Archive for the ‘Bellwether trial’ Category

I wouldn’t call the Bellwether trial “miscarriage of justice,” because Judge Baylson’s hands were tied by the law (and that is good). Nonetheless, the baby apparently has genes of a sleazeball M. Keith Lipscomb, resulting in a hairy back and an ugly face. That means that trolls as species are not even endangered. Yet.

The sound recording was available right after the trial, and now you can read the transcript (you’ll need a bucket when you reach page 14):

Thanks to Dark Moe for the document.

Today Judge Baylson published his Report on the Bellwether trial (Malibu Media, LLC v. John Does 1,6,13,14 and 16, PAED 12-cv-02078). Nothing is too unexpected. I’ll refrain from emotions, leaving my disgust with both “barely legal” pornography genre and copyright trolls for a later post and/or comments.

I urge everyone interested in this trial to revisit the recent post’s comment section: a heated but argumentative discussion features the entire spectrum of opinions.

A couple of quick notes:

  • To Lipscomb’s delight, his outfit was declared “not a copyright troll” based on a definition that trolls are those who don’t produce content but buy copyrights or patents for the sole purpose of litigation instead. While I respect this opinion, I disagree with it: conspiring with a real producer versus procuring copyrights is only one criterion out of many, and this complex phenomenon should be evaluated accordingly. I’m working on my definition and encourage discussion to help me with it.
  • To my pleasure, the majority of Lipscomb’s scandalous wishes did not make its way to the Report. Yet I was astonished that a statement that Malibu’s servers have been “hacked twice” was included. To me this claim sounds as a sneaky maneuver to preempt accusations in Malibu/X-Art seeding of their own content (more is coming on this front: stay tuned). To the best of my knowledge, no evidence was presented to support the hacking claim.
  • It is obvious to me that Baylson is disappointed: once promising trial turned out to be a near mockery that was lacking witness cross-examination and any adversarial arguments whatsoever. A defendant who willfully destroyed evidence, lied under oath and later admitted his wrongdoings was essentially a lottery win for Lipscomb. And it was not just a run-of-the-mill win: Lipscomb “won” a jackpot. If not for the defendant’s conduct, it is plausible that the lowest statutory damages ($750 per work) would be awarded. We saw $750 default judgments in Arizona, which, in my opinion, seriously damaged troll operations in this state.
Blogosphere and media coverage

I still can’t push myself to listen to the Bellwether trial audio recordings. While I’m procrastinating, some opinions began to emerge on the web, and the chorus of those opinions is not singing in unison:

 

One particular comment to my recent post has struck me as very insightful: I simply couldn’t help making a post out of it. Thanks to the author, whoever he is.

 

By Anonymous

X-Art
The “Winning” Team:
Patrick Paige, Tobias Fieser,
Christopher Fiore,
Colette Pelissier/Field,
Keith Lipscomb, Michael Patzer

You know, I’m listening to the audio transcript, and I have to say it’s worth doing so just to hear the cringe-worthy ass-kissing of the judge by Lipscomb in the beginning. Listening to it, you’d think the bellwether trial was Lipscomb being raised to Master Mason or something. His tone is so sycophantic that even the judge, clearly embarrassed, admonishes him for his unsubtle brown-nosing. Were you not aware of how the trial was going to go, you’d almost feel embarrassed for Lipscomb. If nothing else, the transcript is worth listening to just to get a fix on Lipscomb’s voice and manner — it is plainly indicative of the kind of man he is.

As it goes on, Lipscomb’s voice is bugging me more and more — it reminds me of something.

Far different from John Steele’s vaguely simian mumble-grunts, Lipscomb sounds like the guy who got shoved into lockers and had his glasses smashed by minions of same kind of people who now run Malibu Media (or people like John Steele, now that I think about it). I don’t know anything about Lipscomb, but just listening to this transcript, you get the sense of a very small man on stilts: Now that he’s a lawyer he gets to hang out with the popular kids who once shunned him and pushed him around, and he has, in predictable fashion, taken pleasure in tormenting others as he was once tormented. No more smashing Keith’s glasses and pushing him into a locker! He runs with the cool people now and he’s finally going to experience the sublime pleasure of ruining people, and getting paid to do it.

And then it hit me: Shoeshine Boy. Underdog’s meek, milquetoast alter-ego. That is what Keith Lipscomb’s voice sounds like, to me.

Two other things, on another note

(a) Any mention of Malibu Media on blogs should always mention X-Art. People searching on X-Art should see the way they treat people — hits to this blog and others should be near the top in search hit lists. There are thousands of ways to spend money on pornography on the Internet. People ought to really consider whether enriching these people serves any purpose, given the alternatives. The tendency of pornographers to regularly conflate the “right to be compensated for work” and “destroying people’s lives because that’s how the statutes read” needs to be brought to light: they are not the same thing.

Pornographers and their advocates insist regularly that because an argument can be made that downloading porn you didn’t pay for is wrong (and illegal), that an appropriate and proportional remedy is to relegate people to debt slavery. X-Art seems to have no moral compunction about doing this and people who are going to pay for porn ought to think about, concerns about sexual exploitation aside, whether or not they want to pay sanction to people who behave this way. I sure wouldn’t want the Malibu people as neighbors, and I sure as hell wouldn’t give them my money.

