Archive for the ‘Lipscomb’ Category

A couple of months ago I wrote about an interesting development in Michigan (Malibu Media v. Gerald Shekoski, MIED 13-cv-12217). When it came to discovery, the defendant’s attorneys, Derek W. Wilczynski and Lincoln G. Herweyer, were reasonably distrustful to the prospect of porn trolls rampaging through the defendant’s hard drive, accessing sensitive information and other files that have nothing to do with the plaintiff’s pornography.

Defendant would have to essentially trust [Malibu]. Yet, pornographers with an industry-sized litigation practice of coercing settlements from blameless individuals do not instill the confidence necessary to such trust.

Mr. Wilczynski wanted to engage a local independent expert to avoid a fishing expedition that would result in blackmail based on findings of possible unrelated wrongdoings.

As we will shortly see, the defense’s fears were all but unfounded.

Blackmail

While Judge Victoria Roberts didn’t agree to an independent expertise, she was apparently wary of the defense’s concerns and wrote a compromise order. Although she ordered that the hard drive examination would still be performed by Malibu’s own expert Patrick Paige, she set very strict safeguards:

If the examination does not reveal evidence of the copyright infringement alleged in the complaint, and if there is no evidence that infringing files have been deleted, Malibu Media will dismiss its claims against the Defendant. Malibu Media must report the results of the forensic examination immediately to counsel for the Defendant.

The order was issued on 7/21/2014, and it seems that the drive examination was performed shortly after that. Apparently, neither XArt’s smut nor evidence of spoliation was found. Nonetheless, in violation of a clear language of the order, plaintiff’s lawyers not only didn’t dismiss the case, but were concealing the results from the defense for more than a month:

On September 11, 2014, Plaintiff’s counsel, by omission, made Defendant’s counsel aware that the forensic examination of Defendant’s hard drive had not revealed evidence of the copyright infringement alleged in the complaint, and had not revealed any evidence that the infringing files had been deleted. However, instead of directly confessing the same, Plaintiff’s counsel stated that Plaintiff’s expert had found evidence of unrelated possible copyright infringement of a completely different than that at issue in this case.

Here is the defendant’s motion (for permission to file motion to dismiss and/or to dismiss with liability for attorneys’ fees):

 

As we read through, we can see that our trolls started a nauseous blackmail campaign despite the absence of any evidence that XArt’s smut was ever located on the defendant’s hard drive. Here is Nicoletti’s email threatening the defendant with sanctions, offering a walk-away with unacceptable terms:

 

Nicoletti
Porn troll Paul Nicoletti

What did the trolls try to leverage? Apparently the fact that the defendant’s daughter used to share music using popular free peer-to-peer software LimeWire, which took place… 5 years ago, when she was a minor. In addition, Nicoletti/Lipscomb claim that the defendant lied when answering an interrogatory about his knowledge of this fact.

First of all, Mr. Nicoletti, let me educate you, an ostensive IP attorney: the statute of limitation for copyright infringement is three years.

Secondly, as for the false statements (of not knowing that a file-sharing software was installed), the threats are beyond douchy as they suggest that the defendant should have actively policed his daughter’s computer usage.

Thirdly, the fact of buying a new computer as an evidence of wrongdoing is not even a stretch, it’s a fiction.

And finally, I challenge you to find a then-teen who either didn’t use LimeWire or didn’t know someone who did: not only it was extremely popular, it was perceived legal by the majority of its users before it was shut down by the music industry in 2010. We don’t have to dig too deep to find a good example of an innocent infringement of this sort: plaintiff’s co-owner Colette Field publicly acknowledged pirating music using a similar peer-to-peer system Napster in the past.

You know when I was 19 years old I used to download from Napster and I didn’t even know it was wrong. And then I saw some lady getting sued for $30k and I realized what I was doing was illegal and I stopped. I joined itunes, I pay for my music, I pay for Sirius. Why should people not pay for what we spend most of our time and money making. I want to get out the message that I learned about Napster, can you understand that? Thank you for reading. ~ Colette from X-Art

So, why not to blackmail your own plaintiff, Mr. Lipscomb? Obviously, she is quite capable of paying — despite her laments about evil pirates destroying her business, XArt reportedly declared more than five million dollar revenue on its 2013 tax return.

Where are you, Mr. Lutz Paige?

Basically, Lipscomb/Nicoletti/Paige violated every paragraph of the 7/21 court order.

The judge was not happy, and after a short telephone conference on 9/16/2014, she gave our trolls one more chance (or a rope?) to do what the previous order unambiguously said:

Patrick Paige must supplement his affidavit by September 23, 2014. The affidavit must answer the questions: (1) Did Mr. Paige find evidence of copyright infringement as alleged in the Complaint? (2) Did Mr. Paige find evidence of deletion of infringing files?

On 9/23 however, Malibu filed a motion for extension of time for one day, claiming that

2. Because of a clerical calendaring error, Plaintiff did not notice the deadline until after business hours, which made it impossible to secure the supplement from Patrick Paige.

3. As such, Plaintiff requests one (1) additional day for Patrick Paige to supplement his affidavit.

Well, no matter how phony this excuse sounded, the judge granted a one-day extension, as asked: no more, no less. Since then — silence. At the time of the writing, i.e. four days after the extended deadline, no affidavit can be found on the docket. I bet that the crafty young lawyers at the 2 South Biscayne Drive are still restlessly brainstorming a graceful exit from this Prenda-like situation.

