related
Coverage

To say that it was an illustrious smackdownn is a gross understatement. I pass the baton to the pros:

 


¹ Gibbs’s monetary sanctions were later vacated due to his health and financial hardships, and also because he blew the whistle on Prenda’s fraudulent activities.

² Because Judge Wright’s order applied to more than one case, Prenda filed eight appeals, later consolidated: CA9 13-55859, 13-55871, 13-55880, 13-55881, 13-55882, 13-55883, 13-55884 & 13-56028.

We don’t want to ruin someone’s life,” Field asserted. “I do not want to cause anyone financial hardship.

From X-Art’s owner Colette Field’s interview (9/27/2014)

 

Piece of shit
“Barely legal” porn troll
Patrick J. Cerillo
(New Jersey)

This is a situation when I feel obliged to say something, but I don’t know what… I’m out of words and emotions. A pro se defendant’s Request for pro bono attorney in Malibu Media v Andrew Days (NJD 14-cv-05337) is just two paragraphs. However, those two paragraphs tell volumes about the unbearable pain lawbreaking pornographers, greedy attorneys and their German friends continue inflicting upon US citizens and residents.

I am requesting a Pro Bono attorney because I am unemployed and on Medicaid. For the last 28 years I have been suffering from chronic Lyme disease and now cancer as well. I cannot afford an attorney and this case has been causing me a great deal of additional emotional stress. Please help.

I am willing to provide tax returns and any doctor’s documents showing the state of affairs that I’m in. Keep in mind I am not even the subscriber of the IP address in question.

Best,
Andrew Days

You know what… I don’t have an illusion that the crooks will drop this lawsuit. This is not the first time a disgrace like this happened (and continues to happen). Sure, according to Keith Lipscomb, “Prenda’s story [is] not Malibu Media’s story by any stretch.”

Or is it?

Update

5/7/2015

Today the crooks let this guy go. Did this post help? I don’t know… While I hope it is the case, it is rather irrelevant: what’s important is that the nightmare is over for Andrew. I wish him all the best.

On Friday 4/24/2014, ILND Judge Robert M. Dow Jr granted the plaintiff’s motion for default judgement¹ in Malibu Media v. Jack Funderburg (ILND 13-cv-02614). While default judgments are (sadly) not really big news these days (such outcomes are an integral part of XArt’s secondary revenue stream), this order stood out for a couple of reasons.

The good
Robert M. Dow Jr.
US Federal Judge
Robert M. Dow Jr.

In addition to the attorney fees ($2,525), the judge awarded the minimum statutory damages possible: $750 per work ($9,000 total), despite the fact that the plaintiff asked for three times more. The explanation of why the plaintiff doesn’t deserve more is heartwarming (citations omitted, emphasis is mine):

Plaintiff requests $27,000 in statutory damages, which amounts to $2,250 per film. It argues that this request is reasonable, as Defendant’s alleged willful infringement permits the Court to impose statutory damages as great as $150,000. See 17 U.S.C. § 504(c)(2). In addressing Plaintiff’s request, the Court notes growing judicial concern with “the rise of so called ‘copyright trolls’ in the adult film industry, meaning copyright holders who seek copyright infringement damages not to be made whole, but rather as a primary or secondary revenue stream and file mass lawsuits against anonymous Doe defendants with the hopes of coercing settlements.” As an actual producer of pornographic films, Malibu Media is unlikely a non-producing troll that purchases the right to bring lawsuits against alleged infringers. As an enforcer of pornographic copyrights, however, Plaintiff is among the entities that courts are concerned may be “inappropriately using the judicial system to extract quick and quiet settlements from possibly innocent defendants paying only to avoid embarrassment.” The Court is aware of Plaintiff’s extensive history of litigation in the last three years alone. Without drawing any conclusions as to this Plaintiff’s business model, the Court considers the concerns that other courts have expressed in evaluating requests to enter large damage awards with no relationship to actual damages sustained by a plaintiff. To the extent that these concerns reflect industry-wide trends, they counsel against awards that are triple the statutory minimum, as a default judgment imposing significant statutory damages may overcompensate plaintiffs in these circumstances.