(b) A lot of bad blood could have been avoided by simply sending out settlement letters asking people whose IP addresses they subpoenaed to buy a year’s subscription to their site. Not only would this have grown their subscriber base (and compensated them for supposedly lost revenues from torrenting), but maybe people would have found a subscription worthwhile and renewed it (not only for the content but for having been treated equitably).

Maybe positive word of mouth (“Good Guy X-Art”) would have attracted other people to the site as well (“Look how good our stuff is — we think a subscription is worth buying and we think you’ll agree.”). X-Art has decided to be the sleazeballs people tend to assume all pornographers are. I understand feeling like you’re being ripped off and you’re angry about it, and I understand insisting on compensation and even reasonable damages — I cannot understand a human conscience that believes wrecking lives and relationships is a just response to such relatively minor transgressions — transgressions I would add that in balance probably drive more subscriptions to your site than actually deprive you of revenue. The greatest fallacy in anti-piracy arguments comes into play here: the idea that every download represents a lost sale.

It doesn’t. It never has.

Lastly, I admit to some fascination with Keith Lipscomb’s putative religious roots. He is now being compensated to humiliate people, possibly wreck families, and even destroy people’s lives on behalf of pornographers. Even if one takes the road of principle, that people ought to be compensated for the content they produce, I wonder if he has any pangs of conscience whatsoever about completely steamrolling people for blagging one molecule out of a giant landfill of pornography that covers the Internet. I get a pang of conscience when I kill a moth by mistake or go through the express checkout aisle with one too many items — I would love to get into Lipscomb’s head for just five minutes to know what it is like to be him. His grossly exaggerated description of BitTorrent bringing on the Tortpocalypse (or something — he made some sort of ludicrous exaggeration along these lines) is so absurd, I cannot accept that he believes what is coming out of his own mouth. Or maybe the problem that as a pornography lawyer, Keith Lipscomb has fallen so far, that he actually does. And that’s sad.

I’m not a religious person — and even when I was, I was a horrible sinner, but I might make an exception and say a prayer for Keith Lipscomb. I hope he truly questions what values it is he is serving and how he is living his life before it is too late.

I have no such hopes for the pornographers he represents. I am sure they believe themselves to be honorable business people who are the victims of Internet porn hounds. But I think when you get to a point that you’ve decided to slap your name on pornography, you’ve damn near reached the moral point of no return. Like a sort of ethical diabetes, human conscience is just ineffective at curbing your worst instincts anymore, and little you do triggers any sense of guilt or shame… or mercy.

Shame on you Keith Lipscomb and shame on you X-Art.

Frustrating. Bellwether has lost its bell and is confusingly standing under the rain, a miserable castrated sheep that does not lead anyone anywhere anymore.

The following was stipulated during today’s hearing in Judge Baylson’s chambers: there will a bench trial (no jury), which will start (and most likely end) on Monday, June 10, 2013. It seems that the case is essentially settled, only a few unresolved issues are left (the exact amount of money, given the statutory and stipulated ranges). As Raul emotionally put it in a tweet,

Dammit! Bellwether was settled the same way you would a fucking slip and fall case. Nothing was determined, nothing was gained. #sad

In all the fairness, defendants must share the blame for this epic failure. To the best of my understanding, Judge Baylson did want to destroy Lipscomb’s “business model,” hinting and almost guaranteeing the recovery of attorney fees for those defendants who would do it right. Alas, they didn’t. Doe 16’s alleged perjury is the worst thing that could happen. I’m still not sure if it is true, but if it is, it is much worse than admitting the smut-sharing. In the latter case, it is still possible to save face, fight for the cause, and prompt the condemnation of copyright trolling (and possibly reduce the fine to a reasonable level).

Notice:

 

SoundCloud Listen the audio transcript of today’s hearing on SoundCloud (you can also download it from there).

 

I don’t have any desire to comment on what happened today: too frustrated. One thing keeps me going: a year ago I was similarly depressed looking at Prenda’s relative success. We know where Prenda is now. Although today Lipscomb tried to distance himself from “copyright trolling” (and Prenda in particular: ~20:00 of the audio), his words have little value: in my opinion, Lipscomb’s extortion enterprise is worse than Prenda’s, the harm he and his “clients,” greedy pornographers, inflicted upon the society is immeasurable. It was not easy to defeat Steele & Co. It will be more difficult to get rid of the substance that has been clogging the plumbing of the judiciary, a hairball named M. Keith Lipscomb, but sooner or later we will wash this parasite away, no doubt.

Update

6/10/2013

DieTrollDie has posted a great analysis of this event: PA Bellwether Case — Recap Of The 6 June 2013, Hearing.

The Bellwether Trial (Malibu Media, LLC v. John Does 1,6,13,14 and 16 — PAED 12-cv-02078), conceived by Judge Baylson with the goal of testing copyright trolls’ evidence, initially had five defendants. Only a single one “survived” to date: Doe 16, represented by attorney Ronald Smith. All the others did not withstand the pressure and settled. As far as I understand, the pressure was unprecedented: not surprising given that Lipscomb’s extortion “business” is at stake.

