Archive for the ‘Malibu Media v. Fantalis’ Category

Back-of-the-napkin arithmetic: how much trolls are willing to pay when a defendant endangers their shakedown “business”?

Posted: November 20, 2012 by SJD in Community contributions, Lipscomb, Malibu Media v. Fantalis
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by Doecumb

I’ve done some back-of-the-napkin arithmetic to make to estimate numbers in the Fantalis settlement. I won’t give too many details, to avoid encouraging any greedy would be trolls. It’s reasonable to assume that the overlord of the Lipscomb/Malibu/Patrick Collins/others gang is getting at least 50% of the collections. Different significant bad actors, including the apparent plaintiffs, are getting more like 10% shares. The number of Does allegations is much more than 10,000. Roughly half of Does have been settling, and the settlements are usually thousands of dollars.

Fantalis constructed thorough arguments. If he were very wealthy, he would be able to hire high powered lawyers or use influence to have allegations withdrawn. If he were very poor, there would be no financial assets for the trolls to chase. Fantalis has proven he’s determined. It would take a significant settlement to persuade him.

Lipscomb or the scheme overseer surely sees many ways revelation on the way to trial can stop the whole money machine. For instance, the troll lawyer contingency fee might be 90% of collections. Some plaintiff businesses may be revealed to be shell companies expressly set up by plaintiff and/or counsel immediately prior to allegations. The case load of the local attorneys may be unmanageable for anything except phone harassment of Does to collect quick settlements. Evidence of extreme false allegation cases may get into the record. Sensitive information about plaintiff finances or activities may be revealed. The quality of the supposed forensic tracking software may be evaluated. The reputation of the so-called forensic firms will also be questioned. The possibilities of I.P. hacking or mis-identification will be presented. And so on.

The overseers may be nasty but some have shown cunning. They must have done the calculation already about how much its worth for them to buy out Does who countersue, when abuses of the trolling scheme are close to surfacing. They may decide it’s a tiny percent of their earnings, or a small fraction.

Here’s the ballpark: A tiny percent of the overlord troll’s collections is in the $100,000 range. A few percent or more is in the $500,000 range, a fraction much more than a few percent gets above a million $. In a troll’s shoes, the greater the threat, the more it’s worth to keep a profitable business going.

Malibu Media has settled the matter with Jeff Fantalis

Posted: November 15, 2012 by SJD in Lipscomb, Malibu Media v. Fantalis
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The title says it all. It was rather unexpected, yet this ordeal over for Jeff and his family, and I’m happy for them. It would be hypocritical not to admit some sadness: everyone hoped for the inevitable (and absolute) victory that would send its healing ways across the country. As a matter of fact, it is a victory to a certain extent. Fantalises advanced further than any other pro se (and not only) defendant and did a Herculean job organizing existing defense ideas and coming up with novel ones. Everyone here thinks they are heroes. And a neat library of examples, ideas and templates does not go anywhere.

Previous coverage
Featured comment

AC on 2012/11/16 at 10:59 am:

Wow! I never saw this coming after the heated week or so of filings from both Kotzker and Fantalis! Simply amazing, to say the least. I have been following this case since the beginning with great interest, read every filing in its entirety, so I am very happy to see this kind of ending.

To be clear, despite not being privy to the terms of the settlement, we can know with 100% certainty they were very favorable to Jeff Fantalis.

Let’s take a look at the facts of the last week and see who was sweating:

Malibu Media was ordered to begin production of documents on November 9 to be completed by November 26, 2012. This includes:

  • Any documents describing flaws of deficiencies the company uses to identify IP addresses.
  • ALL communications between Mailbu Media and Lipscomb.
  • ALL communications between Malibu Media and any “enforcement” trolls.
  • Retainer agreement between Kotzker and Malibu Media.
  • Any agreements between Malibu Media, IPP, Tobias Fieser, Brigham Field and Colette Leah. Remember the judge said if it is a contingency agreement, then there will be a problem. Guess what: It’s probably a contingency agreement!

Also remember that the judge ordered Kotzker to send the fee agreement between Kotzker/Lipscomb/Malibu Media to his personal chambers for him to review. Want to guess if there’s something they don’t want the judge to see in there?

Oh yeah, and what about Collette Leah making obviously, provably false statements in a sworn document. I’m betting she never even read the document, signed it, and it was a big shock to her when Lipscomb/Kotzker informed her that she was about to be brought in on perjury charges. Maybe this was the point Malibu Media decided to settle?

