By Raul
The numbers are staggering.

By last count, Malibu Media has filed 365 lawsuits across the USA in 2012, suing 6,000 individuals (hat tip to Morgan Pietz, Esq., for the figures). Think of the fear, angst and sleeplessness generated by this hurricane of lawsuits. Also ponder the millions of dollars generated in settlements.

But what if it is all a cruel charade with the lawsuits premised on nothing more than a gigantic fraud targeting the American public and the federal judiciary?

Such is the question presently before the Honorable Judge Michael J. Hluchaniuk in the Eastern District of Michigan in the lawsuit entitled Malibu Media v. John Does 1-13 (2:12-cv-12586).

Nicoletti
Copyright troll
Paul Nicoletti

This lawsuit was commenced on June 14, 2012, with the filing of a complaint against the John Does for allegedly engaging in the copyright infringement of 15 pornographic movies, of which Malibu Media possessed the exclusive copyrights.

The attorney representing Malibu Media in this lawsuit is Paul Nicoletti¹. Nicoletti moved for expedited discovery to subpoena from ISPs the personal information of the John Does, so that the extortion game could commence, and on July 9, 2012 Judge Duggan granted the motion. Shortly thereafter, on August 17, 2012, defense attorney, Jeffrey Thennisch, filed a motion to quash on behalf of John Doe #11 in which he first pointed out the fraud of Malibu Media (emphasis and link are mine):

Plaintiff’ copyright registrations … list Malibu Media, LLC as the “employer for hire” on all of the allegedly infringed copyrighted works. 14 out of the 15 of the copyrighted works were created and published either in 2009 or 2010. But Malibu Media, LLC was not registered with the State of California and therefor did not exist as an entity which could be an employer, until February 8, 2011.

Likewise, another defense attorney, Hattem Beydoun, filed a similar motion on behalf of John Doe #1 on August 23, 2012, reiterating the fraud:

The Plaintiff believes and asserts that it acquired ownership of the film copyrights as the “employer for hire” … However, this is impossible as the Plaintiff did not exist until February 8, 2011 and all 15 works were published prior to Plaintiff’s date of creation. Therefore, Plaintiff could not have employed anyone to create the films and cannot claim ownership through 17 U.S.C. § 201(b).

The motions were referred to Magistrate Judge Michael J. Hluchaniuk on August 24, 2012 who on October 5, 2012 made an Order for Supplemental Briefing on this issue because:

Doe # 4 and # 11 invite the Court to issue a show cause order requiring plaintiff to demonstrate it properly owns the copyright interests it is pursuing in this litigation. Plaintiff argues it has standing to pursue such a claim while acknowledging there are some “errors” in the copyright registration process… During oral argument on this motion on September 28, 2012, counsel for plaintiff offered to demonstrate any errors in the copyright registration process had been or will be cured while acknowledging that a plaintiff prosecuting a copyright infringement claim must be the owner of the copyright.

Meanwhile, down in Florida, Nicoletti’s master Keith Lipscomb, was trying to paper over the fraud by miraculously locating 2 undated assignments in which the porn creator, Brigham Field, allegedly assigned his interest in the 15 questionable porn titles (amongst other porn titles for a total of 17) to Malibu Media.

Lipscomb also caused to be filed a bunch of Copyright Office Form CAs for Supplemental Registrations which are all dated September 13, 2012, which he hoped was sufficient to make this obvious fraud disappear.

Nicolletti summarized this frenzied activity to the court on October 19, 2012 as follows:

Malibu Media, LLC owns http://www.x-art.com (“X-Art”), a website where subscribers can join and view movies created and directed by Brigham Field. Each of the 15 movies listed on the Complaint can be found on X-Art. Brigham Field co-owns Malibu Media, LLC with his wife Colette. Malibu Media, LLC was specifically created by Brigham and Colette as a limited liability corporation for X-art on February 8, 2011.

Brigham intended for Malibu Media, LLC to own the copyrights for the movies he created and sold via subscription through the X-art website. Because Brigham Field’s current arrangement with the company renders each work as a work for hire, all of the copyrights were mistakenly registered in that fashion. Upon learning of the mistake in the copyright registrations, and realizing that he was the owner of the copyrights and not Malibu Media, Brigham Field, through an assignment agreement, transferred all ownership rights in the copyrights to his company. The transfer was recorded with the United States Copyright Office. ..At the same time, counsel for Malibu Media, LLC filed form CAs with the Copyright Office correcting the registrations. There was a slight delay in filing the form CAs because each form requires a submission of the actual registration certificate. For some of the works, certificates had been misplaced and needed to be reissued, which can take 4 to 8 weeks. Upon receiving the registrations, on September 13, 2012, Malibu Media’s counsel filed the corrections, explaining the error.