Regrettably, I did not do a good job covering this lawsuit: not every event was documented.

The trial is scheduled to start on Monday, June 10. The jury selection and hearing on motions in limine will take place on Thursday, June 6, the day after tomorrow. These motions — filed last week — are the main subject of this post. What is a motion in limine? According to the legal dictionary,

Latin for “threshold,” a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial.

The defendant filed a list of his requests in a single motion, whereas the plaintiff’s requests spanned 6 filings, the majority of which, in my opinion, constitutes a brazen attempt at prior restraint and has nothing to do with due process.

Porn copyright troll and extortionist: don’t call me names!

(Plaintiff’s motion in limine regarding references to plaintiff)

Plaintiff has been referred to in many different negatively connoted ways, including: “copyright troll,” “pornographer,” “porn purveyor,” and “extortionist.” Referring to Plaintiff at trial by any title except “Plaintiff” or “Malibu Media” would be unfairly prejudicial and would only serve to impede the impartial administration of justice.

Although it is undisputed that Plaintiff creates “adult content,” use of the aforementioned terms in this context is undoubtedly pejorative and invokes preconceived negative connotations.

If copyright trolling was mainstream news, Jon Stewart would have a field day with a pornographer asking to not call him a pornographer (deja vu). While it is unlikely to happen any time soon, our own talents compensate for it: I can only imagine the joy John Henry experienced creating this cartoon.

On a serious note, while I would agree that “troll” and “extortionist” are inflammatory, “pornographer” is a dictionary word, quite a neutral and precise description of Colette & Brigham’s occupation. Well, maybe these pornographers will disagree — they think of themselves as producers of “fine erotica,” yet if one visits their website (NSFW!), he will not be greeted by an age verification request or a warning, but by a full-screen explicit image with emphasis on genitals. Admittedly, X-Art’s hardcore pornography is a high-end one, but a blurry erotica-porno border is not defined by the cameraman’s skills. To date, the best criterion was articulated by Tinto Brass:

Pornography is there to give you an erection. Erotica is there to give you emotions.

Right: our pornographers and their lawyers find it normal to threaten file-sharers and innocents alike to let their families, neighbors and co-workers know about the hidden porn habits, but the same pornographers suddenly become shy in front of a jury. If hypocrisy could be measured, Lipscomb would undoubtedly make it to the Guinness book.

 

Let’s close our eyes to almost 900 lawsuits we filed around the country

(Plaintiff’s motion in limine to preclude evidence of third party lawsuits)

The Court should preclude Defendant, John Doe 16 (“Defendant”), from proffering at trial any evidence of, or making any reference to, lawsuits that Plaintiff has filed in the past or which are currently pending against third party copyright infringers. Plaintiff expects Defendant to attempt to reference these matters at trial in an effort to introduce unsubstantiated allegation of “abuse of process” against Plaintiff. As further explained below, however, such matters are: (1) inadmissible hearsay; (2) wholly irrelevant to any issue in this case; and (3) even if marginally relevant, sought to be introduced solely for the purpose of prejudicing and confusing the jury by the existence of collateral matters, the merits of which should not be litigated in this lawsuit.

This is probably the most outrageous out of six motions. Lipscomb makes a poor attempt to present this lawsuit as a standalone one. In the motion discussed in the next chapter, Lipscomb writes:

[...]the only facts relevant to this case are those which bear on the questions of whether or not Plaintiff owns valid copyrights and whether Defendant violated any of Plaintiff’s exclusive rights therein using the BitTorrent protocol.

WRONG. The entire idea of the Bellwether trial is to have a look at the bigger picture and decide if a myriads of copyright trolling lawsuits that have been clogging court dockets do or do not constitute a sheer abuse of the judicial system. In Judge Baylson’s words (emphasis is mine),

Bellwether trials have long been recognized as an effective means of enhancing prospects of settlement or for resolving common issues or claims in complex litigations. [...] “[T]he results of such trials can be beneficial for litigants who desire to settle such claims by providing information on the value of the cases as reflected by jury verdicts. Common issues or even general liability may also be resolved in a bellwether context in appropriate cases.”).

Keeping the jury ignorant about the very idea of this lawsuit is absolutely nonsensical.

 

Another bleeding contradiction is related to the facts described in the blog’s previous post (events in Wisconsin, where Judge Crocker issued an Order to Show Cause as to why plaintiff shouldn’t be sanctioned for stuffing its frivolous complaints with even more frivolous Exhibit “C” — “extended surveillance” log). Today Lipscomb’s proxy Mary K. Schulz has asked for an extension of time to file her response arguing that… “Plaintiff is preparing for Bellwether Trial”! How the hell it is an excuse if, according to Lipscomb, Wisconsin lawsuits (among others) are “wholly irrelevant to any issue in this case”? Indeed, the hypocrisy of our “biblical scholar” is bottomless.

By the way, Malibu Media has no time to respond to sanctions order, but did file 12 news lawsuits since 5/28.

