Sometimes you need to be a bully to beat a bully.

James McGibney

 

Reading Malibu Media’s motion to compel the defendant to answer interrogatory questions (Malibu Media v. Jason Pontello, MIED 13-cv-12197, troll Paul Nicoletti), I noticed a couple of obnoxious questions that the defendant understandably refused to answer:

Plaintiff’s Interrogatory No. 22: Have you or anyone who has had access to a wireless router(s) or modem(s) in your home visited an adult website within the last two years? If so, identify the websites and state how often those websites were visited.

Defendant’s Response: Defendant objects to the nature of this interrogatory in that it is not related to the instant action, is overly broad, vague, unduly burdensome, and part of a calculated strategy intended to threaten Defendant with an intrusive invasion of unrelated personal information as retaliation for his failure to submit to Plaintiff’s extortion tactics. The nature of the request is deliberately calculated to elicit information by which Plaintiff can then use to embarrass him as a viewer of pornography in order to facilitate a coercive and/or extortionate settlement or demand. Accordingly, no response is warranted.

Plaintiff’s Interrogatory No. 23: Have you ever watched x-rated, adult or pornographic movies or live feeds (collectively, “adult content”)? If so, when was the last time you watched adult content, how often do you watch adult content, which studios do you prefer, and what type of movies do you prefer?

Defendant’s Response: [same as 22]

Plaintiff’s Interrogatory No. 24: Have you ever subscribed to an internet company distributing adult content? If so, identify the company and state the period of time that you were a subscriber.

Defendant’s Response: [same as 22]

The defendant (represented by attorney John Hermann) is right, and I hope that the judge will deny this motion. If the defendant is compelled to answer these questions, I have no doubt that Lipscomb/Nicoletti will not hesitate to further invade their victims’ privacy by asking such questions as “How often do you masturbate? If so, what are your fantasies: do they involve very young girls? ” Or “Are you a gay? If so, explicitly specify if you are an open or a closeted gay.”

Plaintiff’s requests improperly seek information regarding Defendant’s internet setup, computer setup, and internet habits.

Plaintiff’s inquiry into Defendant’s personal computer usage and internet setup does not relate to any relevant issue or fact. Such requests have no bearing on Plaintiff’s allegations. Inquiries into patently irrelevant facts demonstrate Plaintiff’s counsel’s flagrant attempt to harass and annoy Defendant.

Stop, stop, stop. Did I write these two paragraphs? Of course not! I simply lifted these passages from the plaintiff’s motion for protective order limiting discovery (Malibu Media v. Jeremiah Benson, COD 13-cv-02394, troll Jason Kotzker), which sought to shield X-Art’s owners Collette and Brigham from the defendant’s “frivolous” questions compiled by attorney David Kerr. I only replaced “Plaintiff” by “Defendant” and vice versa, and made very minor alterations. Here is the original:

 

While I admit that the set of requests for production of documents / interrogatories / requests for admission (embedded below) is very aggressive (which may be counter-productive), the majority of the questions is up to the point, and if answered truthfully by the plaintiff, would bring its dirty copyright shakedown business to the brink of collapse (which will happen anyway rather soon).

It is both ironic and boring to observe a typical reaction of a bully being bullied: a fake “toughie” cries “Mommy!” when being seriously confronted.

It is no surprise that in order to avoid answering the questions on paper and during an inevitable deposition of our porno couple, Malibu agreed to settle this case pending a polygraph test (which is a travesty in my opinion; however, if for the sake of argument we assume that such tests are not a total hogwash, I’d like to see Brigham and Colette undergo the same procedure: they are the paragons of truthfulness, hence they have nothing to fear, right?).

In any case, the list of questions remains in the annals as a nice template for pro se defendants in Malibu cases. My advice though is not to fight Malibu on your own, especially if you are innocent: the tables are turning quickly, and you have a chance to win, including monetarily. But for this you need an experienced attorney.

 

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Comments
  1. Anon says:

    Good catch! So true too.