There you go! Fraud on the John Does and on the court are nicely swept under the rug, right? Wrong, according to defense counsel, Thennisch, because:

  1. The copyright registrations are defective by reason of the undisputed fact that Malibu Media could not be an “employer for hire” because it did not exist at the time of the registrations.
  2. The Supplemental Registrations are insufficient, as a matter of law, to cure these defective copyright registrations.
  3. The assignments from Brigham Field to Malibu Media did not assign the right to sue for infringements prior to September 13, 2012 and, accordingly, Malibu Media had no lawful right to sue anyone prior to September 13, 2012 much less settle with any of the John Does.
  4. For the sake of argument, assuming the September 13, 2012 Supplemental Registrations cure the defective copyright registrations, Malibu Media had no lawful right to sue anyone prior to September 13, 2012 much less settle with any of the John Does.

This matter is fully submitted and the parties are awaiting Judge Hluchaniuk to make a determination.

It is reasonable to guess that Lipscomb attempted to remedy the fraud and cure the defective copyrights registrations to all of Brigham Field (?) or Malibu Media’s (?) porn titles on September 13, 2012. But what about the in excess of 300 lawsuits filed prior to that date that Malibu Media may not have had the lawful right to file? The millions in settlement monies obtained prior to that date on arguably false pretenses? At the very least Malibu Media is at risk of facing a future class action lawsuit and, at the worse, being subjected to a criminal inquiry. Karma works in mysterious ways.

 

Update

A follow-up post: defense moves to invalidate Malibu Media’s copyrights.

 


¹ As tempting as it is to go off on a tangent pointing out Mr. Nicoletti’s colorful history I will refrain. However a cursory Google search will quickly reveal that this copyright troll is atypical in that individuals and entities have questioned his professionalism and ethics prior to his entry into the odious extortion scam known as copyright trolling.

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Comments
  1. that anonymous coward says:

    Huh once again I am left with more evidence supporting my thought…
    The ones screaming the loudest are usually doing so much worse than those they target.

    Filing claims when you have no rights to them…
    naughty naughty naughty…
    One would think a lawyer would understand making a false statement in a filing is a bad thing.
    I hope this Judge rains down hellfire and brimstone, and the shock waves sink them all…

    • The trolls are getting meaner, angrier, taller… and yet their fatal flaw is still out in the open. Since when is an ISP account holder automatically the one who did the download? An IP address is not a person. I’m going to make sure we see a lot more of that in the court dockets moving forward.

      • that anonymous coward says:

        I worry about that with how 6 Strikes is shaping up.
        They claim that the Terms of Service and Acceptable Use Policies of the ISP’s create the rule that you are responsible for anything that happens on your connection – if you knew about it or not. That little extra judicial private corporate legal system is going to detonate, and cause much damage. I can see trolls adding demands to have access to the alert system notices to bolster their claims (as the ISPs have agreed to keep the notices attached to the accounts for like a year period), and try to also use Terms of Service and Acceptable Use Policies to create a new legal concept in these cases.
        Why yes your honor they agreed to these terms that say they are responsible for all use of their connection… so they should pay up.

        And people wonder why I wrote up 6 Strikes here, we more than any people can see how poorly this is going to go for Does. Another sketchy system detecting “infringment” to create more evidence no one gets to challenge, unless they pay $35 and select an answer a 3rd party hired by the corporations decides is worthy. None of the options offered is your IP tracking is junk science that doesn’t point to an infringer… merely an IP.

  2. Anon says:

    I am curious how Does might use this? In my case motion to sever, quash, dismiss where denied and Judge allowed ISP subpena. Can a defendant make a motion at anytime for case to be dismissed because Plaintiff lacks standing? I would think a defendant could also ask to the judge to order any info received be destroyed and Plaintiff could not use it for anything.

    I sure hope the Bellwether defendant lawyers are aware of this.

    Another case 1:12-CV-01953-WYD-MEH points this defect of ownership of copyright.

    • that anonymous coward says:

      If you were targeted by a troll working for a company that did not hold the copyrights during the alleged infringment, you should file a motion with the court. Pointing out they knowingly lied to the court when they filed, and names have been turned over to a party with no legal standing to bring a case should get the Judge to make them appear and explain themselves. This isn’t a simple paperwork glitch, this was deception of the court for financial gain. People have had their right to privacy violated by a 3rd party with no standing to do anything.

      Asking it be Dismissed With Prejudice, all material gained be turned over to the court for destruction, that the lawfirm face sanctions, an order barring the troll from any contact with the Does, be reported to the bar, and have to cover any costs the Does had to pay to defend against this fraud upon the court.