Let’s close our eyes to my sloppiness

(Plaintiff’s motion in limine regarding references to timing issues related to plaintiff’s expert)

Recently Raul wrote a post about the beginning of the discovery controversy (Lipscomb and his “experts” had been sitting on Doe 16’s hard drive for four months before discovering it was “unreadable”). Many events have happened since then, including plaintiff’s accusation of spoliation of evidence and subsequent heated Doe 16’s attorney’s responses accusing Lipscomb of fraud upon the court. It seems that Judge Baylson was not amused by Lipscomb’s version of the events — the judge decided to appoint an independent expert. After that, our weasel asked for a permission to talk to this expert — an absolutely unethical and outrageous request.

Now Lipscomb asks to keep the jury in the dark about the timing of this entire ordeal. If you read all the documents related to this controversy, you will inevitably roll your eyes at the following. (Have I been repeating the word “hypocrisy” often enough?):

[...] regarding the timing issue of Plaintiff’s expert report as it relates to John Doe 16’s Hard Drive, the fault lies with John Doe 16. John Doe 16 has attempted to perpetuate a fraud on Plaintiff and this Court. And, he has taken innumerable actions toward that end such as sending an unreadable hard drive, fabricating evidence, wiping evidence from his hard drive, and then spoiling the original version of the John Doe 16 Hard Drive. Uncovering frauds takes time. Here, Plaintiff is doing so with all due speed.

The other requests

This post is long enough, and I won’t analyze the other three motions (somewhat reasonable, but keep in mind that even most obvious Lipscomb’s statements should be taken with a grain of salt):

 

I expect the next week trial to be closely watched and reported (hey, ArsTechnica and TechDirt: Prenda is fun, but Lipscomb’s extortion empire deserves much more attention than it currently receives). Regardless of the outcome, I hope that this trial is a very positive development. In the end of the day, it is not that important who wins — the Doe or the pornographer¹. What is welcomed is the wider exposure of trolls’ sickening methods. Juries are made of people, and people are not stupid, and even Lipscomb knows that. Otherwise he wouldn’t make the censorious requests discussed above.

Media coverage
Update

6/6/2013

As expected, the defendant filed his oppositions to Lipscomb’s motions in limine (and Lipscomb filed his opposition). As for the three motions analyzed in this post, defendant’s arguments are basically the same as mine (to be fair, not everyone agrees with those conclusions):

 


¹Don’t get me wrong, I pray for the defendant to win! However, it is not a secret that at least 70% of putative defendants did what they were accused of. While undoubtedly this case will have a huge impact on the future of the Bittorent litigation, finding the defendant liable does not automatically make copyright trolling “business” legit (as acquitting him won’t result in extortionate practice go away at once).

“You cannot escape the responsibility of tomorrow by evading it today.”
Abraham Lincoln

 

As you may recall, M. Keith Lipscomb’s porn extortion enterprise hit a bump in the road last October when Judge Baylson of the Eastern district of Pennsylvania, more or less, directed Lipscomb to bring some of his copyright troll lawsuits to a verdict so as to ascertain whether these lawsuits were legitimate or not. Of course this direction is contrary to the usual porn copyright business model, which is to obtain the personal identifying information of the person who pays the ISP bill, harass the shit out of said person to pay thousands to settle, and then dismiss the lawsuit once it gets either (a) uncomfortable due to heightened judicial scrutiny or (b) grows stale with the maximum settlements deemed achieved. Aside from the Fantalis matter in Colorado this is the first lawsuit in which a copyright troll’s evidence will be tested in a court of law. Accordingly, SJD and others have been reporting on this lawsuit as it progresses and SJD’s coverage is here, here, here, and here.

Question: How do you gather and refine your evidence to prepare for a trial (the first of its kind in the US) which is set to begin on June 10th? Answer: If you are M. Keith Lipscomb, in the most overreaching and last minute fashion humanly possible.

One example of this has been his sloppy, roughshod trampling of privacy concerns in the third party discovery of ISP Verizon which has been covered by others, including TechDirt, as well as the incredibly invasive demand for “Six Strikes” info.

A more recent example of this overreaching and slipshod trial preparation was disclosed last week when Lipscomb filed an Emergency Motion to allow the plaintiff entry into John Doe 16’s home for the purpose of making forensic copies of his hard drives. The basis for this motion is that the copies of the hard drives previously provided by this party are unreadable which Lipscomb just discovered on April 30th due to the illness and resulting death on April 26th of one of his two experts witnesses. Conspicuously absent from this motion is an affidavit from the surviving expert witness explaining why the copies are unreadable and when this problem was discovered.

 

Keep in mind the trial is set to begin on June 10th and discovery should have been completed some time ago.

In opposition to this motion the attorney for John Doe 16, Ronald Smith, points out with well-deserved indignation that Lipscomb’s expert witnesses had been sitting on these supposedly unreadable copies for 4 months!

It appears unequivocal that Defendant’s counsel first learned of this problem on May 1, 2013, after the scheduling of this case for Trial. How or why, with a period of over four months, could the parties not be made aware of the difficulty in discovery and now at the midnight hour request an opening of the discovery process when trial is only days away. At this late juncture, not only has Defendant’s counsel for John Doe 16 been prejudiced, but perhaps other counsel in this matter who have indicated that they have had no choice but to settle.

Furthermore defense counsel underlines what by now is obvious:

Plaintiff’s counsel has been egregious in the handling of this case and at this late date the rewarding of and opening of discovery will not only penalized John Doe 16 but the other parties as well.

