On Monday 10/7/2013, a very powerful motion to quash was filed by a Michigan attorney Eric Grimm in Malibu Media v. John Doe (MIWD 13-cv-00893), a case in the myriad of shakedown lawsuits filed by Keith Lipscomb via his local in Michigan Paul Nicoletti. This is not the first time Eric Grimm draws his sword to defend an extortion victim. Remember Prenda’s AF Holdings v. Ciccone (MIED 12-cv-14442), the only collusive lawsuit filed by Prenda in a federal court? As many other reputable Doe Defenders, Eric Grimm intervened in this mockery of justice.
This time Grimm calls out Lipscomb’s abuse of the ex parte procedure, reminding the judge that the adversarial process is at the very core of the US justice system. Filing a one-sided ex parte motion to discover the identity of a Doe, a motion that conceals a lot of objective facts unfavorable to the troll, is, to put it very mildly, improper:
[...] When a filing is made on an ex parte basis, however, there is no adversary to give the Court a more balanced understanding of all the facts. Accordingly, a different and more rigorous standard applies: “(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts that are known to the lawyer and that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” MICH. R. PROF. CONDUCT 3.3(d) (emphasis added).
Grimm enlists what, in his opinion (and I 100% concur), are the truths that have been omitted by Lipscomb/Nicoletti. It does not make sense to quote all the 26 bullet points: each of them is noteworthy, and together they nicely summarize that trolls (Lipscomb’s in particular) have forgotten about their Oath of Admission to the Bar, and have been using courts as a robbery weapon for years.
Grimm gives a potent overview of the trolling phenomenon history, mentioning an instance when Lipscomb proceeded with his extortionate attempts against an innocent defendant. (Grimm does not point to the most egregious Lipscomb’s case, which I can’t help mentioning.)
Again, every paragraph is worth quoting, so I better refer you to the document: this is an epic motion.
Deterring infringement by suing only the wealthy
In one of the letters to the defense counsel, Nicoletti responded to defense’s claim that Doe has limited assets:
This isn’t possible. My client has developed a sophisticated analysis for these purposes which not only include a basic current asset search but also looks at the Defendant’s earning power over a 20 year period, the strength of our evidence when correlated to the subscriber household, whether the Defendant is sophisticated within the realm of IP (you’d be surprised how many IP lawyers end up as Defendants themselves), as well as a host of other factors.
We know that when trolls don’t poison the courts by frivolous filings, they are busy redefining the term “Chutzpah.”
So yes, a troll himself essentially admits that all the talk about protecting copyrights, deterring to-be infringers, etc. is hogwash. All that matters is money to enrich these leeches (and their “clients” who bathe in money). We knew it for a long time, but judges need to be reminded; the slow wheels of justice need to be lubricated.
What this means is that, for all practical purposes, the judge’s signature on the identity subpoena authorization order tends to amount effectively to a delegation of the judicial role to Paul Nicoletti and to Keith Lipscomb. They then arrogate to themselves the judge’s role of deciding how much each case is worth (reportedly, a sophisticated calculation involving the next 20 years’ earnings of any putative defendant, along with all the target’s collectable assets), and elect to decide in an typically overzealous way, what is “fair” to impose as a punishment on a cable subscriber who may or may not have deprived Malibu Media of as much as $25.00 or $50.00 in subscription fees. Are Lipscomb and Nicoletti objective judges of what consequences are fitting for such a horrendous loss (sarcasm intended) to a profitable company like Malibu? Obviously, their behavior suggests otherwise.
“We are saving marriages and making people happy”
Grimm did not forget about Lipscomb’s “client” — X-Art. The second part (Memorandum in Support: the same file, p. 12) questions the notion that hardcore pornography produced by X-Art is a “useful art,” and argumentatively questions the ostensive motives (“to deter to-be-infringers” and “to recover lost revenues”).
Malibu’s revenues are increasing, not declining, Malibu has disclosed. And settlements in copyright lawsuits, according to Malibu, represent substantially less than half of Malibu’s revenue. The X-Art website, says Malibu, is enormously profitable.
Especially if X-Art (Malibu) is highly profitable, and its profits from its website, not from lawsuits, continue to increase (as Malibu claims), despite being launched in the posttube era, perhaps Ms. Field really is less interested in averting the bankruptcy of X-Art (which, by every indication, does not appear imminent, to say the least), and more interested in funding what her Twitter feed suggests is a rather expensive lifestyle.
In a year-old interview (link NSFW) to Flashbot, XArt/Malibu Media co-owner Colette Field confirmed that they are not concerned with tube sites, which, according to the memorandum above, hurt the producers of pornography by orders of magnitude more than non-commercial Bittorent file-sharing:
Tube sites have brought us some traffic and I am ok with them as long as they remove our videos when we ask (which most of them usually do). I believe people who want real quality will still pay for it, regardless of the tube sites.
In a paroxysm of hypocrisy (or gullibility bordering cretinism), she also claimed (emphasis is mine):
I think X-Art has changed the way that people feel about watching erotica online. I think that we have made it ok for women, men and couples to enjoy beautiful sex scenes, get turned on, get off and have that be OK — I mean it is becoming acceptable in our society. We still have a long way to go, but I like to believe that we are saving marriages and making people happy.
Big thank to you, Colette, and your parasite attorneys, from thousands of families that you have blessed with happiness.