      The fact that this covers many, if not all, of Malibu’s cases will demonstrate a complete disreguard for the law and that money is more important than truth.

  3. Anonymous says:

    Someone find Fantalis’ email and send him a link to this post so we can watch him trounce on Kot.

  4. Anon says:

    Why do people use Colette Leah when her real last name is Pelissier. A 36 yr old, gold digger from NJ, a bad realtor and lame horse show contestant?

    Malibu Media is apparently a shell corporation that all should be able to pierce now and go after Brigham Field’s and Colette Pelissier’s assets for fraud. If Brigham transferred ownership of copyrights he should be paid fair market value and pay taxes. A defendant should demand in discovery financial statements and all tax filings. See if he and his shell corporation committed tax fraud,

    Isn’t it about time States’ AG’s start cracking down in this epic fraud and send these criminals to prison? These people show also be investigated for possible child pornography and violation of federal obscenity laws.

  5. Incredulous says:

    Trying to make sense of this. Brigham Field is rightful owner but never registered and cannot therefore sue people for statuary fine ($150K) per work. He also wouldn’t want to sue as individual because there could be class action against his personal assets for fraud. Malibu Media LLC may even at this time not have legally registered the work(s) and definitely prior to this September was not the rightful owner and committed fraud in courts across America claiming to have ownership.

    How would you like to buy a home from Colette? Who it seems besides a purveyor of porn is also a high end realtor for Sotheby’s International Realty.

  6. Jason says:

    Wish I could say I’m surprised. Take a look at Lightspeed v. Smith in Illinois and you’ll see Arcadia was monitoring “hacking” months before it existed.

    • SJD says:

      One of the fatal troll’s premises they built their “business” upon is that no one would watch and scrutinize. Look at Steele’s tantrum when we (bloggers and lawyers) shed light at their brazen endeavor, putting Guava costume on Lightspeed.

      BTW this is not the first time Lipscomb sent corrections to the US Copyright Office to cover fraud: we don’t talk about it widely, but it does not mean we forgot. Neither we forgave.

      • that anonymous coward says:

        This reminds me of a troll who had a movie that was never available for purchase, owned by a company in a country where porn was illegal….

      • Raul says:

        Considered mentioning that sorry saga but did not want to dilute this fraud. However the statute of limitations has not yet come close to expiring so if there are any curious attorneys out there who wish to try their hand at a class action, let SJD or DTD know and we’ll give you the details.

  7. SJD please contact me by my email address..

    As for Anon above, who asked “Can a defendant make a motion at anytime for case to be dismissed because Plaintiff lacks standing?” I think one answer is that a void judgment can be attacked at any time. Lack of standing by the plaintiff would be one avenue for attacking the judgment – but by no means a clear and shut case.

    • Jeffrey Thennisch says:

      Yes, Mr. Antonelli is absolutely correct. Standing is a jurisdictional requirement which must exist at all phases of a case. For those cases that have dismissed via settlement, take a look at Federal Rule of Civil Procedure 60(b)(4) which talks about “void” orders

  8. CTVic says:

    Fantastic! Great article by Raul! >>applause<<
    The only thing better than seeing a smackdown of a major Troll is to see his dog that's shitting in my back yard get kicked, too!
    Great work by attys Thennisch & Beydoun! This is a gutshot that has the trolls and their clients reeling! Accepting settlement checks based on a false claim to titles? Whooooooo boy! Get out the jiffy pop! Let's hope you guys can keep up the pressure on these dirtbags now that you've flipped over their rock & shined a bit of light up in there.

    And that's a great image of Nicoletti you have there, too. Shifty eyes are well represented … it's almost like they follow me around the room! :D

  9. Doe says:

    Subscribe

  10. Anonymous says:

    how much water would have to go under he bridge (how bad would the fraud have to be) for those who had settled (or are considering settling) to have some recourse? Or are the people who settle SOL no matter how bad the fraud gets?

    • CTVic says:

      I would imagine that there’s not much recourse for anybody who’s settled. Any recourse would have to be nettled out of the fine print of the settlement agreement … of which I doubt there’s much in your favor – especially if you settled without having someone versed in lawyer-ese help write out the agreement.
      If it does pan out that Malibu Media is making claims on fraudulent holdings, and a giant class action does get built up against them, I’d be willing to bet that their LLC shell company would just declare bankruptcy and disappear. This IS a shell company protecting fly-by-night pornographers, after all. And that’s what the LL in LLC is for … Limited Liability.
      Assuming best case scenario – settlers join forces, sue the shit out of Malibu, win, and Malibu has to repay AND sticks around long enough to do so … what’s the number on your ticket? Are you number 4,356? What’re the odds of there being any money left by that point?