I can’t help drawing a parallel with the games Prenda played in the Minnesota and California courts when the purported boss of bogus corporations Mark Lutz was ordered but failed to appear in judges’ courtrooms.

 

This is not the first time when Lipscomb & Co threatens an obviously innocent person. One of the most egregious examples is Malibu Media v. Pelizzo, a case that is currently on appeal.

Given the Kafkaesque disconnect between actual and statutory damages in the Copyright Law and the general hostility of the judicial process to an individual, it is quite disgusting when trolls twist defendants’ hands even based on more or less plausible proof of wrongdoing. It is way more troublesome when porn trolls behave as Mafia and attempt to extort money from people who haven’t wronged the plaintiff in any way.

Update

10/6/2014

Today we finally heard from the court. Judge Roberts issued an order granting defense’s request to file a motion to dismiss and for fees (reminder: the judge put a moratorium on motions, and the motion featured above was technically a request to leave to file a motion to dismiss). She also set the reply-response schedule:

1. Plaintiff’s Motion to Dismiss must be filed by: 10/16/14
2. Defendant’s Response Brief must be filed by: 11/10/14
3. Plaintiff’s Reply Brief must be filed by: 11/20/14

The absence of Paige’s supplement on the docket is puzzling: I guess this issue was discussed during the 10/2 phone conference and the trolls seemingly got away with breaking the judge’s order. This time.

Would you hire an attorney who is afraid to pick up the phone when an opposing counsel is calling? Me neither.

Last week I was happy to find out that Jason Sweet for the first time appeared on behalf of a defendant in one of the myriad shakedown cases filed by Guardaley / Keith Lipscomb “on behalf” of a hardcore pornography purveyor X-Art/Malibu Media.

There was a good motion to quash subpoena filed in Malibu Media v. John Doe (OHSD 14-cv-00493) on 8/22/2014. The crux of the argument is, in my opinion, bulletproof: if the Doe is represented and his/her attorney is willing to accept service and otherwise be a buffer between the plaintiff and the defendant, there is no need for Lipscomb to prematurely know the defendant’s identity. Hence, the subpoena is moot.

The most interesting part of this motion, however, is Exhibit A — the email exchange between Jason Sweet and Malibu’s Yousef Faroniya.

The leitmotif of this exchange is the defense’s repeated attempts to establish a dialog and Faroniya’s irrational fear of the telephone. This eyebrow-raising behavior made Sweet believe that it was not actually Faroniya who was on the other side of the conversation:

Atty. Sweet, counsel for the Defendant, first reached out to Malibu Media’s counsel on July 31, 2014 to inquire about a possible settlement. From the outset, Malibu Media’s counsel refused to speak via the phone, requiring communication via email—which left Defendant’s counsel dubious as to who he was conversing with.

Looking at the style of the writing, I rather think that it was indeed Faroniya, but I can’t vouch for that. I think that it was Faroniya because: first, I have not seen this style in the writings by his bosses from the Miami Troll Central; secondly, a snarky attempt to lecture an attorney who was instrumental in Prenda’s demise is a hallmark of a young arrogant prick such as Yousef.

Just look at this:

The language in this Complaint has been attacked by dozens of defendants and Malibu Media has never lost a motion to dismiss. The case law on this is extensive. If you feel that you have an angle that could result in dismissal prior to ISP discovery on all the Malibu Media cases, then nothing I can say will dissuade you from eventually doing so. It is my strong belief that you will fail in this pursuit, and the costs incurred by Malibu in defeating your motions will eventually be borne by your clients.

Compare this overconfidence to the arrogance of infamous John Steele: here is one of his comments on this blog at the time his racket was going smoothly:

When Freetards file their silly MTQ. and they keep getting rejected, its [sic] because your [sic] telling the judge, “Judge I know you looked at this case, and issued an order. But let me tell you (in a completely conclusory, non-legal argument) why you are a fool that made a mistake. Here is a news flash, the judges know from day one all about our cases, and have spoken amongst themselves about these cases in judicial conferences. They know when they sign a discovery order what it means.

I’m sure that sooner or later we will laugh at Libscomb’s young crafty attorneys’ hubris as we laugh at Steele’s today.


Copyright troll Yousef Faroniya
is looking at the phone with fear

Later in the email chain we see threats of sanctions (of course! — threats is the language of extortion) over Sweet’s alleged interference with subpoena — a controversy that would be easily resolved if Faroniya overcame his phobia and picked up the damn phone.

And finally,

[...] once Defendant’s counsel began asking pointed questions, Plaintiff’s counsel ceased any meaningful communications.

Note that during the course of correspondence, the plaintiff kept attempting to learn the defendant’s identity: as I understand, to figure out if the Doe is capable of paying the ransom.

 

It is hard not to admire Booth Sweet’s style:

The settlement demand:

As you can see in Plaintiff’s Complaint, your client infringed a total of 30 separate works. Plaintiff is willing to settle for $22,500 (750*30). My client believes this is a fair offer given the $2250 per work decisional authority in the Malibu Media Bellwether case.

…was met with a counter-offer:

My client is willing to pay $449.95 — the cost of filing the Complaint and a one month subscription to Plaintiffʼs website.

While chuckling over this hilarity, I want to note that Jason Sweet is too generous: X-Art subscription with unlimited downloads is only $19.95 per month now, and if a subscriber gets bored with repetitive scenarios (or, more precisely, the lack thereof) and cancels the subscription, he is offered a promotional rate of $9.99, or 1.8 cents per flick if the subscriber has enough bandwidth and desire to download them all, a long shot from $750 the trolls demand, much less than $150,000 they threaten with (0.0024% and 0.00001% respectively). This is the travesty of the freedom to choose statutory damages even when they parsecs apart from the real ones.