  2. Maurlce Ross, Esq. says:

    I read with interest defendant’s interrogatories to plainitff. Frankly, defendant’s counsel is engaging in clear discovery abuse and I would not be surprised if he was sanctioned by a reasonable federal judge. He is using the case to challenge plaintiff’s business model—but his questions beyond anything remotely relevant to the merits of the case. It is ridiculous for defense counsel to ask questions about how porn films are made and whether the plaintiffs violate laws in making them. That is no relevancy whatsoever to the merits of the case—like it or not, adult movies are legal in this country, and copyright laws cover them. If I were a federal judge I would be very tempted to sanction defendant’s counsel for abusing the litigation process. As the saying goes, two wrongs do not make a right.

    • SJD says:

      I don’t disagree that some questions are overboard, yet

      1) the point of this post was to underline plaintiff’s hypocrisy (it is not his f*ing business what kind of pornographic genres, if any, defendant prefers: this crosses many-many lines);

      2) how XArt’s movies are produced is not necessarily irrelevant: while it is a long shot for lack of filming permissions or condom law violations to have an impact on His Highness Copyright, a recent decision by an IL judge suggests that 2257 violation may in fact be a valid defense.

    • John Roberts says:

      If the movies were produced in violation of law and/or ordinances, then they do not have clean hands and they might not be copyright protected. Many judges would not award a plaintiff who’s work was made illegally.

      It appears this attorney did his homework and knows exactly where the bodies are buried. Much of the questions are relevant and go to credibility of the Plaintiff and its’ agents in regard to public statements, affidavits, or sworn testimony they have made in the past.

      • DieTrollDie says:

        Good points John. Then this gets coupled with the German masterminds (term used loosley)/investigative firm and the obvious fact that they are in charge of the operation (and have a $$$ interest) and have never disclosed this in any case. The judge is not going to look to kindly on this.

        DTD :)

    • Anon E. Mous says:

      Wow! I am shocked Maurice is here to inform the Internet Hate Group of how the Defendant is bullying poor Colette and Brigham and what ever Lawyer is repping with questions about their operations and copyrights, and copyright trolling lawsuits they file.

      I can only imagine the heartache you feel for poor Colette and Brigham as they share their tales of woe from their 16 million dollar palace that smut built. Hearing how they are struggling to get by must just make you tear right up Maurice and yet you valiantly risk it all to come here and share your unbridled support for justice and the finest smut that 9.99 can buy.

      Those pesky lawyers that defend those accused of illegally downloading Malibu/ X-Art smut films must make you find the resolve that allows you to push on in defense of all that is good in the making of the refined smut that Colette and Brigham believe their films are elevated to.

      This must be why Malibu/ X-Art awesome 99% geo-location tools is so accurate and of course must go a long way to ensuring that only people who meet their high ethical standards of class are sued for infringement, after all those who are of the sub standard class and that may have a vagina aren’t worthy to sue as they wouldn’t recognize the high standards that Malibu/X-Art put into the production values of over 18 models rolling around in Colette and Brigham 16 million dollar palace of smut while the artistic values are captured.

      Dont lose too much sleep Maurice, after all I am sure your constant reassurance of righteousness of the porn troll lawsuit model and the cash from the criminals who dare to violate the copyright belonging to the smut films that Collette and Brigham have a labor of love for is not lost on the public and their fellow smut peddlers in the adult community.

      Colette and Brigham must feel reassured that their fellow Smut peddlers are viewing their valiant struggle against the criminals who download such high quality smut are leading the charge against good and evil while struggling to stay afloat because piracy has so devastated their business model that they had to scale down and live in that 16 dollar mansion, I can only vision the horror on Colette face when Brigham informed her of the tragic news of how piracy has effected them and how they were going to have to cut back to save and continue on making artistic smut that would stand above the regular smut that the low class adult film makers around them produce and sully’s their creative minds.

      I would write more on this issue Maurice but your touching defense of the smut film making tag team duo of Colette and Brigham has left me at a loss for words. I am sure right now adult webmasters and content producers everywhere are passing the hat to make sure that Brigham and Colette can survive and stay financially afloat until those criminal who download their infringing smut can be found at their homes and their families and neighbors informed of the atrocities they are committing against the smut community and punished financially for their evil deeds against such a creative force that Colette and Brigham are in pursuit of bringing purveyors of porn the highest quality smut 9.99 can entitle a person to.

      Well done Maurice, well done.