      The moral of this story is … DON’T SETTLE. Look at Cashman’s comment above – a point made over and over and over again. An IP is NOT a person. These dogs can bark REALLY loud, and make all kinds of hideous threats … but they HAVE NO TEETH.

      • Anonymous says:

        So, based on a post a couple above by Jeffrey Thennisch who pointed out “For those cases that have dismissed via settlement, take a look at Federal Rule of Civil Procedure 60(b)(4) which talks about “void” orders”

        Now, I’m not a lawyer but I did look up that rule. It states:
        (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

        (1) mistake, inadvertence, surprise, or excusable neglect;

        (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

        (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

        (4) the judgment is void;

        (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

        (6) any other reason that justifies relief.”

        I *think* a settlement might be a “final judgement” and number 3 specifically mentions fraud, which I’m sure a lawyer could argue there is.

        In other words, tldr, you might possibly have a remote chance, but you’d have to talk to a lawyer.

        • Jeffrey Thennisch says:

          I filed a motion to dismiss the Michigan action for lack of standing this afternoon along with about 15 separate requests to cancel the existing Malibu Media copyright registrations with the U.S.Copyright Office under 37 CFR 201.7. Generally speaking, the Copyright Office is very reluctant to use this cancellation power under 37 CFR 201.7, but it does serve as another potential avenue to explore.

          Rule 60(b)(3) covers “fraud on the Court” as well other misconduct while Rule 60(b)(4) addresses “void” orders/judgments which would arguably flow from a case where the named Plaintiff (i.e. Malibu Media) lacked standing in the first instance. Agreed that these are tough motions to bring and will depend upon your particular facts, but a good judge would want to know if his/her courtroom was used as part of a canard.

          Another interesting issue in any pending cases is whether Mr. Field (if he truly is now the author of these works) should be added as a necessary and indisepnsable party under Rule 19. This is especially true where the “new and improved” September 13, 2012 assignment documents do not convey any right to sue for past infringements. In other words,even if you believe the new assignment, Mr. Field retained the right to sue for any past damages but he is not a party.

        • Raul says:

          Thanks for the update and the insight!

      • Anona-me says:

        Not an attorney but reading how significant assets are transferring between Brigham Field, his wife Collete Pelissier, and Malibu Media LLC one can not help question if the shell can withstand scrutiny and allow all to gain access to all three parties’ assets. Hello RICO!

  11. Raul says:

    Hopefully I can do an update on this post tomorrow to highlight the fact that Doe Defender Thennisch just dropped a thermonuclear device on Nicoletti and has also served on the Copyright Office Cancellation Requests for all 15 porn titles at issue in this lawsuit. http://ia601505.us.archive.org/12/items/gov.uscourts.mied.270710/gov.uscourts.mied.270710.41.0.pdf Fuck yeah!!!!!!

  12. juancarlosdeburbon says:

    Brigham Field was told to create an LLC to start the litigation process and limit his liability if and when this blew up in his face. However, it’s all a mess now.

    Methinks that Brigham Field has exposed himself to some disastrous personal liability as a result.

    This case, and many others, are now going to be “follow the money” cases. And that’s where this whole thing will land people in jail.

  13. anon@anon.orb says:

    Settlement agreement is a contract. Contract can be rescinded based on fraud. http://legal-dictionary.thefreedictionary.com/Rescission+of+contract

  14. bezimya says:

    Hello, medium-time reader, first-time commenter. First, just wanted to say thanks for creating this site. Since receiving a letter from my ISP a few months ago, this site (as well as DieTrollDie) has been an incredible resource and having the knowledge that so many others were being targeted by these scams was a great help.

    Above, the question of recourse for those who have settled has been raised. I did not settle, but after weighing my options (I got the letter a week before the deadline to file a motion and do not live near the state/jurisdiction where the lawsuit was filed), I decided to hire an attorney to file the motion and represent me if necessary. While I don’t regret doing so, it was an expense (an unnecessary one, as the allegations were unfounded), and one which I would like to recoup.

    My question is, what recourse, if any, would there be for Does who paid attorney’s fees, to represent them in a suit which the plaintiff had no right to bring based on the lack of copyright ownership discussed in the Michigan case? Would there be grounds to file a motion making the Plaintiff responsible for those costs? If a Doe had already been severed from the suit, would it still be possible?

    I plan to be in touch with the firm to discuss this with them, but wanted to get other opinions. And I don’t yet know if trolls’ copyright problems would affect my situation, but hope it might be of some benefit to those who hired representation.