Update

9/29/2014

The appearance of Booth Sweet understandably alarmed the trolls. On 9/12/2014 Lipscomb filed a long and winding opposition to the motion to quash discussed above. The entire opposition is rather a laughable attempt to legitimize Malibu’s abuse of the court system.

Of course, the trolls employed an appeal to emotion — a tearful story of poor pornographers who can afford neither Bugatti nor a castle in Nice and doomed to languish in a 16-million Malibu mansion and hide their Ferrari from the neighbors in shame — all because of evil, evil pirates. In addition, Lipscomb never fails to brandish the bellwether trial myth.

Jason Sweet’s 9/26/2014 reply was, as expected, sharp and fun to read. It starts with the debunking of the said myth:

As an initial matter, Malibu Media often touts the aforementioned “bellwether trial” to distinguish itself from other copyright trolls. Invariably though, they overstate the significance of what has been described as little more than a show trial, and avoid mentioning the facts that led to it.

…and proceeds to thoroughly expose Lipscomb’s poor argument why he needs the defendant’s identity when the defense counsel is ready to accept service. More than once Lipscomb affirmatively stated that the express purpose of the subpoena is to serve the defendant. While the troll was lying, his words nonetheless ricocheted.

Malibu Media has not been honest with the Court. It pushed for expedited discovery on the grounds it was necessary to complete service, but when presented with an alternative method — namely, serving the Defendant’s attorney — it refuses to effectuate service.

Instead, we learn that Malibu Media seeks the information not to serve the Defendant, but rather so it may conduct an unfettered assessment of the strength of its case and ostensibly, the assets of the Defendant before proceeding any further. Neither instance falls within the intended purpose of expedited discovery or the Copyright Act.

 

Update 2

10/03/2014
The trolls are seriously scared by the prospect of creating a precedent that courts would allow serving an anonymous defendant through his/her attorney. So on 10/3/2014 Lipscomb & Co filed a motion for leave to file a sur-reply claiming that Jason Sweet raises new arguments in his reply. It is both sad and funny that paragraph 6(A) is exactly the argument that Prenda’s racket was largely based on, namely that defendant has no standing to question the subpoena:

[...] Further, Defendant does not have standing to raise this argument because he is not facing any inconvenience, burden, or expense. Indeed, the ISP is the one responding to the subpoena and they have not objected to compliance. [...] (“The Sixth Circuit has observed that ‘[o]rdinarily, a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action unless the party claims some personal right or privilege with regard to the documents sought.”)

Sounds familiar?

Yesterday defense attorney Francisco Ferreiro appealed a federal court’s decision denying attorney fees in Malibu Media v. Leo Pelizzo (FLSD 12-cv-22768).

To the best of my knowledge, this is the first appeal (CA11 14-11795) of a court decision in a Guardaley-driven lawsuit. M. Keith Lipscomb and its “client” X-Art are slowly but surely following Prenda’s footsteps. Prenda’s appellate experience so far was a total disaster for its disgraced attorneys, and I hope the same fate is awaiting Keith Lipscomb, Michael Hierl, Paul Lesko et al (the list is depressingly long).

To refresh your memory, the Pelizzo case was probably the most disgusting porn troll’s assault on an innocent citizen. 100% knowing that Mr. Pelizzo had absolutely nothing to do with the alleged infringements, Lipscomb continued twisting the defendant’s arms for months.

The apogee of douchebaggery was an email to the defense counsel (again, keep in mind that at that time Lipscomb knew with absolute certainty that the defendant is innocent):

[...] 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.

The reason behind this stinky vitriol was the defense’s rather modest request for attorney fees. While making millions on selling out his compatriots to the German Mafia, Lipscomb went postal over about five thousand dollars.

Why didn’t Lipscomb cut and run earlier, as soon as he realized that he targeted a wrong person, when hostilities didn’t go that far and when it was much cheaper to buy his way out of the looming PR disaster? I have no idea. I can only speculate that he thought that admitting a mistake would endanger his future shakedown activities, or the enormously swelled ego of our insecure ostensive Christian was the actual decision maker.

Unfortunately, Judge Patricia Sietz only partially granted attorney fees to the de-facto prevailing party — defense. The defendant didn’t think it was fair, hence the appeal:

 

While federal judges continue buying copyright troll’s lies and closing their eyes to the obvious fraud, I want to believe that appellate judges think not only about following the letter of the law, but care about its spirit, about the negative societal impact of decisions made by the lower courts.

I wish Francesco Ferreiro and his client to prevail.

Update

9/16/2014

On 9/15/2014 the troll filed the appellee’s brief and a motion for attorney fees (which is unusual and inexplicably douchy, IMO).

tl;dr: Lipscomb is a good guy who didn’t shake down a clearly innocent person over barely legal, illegally produced pornography. Even more, Keith went to great lengths to save defendant’s money (furthering the purposes of the Copyright Act in the process)! On the other hand, Leo Pelizzo and his counsel Francisco Ferreiro are bad guys who have been trying to shake down our paragons of ethics by frivolously multiplying proceedings. Well… Hypocrisy is a bottomless pit.

 

Update 2

10/9/2014

Today Francisco Ferreiro filed defendant’s response in opposition to Appelee’s motion for attorney’s fees and costs.

There are many good responses to copyright trolls’ activities these days. This opposition to Malibu Media’s attempt to game the courts by filing a last-minute motion for enlargement of time to complete discovery caught my attention for the reasons described below, especially the last one — the one that gave the title to this post.