 

A telephone conference is scheduled for tomorrow regarding this example of sloppy and overreaching trial preparation and let’s hope that Judge Baylson is not in a forgiving mood.

Previous coverage:

 

Judge Baylson held a telephone conference with plaintiff’s and defendants’ attorneys yesterday. Some notable points:

Baylson casually mentioned (at 5:50) that he had notified the Judicial Panel on Multidistrict Litigation about his cases. Judge’s comment seems to have caught Keith “Weasel” Lipscomb off guard. He obviously sounded alarmed. It is not clear why Lipscomb mentioned Fantalis’s case, talking about it as one at a very advanced stage (pity that the judge does not know that Lipscomb meant an advanced stage of the discovery dodging).

Lipscomb mentioned that he filed several amended complaints (one of them is embedded below) and served the defendants. Lipscomb’s amended complaints include additional instances of infringements for the same people: more movies and at least in one case another pornographer, Partrick Collins, was added as a plaintiff. An open question is why Lipscomb has been sitting on this (allegedly credible) information and did not claim those infringements in the original complaints. I would be happy to listen to opinions.

 

Charles Thomas filed a motion for sanctions against Lipscomb because of his outrageous behavior. In short, Lipscomb filed “notices” of service without defendant names being redacted, which clearly contradicted the judges’ order. It took a lot of effort (notices were filed on Friday at 8 pm) for defense to find an emergency clerk and seal those documents. Should anyone have accessed those documents with Recap plugin running (and many of us have this plugin installed) over those two hours when documents were available on Pacer to everyone, the names would be posted on the archive.org, and it would be impossible to remove them. Fortunately, it did not happen, but in order to minimize the likelihood of unfortunate events, I urge defense attorneys to contact me immediately if a similar situation happens in the future (remember: we deal with the very bottom of the legal profession here, and there are no guarantees that such “bloopers” won’t repeat). I’ll contact the people who are most actively recap court documents and ask them to refrain from accessing particular filings.

If you want to save the audio file of the hearing, right-click here.

Updates
11/8/2012
  • On 10/8 Doe # 16 (Ronald Smith — 12-cv-02078) filed his Answer and Counterclaim. He lists 10 affirmative defenses and 4 counterclaims:
    • Misuse of Copyright
    • Declaratory Judgment of Fair Use
    • Declaratory Judgment of Implied License
    • Declaratory Judgment of Non-Infringement
11/16/2012
  • On 11/15 Lipscomb replied (opposed) to the motion for sanctions. Dogs, homework, honest errors… Deja vu all over again.
11/19/2012
  • On 11/16 Doe # 6 (Charles Thomas — 12-cv-02084) moved to dismiss certain counts the infringement due to lack of standing (invalid, fraudulent copyright registration), and to dismiss the entire amended complaint because

    …nether Malibu Media nor Patrick Collins have obtained the necessary certificate of authority from the Pennsylvania Department of State, and are therefore barred from commencing a civil action in Pennsylvania under 15 Pa.C.S.A. §§4141 & 8587.

    See the brief in support of the motion to dismiss (Exhibits are not yet recapped).

  • On 11/13 Jordan Rushie appears as a counsel for Doe # 13 (12-cv-02088).
  • Two other counsels, Leonard French (Doe #1) and Thad Gelsinger (Doe #14), requested extension of time to file their answers (Documents 51 and 52).
11/20/2012
  • On 11/20/2012 Jordan Rushie and Marc Randazza (yes, you read it right) moved to dismiss the amended complaint. At this moment I experience some kind of cognitive dissonance and will refrain from comments. The memorandum per se is rather good, although has some dangerous provisions (like declaring swam theory absolutely valid and joinder based on it absolutely proper: locally, tactically it maybe brilliant, but it may have long-time negative consequences). Again, I digress: I’ll postpone expressing my thoughts till after the holidays.
11/29/2012
  • On 11/28 the Court held an extensive Rule 16 pretrial conference with counsel on November 28, 2012, following the filing of a Rule 26(f) Report. Although the record of the hearing should be consulted for details, the Court summarizes scheduling orders as follows:
    1. The three cases noted above will be consolidated for all pretrial purposes.Therefore, counsel and the Court will use the caption of Civil Action 2012-2078 in all future matters filed with the Court. No agreement by counsel or decision by the Court has been made concerning consolidation other than for pretrial purposes.
    2. Plaintiff will file its responses to the Motions to Dismiss by Wednesday, December5, 2012. Defendant shall file one or more reply briefs by December 19, 2012.
    3. The Court encouraged counsel to have detailed discussions about the scope of discovery and any objections that have been or will be served to written discovery requests. If issues remain unresolved, the Court requested that any Rule 37 motions to compel be filed by January 10, 2013. The Court will likely have a phone conference with counsel to discuss these objections and may order a hearing or more detailed briefing. The Rule 37 motions should state the grounds in some detail, but counsel need not file a memorandum of law.
    4. Plaintiff indicated that it will be serving several notices of third party depositions under Rule 30(b)(6) to take place in January, of internet service providers and companies that perform search engines. The Court anticipated there would be some delay in the actual deposition to allow for the third parties to consider the document requests and negotiate production of documents. The Court understands that all counsel in this case will serve any documents received from a third party on all other counsel in this case.
    5. Plaintiff will provide identification of its experts by December 21, 2012, together with resumes and other biographical material pertaining to its experts. The Court encouraged plaintiff’s counsel to be prepared to identify their experts by the end of January, 2013. There was extensive discussion about other discovery matters, but without any rulings.
12/05/2012