Finally, remember that Kotzker admitted he could no longer take on any more cases in CO because litigating this one single case was taking too much of his time. Thus the troll extortion operation in Colorado effectively was about to grind to a halt due to a single doe fighting back.

Or how about Fantalis’ most recent filing, which accuses Malibu Media of double dipping in recovery by collecting more than the maximum statutory limits? Want to guess that they have already been made whole through settlements, and they would like to continue extorting money for the same films which they have already been compensated for?

It’s quite clear that Malibu Media was completely fucked in this case before trial even began. Even though we didn’t get to see this go to trial, we still learned a great deal about Malibu Media and their operation, and how far they are willing to go to prevent ANY trial from EVER reaching discovery, let alone a jury, despite the fact that they demand a jury trial in every single one of their complaints.

Most importantly, when a defender says “The trolls never want to go to trial” the Troll can no longer point to Fantalis’ case and say “Look, this one’s moving along.” Now this is more ammo for the defender who can now say “They had the chance to go to trial, and right when they were forced to produce discovery, they settled. Any claims that they want to litigate these cases are complete lies.”

So I guess our next best hope to see something like this go to trial is the PA Bellwether. Here’s hoping we actually see some discovery there before they settle and dismiss, as we can all expect will happen.

Another commenter adds an important bullet point:

You forgot the comment the judge said where if a jury found any of the films obscene they would not be copyrightable. IMHO, this was huge. Can you imagine if this actually went to trial and the result was they were not copyrightable (what are the chances the jury wouldn’t find them obscene)!? That would be used in every defense going forward. [...]

Joinder or no joinder? Can’t have both

Posted: November 14, 2012 by SJD in Community contributions, Lipscomb, Malibu Media v. Fantalis
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By AC

Malibu Media v. Fantalis et al: another update

We continue to cover one of the most important battlegrounds against copyright trolls, Malibu Media, LLCv. Jeff Fantalis et al lawsuit (12-cv-00886). If you don’t know what it is about, please consider reading the previous posts on the topic:

 

Motion denied on technicality, resubmitted

On 11/7 Jeff Fantalis filed a motion for leave to file surreply to Kotzker’s objection to Fantalis’ objection to the entry of Default Judgment against Bruce Dunn (whew… the back and forth is really getting extreme). The motion was denied on a technicality:

Defendant Fantalis’ Motion for Leave to File Surreply [filed November 5, 2012; docket #107] is denied without prejudice for failure to comply with D.C. Colo. LCivR 7.1A, which states,

  • The court will not consider any motion, other than a motion under Fed. R. Civ. P. 12 or 56, unless counsel for the moving party or a pro se party, before filing the motion, has conferred or made reasonable, good-faith efforts to confer with opposing counsel or a pro se party to resolve the disputed matter. The moving party shall state in the motion, or in a certificate attached to the motion, the specific efforts to comply with this rule.

 

It looks like Fantalis has all but given up on trying to confer with Kotzker before filing. So Fantalis went and conferred with Kotzker, and needless to say Kotzker objected. So, Fantalis refiled the motion having fulfilled the technicality:

Calling out fallacy

This motion is a real beauty. Fantalis is basically arguing 3 points:

  1. Kotzker cannot argue that defendants are jointly and severally liable (JSL) in the complaint to minimize filing costs, and then later turn around and argue the defendants are independent from one another to maximize damages.
  2. Plaintiff is dropping charges and changing theories midstream to prejudice discovery proceedings.
  3. Plaintiff cannot collect twice on recovery.

 

1

So I know we all love to argue that swarm theory of joinder is bogus, and I still agree with this because in many cases it kills the troll business model before it begins: suing individuals one by one is not a profitable business model.

However, many districts like the theory, and many subpoenas are being granted under it. So it seems counterintuitive that in fact, the swarm theory of joinder has some benefits if a case has proceeds past the initial ex parte discovery phase that Fantalis is now trying to take advantage of, and some downsides Kotzker is trying to avoid. Also see Rob Cashman’s post, which explores this line of argument more fully.

Fantalis claims that Kotzker cannot argue that defendants are JSL in the complaint, and then turn around and argue they are not at the current stage. Plaintiff benefited in those early stages because it allowed them to file a single complaint against 30 Does, and get all their information with one subpoena. Now, they want to argue the opposite, because if they are JSL, then Malibu Media can only collect $150,000 among the 30 Does, instead of $150,000 from each.