The motion was filed on 8/4/2014 in Malibu Media v. Eric Siegel (PAED 13-cv-06252) by a New Jersey attorney Darth Newman.

Protective order gamesmanship

First, Mr. Newman describes a painfully familiar Lipscomb’s modus operandi: trolls drag their feet till the last moment (often declining defendant’s offers to examine his/her hardware), and then suddenly request an extension. Rinse, repeat.

This case wasn’t different:

The Court’s April 25, 2014 scheduling Order set forth a bifurcated discovery plan whereby Malibu was obligated to complete certain discovery, primarily focused on Mr. Siegel and his computer hard drives, before moving on to the expansive third party discovery initially sought by Malibu. Malibu has failed to timely pursue even this first category of discovery.

In the several months since the initial conference, Malibu has only pursued document requests and interrogatories, to which Mr. Siegel provided timely responses.

Then, what supposed to be simple protective order negotiations, turned out to be a delay tactic: Malibu kept insisting on unacceptable terms:

On July 14, Mr. Fiore finally sent an alternative protective order but this draft was both limited to the examination of Mr. Siegel’s computers and purported to expand the materials Mr. Siegel had agreed to produce to include his tenant’s personal property. The July 14 draft failed entirely to protect Mr. Siegel’s confidential and personal information.

One-way discovery

We witnessed 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 attempts to obstruct the due process.

Not only has Malibu been slow with respect to making discovery requests, it has also been sluggish to respond fully to Mr. Siegel’s discovery requests. Mr. Siegel propounded requests for documents and, although it timely responded, Malibu interposed a number of frivolous objections and seemingly arbitrary limitations on the materials it would agree to produce.

Malibu offered to produce some documents and counsel have traded correspondence about Malibu’s objections and limitations, but, to date, the only documents Malibu has actually produced are copies of copyright registrations which are publicly available online.

Jessica Fernandez
Porn troll Jessica Fernandez
A side note: who is in charge?

If you look into the Exibit A (email correspondence between Malibu’s local Chis Fiore and Darth Newman), you will find yet another proof that Fiore is simply a pawn: he merely forwards documents to and from the Troll Center (Lipscomb’s associate Jessica Fernandez curated this litigation):

 

Where is the evidence?

The apotheoses of plaintiff’s thuggery, and the fact that prompted this post, was the admission that the troll don’t even have the most critical information handy:

Malibu agreed to produce a limited portion of the electronic materials it intends to rely on to prove its case but has indicated that doing so will take an additional four weeks. Did Malibu not have this information when it filed suit?

Read it again and try to believe your eyes: these charlatans file lawsuits en masse indiscriminately and don’t even possess the information that forms the basis of their cases:

In particular, Malibu agreed to produce a subset of the data it claims shows Malibu’s investigator’s alleged connection(s) to Mr. Siegel’s IP address and the data allegedly downloaded from Mr. Siegel. This data forms the basis of Malibu’s case and Mr. Siegel and his expert(s) must have a fair opportunity to analyze all of it.

In my opinion, this is yet another visible sign of a gross abuse; it is very frustrating that courts around the country continue to swallow trolls’ bluff so eagerly.

The reason I use the word bluff is in part premised on recent events in a case involving another Guardaley-driven lawsuit, Elf-Man v. Lamberson (WAED 13-cv-00395). It appears that the trolls in that case simply don’t have any incriminating data beyond a TCP/IP handshake and transmission of a part of a movie that is shorter than an average wink. It is not a big stretch to suggest that the same game is being played here. Moreover, no one ever saw any Guardaley’s evidence: all we saw was a smokescreen of “PCAPs,” “WORM tapes” and “German government issued timestamps.”

There is simply no valid reason why producing the most essential evidence can take an entire month. Not only is the king naked, he doesn’t even wear sunscreen to withstand the sunlight of even a casual scrutiny.

 

Copyright shakedown is a disease that affects a vital organ — federal courts, and we are currently in the midst of an epidemic. Some virus mutations, like Prendavirus, have been successfully contained, but currently there is no effective cure against another family of viruses that originated in Germany (especially Libscombema palladium).

Some areas of the US are affected the most: Illinois, Pennsylvania, Colorado… Yet others, as we will see in a moment, try to maintain a good hygiene, and although it is impossible not to get sick, those who at least understand the pathogen’s potential harm and think about the ways to contain the illness, are better off.

M. Keith Lipscomb (via its NJ agent Patrick “Moving Lips” Cerillo) started contaminating New Jersey district in June after a year-long lull (since 8/5/2013). 27 cases were filed on June 17-20, another batch — 19 cases — were initiated on July 10-11. What’s interesting, the judges kept silence for more than a month: in other jurisdictions requests for ex parte discovery are usually rubberstamped in days.

Tonianne Bongiovanni
US Magistrate Judge
Tonianne Bongiovanni

Today we saw the first order, which, alas, has granted the discovery request, but with a twist. When the order starts with

Once again, a veritable orgy of lawsuits involving the alleged infringement of Plaintiff’s copyrighted material have been filed in this Court,

trolls should know that the joy ride to the US citizens’ pockets won’t be quick and easy.

Magistrate Tonianne Bongiovanni‘s concern is well articulated:

This Court has generally granted these types of motions in the past, in many instances simply rubber-stamping the requests. However, since the first round of filings approximately two years ago, courts in this District as well as around the country have grown warier that allowing copyright holders access to all the information requested in Plaintiff’s Motion could result in abusive litigation tactics because of the potential embarrassment defendants could experience given the nature of the copyrighted work.

