Guardaley | Lipscomb | X-Art

Malibu Media case management conference in CAND: notes and thoughts

“Barely legal” porn copyright trolls Guardaley | Excipio | Keith Lipscomb | X-Art | Malibu Media (the beast has many heads and names) re-infested California with 70+ individual lawsuits in September after a three-year hiatus.

In a significant move, all these cases, initially scattered among many judges, were reassigned to a single judge — William Alsup — on 9/29. Three weeks later the judge allowed ex-parte discovery and set the initial case management conference, which took place today.

EFF’s intern Jack Bussell was in the courtroom and he was kind to share his notes:

US Federal Judge
William H. Alsup

There were two attorneys for Malibu Media, Brenna Erlbaum and a man whose name I didn’t catch¹.

Malibu Media mentioned Comcast and no other ISPs. They are currently receiving notices of representation and settlement offers. They asked for ISP compliance between December 11 and January 4. Malibu Media has not yet served any defendant. The judge had previously ordered that the last day for service would be January 7 to January 25.

Malibu Media stated that no one who they are going after would have infringed fewer than 20 works. The judge asked how Malibu Media identifies an infringer. Malibu Media responded that Excipio monitors the torrent swarm and downloads, but not uploads, the works. The judge asked how Malibu Media could be sure those persons actually infringed. Malibu Media responded that they would engage in depositions and building internet profiles. One example of a profile they offered was if the infringement stopped for a week and that coincided with a week the alleged infringer was on vacation.

Malibu Media stated that they are prepared to go to trial and meet their burden of proof. However, they acknowledged that most people settle and most settle early. They also stated they expect more pushback in “tech-savvy” Northern California.

Malibu Media has another case management conference scheduled for March 3 at 1:30, on 70 cases.

Judge Alsup said the settlement offers must be reasonable, not to multiply statutory damages “by every minute of the day,” and not to “use the federal court as a bludgeon.”

It is sad that the young Brenna resorted to telling fables to the judge: the proposition that “they are prepared to go to trial and meet their burden of proof” is disingenuous to put it mildly. Out of almost 5,000 cases filed in 13 states over the last three years, exactly zero proceeded to jury trial. We have been hearing the “we are not afraid of jury” song for years, yet every single case was either settled or dismissed. Notably, the majority of cases, where defendants seriously pushed back, ended up in walk-away settlements (no money changed hands): so much for the “impeccable evidence” and “eagerness to go to trial.” These cases are simply not designed to go to trial. Only dishonest, intellectually lazy or stupid would claim otherwise.

With all respect to Judge Alsup, “using the federal court as a bludgeon” is exactly Malibu Media’s modus operandi, and these people have been using courts as both bludgeon and money press for years.

I was going to stop here, but since Comcast is already sending out emails, and new victims are searching for “Brenna Erlbaum,” I felt compelled to share some thoughts.

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Guardaley | Lipscomb | X-Art

Defendant: Malibu Media is a scam (in a literal meaning of this word)

Once in a while we witness new defense attorneys appear on the scene, and they bring fresh ideas. In Malibu Media v. Domingo Rodriguez (ILND 15-cv-03610), a shakedown lawsuit brought by the Miami Troll Center via its marionette, a chronic liar Mary K. Schulz, the defendant hired an experienced lawyer from Chicago, Andy Norman.

Today Mr. Norman filed the defendant’s Answer, Affirmative Defenses and Counterclaims. This is the first time I saw the claim that Malibu Media’s conduct violates Illinois Consumer Fraud and Deceptive Business Practices Act.

[…] plaintiff’s scam is “unfair” as contemplated by § 2 of the Act. See, Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 418 (2002). In Robinson the Illinois Supreme Court ruled that there are three ways to prove unfairness under the Act. In fact, plaintiff’s scam is unfair under each of the three tests. First, plaintiff’s practice of implementing its scam against hundreds of unwary internet consumers “offends public policy.” Second, it is it is “immoral, unethical, oppressive, or unscrupulous.” Finally, it “causes substantial injury to consumers.”

The word “scam” appears in the complaint 24 times, and those are not figurative uses.

I agree with such characterization.

According to Mr. Norman’s LinkedIn page,

Since 1983 he has handled more than 75 class action cases. He has counseled thousands of consumers and business owners regarding fraud, contract, warranty and other disputes, and many pastors and Christians regarding religious and civil rights.

