Do you remember what happened two years ago, when a judge ordered Prenda to submit a detailed report of its shakedown activities? The report created quite a stir by revealing (or, more precisely, confirming) the fact that Prenda had served exactly zero defendants in 118 mass Doe lawsuits.
This time a similar order was issued to Malibu Media by an Illinois Judge Milton Shadur (remember how he treated John Steele?). According to the docket (Malibu Media LLC v. Doe, ILND 14-cv-00693), the report was supposed to be filed under seal, yet as of today it is available on Pacer. This report provides some previously unknown details of the well-lubricated shakedown machinery operation.
This report was filed today, 4/6/2014, formally by Lipscomb’s Illinois local, Mary Schulz. Yet it is unlikely that she wrote this document: the metadata shows an attorney from Lipscomb’s office, Emilie Kennedy, as the author.
First I’ll skip to the most mind-swirling revelation and address some other issues after that.
Polygraph test: seriously?
On page 4 we read:
Further, Malibu will dismiss its claims against any Defendant who agrees to and passes a polygraph administered by a licensed examiner of the Defendant’s choosing. Out of the entirety of polygraphs administered within the United States by Malibu, no Defendant has passed and all such examinations have subsequently led to the Defendant settling the case.
This is Orwellian. First of all, it is quite an established fact that polygraph tests are pseudoscience. While such tests are still used in some states (Illinois is not among them: test results are not admissible in courts even if both parties agree to enter these results into evidence), scientific community has always been skeptical. There are many papers questioning lie detection methodology accuracy. For example, in 2003 Board on Behavioral, Cognitive, and Sensory Sciences and Education and Committee on National Statistics conducted a substantial research and concluded:
We have reviewed the scientific evidence on the polygraph with the goal of assessing its validity for security uses, especially those involving the screening of substantial numbers of government employees. Overall, the evidence is scanty and scientifically weak. Our conclusions are necessarily based on the far from satisfactory body of evidence on polygraph accuracy, as well as basic knowledge about the physiological responses the polygraph measures. […]
Read the entire Conclusions and Recommendations.
I believe that “offers” to “voluntarily” conduct such tests were, in fact, just another form of pressure, similar to threats to reveal Doe’s porn habits to family, bosses and neighbors. We don’t know if the defendants in question were represented. I’m afraid not, and this is really sickening: we can only guess what kind of lies, threats, half-truths were poured on unprepared laypeople. (Update. Confirmed: only unrepresented Does would take this test — see the featured comment below.)
Good news is that the very fact that the trolls resort to such dubious “evidence” means one and only one thing: regardless of defendants’ guilt, Lipscomb and his gang has zero evidence of wrongdoing in many cases (which was recently confirmed).
Trolls always think that money flows only in one direction — to their pockets. It is usually true initially, but the tide can (and eventually will) change the direction, as we gleefully witness what’s happening with Prenda these days. When it comes to XArt’s illegal conduct, it would be nice to polygraph its models, asking two simple questions:
- Have you been filmed at Colette and Brigham Field’s residence? (No permits.)
- Have you used barrier protection during filmed intercourse? (Ventura county ordinance — up to 6 months in jail per violation.)
For that matter, I also would love to ask Keith Lipscomb while he is connected to the polygraph device:
- Did you commence 1500+ lawsuits nationwide for a proper purpose (to protect copyrights), not to line up your pockets using slow-moving courts as an instrument of coercion?
However, I’m pretty sure that Keith would come out clean: crooks are usually good at defeating lie detection technology. On the other hand, many people become nervous, rendering the test useless: I, for one, would likely fail the test answering the question about my name and age.
Another interesting part of the report is the numbers.
In totality, Malibu has filed 268 cases within the Northern District of Illinois. Of these 268 cases, 25 cases were with joined defendants and 243 cases were actions filed against a single Defendant, like the current case at hand. The 268 cases filed by Malibu had a total of 886 Defendants between them. Of these 886 defendants, 643 were within joined suits and 243 defendants were from cases against only a single defendant.
So what are the shakedown proceeds?
Of the 886 defendants in cases filed by Plaintiff in the Northern District of Illinois, 174 defendants have settled the case against them.
110 Does settled during the joinder era, when the amount was $2,000–$4,000, and 64 — from individual cases, where the ransom was much higher — $7,000–$10,000, which results roughly in 1 million dollars in Illinois alone. Illinois’ share in the total number of lawsuits filed by Malibu nationwide is about 1/6, so it is reasonable to assume that the extortion machine brought about 6 million dollars to Lipscomb, IPP and XArt. Later in the report we read:
More importantly, Malibu’s main source of revenue is from the subscribers of its website, not from lawsuits.
This is disingenuous to say the least. Either it is a cynical lie, or Lipscomb pays “plaintiff” only a small amount of the proceeds. The latter possibility was suggested by Adam Curry, a well-known radio show host from Texas.
Reasons to dismiss
Trolls claim that about half of the cases dismissed without settlement were either because of “hardship” or “insufficient evidence.” Here is how trolls define “hardship”:
Hardship is when a defendant may be liable for the conduct, but has extenuating circumstances where Plaintiff does not wish to proceed against him or her. Examples are when a defendant has little or no assets, defendant has serious illness or has recently deceased, defendant is currently active duty US military, defendant is a charitable organization or school, etc.
So, correct me if I’m wrong: “hardship” is a preexisting condition. I.e. if a defendant becomes bankrupt and/or ill as a result of harassment or insane settlement/judgment, it does not qualify, right? In addition, there are many examples when Lipscomb & Co continues to twist arms of the weak (like an 80-year old woman).
As for the insufficient evidence as a basis for dismissal, just read this post…
Not a troll
On page 14 trolls claim that they are not trolls. What can I say? In my opinion, the duck test is way more reliable than polygraph.
To conclude on a lighter note, here is the only justified use of a lie detector — in a comedy:
- X-Biz: X-Art.com Offers Polygraph Tests in Porn Piracy Cases by Phett Pardon.
- TorrentFreak: Document reveals when copyright trolls drop piracy cases by Andy.
- ArsTechnica: Porn site that spews copyright suits uses lie detectors on defendants by Joe Mullin.
- Slyck: Copyright Porn Trollers Malibu Media Resort to Polygraph Tests to Settle Cases by Amanda Marie.
- Dziennik Internautów: Wykrywacze kłamstw do walki z piractwem – pomysły antypirackich trolli by Marcin Maj.
- Vice (Austria): US-Pornoproduzent Setzt Lügendetektor In Copyright-Klagen Ein by Max Hoppenstedt.
Current doe in a Malibu Media case. I am innocent and fighting back tooth and nail. I was offered a polygraph to avoid litigation, just like this. I was actually very tempted to take it because I felt strongly that I had nothing to hide and that I would pass. However my lawyer told me in no uncertain terms that if I went ahead with it, there would be no choice but to withdraw as my council and that advising me to do it would amount to legal malpractice.
After reading that nobody in the entirety of MM’s polygraph cases has ever passed, it’s looking like my lawyer’s advice was rock solid.
Also, saying that the polygraph examiner is of the defendant’s choosing is garbage. The polygraph I was offered was an ‘independent’ registered polygrapher selected by the Plaintiff.
I’m almost certain I will be served due to my refusal to take the polygraph, because no other recourse against litigation was ever offered. “High standards prior to serving a defendant” indeed.
[…] ProTip: IF THE PERSON SUING YOU OFFERS YOU A WAY TO PROVE YOU’RE INNOCENT, IT IS A TRAP!
A must read article on the topic in The Daily Beast: The Polygraph Has Been Lying for 80 Years (2/4/2015).