While the judge reluctantly partially granted the subpoena request (and the blame for it should be placed on lawmakers, not on judges like her), a clear message was sent: pornographers and their greedy lawyers are not very welcome in New Jersey.

I hope some defendants will give a good fight, which should be a bit easier in hygiene-wary New Jersey than in jurisdictions heavily affected by Libscombema palladium.

 

This development in one of the porn trolling cases — Malibu Media v Gerald Shekoski (MIED 13-cv-12217) — is not too dramatic, yet interesting.

Defendant’s motion for protective order regarding his hard drive

This motion was filed on 7/2/14 by attorneys Derek W. Wilczynski and Lincoln G. Herweyer on behalf of the defendant who claims absolute innocence. While not opposing to his hard drive examination in principle, the defendant was justifiably concerned about possible fishing expedition to his sensitive data. The plaintiff (Keith Lipscomb / Paul Nicoletti) insists that the drive examination should be performed by its expert Patrick Paige, whose reputation was tainted by his sloppy (and maybe even deliberately biased) declaration in Malibu Media v. Kelley Tashiro (INSD 1:13-cv-00205). In addition, given the overall infamy of the shakedown artists, the defendant reasonably doesn’t trust that the forensic analysis will be performed honestly and that unrelated data found on the drive won’t be misused to press the defendant to settle:

From Defendant’s perspective, however, the procedure contemplated by Plaintiff is needlessly invasive and lacks adequate safeguards, among other problems. In truth, Defendant welcomes another opportunity to demonstrate that he did not engage in peer-to-peer file sharing of Plaintiff’s works, and fully expects that a forensic examination of his computer’s hard drive will bear witness to that fact.

[...]

Moreover, Defendant understandably distrusts the particular persons who want to subject his confidential information to such exacting scrutiny. Defendant does not have the resources to monitor Malibu or IPP (the German IT firm on whose work Plaintiff’s case is based) and hold them accountable should they violate the protective order contemplated by Plaintiff. Instead, Defendant would have to essentially trust them. Yet, pornographers with an industry-sized litigation practice of coercing settlements from blameless individuals do not instill the confidence necessary to such trust. Nor does a foreign IT company that may be a shell for a previously discredited firm instill such trust. While Plaintiff may be heard to shout its own bona fides, one must remember that Defendant knows that he did not infringe Plaintiff’s copyrights and, therefore, he knows that Plaintiff is the kind to sue innocent people and attempt (from his perspective) to extort money from them.

So, the defendant wants

[...] the moral equivalent of an in camera inspection of his computer’s hard drive, by using a licensed but neutral expert in computer forensics (paid for by Plaintiff) who can provide the information to both parties that is relevant to Plaintiff’s claims, but who will not otherwise divulge the contents of Defendant’s computer to Plaintiff or anyone else.

…and he wants a local expert, arguing that

[...] in Michigan those who engage in computer forensic investigations for a fee must be licensed, and doing so without a license is a felony punishable by up to four years in prison.

 

Order on this motion

US Federal Judge
Victoria A. Roberts

Today Judge Victoria A. Roberts ruled on this motion, and while she ordered to hand out the mirror of the defendant’s hard drive to Malibu/Paige, she agreed with the other safeguards that the defendant asked for (emphasis is mine):

Counsel for Malibu Media is to supply defense counsel with copies of protective orders entered in similar cases pending in this district, to be used as models in fashioning this protective order. As basic parameters, Defendant is to provide a mirror image of the hard drive at issue to Malibu Media, at Malibu’s expense, as soon as the terms of a protective order have been agreed upon. The protective order will specify the material that Malibu’s forensic expert is looking for; anything else on the hard drive is off limits for discovery purposes.

[...]

If the forensic examination does not reveal evidence of the copyright infringement alleged in the complaint, and if there is no evidence that infringing files have been deleted, Malibu Media will dismiss its claims against the Defendant.

 

Like the defendant, I do not trust anyone associated with Lipscomb’s division of Guardaley. Therefore I’m not confident that the crooks won’t find a way to maintain the lawsuit, ramping up the legal costs and increasing the pressure to settle, even if no evidence of infringement is found.

Nonetheless, this is a welcome development and good news amid the ongoing legal epidemic of copyright trolling. At least this defendant will avoid embarrassing questions about his purported porn habits, and his Internet bandwidth usage won’t be a subject to Orwellian insinuations.

Followup
Many things happened recently on the Bittorent litigation front. While the majority of the events don’t warrant dedicated articles, these events are all important.

Updates to previous posts
Copyright troll Malibu Media targets a business, but fails to timely serve it
M. Keith Lipscomb

Alas, in this case, where Malibu targeted a business and played games with service, a motion to cut and run without prejudice was granted by Judge Michael Mason on 6/30/2014 — contrary to the defendant’s earlier request for dismissal with prejudice, which would allow to recover attorney fees. Paul Nicoletti’s 6/27/2014 response to the defendant’s motion is an epitome of the cynical exploitation of the judicial system’s blemishes by the troll. Unless the system is modified to lower the bar of accountability for legal yet disgusting practice of cutting-and-running, while leaving innocents with huge legal bills, the abuse will continue to flourish.