In reliance on these sworn statements [on JSL], the Court permitted Plaintiff to proceed with filing a single case against 30 anonymous defendants and granted Plaintiff’s request for expedited discovery to uncover their personal identifying information [...]

However, Plaintiff’s interests have now changed. Plaintiff has achieved its goal: it obtained their personal identifying information of the Does and has obtained settlements from many of them. It got a settlement from Deus and a default against Dunn. Now Plaintiff simply seeks to maximize the amount it can collect from this lawsuit with as little public exposure as possible. Therefore, it is dropping any claims that would require it to reveal its own financial interests — hence, dropping its claim for actual damages — and is dropping the claim for contributory infringement because in that way, it can attempt to collect maximum statutory damages separately from each individual infringer.

Fantalis argues that plaintiff is estopped (a tool courts invoke to prevent the “improper use of judicial machinery”) from abandoning its previous allegations, on the grounds that it cannot hold two opposing points of view especially when the previous point of view was accepted by the court (they granted ex parte discovery based on swarm theory of joinder), and would prejudice the other party.

2

So as many of us suspected, Kotzker is now shifting tactics to avoid discovery and collect maximum damages for the Malibu Media. The charge dropped was contributory infringement, and Kotzker is now electing to take only statutory damages. This is important because

[B]y dropping the claim of contributory liability and demand for actual damages, Plaintiff has avoided providing discovery in response to any questions that might conceivably touch on anything but direct infringement and statutory damages until a decision is made on Plaintiff’s motion to dismiss. Moreover, Plaintiff seeks to gain an unfair advantage by avoiding this claim of contributory liability: namely, it seeks to avoid having to engage in a hearing on the issues of damages.

This is very important, because as we learned from Troll Nicoletti, and as we expected all along, Malibu Media is just a shell corporation whose sole existence is to contract works from Brigham Field and then sue individuals who download them. Ultimately, Brigham Field and other stakeholders in Malibu Media do not want to be exposed to liability through these lawsuits. Thus, they hope to limit and confound discovery of the financial workings of Malibu Media.

3

Finally, Fantalis argues that Malibu Media is not allowed to collect twice for the same infringement. The default on Bruce Dunn was ordered at $2,500 in statutory damages + $739.26 in attorney’s fees, for a total of $3,239.26 (which is funny on 2 counts. 1) it’s significantly less than the $30,000 they were requesting and 2) it’s less than the typical $3400 Prenda asks for settlement. I believe Malibu Media settles for between $7000 and $10000 for these multiple infringement suits. In this case, not even answering the summons is more economical than settling).

Fantalis also counts Dues in this action, and 8 other Does who settled in the previous action. Thus Malibu Media has recovered at least nine separate settlements for the same alleged act of infringement. Again they argued originally that the defendants were JSL. Accordingly:

Copyright infringement is in the nature of a tort, for which all who participate in the infringement are jointly and severally liable… under elementary principles of tort law a plaintiff is entitled to only one recovery for a wrong. Payments made in partial satisfaction of a claim are credited against the remaining liability.

Thus Malibu Media can only recover a total of $150,000 for the infringement from all Does combined if they are JSL. Now Kotzker is trying to pivot and say “No wait… these were separate acts, and we want $150,000 from each individual.” This position also prevents Kotzker from having to divulge settlement info related to the infringement to the court.

Further, it seems to me that if they want to argue that all members of the swarm for all time are JSL (as they argue in their complaints), settlements from any suit across the country for the infringement of a given film in the same swarm should be credited toward the same $150,000 total, not just the current action. After all, if defendants in the swarm in the same district spanning months of time are JSL, then any member in the swarm in any district at any time is JSL. But that is my own conjecture.

Finally, I leave you with this passage from the motion, which sums the whole piece up nicely (emphasis added):

As noted above, the allegations of Plaintiff’s Complaints against defendant… were very clear: these defendants are jointly and severally liable; they participated together in one massive, collective activity; and they could not possibly have acted alone because this was such a huge undertaking — in fact, the very nature of the technology requires concerted action. Thus, for Plaintiff now to say that each act of infringement was discrete and unique is not only disingenuous, it gives the lie to the entire foundation of Plaintiff’s cases across the nation. Either the defendants worked together or they didn’t. Either they participated in the BitTorrent or they didn’t. This is a question of fact without which Plaintiff cannot succeed in its case: if Plaintiff wants to concede this issue, it should be required to dismiss its entire case against Defendant. The fact that Dues settled and Dunn defaulted does not change Plaintiff’s burden on this score.