…so this attorney most definitely knows what he is talking about.
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Guardaley | Lipscomb | X-Art

Malibu Media expert’s report deserves some scrutiny

Last week I wrote about a motion for summary judgement filed by the defendant (via his attorney Cynthia Conlin) in a closely watched and eventful case Malibu Media v Robert Dare (FLSD 14-cv-61957). This motion was backed by a report produced by the defendant’s own expert, Tom Parker. The report suggested that the German evidence was incomplete and misleading and didn’t back the claim that the defendant downloaded/shared the entire videos. In addition, the expert asserted that anyone in close proximity to the defendant’s house could piggyback on his wi-fi connection to torrent XArt’s pornography.

The plaintiff had up to 10/28 to rebut the report. Instead, Malibu fired its own motion for summary judgement. Among numerous exhibits to this motion, a couple can be counted as a rebuttal attempt. A very interesting transcript of Tom Parker’s deposition deserves a separate analysis, and I’ll get back to it in the coming days. Today’s post is about another document: a very strange “Report on the probability that two Americans live next to each other and both use Bittorent and the Bittorent client Transmission,” prepared by Dr. Dan Sarel who is an associate professor of marketing in the School of Business Administration at the University of Miami.

This report’s aim was to rebut Tom Parker’s suggestion that accessing wi-fi by a neighbor was possible and plausible. Dr. Sarel’s argument was largely based on the fact that the Germans determined that the alleged infringer had used a relatively rare Bittorent client, Transmission — the very same client the defendant admitted to own. The expert argued that such a coincidence is unlikely:

Subject to the assumptions and limitations set forth below, I conclude the probability that two Americans live next to each and both use BitTorrent and the BitTorrent client “Transmission” is 1 out of 37,679.

Dr. Sarel was paid a $2,500 fee for what, in my opinion, is a half-assed argument at best. Read the report and scroll down: I’ll try to explain why I think it is misleading and doesn’t rebut the defendant expert’s report at all.
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Guardaley | Lipscomb | X-Art

Defendant’s expert witness report suggests that Malibu Media’s investigators doctored evidence

On 10/20/2015 Cynthia Conlin, the defense attorney in Malibu Media v Robert Dare (FLSD 14-cv-61957), filed a powerful motion for summary judgment. The motion is a worthwhile read: it tells a typical story of an attempt to shake down a citizen over illegally filmed teen pornography — despite a total absence of evidence.

As it happened in many other Malibu cases, no direct evidence of infringement — either admission of wrongdoing or traces of plaintiff’s smut — was found here. Alleged Bittorent transactions recorded by foreign players are not enough: this type of indirect “evidence” is unlikely to fly in US courts. This is the point where a reasonable party offers at least a walk-away to the defendant.

Yet we deal with Keith Lipscomb’s enormous hubris here. Instead of letting a defendant go, he usually unties his magic bag of tricks and pulls out some painfully familiar tactics: delays, incoherent depositions aimed at catching the defendant in some sort of a discovery violation or perjury, delays, threatening to depose neighbors, accusations of spoliation of evidence, hunt for ephemeral computers and hard drives that were allegedly hidden from the plaintiff, delays, fishing trips to ISPs, and so on…

US Federal Judge
James I. Cohn

No surprise that many items from this list found their way to this case. At least one trick failed though: on 10/14 the troll attempted to extend discovery deadline to depose Comcast and to compel the defendant to produce allegedly undisclosed computer. Judge James Cohn disagreed:

Plaintiff’s Second Motion for Extension of Time Within Which to Complete Discovery and Motion to Compel Production of Newly Disclosed Computer. Plaintiff has not shown good cause for the requested extension. The attached discovery materials indicate that Defendant objected to the breadth of Plaintiff’s discovery requests and the record shows that Plaintiff did not move to compel. Plaintiff has not shown that Defendant lied about the existence of the “newly disclosed computer” referenced in the motion. Further, Plaintiff’s inability to depose Comcast’s corporate representative during the nearly seven months allowed for discovery does not constitute good cause for an extension.

Fed up with this circus aimed solely at delaying the proceedings in this unwinnable lawsuit — in a hope that the defendant would give up and pay, attorney Conlin decided that it was the right time to ask the judge for a summary judgement:
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Not so serious

Bloody paralegals!

If you mention a paralegal on the first page of the response to an OSC, by the last page he/she absolutely must be fired.
Chekhov’s Principle for Lawyers

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

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

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

Elizabeth Kovachevich
United States District Judge

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

And they brought him the paralegal.

And Keith fired the paralegal:

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

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

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

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

Elizabeth Kovachevich
United States District Judge

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

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

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

“OK, let’s do it,” sighed Keith, “Emilie: since you write all the motions he files, you should know his phone number.”


“This is Yousef Faroniya, Esquire. “

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

“Yeah.. wassup bro.”

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

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

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

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

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

This story is about the latter.

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

This good news was broken by Ray Beckerman:

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

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

(While the order below lists only 20 cases, this order is accompanied by similar orders.)
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