If this middle-finger-behind-the-back thuggery doesn’t make your blood boil (or at least prompt an acute desire to take a shower), I can only envy the thickness of your skin (emphasis is mine):

[...] a voluntary dismissal with prejudice in this case would be grossly unfair. Plaintiff never served the Defendant, which is a small closely held business. The infringer is an employee or owner of Defendant. If the case was dismissed with prejudice, it would arguably make Defendant the prevailing party and trigger a motion for attorneys’ fees. Awarding fees to Defendant would be unfair because it is likely than an owner or employee of Defendant committed the infringement. Further, such award would deter these types of suits and reasonable investigations, which would be contrary to the express purpose of the Copyright Act. And, Defendant has not prevailed on any issue in this litigation, no discovery has been taken, and the underlying copyright litigation is not being decided on the merits. Finally, Plaintiff intentionally did not expose itself to a motion for fees as evidenced by Plaintiff’s decision not to serve Defendant. Instead, Plaintiff tried to identify the culpable employee within the Rule 4(m) deadline. It could not do so but Plaintiff’s investigation continues.

Elf-Man v. Lamberson: defendant agrees to let plaintiff go… for $100,000

Without waiting for Elf-Man’s reply brief due next Friday, Judge Thomas Rice ruled on the dismissal on 7/10/2014. The judge expressly declined to award the costs and fees as a condition of dismissal, citing authority that a sanction cannot be a condition of a dismissal. The good sign is that the judge explicitly invited defense to file a motion for fees and costs before August 24, so I expect it won’t be denied, yet can’t predict what the exact amount Judge Rice will find reasonable. Also note that Lamberson’s counterclaims are dismissed without prejudice.

[7/15/204 Update] DieTrollDie’s analysis.

Copyright trolls are back in Virginia. Jon Hoppe has a reading comprehension problem

In 17 out of 19 Malibu Media cases filed in Virginia on 6/11/2014, Jonathan Hoppe’s pro hac vice application was granted, which is a clear violation of the Virginia State Bar Rule 1A:4(5), allowing an out-of-state attorney to appear in no more than 12 cases simultaneously. I’m sure that the first Doe who files an answer/motion to dismiss will convey this evident violation to the judges.

Mark your calendars: Malibu Media is set to defend its questionable conduct on July 30

As predicted, Lipscomb applied for pro hac vice admission in Maryland — in all the three cases where Morgan Pietz’ bunker buster motion will be heard on 7/30/2014 — an expected trollmageddon before the panel of three judges.

Déjà vu all over again: Pure Bill of Discovery is still being abused in Florida

The zombie of Florida’s antiquated Pure Bill of Discovery is back in its grave (for good?): attorney Cynthia Conlin brought good news on 7/10/2014: the only known Pure Bill Of Discovery case (Canal Films v. Bright House Networks) aimed at unmasking purported file-sharers without due process was voluntarily dismissed after she filed a motion to vacate judgment, and the ISPs moved and applied further pressure.

In other news
  • Malibu Media, the most active Guardaley’s Erpressungdivision, filed 60 new cases over the last week:

     

  • An interesting bit of information: seemingly, Charter Communications is fed up with trolls. According to some motions for extension of time to shake down defendants filed in Michigan by Paul Nicoletti on Friday,

    [...] Charter has objected to Plaintiff’s subpoena. Plaintiff is in the process of preparing a Motion to Compel Charter’s responses which will be filed in the district in which Charter is located, the Eastern District of Missouri.

  • In a closely-watched case Malibu Media v. John Doe (ILND 13-cv-03648), where the defendants’ 2257 affirmative defense survived the motion to strike (hence opened the avenue of discovery that was so far off-limits), Malibu and its lawyers show signs of fear, trying to restrict expectedly devastating discovery results to this case only and to ban Morgan Pietz from sharing the obtained evidence with other Does he represents in numerous Malibu cases.
  • A new cynical statement was made by Nicoletti in Malibu Media v. Jesse Raleigh (MIWD 13-cv-00360):

    Defendant should bear the cost of producing forensically sound images of his hard drives because the hard drives are accessible and the imaging process does not impose an undue burden or expense.

    As Raul nicely noted,

 

Thanks to Raul and Calvin Li for mundane yet critical job of finding and recapping the most interesting documents.

Update

7/14/2014

Update to updates? What am I doing??? Just thought you would enjoy the following document:

 

Can granting a motion for default judgment be a benchslap at the same time? Apparently.

Seeing people punishing themselves by not replying to trolls’ accusations makes me sad, very sad. Fighting against a collection agency or US Marshals is orders of magnitude more difficult and painful than fighting against porn copyright trolls. Every month we witness more than one default judgment, and the awarded amounts are Kafkaesque: a yearly income worth of fines for allegedly sharing a bunch of cheap porno flicks is an insult to the US Constitution (I’m talking about the Eight Amendment).


US Federal Judge
Robert H. Cleland

Yet this time, reading Judge Robert H. Cleland’s order issued back in October 2013 (Malibu Media LLC v. Lara Dupius, MIED 13-cv-11435), I couldn’t suppress a laugh. It was clear that the judge, while being bound by law, so he couldn’t deny the motion (which is 100% understandable), expressed certain disgust towards Malibu’s “counsel” Paul J. Nicoletti.

As a result, the amount defendant ordered to pay is 3 times less than the trolls demanded, an absolute statutory minimum: $750 per “work” times 20¹ = $15,000 total.