    • Anonymous3 says:

      I don’t know the answer to this. Here’s a not particularly informed guess.

      This sounds like there was no direct contact between you the troll lawyers. If the troll action caused financial and personal harm, there could be grounds for a counterclaim. Is there evidence that the troll clearly said they were the copyright holder AND that they had rights to claim statutory damages?
      I’d suggest being clear whether the main goal is to impede progress of the trolls’ scam or to recover funds.

      If the goal is to recover funds:
      First, you are risking (in a civil action) paying attorney fees (yours and the opposing troll lawyer) if you lose.
      Second, even a successful case would be time consuming. Is time lost from work, family or recreation worth it to you?

      If the goal is to help halt the copyright trolling, you might also:
      Let your state’s (or the state of record in the case) district courts, bar association, and attorney general know about the conduct of this troll law group.

      Unless your attorney is one of the defense lawyers who’s already fought back, consider contacting one of the lawyers involved in counter suits. It’s even better if the defense lawyer has argued against the troll gang involved in accusations against you. For either goal, it might be beneficial to gather other Does for the same plaintiff and state in a group action.

      Disclaimer: This post is not to be construed as legal advice and is for discussion purposes only.

    • CTVic says:

      As of right now, I doubt you can recoup any costs. Trollawyers haven’t actually made any contact with you yet. Now, if they decide to actually butt heads with you – if they do come a-callin, and do file suit, and do name and serve, and you have to get your lawyer to spring into action … then fight the good fight, win overwhelmingly and get judgment for legal fees … then yes. You’ll most likely be able to reclaim the retainers you’ve paid to your lawyer just now, in addition to whatever other costs he may incur.

      But that’s a long ways down a path that’s both very unlikely and nobody, including the trollawyers, want to go down. Most likely they’ll see that you’ve lawyered up and move on to easier game.

      Keep your receipts, but I wouldn’t plan on getting reiumbursed.

  15. Anonymous says:

    Hello everyone
    I was wondering with this going on, should the rest of us does( or in my case, a named suite) should we also file Motions to dismiss for no standing or wait and see where this case/ the bellweather trail go?

  16. Anonymous says:

    Does anyone know if Malibu Media is following through with naming and obtaining a summons for certain individual Defendants? I have noticed in more and more Malibu Media cases that they are naming 1 or 2 John Does individually, amending the Complaint to name the John Doe(s) with their real name, and then obtaining a summons.

    But the thing is, I can’t find any cases where they actually served a summons on one of these individual Defendants? I know Jeff Fantalis was served with a summons because he mentions it as part of his intentional infliction of emotional distress counter-claims, but I’m not aware of many other cases of people being actually served. Anyone have any idea?

    I assume that this new occurrence of naming individuals and then sitting on the summons is so that if a Judge or Defendant says “Malibu Media has no intention of actually prosecuting any of these cases” they can point to the handful of cases where they are “attempting to serve a Defendant” as evidence that they are truly serious. Am I right? Anyone know?

    Thanks.

  17. Anonymous says:

    Wow, malibu certainly doesn’t take the hint, do they?

    Another doe case in Indiana, 4 does:

    http://www.rfcexpress.com/lawsuits/copyright-lawsuits/indiana-southern-district-court/119715/malibu-media-llc-v-john-does-1-4/summary/

  18. IllinoisLovesLitigation says:

    Anyone know a decent lawyer that can fight this? I am in Illinois and am contacting the Attorney General. Crook County… I know there has to be a way to beat them. My IP was not secure due to a Comcast gaff with a modem they suggested that I use. Please post here. Thennisch sounds aggressive. We area barely making it financially with taxes here and any expense here could tip us over the edge. Any ideas? Thank you.

  19. pissed Off Doe says:

    Any updates on this issue? Were any individuals actually named with the dates prior to Sep 13 12? I see buch of new cases by lipscum, but no individual names.

  20. [...] trolls and plaintiffs) in Pennsylvania, must be notified about this event, as I do not believe that Nicoletti acted on his own accord: the Mafioso clan’s “godfather” Keith Lipscomb, if was not the [...]

  21. Mavis says:

    You actually make it seem so easy with your presentation but
    I find this matter to be really something that I think I would never understand.
    It seems too complex and extremely broad for me. I’m looking forward for your next post, I’ll try to
    get the hang of it!

  22. […] filed by copyright troll Lipscomb’s outfit on behalf of Malibu Media¹. “Malibu Media” is an alternative name of a hardcore pornography producer X-Art owned by Brigham Field and Colette Pelissier. This […]

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