So what’s it going to be Kotzker? Joinder or no Joinder? Can’t have both.

Malibu Media v. Fantalis et al: an update

Posted: November 9, 2012 by SJD in Lipscomb, Malibu Media v. Fantalis
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Second Amended Answer; discovery sabotage; hearing on the Motion to Compel

If you follow the news, you certainly know that the people of Colorado have just voted in favor of legalizing marijuana for recreational use. That may help the number one Colorado copyright troll Jason Aaron Kotzker in more than one way:

  1. He finally can legally possess the substance that can boost thinking outside the box and help generating new ideas how to dodge discovery: Kotzker’s outright denial has become boring.
  2. After the hearing on Fantalis’s Motion to Compel this past Monday, Kotzker definitely needs some sweet smoke in order to avoid extra expense on toilet paper (and extra pants).

I’ll talk about the hearing in a while, but first let’s recap what has happened on this case since the last time I posted about it.

Second Amended Answer and Counterclaim

The most important event was the Second Answer to Complaint and Counterclaim, which was filed on 10/23.

Originally Fantalis filed the first version of the Second Answer and Counterclaim earlier in August with some procedural violations (without first filing a motion to obtain court’s permission). Kotzker succeeded in striking this first version (actually, it was a stipulation).

Yet it was a Pyrrhic victory for Kotzker: Fantalis later repeated the procedure, following the rules this time: got judge’s permission and filed a much better document given extra time and a never-ending flow of new information and ideas.

You can skim over other filings, but without reading the Second Answer and Counterclaim you cannot be fully engaged in the discussions. In addition, if you are a defendant in any other copyright shakedown lawsuit, this document is your Holy Book: it lists most of the basic defense ideas, and is written in English, not Legalese. Finally, if you are a casual web surfer, who stumbled upon this blog for the first time, you will find a near perfect explanation of the copyright trolling scam anatomy. While this site (as well as Rob Cashman’s and DieTrollDie’s ones) has a larger mass of relevant information, this information is dispersed over posts, pages and comments. The FAQ was designed to explain troll’s kitchen, but it is admittedly outdated. Given that, I cannot imagine a better “crash course about copyright trolling” than this document:

Unfortunately, because Fantalis is a pro se defendant, he is not allowed to file documents electronically, and therefore all his masterpieces are printed-mailed-scanned, i.e. they are not selectable/copy-pasteable/searchable. I may try to run some through OCR software: I feel a duty to preserve some of these documents for posterity (whatever posterity is) :)
Update: I replaced the embedded document with an OCR’d one, thanks to a good guy who emailed me offering his help.

On 11/02 Kotzker/Lipscomb filed an opposition to this document.

Trolls continue sabotaging discovery

During the phone conference that Judge Baylson had over the Bellwether trial in Pennsylvania, Keith Lipscomb (Kotzker’s “boss” and the extortion scheme mastermind) mentioned this lawsuit as one in a “very advanced stage.” In the post about that conference, I joked that Lipscomb must have meant an advanced stage of discovery dodging. Funny that at that time I did not know the facts described in the following paragraphs yet!

If you look at the barrage of motions, replies, and objections filed at the end of October/ beginning of November, you will understand the full extent of trolls’ despair: they do everything thinkable and unthinkable to avoid answering direct questions. No one is surprised: the truth may be too damning and is capable of not only torpedoing this particular case, but also sinking the entire USS Lipscomb.

In the previous post on this topic, I mentioned Fantalis’s 10/11 Motion to Compel Plaintiff to Produce Answers to Discovery. The hearing was set for 11/5 (this past Monday). A high-frequency sabotage ensued after that:

On 10/29 Kotzker attempted to delay the procedure and filed his Motion to Modify Schedule (was denied on 11/05).

On 11/02 Kotzker filed for an extension to file his Opposition to the Motion to Compel. Fantalis opposed). Nonetheless, Plainfiff’s opposition was granted on 11/05 during the hearing. I suggest reading the Fantalis’s reply: it called out Kotzker on his obvious sabotage. Fantalis arrived at a simple conclusion that everyone here knows already, he just put it nicely:

It has been Defendant’s position since the very beginning that Plaintiff has neither the desire nor the capability to litigate the case against the Defendant or any of the thousands of other defendants Plaintiff has sued around the country.