And it’s getting better as we keep reading:

[..] Malibu is awarded attorney’s fees and costs in the amount of $1,679. The court finds Malibu’s request for $2,550 (at a rate of $300 an hour for eight and a half hours) in attorney’s fees to be unreasonable—Malibu has filed hundreds of similar actions across the country and its attorney’s assertion that he spent an hour drafting what appears to be a boilerplate complaint, and an hour and twenty minutes drafting a two-page motion for default judgment strains the court’s credulity. The court further notes that Malibu’s requested attorney’s fees continually reference multiple defendants—a curious request given that there has only ever been one defendant named in this case. Accordingly, the court awards Malibu attorney’s fees for five hours at a rate of $250 an hour. See State Bar of Michigan 2010 Economics of Law Practice Summary Report, at 9 (stating that the median attorney billing rate for an attorney whose office is in Oakland County, south of M-59, is $250 an hour). The court awards Malibu its requested filing fee of $350, but reduces Malibu’s requested $95 service-of-process fee to $79 given that Malibu’s requested costs are contradicted by the record.

So the moral of this story is simple: if your job or relationship doesn’t depend on the fear that your name is dragged through the mud by the “barely legal” pornographers and scumbag lawyers, do not ignore summons, hire an experienced attorney and fight back. There are judges out there who are ripe for stopping the German plague.

Update

US Federal Judge
David M. Lawson

Right after this post was published, Calvin Li and Raul noticed a very similar order (based on the one posted above) was issued in the same district, but by a different judge — David M. Lawson — yesterday (Malibu Media v. Kurt Shelling, MIED 13-cv-11436):

The plaintiff has not made a showing that justifies statutory damages in excess of the minimum amount. The amended complaint alleges merely that the acts of infringement were “committed ‘willfully,’” Am. Compl. ¶ 32, without any factual allegations to back up that conclusion. The plaintiff is entitled to $6,000 in statutory damages for the eight acts of infringement set out in the amended complaint, Exhibit B.

and

The plaintiff’s request for attorney’s fees is problematic.

[...]

The practice here is the essence of form pleading. For instance, on the day this case was filed — March 29, 2013 — seventeen other cases were filed in this district by Mr. Nicoletti with an identical complaint. Each of the complaints is seven pages long with thirty-three paragraphs of exactly identical allegations, and the amount of statutory damages and the terms of the permanent injunction requested is the same. The only difference between the complaints is the defendant’s assigned IP address, which is later used to identify the named defendant.

 


¹Lipscomb found this “legal bonanza” when he stopped filing mass lawsuits: with Malibu’s short films shared in bundles, he can claim multiple infringements from a single alleged file-sharer. This is a “feature” of the rigid, outdated copyright law: for the purpose of the statutory damages, the blindfolded Themis equally treats a multi-million cinematic masterpiece and a cheap, plotless 10-minute flick of amateur teenagers having sex. Only the most despicable cynics exploit this vulnerability to rob the population out of hard-earned money.

Elf-Man, Elf-Man, hold it a little while,
I think I see Chris Lynch coming, riding many a mile.

Led Zeppelin: Gallows Pole, paraphrased

 

A bit less than a month ago I covered a German-linked copyright trolls’ panic — an attempt to cut and run after the defense presented a damning evidence of champerty and fraud in Elf Man v. Lamberson (WAED 13-cv-00395). As predicted, the defendant wasn’t amused by the prospect of letting the plaintiff dismiss the case and call it quits without certain conditions (namely, paying $100,000 for the trouble):

[...] Mr. Lamberson requests the court condition the dismissal on payment in advance of $100,000 pul $154.50 in allowable costs for the deposition costs charged for the Fed. R. Civ. P. 30(b)(6) deposition of Elf-Man, LLC which was noted and held, but which neither Elf-Man, LLC, nor its counsel attended.

On 7/3/2014 the defendant’s attorney Chris Lynch filed 5 (!) documents:

 

Embrace for a thorough and intriguing read. Some interesting points:

  • The defendant asserts that the copyright certificate is incomplete: a critical second page with signatures is missing (probably stolen by the ghost of Alan Cooper). Notwithstanding, the plaintiff continues to cherish its entitlement to statutory damages.
  • Guardaley and its shells (APMC, IPP International, Crystal Bay Corporation… you name it) are undeniably the real party of interest, yet this fact was not disclosed in this case as required by law.
  • No admissible evidence of the defendant’s wrongdoing exists: despite the statement by German “experts,” no one actually “observed defendant infringing” at all. All these wannabe investigators have is a half-second piece of the movie allegedly shared by the defendant’s IP address.
  • While the estranged Elf-Man’s attorney Maureen VanderMay, despite the overwhelming evidence of the contrary, still claims that she sent documents to the defense before the deadline, Chris Lynch discovered that she blamed USPS in the past. Facepalm.
  • The transcript of the APMC Prezi presentation is filed as an exhibit, the most cynical parts are quoted. For example,

    “APMC stays in the background where they are invisible, but we are the center (i.e. ‘we make things happen.’)”

    “We bring the clients to the law firms. We manage their legal strategy.”

 

There is much more in these documents, including well-described links between the parts of this German-centered racketeering organization (yes, including Lipscomb/Malibu Media/X-Art):

3. Anti-Piracy Management Company, LLC (“AMPC”) is incorporated in California, but using the address of 400 Capitol Mall, 11th Floor, Sacramento, CA 98514. That address belongs to the Weintraub Genshlea Chediak law firm. I called the Weintraub law firm to inquire about APMC and the Sacramento address. I was informed that the Weintraub law firm occupies the entire 11th floor of that building. The law firm receptionist had no contact information or forwarding information for APMC.