The first good thing is that the judge clearly articulated a concern regarding Malibu Media’s abuse of the court system — the abuse that another judge called much less politely: “essentially an extortion scheme.” Judge Dow specifically called Malibu Media / XArt a “troll” (albeit not a “non-producing troll”), a title Lipscomb & Co and their “clients” so comically claim doesn’t apply to them.

The second good thing is that given his concern about “overcompensation,” the judge seemingly remembers that the rationale behind the statutory damages is to approximate real losses (when it is difficult to assess them) — the fact that many judges forget about.

The bad

There are two bad things I want to mention, and both are not related to this particular ruling, but to every default judgement in Malibu Media cases.

The first is the default judgement per se. Judgements like this make me sad because defaults are easily avoidable. While in this particular case the judgement is approximately equal to a typical Malibu’s ransom demand, playing this lottery is dangerous for defendants: default judgements around the country lack consistency, and there were cases when some judges awarded more than $100,000.

The second bad is that Lipscomb found a bonanza in the fact that for the purpose of the statutory award the law doesn’t differentiate between a multi-million full-budget movie and a cheap, plotless porno flick illegally filmed at the pornographers’ home in a course of hours. Thus, the judge couldn’t award less even if he wanted. This loophole guarantees that the shakedown business stays profitable no matter what.

The ugly

Now, the worst part of this order. For some unexplainable reason Judge Dow decided to resurrect the zombie of contributory infringement (citations omitted, emphasis is mine):

Lastly, Plaintiff also asks the Court to (a) permanently enjoin Defendant from directly or contributorily infringing Plaintiff’s copyrights under federal or state law […]

[…]

Plaintiff also states a plausible claim for contributory copyright infringement. “A defendant is liable for contributory copyright infringement when it with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.” Plaintiff alleges that Defendant contributed to the infringing conduct of other BitTorrent users by participating in the BitTorrent swarm—a group of users uploading and downloading bits from each other simultaneously. Plaintiff contends that Defendant’s knowledge can be inferred from his use of the platform, as it is frequently used to share unlicensed content, and the fact that the film was free. Based on these allegations, Plaintiff alleges a plausible claim of contributory copyright infringement.

The eye-popping fact here is that the plaintiff never pled contributory infringement (here is the amended complaint).

The only explanation I can think about is that Judge Dow’s clerk, while preparing this order, dropped all his papers, and the pages from different complaints by different plaintiffs ended up shuffled.

Interestingly (while not surprisingly), the blog LiveTrollLive, supposedly run by Libscomb’s associate, couldn’t miss this opportunity:

Once again the courts continue to extend liability for BitTorrent infringement to the account holders and subscribers. The lesson: If you pay the bill, make sure no one is using BitTorrent.

[…]

The Judge appears to have brought an alternative finding of contributory infringement to this opinion on their own based on the evidence.

I have no idea what evidence the author is talking about, and the card sharping here is astonishing: it’s an impossible stretch from “contributing” by actively participating in a swarm as the judge said (essentially directly infringing) to an Orwellian notion that those who pay the bill have a duty toward porn purveyors and may be held liable.

I understand that Lipscomb would be happy to be able to shake down account holders without a need to prove anything… However, I think that this strange paragraph in the judge’s order is an isolated hiccup, most likely an error, and not a trend: any defense attorney will be able to kill the contributory infringement zombie for good in adversarial proceedings… which brings us to the same conclusion over and over again:

If a lawsuit is filed against you, ignoring it won’t make it go away, and you may end up dealing with collection agencies, which have much sharper teeth than our petty extortionists.

 


¹ This motion was submitted by Lipscomb’s local Mary K. Schulz, and the signature block indicated a non-existent “Schulz Law, P.C.,” a law firm involuntarily dissolved half a year prior to this filing. That’s OK because the law is obviously written only for defendants while trolls can lie to the court and get away with it.