On 11/2 Kotzker filed for a stay of the hearing: the judge denied it as an obvious last-second ploy to avoid a discovery hearing. (Fantalis’s opposition followed.)

11/04 plaintiff’s Motion to Stay Discovery Pending Resolution of Plaintiff’s Motion to Dismiss the Second Amended Counterclaim was granted during the hearing (see the notes below).

On 11/5 Kotzker filed a Motion to Strike Affirmative Defenses. This was clearly a move to try to substantially limit discovery. As discovery may be taken on claims as well as defense, Malibu Media wants to limit Fantalis’s affirmative defense, and hence the discovery associated with it. A really desperate move, and of course Fantalis is expected to file an opposition.

Monday Hearing: good news overall

As I noted earlier, during this hearing, plaintiff’s Motion for an Extension to File his Opposition to Motion to Compel was granted (but read further to understand that it was not that important).

Another motion that the judge has granted was Kotzker’s Motion to Stay Discovery — pending resolution of Malibu’s Motion to Dismiss. It is not an extraordinary ruling, as there is a lot of case law that says that this is an acceptable arrangement. However, the judge only partially granted this motion, and then he went thought each request for discovery and told the plaintiff exactly what it had to produce or answer. That is why the meeting lasted for almost 4 hours.

At this moment you may start thinking that Kotzker had an upper hand, but do not be so quick: the real fun has just started. The following micro-events shaped the hearing, and many things went downhill for the trolls from here:

  • The Judge got Kotzker to admit “on the record” that an IP address does not equal a human.
  • Fantalis brought to the Court’s attention that Koztker had missed a ton of deadlines. In particular, Fantalis contested that some of the “handful” of documents turned over by Malibu Media should not have been marked confidential, and Kotzker has still failed to respond, even though the protective order in the case sets a hard deadline. The judge ordered Kotzker to respond by Wednesday or he would entertain a motion to dismiss the case for failure to prosecute. (This is an extreme remedy, especially when Kotzker is in Court for 4 hours and the judge still says he is not prosecuting the case — any attorney in his place would be sweating out gallons hearing that.) When the judge pressed Kotzker about missing so many deadlines, the troll said he would not take on any more cases.
  • The judge ordered the fee agreement between IPP (a German “forensic” company that harvests IP addresses from Bittorent trackers using super-secret software) and Malibu to be turned over to Fantalis. He said if it is a contingency agreement, then there will be a problem. It is against the standards of professional conduct to share a contingency fee with anyone apart from the attorney or lawfirm. (This could get ugly.)
  • The judge said that Kotzker’s and Lipscomb’s fee agreements with each other and Malibu Media were likely privileged, but the judge was suspicious enough that he ordered them sent to his personal chamber for review!!! This is huge. I do not remember the exact numbers, but anything past a 30% contingency is considered outside the norm, and anything approaching 40-50% is a big problem. If it is really a 9:1 contingency, it would not only be obviously unethical (and the judge would report it to the state bar), but it could actually be illegal.
  • Fantalis noted that some of Malibu Media’s responses, signed and attested to by Malibu Media’s co-owner Colette Leah appeared to be false (who knows if she ever really saw them: according to the comment she once left on this forum, she is just a brainless puppet in Lipscomb’s hands). The judge indicated that if defendant could substantiate that the responses were false (which he can and is in the process of doing) then Colette Leah could be brought in on potential perjury charges. At that point, Malibu owners are going to be put under oath, and the proverbial aromatic substance will hit the fan!
  • The Court directly told Jason Kotzker that if the jury found any of the “works” to be obscene, these “works” would not be subject to copyright protection. WOW. Marc Randazza must be saying some words at this moment: those words that usually cause 99% of normal people instinctively cover their ears.
  • And the icing on the cake: Fantalis has offered up his computers to Koztker and the judge “Maness style.” Malibu Media failed to take Fantalis up on his offer (surprise!).
Update

At the time of the writing of this post I was aware about Fantalis’s surreply calling out a trolls’ major fallacy: advocating joinder during the mass phase, but shying away from it when it comes to derivative individual lawsuits. I did not want to overburden this post and planned an update. Fortunately, one of the most active and articulate regulars wrote a nice analysis in the comments, which I converted to a post:

Copyright trolls: “We don’t care if you did it or not, we just want your money!”