Previous coverage:

 

After defense attorneys called out copyright troll Chris Fiore’s lies and informed Judge Baylson, the judge ruled (emphasis is mine):

…within ten (10) days, if service of the Complaint on the Defendants is not effectuated, Plaintiff shall file a “memorandum advising the Court as to why service has not been made on any Defendant, and how Plaintiff intends to proceed with regard to that Defendant.” Plaintiff has filed no such memorandum. Moreover, contrary to Plaintiff’s representation that it forwarded this Court’s October 3, 2012 Order to each Defendants’ Internet Service Provider (“ISP”), counsel for one Defendant has advised the Court that, based on a conversation with the Legal Response Center at Comcast Cable, which is the ISP for most of the defendants, Plaintiff never informed Comcast Cable of the Court’s Order.

In light of these recent developments, it is hereby ORDERED as follows:

1. Plaintiff shall promptly file a memorandum and certificate under oath subject to the penalties of perjury advising the Court, in detail, with names and dates, what contact Plaintiff has had with any ISP concerning the subject matter of this Court’s October 3, 2012 Order, and any follow-up.

Not being a lawyer, I initially described the order as “balanced,” but shortly I received a tweet from an attorney:

 

After this useful lesson in Legalese, I realized that things were getting much more interesting than I thought. As Raul put it,

This places Fiore in a double bind: if he tells the truth under oath, he may get hit with sanctions, yet, if he files a falsehood under oath to avoid sanctions, he can face perjury problems.

I did not have a slightest idea how Fiore would squeeze himself from between a rock and a hard place, and waited for his sworn memo impatiently. Fortunately, it did not take long, and today we have an entertaining read, although not written by our little troll: his master Keith Lipscomb came to rescue and lent the helping lissome furry body hand to his disciple.

I don’t want to analyze this masterpiece: read it, and I hope you’ll laugh uncontrollably as I did. While discussing this timeless piece in the comments, don’t be hard on Lipscomb: he did his best to entertain all of us. Also, according to Homer Simpson, this type of behavior should be encouraged:

 

Enjoy the memo:

 

The open question of the day: Will Judge Baylson be as amused as we are?

First reactions :)

First comments were hilarious, not unexpected. Thank you, guys.

I hope this judge has a sturdy bullshit detector, because I ran this document through mine and it EXPLODED! It’s a damn shame he couldn’t work a dog into the story somehow. Then maybe he could have brought the dog with him to court and said something like “Toby didn’t mean it your honor–didya little guy?” and then rubbed his head.

I was wondering what you were getting at in your comments and I figured it would just be more of the usual bread and butter Troll BS, maybe some condescension and insults directed at the court, judge, defendants and their attorneys, but this load of crap is well beyond unexpected. [...]

I was waiting for the aliens and their ray guns to be the cause of the burst pipe. I bet they were under orders from some cigarette smoking man. Seriously? How lame can you get. There was this legal assistant didn’t get the info to the paralegal who then couldn’t get the info to Fiore who, of course, can’t possibly be expected to keep track of a case he is litigating—and all because we had a pipe burst in our office. Are you kidding me? I think I lost 50 IQ points just reading that memo.

Update: bullshitting or outright lies?

10/24/2012

A commenter who I know for a long time and have no slightest reason to question her credibility, reports:

Good Morning Ladies & Gentlemen,

I read Mr. Lipscomb’s “Memorandum Advising The Court As To What Contact Plaintiff Has Had With The ISP Concerning The Subject Matter Of The Court’s October 03, 2012 Order And Any Followup” document, and offer here the following:

The name of the building where Mr. Lipscomb’s office is located is called One Biscayne Tower. The phone number of the building is 305-374-5678. The name of the receptionist (today) who answers the phone for the entire building is “Vanessa.” I spoke to her two minutes ago.

I told her that it was my understanding that the building had a flood in the penthouse. She became alarmed, thinking I was talking about a flood occurring today, and she was initially confused. She then said no one had reported a flood to her today, but then offered information about a penthouse flood that occurred “a long time ago.” I asked her how long ago. She said the flood occurred in June of 2012. I asked her if there had been another flood in October, she said no, just in June.

I then asked her if everything was “back to normal now.” She said the flood damage was localized and repaired within less than a week.

Accordingly, for the statements made in Case No. 12-02084, whereby Mr. Lipscomb claims to make it sound as though he had been swimming in water in his penthouse suite in October of 2012, no such swimming occurred because the water and the ensuing damage had long since been corrected.

It is beyond my comprehension how arrogant the crooks are to think that no one is watching and performing elementary fact checking.

10/24 late afternoon update:

Tamaroff & Tamaroff say in a tweet that they (Lipscomb) did work from home:

we saw the damage. It actually was fairly extensive & they were working from home, but that’s what Worldox is for.