    • Anonymous says:

      Was wondering when you were going to show up to defend the questionable practices, and was not disappointed. Of course it’s relevant to ask how pornographic films are made. Have you forgotten that Malibu Media films in Germany were already ruled to be undeserving of copyright protection? And was it not so long ago where Malibu Media made use of Exhibit C, which was ruled to be “beyond anything remotely relevant to the merits of the case”?

      You wish you were a judge, Morry. You will fight to the death so that Brigham and Colette can harass anyone unfortunate to lay in their warpath, but whine and whinge whenever it is suggested that anyone else have the same licence to do so.

      Stick to the gay music, Morry. Defending pornographers is clearly not your thing.

  3. Paul Overhauser says:

    This is scary – from slash dot

    Rightscorp Pushing ISPs To Disconnect Repeat Infringers
    Posted by Unknown Lamer 5 hours ago

    Torrentfreak acquired slides from the Anti-Piracy and Content Protection Summit indicating that Rightscorp wants ISPs to disconnect repeat copyright infringers, and that 140 small ISPs are already doing so. From the article: Christopher Sabec, CEO of Rightscorp, says that they have been in talks with various Internet providers urging them to step up their game. Thus far a total of 140 ISPs are indeed following this disconnection principle. … By introducing disconnections Rightcorp hopes to claim more settlements to increase the company’s revenue stream. They offer participating ISPs a tool to keep track of the number of warnings each customer receives, and the providers are encouraged to reconnect the subscribers if the outstanding bills have been paid. … Cutting off repeat infringers is also in the best interests of ISPs according to Rightscorp, who note that it is a requirement for all providers if they are tomaintain their DMCA safe harbor. The presentation slides seem to indicate that Rightscorp is planning to go after the safe harbor protections that ISPs are given under the DMCA in order to force the issue.

    • Jane Doe says:

      Once people realize they are being spied on, they’ll pay for encrypted VPN service.

    • that anonymous coward says:

      Because allowing private corporations to bypass the law isn’t totally a horrible idea.
      There is a legal system, there are laws, they were never intended to allow random demands to be sent. If the law is broken, file a case… one notes their entire business model is built on not using the courts, but pretending the law is on their side. Using the illusion that the law would totally support them so you should just do what they want… yet I bet if any of the ISPs actually pushed back RightsCorp would run. Having to prove their secret magic box works is their worst nightmare.

  4. Jane Former Doe says:

    When do Cisco and Verizon take responsibly for their wireless equipment that has security flaws and can be easily hacked even when password protected?

    I terminated my service with Comcast after being falsely accused of infringement by Malibu Media. Although I was falsely accused years ago, it was obvious at that time that joinder conspiracy was absurd. Comcast should have fought this and not left it up to their customers to defend themselves. As a consequence I have decided high speed broadband Is simply not worth the risk. DSL or high speed dialup is perfectly fine for my needs.

    The answer to flop movies, and terribly boring porn producers who seem to have difficulty turning a profit is the pot of gold copyright law provides to terrorize individuals and families into paying out settlement demands that are less than cost of litigation to prove innocents and risk the uncertainty of the legal system.

  5. […] Malibu seems to have given up on the “expanded surveillance” strategy, a weekend post on the Fight Copyright Trolls blog suggests that the company still wants to dredge up […]

  6. WDS says:

    Just saw on Ars that this case settled with a non-disclosure after the hearing on the IPP discovery issues.

    • Anonymous says:

      And that’s why Malibu Media’s copyright troll will be around for a long time. Any time anyone gets close to discovering the truth they settle. Now they’ll learn from this (just like they did with Fantalis) and adapt. The only way to beat these guys is to have someone say to Lipscomb, “It’s not about the money. I’m taking this all the way based on principle you douche-bag.” Too bad we’ll never see it. MM has enough money from all the trolling to silence anyone.

  7. […] Over at FightCopyrightTrolls.com, they noticed that Malibu is demanding one defendant in a file-sharing case answer the following questions: […]

  8. […] many times in the past: the crooks want to know everything about the defendant (including his/her purported porn habits), but when it comes to production of plaintiff’s relevant information, all we see is desperate […]

  9. […] Takie pytania padły m.in. w ramach sprawy Malibu Media vs Jason Pontello. Znajdziecie konkretne pytania w dokumentach sądowych. Problemy związane z zadawaniem takich pytań dokładniej opisał serwis Fight Copyright Trolls. […]

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