Posted: October 12, 2012 by SJD in Lipscomb, Malibu Media v. Fantalis
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One of the most important battles with copyright trolls is Jeff Fantalis’s dedicated and well-versed counter-attack on a copyright troll extortion outfit comprised of its “boss” Keith M. Lipscomb, a jaded pornographer Brigham Field (Malibu Media), and Lipscomb’s local Colorado puppet Jason Aaron Kotzker. An update to this story has been long due.


Jeff Fantalis

What happened since Fantalis filed his excellent First Amended Answer and Counterclaims? I’ll try to briefly cover the main events. If my emotional comments seem overboard, refer to the court filings, and I hope your skepticism will vanish :)

  • On 8/8 Kotzker filed a motion to dismiss Fantalis’s amended counterclaim. This motion contained many assertions that were not supported by case law. Raul called it “a panicked troll bitch response.”
  • On 8/13 Marc Randazza crashed the party with one of his amicus curiae briefs prepared on behalf of the First Amendment Lawyers Association (FALA). This brief’s single topic was the claim that pornography belongs to the company of “useful arts,” and deserves copyright protection. My opinion on this issue was precisely expressed by a blog commenter:

    Randazza and the other copyright trolls brought this on themselves by abusing the court system with their predatory litigation practices. While I am definitely not one for censorship or limiting the ability of people to create works, even adult ones, I cannot help but be amused that the court system that the trolls and their adult film clients abused so egregiously of late could now potentially destroy them all if pornography is ruled to be uncopyrightable. That’s what they get for being greedy short sighted douchebags.

  • On 8/22 Fantalis opposed Randazza’s motion to file the amicus curiae brief, painting FALA as not a disinterested party, but essentially an adult business astroturf. The conclusion was that the brief’s biased opinion is neither welcome nor appropriate. Judge later allowed this brief to be filed.
  • On 8/24 Kotzker filed a motion for protective order (that was later granted), which included some outrageous statements:

    Plaintiff has good cause for a protective order because if this information is provided to the public, Plaintiff, its employees and affiliates will be subject to annoyance, embarrassment, oppression, or undue burden and expense pursuant to Fed. R. Civ. P. 26(c). Plaintiff is aware of anti-copyright blogs and websites that follow cases by Plaintiff and disseminate defense strategies and other information. Often these blogs and websites encourage individuals to harass Plaintiff, its employees and affiliates in order to discourage Plaintiff from filing suits against individuals that have infringed its copyrights. Several of Plaintiff’s counsel have received death threats and other harassing letters and emails. Plaintiff has a legitimate fear that if the information of its employees and affiliates is provided and disseminated to the public, Plaintiff, its employees and affiliates will be susceptible to similar threats and experience annoyance, embarrassment and harassment.

    Dietrolldie made a post debunking these cowardly lies. I only want to add one thought: as we learned about the impending bellwether trial in Pennsylvania, our blogs’ community became rather excited (just read the recent comments) about the prospect of a fair trial that could take place as early as in April 2013. That alone tells volumes more than trolls’ unsubstantiated accusations: would you expect such an excitement from a community of near criminals, as Mr. Kotzker and other pornotrolls try to portray us?

  • On 8/29 Fantalis filed his Second Amended Answer and Counterclaim. Although this document was later stricken, I highly recommend reading it: it is more refined than the previous one and has many new damning exhibits, including a Berlin Court’s injunction that finds Guardley’s IP harvesting methods erroneous. We were aware of this document for a long time, but it was not translated from German. Now we have an English version, and I advise movants to refer to it in any opposition to trolls’ claims regarding the accuracy of their forensic “experts,” especially in Malibu Media cases: Lipscomb’s outfit employs IPP International, which is merely a Guardaley’s facade.
  • On 8/31 the pot called the kettle back and filed a motion for Rule 11 sanctions. The content of this motion is a pure definition of irony: Kotzker claims that Fantalis’s counterclaims are frivolous. However, the motion does not present any facts that would support this claim, which makes this motion frivolous itself. I’m not sure that Kotzker understands this irony: by this time it became clear that our little troll is scared. His subsequent actions suggest that the fear of discovery overcomes the fear of being disciplined. Kotzker tries everything to stall the process, which is not a surprise: trolls excelled in taking off but did not care to learn how to land: in other words, despite filing hundreds of cases across the country, they did not even think about preparing to litigate.
  • On 9/5 Fantalis replied to plaintiff’s motion for protective order, thoroughly debunking all the phony claims that Kotzker had made on 8/24. I want to thank Jeff for defending our community from baseless attacks:

    The “anti-copyright” blogs, to which Plaintiff refers, are by no means against copyright as a matter of law. What they are dedicated to is to the education and support of John Does who have been sued or otherwise approached by a company like Plaintiff. They are anti-mass-for-profit-infringement-litigation blogs.