That does not make Lipscomb’s excuses less lame though.

Followup

Bellwether trial update: Telephone conference, new filings. New updates will be posted there.

By Raul

A bellwether trial, designed to test the validity of trolls’ evidence, was widely covered by press over the last week. Being obviously serious about his intentions to bring this business to completion, Judge Baylson setup a very tight schedule that included a trial date in April 2013. Not surprisingly, Lipscomb/Fiore/Malibu Media are currently trying to sabotage the process in a hope that Baylson will dismiss the case on the procedural grounds. It’s an awkward situation: all 5 defendants will be happy if this nightmare is over, and, of course, we will be happy for them too, yet in a long run a premature dismissal will result in continuing extortion and much, much more victims.

Raul originally posted the following as a comment to the original post. I don’t think that anyone disagrees that Raul’s comment deserves a wider audience. Hence, a separate post.

In case people missed SJD’s Twitter feed yesterday, Doe Defender Charles Thomas’ blog details the development pointed out to me without adding any comment, so allow me. :)

On 10/15, at the 11th hour, just before the deadline was set to expire for Troll Fiore to effect service on the Does, they file their Second Motion for an Extension of Time to Effect Service. The motion requests an additional 30 days insofar as Fiore does not have the personal info for Doe 6 because:

On October 3, 2012, this Court entered an order granting in part and denying in part John Doe 6’s motion [Dkt. 24]. Plaintiff has forwarded this order to the ISP to obtain John Doe 6’s identity and is waiting on the response.

In your Bullshit Alarm clanging?

Charles Thomas files his Brief in Opposition to this motion on 10/16 (embedded below) and makes many excellent points as to why the motion should be denied and I’ll just point to a few of my favorites:

This delay is outrageous, and clearly leaves the impression that the Plaintiff is less than enthusiastic about actually trying these cases. Indeed, taking these cases to trial is not consistent with the so-called “copyright troll” business model — raise the spectre of statutory damages to obtain quick settlements.

and

…this maneuver has an secondary effect on the Defendants and the Court which very clearly evidences the Plaintiff’s blatant attempt to undermine this Court’s clear directive to advance this case a timely trial.

and

In essence, the longer the Plaintiff can avoid laying its cards upon the table, the more profitable its shadow business. Already, the Court’s decision to schedule a bellwether trial is rippling through the media and presumably the Plaintiff is aware of the intense scrutiny that this trial will generate.

and IMPORTANTLY

In Paragraph 4, Plaintiff states that it has forwarded the Court’s October 3 Order to Comcast, but does not indicate when it did so — this is a very telling omission. Clearly, if Comcast received the Order on October 3 or 4 and failed to reply timely, Plaintiff would surely note all the relevant dates of communication and be well within its rights to lay the blame squarely on Comcast’s shoulders. That is has not spelled out the dates in question suggests that the cause of the delay was simply that Plaintiff failed to act.

Based on these points Thomas arrives at the logical conclusion that Fiore/Lipscomb are trying to scuttle the lawsuits before they get to a Bellwether Trial:

All of the above amply demonstrates that Plaintiff is doing its level best to remain in the shadows, almost goading the Court to dismiss its Complaint on procedural grounds — and thus to avoid a precedential ruling that could dismantle what Judge Wright of the Central District of California calls “essentially an extortion scheme.”

Thomas followed his hunch that Fiore never contacted Comcast and the lie is revealed in an Addendum filed also filed on 10/16:

John Doe 6 has now learned through a conversation with Comcast’s Legal Response Center that Plaintiff never informed Comcast of the Court’s ruling.

and

This directly contradicts Plaintiff’s assertion in the Second Motion that it has forwarded the Order to the ISP to obtain John Doe 6′s identity. This even more strongly suggests that Plaintiff is actively attempting to evade judicial oversight of its highly profitable settlement machine.

In closing Thomas notes that such “shenanigans” should be sanctioned as he had suggested in his Brief.

Update

10/17/2012
Two more defense attorneys on this case filed very similar oppositions to plaintiff’s motion for extension of time to serve. Leonard French was one of them. Note that C. Fiore filed a response to at least one motion, claiming that the Mafioso family plaintiff “welcomes the opportunity to try this case on the merits” and that “defendants [sic] actions make clear that they do not want to proceed with the Bellwether trial.” Pot full of BS calls the kettle back? The claim that defendant made in his addendum (that plaintiff disobeyed the court’s order to forward its ruling to Comcast, and lied that he did) has not been addressed.

In other news: a telephone conference will be held on 11/1/2012. DieTrollDie is invited :) The phone conference will be transcribed and added to PACER.

10/18/2012
Judge Baylson issues an order on Plaintiff’s motion to extend the time. Granted in part and denied in part. The most interesting part is that Baylson wants trolls’ memo to be filed under oath, meaning he no longer takes their word.

10/23/2012
A follow-up post: Bellwether trial update: a delicate art of bullshitting under oath.

11/2/2012
Bellwether trial update: Telephone conference, new filings. New updates will be posted there.