4. The Weintraub law firm has been a plaintiff’s attorney in other BitTorrent cases, including Camelot Distribution Group v. Does 1-5856 (not a typo), in the Central District of California, Case No. 11-cv-01949. That matter used Tobias Fieser as its witness wherein Mr. Fieser declared, ECF No. 22-1, that he was the “Technical Administrator of IPP International UG.”

5. Mr. Fieser also testified in the Eastern District of Pennsylvania in 2013 in Case No. 2:12-cv-02078-MMB, ECF No. 205, where he testified beginning at page 91 about his responsibilities at IPP in Germany. At page 97, Mr. Fieser was asked:

Q: Did anyone else at IPP, Limited verify that the movies were copies of Malibu Media’s works prior to filing the lawsuits?

A: Yes, Dan Macek also verified the movies.

Remember that Daniel Macek is explicitly mentioned in the “Devil’s cookbook” (p. 36).

I’m sure that these findings will be discussed in the oncoming hearing in Maryland. The storm is coming.

Forget the “contingency fee agreement,” the fraud is deeper than it appears

Three things cannot be long hidden: the sun, the moon, and the truth.

Buddha

 

The most important piece of the new information in Chris Lynch’s filings is sealed and heavily redacted (Exhibit B), yet the following description is more than enough (emphasis is mine):

The explanation did include an April, 2012, agreement between APMC and Vision Films that Ms. VanderMay said was part of the explanation. That agreement is filed under seal and is designated as Exhibit B to Mr. Lynch’s Declaration. Lynch Decl. at ¶ 8. Page 7 of that agreement includes redacted portions, but does otherwise indicate that any recoveries from APMC’s enforcement campaign would be allocated first to APMC’s costs, and then “the remaining monies shall be distributed as follows: (a) The appointed Attorney’s and litigation [REDACTED IN ORIGINAL], (b) The appointed forensic IT expert costs [REDACTED IN ORIGINAL], (c) The RIGHTS OWNER shall receive [REDACTED IN ORIGINAL].” In other words, it appears that APMC as the investigator and financier of the litigation has a direct and contingent stake in it.

So this is the moment of truth: this is the answer to the question why Malibu Media and other Guardaley-affiliated trolls have been stonewalling discovery aimed at untangling the web of relationships between the Germans, their lawyers and plaintiffs. When the “oral contingency fee agreement” was inadvertently mentioned in an answer to interrogatories, it was bad enough, but the reality is even more shocking: the German “investigators” are not being paid on contingency; it is them who pay lawyers and plaintiffs a fraction of the settlement proceeds. Just think about it: all this copyright law abuse, fraud, misery, ruined families and careers, bankruptcies — this grim theater is run by a foreign racket with the help from greedy puppets — American lawyers.

I used the word “fraud” deliberately. In thousands of frivolous cases that have been plaguing this country for years, not a single time a real party of interest — Guardaley — was disclosed. This gross deception won’t stay hidden from the US judges for long.

 

Related: Redefinition of “Chutzpah”: the troll moves for default judgments
David A. Lowe
David A. Lowe

Make sure to read the latest DieTrollDie’s post on this topic: DTD analyses plaintiff’s questionable motion for default judgments against seven defendants in the Lamberson’s parent case (Elf-Man LLC v. Does, WAED 13-cv-00115), including the unbelievable two separate claims against a single married couple. Well, if Elf-Man’s new attorney Mr. David A. Lowe appeared on the case in this astonishingly douchy and sloppy way while even Mrs. VasderMay bailed out from the Bittorent cases citing ethical concerns, it doesn’t require a Ph.D. to deduce Mr. Lowe’s moral and professional qualities.


US Federal Judge
Thomas M. Rose

A recent infestation of the Ohio state by the copyright troll Guardaley/Malibu Media/Lipscomb (via a local hungry attorney Yousef Faroniya) did not amuse certain judges in the Southern District. On Thursday, Judge Thomas M. Rose vacated his previous orders granting ex parte discovery in four cases (Malibu Media LLC v. Does, OHSD 14-cv-00150, 14-cv-00151, 14-cv-00183, 14-cv-00184), giving Malibu 30 days to fix the problems the judge saw (and smelled). Such things don’t happen every day; hence I wanted to write a short post (thanks to Raul for the heads up).

Judge Rose outlined two issues:

First, Malibu has not presented prima facie evidence of copyright ownership of the specific copyrights at issue. Malibu pleads that it owns the copyrights at issue in its unverified Complaint but there is no evidence from which a court could conclude that Malibu has made a prima facie showing of ownership (the Declaration of Colette Fields attached to the Complaint is invalid because it is not dated and, if it were valid, does not indicate ownership of the specific copyrights at issue).

Second, Malibu’s Complaint alleges that it has traced the allegedly infringing IP address to a physical address that is located within this Court’s venue. The Complaint later alleges that Malibu knows only the IP address and seeks to learn, among other things, the associated physical address. The Court is unclear as to whether or not Malibu knows the physical address of the alleged infringer. If it does, why does it seek to again learn it? If it does not, how was venue determined?

The latter concern was recently raised by Judge Ungaro in Florida (Malibu Media v. Doe, 14-cv-60259): she issued an order to show cause that asked exactly the same question: why Libscomb is so sure that the venue is proper. Lipscomb submitted a lengthy response — all in vain: the judge seemingly didn’t want to navigate through the weasel’s burrows and, frowning, simply dismissed the case for failure to timely serve the defendant.

 

I hope that the recent mudslide of Malibu Media cases descended on the Ohio state will prompt somewhat heightened scrutiny, and the other judges stop rubberstamping ex parte intrusions to US citizens’ privacy.