  • 9/22 Kotzker’s reply to response to motion for leave to amend is worth reading too.

So what about this post’s title? The answer is in 9/21 response to trolls’ motion for Rule 11 sanctions. While the document itself is a no less important and must-read than Fantalis’s previous filings, the most incriminatory piece is the exhibit, having seen which even very skeptical person will shake his head in disbelief. Four people — three attorneys and a 66 y.o. defendant — each filed a sworn affidavit that tells essentially the same story: how they approached plaintiff, voluntarily offering their hardware for forensic examination to prove innocence, and (surprise?) the troll said “no.” Or, translated to plain English, “We don’t care if you did it or not, we just want your money”:

 

So here we are. While this battle rages on, the trolls acquire new headaches every day. So far these headaches are:

  • A class action lawsuit against five pornographers, including Malibu Media;
  • Yesterday 33 Malibu cases in the Central District of California were reduced to a single Doe each;
  • Fast-track bellwether lawsuit in Pennsylvania;
  • Another defendant in Colorado fights back;
  • A defendant in Maryland (with a help of attorney Eric Menhart) comes up with a different set of counterclaims, explicitly accusing trolls of running a honeypot.

    • I’m sure I have missed a few. Moreover, it is clear that this list is destined to grow, as it is clear that trolls’ house of cards is shaking and will soon fall apart.

    Do not feed the trolls. Do not settle. In order to win, you must fight back.

    Updates
    • On 10/5 Plaintiff filed his further support for Rule 11 sanctions. He called this blog “anti-copyright” once again on page 21 (the irony continues: no fact supporting this claim can be presented) and whined that Fantalis should be stopped because… others can use his excellent reasoning in defending themselves! Unbelievable. Yet I’m grateful to the trolls for drawing the judges’ attention to this humble blog one more time. I hope that Judge Hegarty follows the links in the filings and will click on the footnote 12.

      Needless to say, the subject of this post was not addressed at all: seemingly it is not a big deal do extort obviously innocent people.

    • On 10/11 Fantalis, tired of plaintiff’s games, filed a motion to compel to produce requested documents. Must read.
    • On 10/12 Fantalis filed an objection to an earlier magistrate judge’s Report and Recommendation that advised to entry a default judgement against another defendant on this case, Bruce Dunn. As a commenter below noted, “it has much more to do with how a judgment against Bruce Dunn would prejudice his own case rather that out of charity. Fantalis is absolutely correct, that judgment against Dunn would be paradoxical if (read: when) Fantalis prevails at trial.”
    • On 10/18 Judge Hegarty granted Fantalis’ motion for time extension to file second amended answer and counterclaim, motion for leave to file second amended answer and counterclaim, denied Kotzker’s motion for Rule 11 sanctions, and denied as moot Fantalis’ second amended answer and counterclaim.

    11/9/2012. Follow-up post: Malibu Media v. Fantalis et al: update. Second Amended Answer; discovery sabotage; hearing on the Motion to Compel. All further updates will be posted there.

    In a well prepared and mighty counter-attack, “Malibu Media v. Fantalis” case turns into “Fantalis v. Malibu Media”

    Posted: July 20, 2012 by SJD in Lipscomb, Malibu Media v. Fantalis
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    Targeting so many different people, copyright trolls inevitably assault a wrong person once in a while. It is not surprise that sometimes a victim, instead of paying a ransom or waiting for the entire ordeal to play out, starts fighting. Statistically speaking, it is not a big deal for trolls: they learned how to handle the majority of the fighters: either let them go, so that they would stop interfering with gangsters’ moneymaking, or scramble all the might of the crooked minds to wrestle such defendants into submission: carpet-harassing them or pursuing them in individual lawsuits.