This is a big event. Copyright trolling disease that affected dozens of federal district courts in the United States, clogged judges’ dockets and brought misery to hundreds of thousands families and unjustly enriched a handful of swindlers, may be healed once and forever as soon as in April. Pennsylvania may become a state that will send the healing waves across the country.We saw the first indication that PA judges were fed up with trolls wasting court resources when Chief Judge Curtis Joyner referred all the 31 Malibu Media cases to Judge Michael M. Baylson (in addition, 17 Patrick Collins cases were referred to the same judge).

On October 3, Judge Baylson decided to take an unprecedented step and ordered a bellwether trial, picking five Does who had previously filed motions. Bellwether trial is a process designed to fast track a test case that is representative of many similar ones. Here is how uslegal.com defines this concept:

By definition Bellwether is an indicator of future trends. Courts utilize a bellwether approach when large numbers of plaintiffs are proceeding on the same theory or claim and there is no other feasible way for the courts to handle the enormous caseload. This approach has been used in many cases including asbestos litigation. A group of plaintiffs are chosen to represent all the plaintiffs. The issues for trial should concern common claims or theories among all the plaintiffs. These representative cases go for trial and the results act as the bellwether for the other plaintiffs’ trials. The verdict from this grouping is extrapolated to the remaining plaintiffs’ cases. The actual results may be utilized for valuing groups of claims in settlements. The plaintiffs can also choose to continue with their own individual trial.

There is only one plaintiff in this case — Malibu Media, represented by a veteran PA troll Christopher Fiore, but this is obviously enough to conduct a valid experiment, because all the mass bittorent cases are essentially the same. Four defendants are represented by various attorneys and one is pro se at this time.


Senior Federal Judge
Michael M. Baylson

Baylson recognizes that it is unfair to pick defendants who fought rather than waited their ordeals out, but he promised that if defendants prevail, at least their financial burden would be remedied:

The Court also acknowledges that the five John Does who will be defendants in the Bellwether trial are, in a sense, being penalized for filing motions challenging the third-party subpoenas presently at issue, given that all proceedings against the remaining John Does will be stayed until further order of the Court. In the court’s view, however, under the present circumstances, this is the fairest and most efficient means of resolving these actions. These defendants have objected to Plaintiff’s strategy and two of them have filed declarations asserting that Plaintiff’s claims are false. A Bellwether trial is the best means of testing the viability of Plaintiff’s claims, as well as Plaintiff’s sincerity in pursuing them.

In the event Plaintiff’s allegations cannot be sustained, the five John Does will have adequate remedies to recover most, if not all, of these litigation expenses and/or damages from Plaintiff, such as a Rule 54 motion for costs, a lawsuit for abuse of civil process, a Rule 11 motion for sanctions, and a motion to recover excessive costs under 28 USC § 1927. More fundamentally, as mentioned above, because this is a copyright case, a successful defense will likely result in an award of attorney’s fees to any John Doe who prevails under 17 U.S.C. § 505.

As courts, attorneys and the Internet community chase copyright trolls, exposing multiple weaknesses in their meritless quest for easy money, trolls adapt: they drop tactics that were defeated and invent new ones. So far, mostly successful legal fight against trolls was centered primarily on procedural issues — joinder and jurisdiction. There are some instances where the merits are being tested, but these are individual cases that won’t have proper effect until a critical mass of decisions is made, and this process is painfully slow. The beauty of a bellwether trial design is both in its pace and in its binding power: finally, trolls’ evidence (or lack thereof) will be tested. You won’t be surprised to learn that I really doubt that trolls will present enough evidence to declare victory; that’s why I’m excited and full of expectations.

I won’t go into further details: read the order, where you will find and the history of this case, its aggressive schedule, and the explanation of the rationale behind the judge’s decision.

Note that judge discusses DieTrollDie’s declaration (“torpedo,” as DTD calls it). Obviously, it was a success, as the judge considered this declarations’ arguments seriously, while he could to simply brush it off on the grounds that it had been filed anonymously by a non-party. All the PA Does are immensely grateful to DTD, and so am I. If you think that a single person can’t make a difference, try to sleep in a room with a single mosquito in it and all the doors and windows closed. Remember about it and be proactive.

Update

Follow-up posts:

For intellectually curious: A history of the word Bellwether.

Press coverage

TorrentFreak; Finally: BitTorrent Piracy Evidence to be Tested in Court by Ernesto.
Digital Trends: Copyright troll tactic faces fateful legal battle in Pennsylvania by Andrew Couts
PC World: Pivotal piracy case could put copyright trolls out of business by Sarah Jacobsson Purewal.
ArsTechnica: Judge tells copyright troll to put up or shut up on porn lawsuits by Timothy Lee.
TechDirt: Judge Calls Copyright Troll’s Bluff by Mike Masnick.
WebWereld: Pornopiraten vechten terug tegen copyrighthouders by Henk-Jan Buist.
Tietoviikko: Tuomari kyllästyi tekijänoikeustrolliin: “nostakaa syytteet tai pitäkää turpanne kiinni” by Olli Vänskä.
Techgear: “Η διεύθυνση IP δεν είναι επαρκές αποδεικτικό στοιχείο.” Για πρώτη φορά το BitTorrent εξετάζεται σε δικαστήριο! by Elpidis Chris.

BBC News: US judge orders piracy trial to test IP evidence.