    Yet there are few who are not so effortlessly scared and who won’t go away easily. These folks are a real threat to the trolls “business.” So, statistically, yes: there is just a handful of real fighters, those that trolls would never target if they possessed a time machine, but given that the entire trolls’ business is essentially a house of cards, even a single serious counter-strike can severely damage extortionists. I’m not talking about motions to quash/dismiss/sever: I’m happy to see how many are being filed daily, and en masse these motions do make a difference, but, as I mentioned, trolls adapted and learned to live with the necessity to do a mountain of paperwork responding to those motions: a mass BitTorrent lawsuit is still a super-lucrative undertaking despite this unavoidable nuisance.

    Getting back to the super-fighters, we witnessed some in the past, and I hope that there are much more on the horizon. Liuxia Wong, with the help of Steven Yuen, inflicted significant damage to Prenda and the entire trolling scheme: she has shown victims that one can fight back and win (yes, win: although the case has been settled, one does not have to be a genius to understand who paid whom).

    A class action lawsuit filed recently against five pornographers is also a significant event, but given the nature of class action litigation, it will take years for its fruits to ripen: just look at Dmitriy Shirokov’s class action lawsuit v. Dunlap, Grubb and Blumpkin that Booth Sweet LLC has been litigating for 20 months, and which is not even close to a conclusion.

    For the record, it is worth to mention Seth Abrahams, who is currently suing Prenda and Hard Drive Productions and Bailey Zwarycz, who is a sharp bone in the throat of a weretroll Mike Meier.

    Copyright troll Jason A Kotzker

    So I have finally arrived to new and encouraging developments in Colorado, which are the subject of this post. It is kind of unfortunate that the good news from this beautiful state is tainted by a terrible and senseless tragedy.

    A month ago we noticed that in one of the Malibu cases run by a super-troll Keith Lipscomb’s puppet Aaron Kotzker, there was a defendant who not only answered to the complaint, declining the wrongdoing, but also included a one million dollar counterclaim. We cheered the defendant, Jeff Fantails, but it was not clear at that time if his claim was convincing enough to be potentially successful. Yesterday, after I read the First Amended Answer and Counterclaim, my doubts evaporated.

    The First Amended Answer asserts nineteen(!) affirmative defenses and attacks Malibu Media with six claims including abuse of process, invasion of privacy, defamation, and intentional infliction of emotional distress. The relief sought is one million dollars (in most of the claims). In addition (p. 40), there is an amusing yet reasonable request to run an advertisement in the Sunday edition of a major Denver newspapers stating that defendant was never guilty of the alleged torts. I hope that judge will consider this relief seriously, as reputational damage is much more serious than the loss of property.

    The Answer was carefully rewritten, and now it is probably the best explanation of the extortion scheme that exists to date. Like a sponge, it absorbed all the best what was written about copyright trolling, both on sites like this and in the court filings. Reading this document (especially pages 12-33) is essential if you want to understand the gruesomely huge extent of the harm copyright trolls inflicted on the court system, society and legal profession.

    Here is this gem:

    Another new and important change from the original Answer: exhibits to this filing are very interesting and critical for shaping a convincing counter-claim. These exhibits themselves deserve a separate couple of posts, and maybe I or someone else will corroborate later. I recommend paying attention to the following documets:

    • Exhibit E: Declaration of a John Doe defendant, David Kerr’s client, telling the story of the harassment he suffered from a call center — debt collectors to whom copyright troll Keith Lipscomb and his Mafioso organization outsource the actual blackmail and harassment. Note that the goons a) threatened to damage Doe’s reputation (“see your name in the Denver Post by the end of the week”), and b) threatened to report (nonexistent) criminal actions (“exposing minors to pornography”). The latter is a very definition of blackmail, and pretty much damning evidence as such.
    • Exhibit B: a business proposal by a German IP “harvester” APMS to a lawfirm, a cynical confession of immorality of the extortion scheme.
    • Exhibit F and Exhibit G: Emails that a piece of crap Lipscomb, who has an audacity to call himself a lawyer, sent to a defense attorney Brad Patrick a year ago. No comments necessary, one thing is clear — that Lipscomb is a much more serious enemy than a clown John Steele: the former is clever, inventive and merciless. Crushing his extortion outfit is critical, and I think we need to concentrate more on this previously neglected villain.

    The style, attention to details and overall quality suggest that there are some serious forces behind this “pro se” defendant, probably more than a single talented defense attorney. This is a strategic strike.

    Good luck, Mr. Fantalis! If you need any help, we will be happy to provide it to the extent that our humble abilities allow.

    Updates